Anderson v State of Queensland (Queensland Health) [2013] QIRC 183

CITATION: Robert Michael Anderson AND State of Queensland (Queensland Health) (TD/2012/28) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Robert Michael Anderson AND State of Queensland (Queensland Health) (TD/2012/28) DEPUTY PRESIDENT BLOOMFIELD 29 November 2013 DECISION Background [1] This decision relates to an application for reinstatement filed by Mr Robert Michael Anderson whose employment was terminated by Queensland Health (QH) on 12 April 2012. Mr Anderson had initially commenced employment with QH on or about 3 May 1990. At the time of his termination he was employed as an Operational Services Officer (OSO) by Metro North Health Service District (the District) at the Caboolture Hospital. [2] Mr Anderson's termination occurred as a result of a "show cause" process initiated after the District received a complaint about a threat he allegedly made towards another OSO, Ms A. Telfer, on 23 September 2011. In making the decision to terminate Mr Anderson's employment QH also took into consideration other disciplinary action taken against him in 1995, 1998 and 1999, as well as an alleged threat made against another OSO, Mr A. Larkin, in June 2012. [3] On behalf of Mr Anderson it was argued that the alleged threat to Ms Telfer was not a threat as such but, rather, part of a role play scenario depicting a "Code Black" (aggressive patient) situation. It was also argued that: • the termination was a grossly disproportionate response to the actions of Mr Anderson (i.e. it was simply a role play) and there was no valid reason to terminate his employment; • in deciding to take into account events that had occurred in the 1990's, QH's decision-maker failed to give any, or adequate, consideration to the fact that Mr Anderson had no disciplinary issues between 1999 and 2012; and • the decision-maker should not have taken into account an alleged June 2012 incident involving Mr Larkin, another OSO, because there was no investigation carried out in relation to that matter. Suspension followed by opportunity to respond [4] Following his suspension on pay, on 17 October 2011, Mr Anderson was informed, by letter dated 24 October 2011, that the District had received a complaint from Ms Telfer regarding allegations of sexual harassment over the previous two years and threatened physical violence towards her on 23 September 2011. The actual allegations were expressed as follows: "1. Ongoing sexual harassment over the past two years with inappropriate comments such as asking her (Ms Telfer) to hold your hand, give you a kiss and do star jumps. 2. On 23 September 2011, when working a shift with Ms Telfer you asked her to hold your hand and to give you a kiss on at least two occasions. At approximately 2.30pm, following Ms Telfer's refusal to comply, you threatened to smash her head through the door.". [5] Attached to the letter was a copy of Ms Telfer's complaint, dated 14 October 2011, which read as follows: "Incident regarding Friday 23/09/2011 On this day I (Aimee Telfer) was on a pm complex shift with Michael Anderson (Ando) and Thomas Dillewaard. At approximately 2.30pm while outside the restrooms opposite the Paediatric ward Michael proceeded to ask me to 'hold his hand' and 'give him a kiss' as he had been earlier in the shift and he does on a regular basis. I tried to laugh the comments off by replying with 'no you're a dirty old man Ando cut it out' to which he responded with 'call me that again and I'll smash your f***ing head through the door'. At this point I did not realize the serious nature of the situation and was still thinking he was mucking around so I responded by telling him 'well stop acting like a dirty old man and I'll stop calling you one'. He continued with 'go on keep going, I will smash you into this door just keep going', it was at this point I finally noticed how his mannerisms and tone of voice had changed and I started to feel scared. Tom had picked up on this sooner than me and stood beside me de-escalating the situation by signalling to me to stop talking. Feeling uncomfortable I worked mostly with Tom for the rest of the evening. -- 1 of 21 -- 2 I'm not a confrontational person so over the past two years I have let many comments slide not wanting to be the girl that runs to the office over every small comment and am only drawing the line now because I feel like it has defiantly (sic) gone too far now that I actually feel unsafe in the workplace. I've avoided conflict by making a joke out of many comments feeling that if I did it would take the power away from them to get a rise out of me. But I no longer want to be continually hassled with such comments and realize the only way to change this is to write down exactly what I feel is inappropriate and that I want it to stop. I don't want to walk into work and be asked to do star jumps because it makes me feel embarrassed and self-conscious nor do I want to be continually asked to 'hold hands' or 'give kisses'. Because I never put a stop to it in the beginning it has meant that other staff members also feel it is ok to make these comments as well and I admit I have some responsibility there. There have however been a couple of instances where Michael has made me feel extremely uncomfortable with physical actions. One time being when I was fairly new he kept asking me for a hug, he eventually acted sad so I gave him one. He picked me up off the ground, squeezed me tight and later that night made comments to me about how he loved that hug because my breast were pressed up against his body. Another time he was sitting next to me and asked me to sit on his lap, I kept refusing but did not leave the room because I had to walk through a narrow space in front of him to get out. Eventually another staff member (who verbalised how they didn't understand what the big deal was) sat on his lap and jokingly did a grinding action. These two I believe to be friends outside of work, however I am not so this situation made me feel very uncomfortable. I don't know why Michael has felt the need to make these comments to me, weather he feels women like this kind of attention or if he really is tying to make me feel uncomfortable I'm unsure of all I know is that I want it to stop. But as far as the threatening behaviour goes I think that a grown man should know that is completely unacceptable and I want to see something done about it because I don't feel this behaviour should be tolerated in the workplace and I am not going to.". [6] Also attached to the letter was a statement of Mr T. Dillewaard, another OSO, who had witnessed part of the incident Ms Telfer complained about. Mr Dillewaard's statement read as follows: "I was the third person on shift PM complex (with Michael Anderson and Aimee Telfer), near the public toilets opposite Paediatric Ward. Michael was the more experienced permanent staff member on the team, and we followed his guidance on what we were doing that night. After a 1330 shift start, we started with the ground floor public toilet rounds. Initially the mood was light, joking around as we went, until we reached the toilets opposite the Paed's Ward. I started cleaning the toilets and heard snippets of a conversation about Aimee's Code Black skills. At approximately this point I left the female toilet where I was cleaning to find the mood had changed, Michael was forcefully challenging Aimee to perform a particular Code Black move, which she jokingly refused, he then approached her in the corridor and raised his fist to her face, he was facing her and leaning in toward her about half a meter away from her, and said 'don't ever say that to me again or I will put your head through a wall', at this point hearing the aggression in Michael's voice, I removed Aimee from the immediate area by standing between them and steering her away. Whilst doing this there was a further exchange of heated words said between them, however I can't recollect what was said. I advised her to stay away from him. There was a lot of tension between Aimee and Michael throughout the shift, however with distance and me as a buffer the conflict didn't reoccur.". [7] The letter to Mr Anderson, signed by the Chief Executive Officer of the District, Professor Keith McNeil, informed Mr Anderson that there may be grounds for him to be disciplined pursuant to the provisions of s. 187(1)(b) and s. 187(1)(f) of the Public Service Act 2008. As such, Mr Anderson was invited to respond in writing, within 14 calendar days, why disciplinary action should not be taken against him in relation to the allegations. In his response, dated 3 November 2011, Mr Anderson said, inter alia: "Response to Incident Friday, 23 September 2011: I started my shift (pm complex) with Tom Dillewaard and Aimee Telfer who are both experienced in the pm complex duties, so therefore should not need any guidance to do the job. (everybody should know what needs to be done and do it without continually asking me), this does become frustrating when it happens so often. We started cleaning the toilets, we were on to the third set of toilets when I went in to do my cleaning part, when I finished I came out and Tom went in to do his bit. While Tom was in the toilets cleaning -- 2 of 21 -- 3 Aimee and I got talking about code black procedures and what she would do in the event of being confronted by a psych patient, I've been trained in Code Black and believe more staff members should be trained as every time there is a code black there never seems to be anybody around to attend to these situations. I was showing her a few code black moves and as they teach you in these training sessions I was showing her how to keep her hands up to protect herself and was asking her what she would do if a psych patient got right up in her face as it's happened numerous times as we do have a mental health ward at the Caboolture Hospital. She was laughing and joking and it was still light-hearted at the time, it did frustrate me as a lot of people I work with don't realise the seriousness of these situations so in showing her what could happen I did get right up in her face and started to raise my voice just to give her an example. At this point I asked her what she would do or say to someone if they did get up in her face, to which she responded 'I would kick you in the f###ing balls'. I then said to her, 'No Aimee, that's not how you would do it, you would say Stop, get back!' In saying this to her I had my hands raised up showing her that's how you would stand, facing the patient, hands up in the air saying 'stop, get back!'. I do realise now that saying, 'I'm gonna put your head through the wall' was probably not a very good example as clearly it was misunderstood. These were all scenarios we were acting out at the time, I might've sounded aggressive because that's how it's taught in training and I thought Aimee realised I was still giving examples of what might happen in these instances, I'm assuming that's when Tom re-emerged from the toilets and heard the aggressiveness in my voice. I didn't realise there was a problem as by Tom's own admissions we did all work together for the rest of the shift, in fact we went and finished cleaning the rest of the toilets straight after that all happened. I've even worked shifts with Aimee since this all happened, I would've thought if there was a problem it would've been reported there and then. Aimee is a call-in so if there was any dramas working with me she could've requested not to as one of our supervisors is the harassment officer and could've done something about it if there was a problem.". [8] Elsewhere in his response Mr Anderson completely rejected Ms Telfer's complaints about harassment over the previous two years querying, firstly, why if he had been acting towards her as she alleged she had waited for so long to make any formal complaint and, secondly, why other staff members who worked in complex had not made any comments given that most of them were supervisors or relieving supervisors. He also asked Professor McNeil to disregard an additional anonymous complaint, received by the District on 29 September 2011, observing that it was written "on behalf of a friend of a friend". [9] In his concluding remarks Mr Anderson invited Professor McNeil "… to take my working history into consideration as I have been a Queensland Health employee for over 20 years and have never had these sorts of complaints made against me, any complaints for that matter. I am horrified I have been accused of such actions.". Show cause process [10] On 28 November 2011 Professor McNeil again wrote to Mr Anderson. In this letter he informed Mr Anderson that, having considered all the information available to him including Mr Anderson's response, there was insufficient evidence to substantiate allegation one (see paragraph [4] above). Professor McNeil also noted that Mr Dillewaard did not witness Ms Telfer's allegations that Mr Anderson had asked her to "hold [your] hand" and "give [you] a kiss" and, on that basis, found there was insufficient evidence to find that he (Anderson) made those requests to Ms Telfer. [11] Nonetheless, Professor McNeil also went on to inform Mr Anderson that, based on all the information available including his response, he found the allegation he had threatened to smash Ms Telfer's head through the door, or a threat to that effect, substantiated on the balance of probabilities. Professor McNeil also noted, with some concern, the similarity between Mr Anderson's interaction with Ms Telfer on 23 September 2011 and an incident that occurred on 15 June 2011 between he and a Mr Larkin, another OSO employed in the District. [12] In the course of his correspondence, Professor McNeil also said: "The evidence in this case raises serious concerns regarding your behaviour. As a Queensland Health employee, you occupy a position of considerable trust and responsibility. Your actions did not project the desired image of a Queensland Health employee. As a long standing employee you should have an understanding of acceptable behaviour in the workplace. However, in my opinion, the most recent -- 3 of 21 -- 4 incident with Ms Telfer is further demonstration that you are unwilling to ensure your behaviour is acceptable and appropriate. I have noted that over the past 3 years you have attended Aggressive Behaviour Management Orientation and two sessions on the Code of Conduct. The Code of Conduct presentation contains advice and information about harassment and sexual harassment within the workplace….". "… As advised above, your overall work record, including previous disciplinary actions or warnings will be taken into account when determining an appropriate disciplinary action. Therefore consideration will be given to the following: • a written warning from Mr Graeme Carswell, Acting Regional Director, Sunshine Coast Regional Health Authority dated 17 November 1995, for behaviour amounting to sexual harassment toward an operational services officer at the Redcliffe Hospital (letter attached); • a reprimand from Dr Steve Buckland, District Manager, Redcliffe-Caboolture District Health Service dated 28 April 1998, for unacceptable workplace behaviour and abusive language towards your supervisor (letter attached); and • a reprimand and penalty of $100 from Dr Buckland dated 19 May 1999, for acting in an intimidating and threatening manner towards two co-workers (letters attached dated 28 April 1999 and 19 May 1999). I will also take into consideration the incident that occurred on 15 June 2011. Mr Larkin alleged you followed him into the staff toilets of Caboolture Hospital and threatened him on multiple occasions, by saying 'I'll put your head through the wall'. Following an incident report (copy attached) submitted by Mr David Larkin, Operation Support Officer, you were counselled by Mr Vic Pocklington, Director, Workplace Relations, on 17 June 2011 (copy of file note attached), to avoid confrontation and threatening staff. Mr Bruce Hicks, Operational Support Services Supervisor, had noted that on the 14 June 2011 (copy of file note attached), you had approached him complaining about Mr Larkin and if you work with him that you would 'end up hitting him'. Mr Pocklington advised you to keep in mind that behaviour of this nature is not acceptable and 'could mean the sack'. As a resolution to this matter, I understand you undertook to re-establish a normal working relationship with Mr Larkin who accepted your commitment….". [13] Elsewhere in his correspondence Professor McNeil informed Mr Anderson he believed there were grounds for him to be disciplined pursuant to s. 187(1)(b) of the Public Service Act 2008, namely: that he was guilty of misconduct in that his behaviour in an official capacity was inappropriate or improper when, if substantiated, he threatened to smash Ms Telfer's head through the door as outlined in allegation two (see paragraph [4] above). [14] Mr Anderson was also informed that, given the serious nature of the allegation, consideration was being given to the disciplinary action of termination of his employment, although no final determination of the disciplinary action had been made, or would be made, until he had the opportunity to respond. Mr Anderson was also informed that he had 14 calendar days from receipt of the letter to show cause why the proposed course of action (i.e. termination of employment) should not be imposed. [15] On 5 December 2011 Mr Anderson requested a copy of his personal file, including all records relating to any disciplinary matters, so as to enable him to prepare an accurate response to the matters raised by Professor McNeil. He also sought an extension of time in which to prepare and lodge his response. [16] On 13 December 2011, having been provided with copies of all the requested documentation in his personal file, Mr Anderson responded to Professor McNeil's letter of 28 November 2011. In his response Mr Anderson: • reiterated that the words and actions directed towards Ms Telfer were in a role play situation; • admitted that, in retrospect, his choice of words was not good; • highlighted that he was simply trying to show Ms Telfer, who had not received any Code Black training, how dangerous such situations can get; • acknowledged that while he "had words" with Mr Larkin he had not threatened him in any way; • said that the issue between he and Mr Larkin had been amicably resolved - a fact which had been witnessed by another employee (Mr Dan Winter); • claimed that when he spoke with Mr Hicks about Mr Larkin on 14 June 2011 he was talking with him as a workmate, not as a supervisor; • said that if he realised Mr Larkin still had issues with him he would have submitted his own incident report in June 2011; -- 4 of 21 -- 5 • stated that while he understood Professor McNeil's need to take into consideration his overall work record he still queried the relevance of events which were quite dated, especially given that he was in "a rough place" at the time in that he was going through a marriage breakdown and was also being treated for depression; and • drew Professor McNeil's attention to the fact that he had now worked at Caboolture Hospital for 12 years without any incidents. [17] After considering Mr Anderson's response, Professor McNeil decided that due to the serious nature of the allegations the proposed disciplinary action of termination of employment should be imposed. To that end, in accordance with the Queensland Health Human Resource Delegations Manual, he referred the issue of Mr Anderson's continued employment to the appropriate delegate, the A/Deputy Director-General, Human Resource Services of Queensland Health, Ms L Rowland, to decide whether Mr Anderson's employment should be terminated. [18] In the end result, after reviewing a Departmental Briefing Note, to which was appended copies of all the relevant correspondence and attachments, Ms Rowland decided to take the disciplinary action of termination of Mr Anderson's employment, effective immediately, with five weeks' pay in lieu of notice. Evidence on behalf of Mr Anderson [19] In his Affidavit of evidence (Exhibit 2) Mr Anderson largely (but not exactly) repeated his description of the events of 23 September 2011 as set out in his initial response to Professor McNeil on 3 November 2011 (see paragraph [7] above). The main (but not the only) points of difference were the circumstances by which Mr Anderson and Ms Telfer happened to enter into a discussion about Code Black moves and how Mr Anderson came to use the words "I'm gonna slam your head through the wall". [20] Mr Anderson said the discussions about Code Blacks, and role play, occurred after he was given the complex phone as well as the CCU phone and asked the OSO who gave him the complex phone whether Jarod, a mental health patient, had been playing up. After that person left the following conversation, or to the following effect, occurred: "Aimee: 'I can handle Jarod, I can handle any patient.' Me: 'Do you want the main phone then? You have to know how to handle it.' Aimee: 'I can handle it, no trouble at all.' Me: 'You need to know how to handle code blacks, what would you do if a patient charged at you?' Aimee: 'I would just kick them in the f**king balls.' Me: 'No Aimee, that's not how you do it, you would say Stop! Get back! And raise your hands in front of you.' I raised my hands in front of me to demonstrate the correct posture. Aimee: (laughing) 'I'd still kick them in the nuts.' Me: 'What if they were coming at you saying 'I'm gonna slam your head through the wall' like this'." [21] Mr Anderson also down-played any apparent concern by Mr Dillewaard at the interaction between he and Ms Telfer, stating that when Mr Dillewaard came out of the male toilets he simply walked past them saying words to the following effect "Hey Ando, what're (you) doing - showing her the moves?" after which he went into the female toilets. [22] Mr Anderson also claimed that at the start of the shift on 23 September 2011 Ms B Harris, his Supervisor, introduced him to Ms Telfer as her "slave for the day" as a result of which Ms Telfer held out her hand stating "I left Michael Buble at home so you can kiss my hand...". Mr Anderson said he shook his head, ignored the comment and Ms Telfer's gesture and left the room. Nonetheless, he also claimed to have asked Ms Telfer "How's it going, how's Michael Buble?" on one occasion (out of three or four times he saw her) during the following few weeks. -- 5 of 21 -- 6 [23] In relation to the David Larkin incident, Mr Anderson said he was confused about why that matter had been raised by Professor McNeil as he had been led to believe by Mr Pocklington that no record of the incident had been made and no further action was to be taken in relation to it. To that end, he and a Mr Matthew Morgan, a Transport Workers' Union (TWU) organiser, met with Mr Pocklington in early December 2011 to ascertain exactly what he (Anderson) needed to address in his response to Professor McNeil. Mr Anderson said he remembered Mr Pocklington telling him that he needed to address everything that Professor McNeil raised in his letter. [24] Mr Anderson claimed (at paragraph [39] of Exhibit 2) that Mr Hicks made a point of warning him on 14 June 2011 to watch out for David Larkin because he had been putting in complaints about other employees since he stopped being a Supervisor. Mr Hicks also told him to be careful of Mr Larkin because "he is dangerous, he is an ex-policeman and you need to watch out for him". He also claimed that Mr Hicks said "just to keep you safe Ando, I'll move him for you because not many people want to work with him any more because he is starting to get nasty". [25] On the following day, 15 June 2011, Mr Anderson received a call from someone in the Emergency Department of the Hospital who asked him if he could help an older woman lift her motorised wheelchair into her car. As he was busy helping a nurse turn a patient he contacted Mr Larkin and asked him to get some assistance and go and help the woman, a person whom Mr Anderson regularly assisted. Mr Larkin allegedly responded by stating words to the effect that he wasn't going to help the lady because he didn't want to hurt his back and because he was on a break. When he (Anderson) told him that it was part of his job Mr Larkin allegedly responded by saying "too bad, I'm on a break". [26] Later in the evening Mr Anderson asked another employee, Ms Karen Brierley, about Mr Larkin's whereabouts and why he, or someone else, didn't help the lady outside Emergency. Ms Brierley allegedly responded by saying that Mr Larkin had been sitting in the tea room for an hour and that she didn't know why he could not have helped. [27] Mr Anderson said that at knockoff time he was in the tea room when David Larkin approached him aggressively and came up close to him. He raised his arms in a defensive gesture and asked Mr Larkin what his problem was. In response, Mr Larkin is alleged to have asked, three or four times, "have you got a problem with me Anderson?". After a female supervisor, Ms Wolfenden, told them to, in effect, stop their bickering Mr Larkin went into the male change rooms to collect his bag. [28] Mr Anderson said he and Mr Winter then went to the change rooms to collect their own bags. While in the change rooms Mr Anderson allegedly told Mr Larkin, in words to the effect, that he wasn't very impressed with the way he (Larkin) had dived into his face in the tea room because it was embarrassing and it was like bullying, especially in front of the other staff. Mr Larkin allegedly mumbled something which Mr Anderson did not hear. He then said "I know I was wrong Ando" after which Mr Anderson told him 'all they had to do was work as a team and stuff would be done'. [29] They then shook hands and left the change rooms. Mr Anderson said that at no time did he threaten Mr Larkin. He definitely did not say that he would put Mr Larkin's head through the wall. [30] On 17 June 2011 he (Anderson) was asked to go and see Mr Pocklington. He alleged the following conversation and events occurred (see paragraph [49] of Exhibit 2): "Vic Pocklington: 'I hear you've been having a bit of trouble with Dave.' Me: 'Yeah but we've cleared it up, we only had a bit of an argument about helping someone in to their car. It was in the kitchen and Dave was in my face and there were other people there.' Vic Pocklington: 'Dave's made a complaint but not a written complaint.' Me: 'As far as I'm concerned we shook hands after and it's finished.' Vic Pocklington: 'I'll get back to Dave and let him know you don't have a problem'. Vic Pocklington then screwed up the paper he had been writing on and said: 'We'll leave it at that then Michael.'." [31] Mr Anderson said that Mr Pocklington did not raise anything about what might have happened in the change rooms. Further, he did not put the allegation that he (Anderson) had threatened to put Mr Larkin's head through the wall. In addition, there was no investigation undertaken in relation to the matter and, as far as he knew, no -- 6 of 21 -- 7 one had interviewed any of the witnesses on the evening, including Mr Winter who was the only witness to what happened in the change rooms. [32] Under cross-examination Mr Anderson gave the following evidence: • he had never forgotten the 1995 sexual harassment allegations and the subsequent court proceedings; • he had requested Professor McNeil to take his previous work history into account in considering Ms Telfer's allegations; • contrary to what appeared in paragraph [67] of his Affidavit (i.e. there had been no disciplinary issues between 2000 and 2011) a complaint of harassment had been made against him in 2003; • he did not tell Mr Hick's that if he continued working with Mr Larkin he would end up hitting him. What he said was 'I'd give him an upper cut and send him away, you know, send him home.' (Transcript 1-22); • he did not actually talk to Mr Larkin on the evening of 15 June 2011 about helping the lady with her motorized wheelchair, as he claimed in paragraph [25] above. Rather, he spoke to Ms Brierley who told him that Mr Larkin had been sitting in the tea room for an hour; • contrary to what he said at paragraph [28] above, about Mr Winter going into the change rooms with him, he was not sure whether Mr Winter was already in the change rooms when he went there or whether he (Winter) followed him in; • he only noticed Mr Winter's presence after he finished talking to Mr Larkin and turned around. Mr Winter was standing next to his locker with his bag over his shoulder; • he accepted that it was only after he saw a memorandum from Mr Hicks (who mentioned a comment Mr Winter made to Ms Wolfenden on the evening in question), after he requested his personal file, that he mentioned the presence of Mr Winter during the incident in the change rooms with Mr Larkin; • he did not ask Ms Telfer to sit in his lap and Ms Harris did not come and sit in his lap either, because he did not ask anyone to do that; • Ms Telfer did not tell him, on 23 September 2011, about receiving unwanted attention the night before and wanting to do "a ghetto beat down", a Code Black move she had invented, on the person who was bothering her; • he did not challenge her to do that move on him; • he did not ask Ms Telfer to hold his hand or to give him a kiss; • she did not tell him "you are a dirty old man Ando. Cut it out"; • he did not say "call me that again and I will smash your f***ing head through the door", with his fist raised as he stepped towards her; • Ms Telfer did not say "well, stop acting like a dirty old man and I will stop calling you one"; • he did not say "just keep going. Keep going. I will smash you into this door. Just keep going"; • Mr Dillewaard did not step between he and Ms Telfer; • he did not tell Ms Harris, several days later, "I think I went to far with Aimee"; and • in a discussion with Mr Pocklington in June 2011 he (Anderson); o did say that he did not like Mr Larkin; o did say that Mr Larkin had big-noted himself in front of other staff members in the tea room; o did say that he later confronted Mr Larkin about it; o did not threaten to put Mr Larkin's head through the wall; o did not say that he understood that a physical altercation could result in him getting the sack; and o did not say that he would stick up for himself and not be stood over by Mr Larkin or anyone else. [33] In re-examination Mr Anderson said: • when he met Mr Pocklington in June 2011 it was not put to him that Mr Larkin had alleged he (Anderson) threatened to put his head through the wall; • he did not find out about the nature of Mr Larkin's allegation until he read his personal file in early December 2011; and • he had not been counselled or warned about the complaint made about him by another staff member in early 2003. [34] Mr Tristan Jobling said he had heard Ms Harris refer to Mr Anderson and other staff members as some other employees' "slaves for the day" on numerous occasions. If the person was Ms Telfer she would hold out her hand and say words to the effect of "you (or you guys) are my slave/s for the day, you can kiss my hand". -- 7 of 21 -- 8 [35] Ms Elizabeth Smith said that she had been physically injured, in late 2009, by a security officer at the hospital when he was allegedly demonstrating a Code Black move. She said she submitted five separate complaints about that incident but had been "fobbed off" by management who said it was all just horseplay. [36] She subsequently submitted another formal complaint on 15 March 2012 but remained unaware of any action taken by management regarding that complaint. [37] Under cross-examination Ms Smith denied telling her supervisors that she did not wish to take the 2009 incident any further provided the security officer concerned did not behave in that way towards her again. However, she acknowledged that after September 2009 she had not made any further complaints about the individual concerned. She also denied her motive for lodging the formal complaint on 15 March 2012 was her response the action taken by the District against Mr Anderson. Evidence on behalf of Queensland Health [38] In his Affidavit (Exhibit 8) Mr Pocklington said Mr Larkin telephoned him on 17 June 2011 in a very distressed and agitated state. When he came into Mr Pocklington's office he appeared "very rattled", he was standing up, pacing around and white-faced. It took some time before he would sit down. [39] Mr Larkin told him that because of his police background he had been getting some security shifts which Mr Anderson thought involved preferential treatment. As a result of Mr Anderson believing that one of his friends was being disadvantaged he had been making sly digs at him (Larkin) whenever they were working together. [40] Mr Larkin then told him about an incident earlier in the week when Mr Anderson blamed him for not having assisted a wheelchair patient and physically threatened him. Mr Larkin gave an account of having being followed into the toilets/change rooms at about 10.10pm at which time Mr Anderson is alleged to have said "I don't give a f**k who you are, I'll put your head through the wall." This was repeated a number of times during a long line of threats and accusations that lasted for several minutes. [41] Mr Pocklington said that Mr Larkin told him he had used his experience as a police officer to diffuse the situation but was concerned that if he had made a wrong move Mr Anderson would have hit him. Mr Larkin said he was concerned for his safety in the future and was hopeful of resolving any issues with Mr Anderson on an informal basis. [42] In light of Mr Larkin's concerns Mr Pocklington asked Mr Anderson to come and see him in his office, which happened about 1.30pm on 17 June 2011. Mr Pocklington said he told Mr Anderson what Mr Larkin had reported, as set out above, and informed him (Anderson) that Mr Larkin had real concerns about his safety. Mr Larkin also did not know what he had done to upset him (Anderson) and was particularly concerned about the events in the change rooms earlier in the week. [43] Mr Pocklington said that while he was explaining what Mr Larkin had told him, Mr Anderson was listening carefully, nodding his head from time to time and saying "yeah", "yeah". Mr Pocklington said that although he did not put the actual allegation of threatening to put Mr Larkin's head through the wall he was left in no doubt from Mr Anderson's response that Mr Larkin's version of events was substantially accurate. Mr Pocklington also gave the following evidence about the conversation: • Anderson said he did not particularly like Larkin. He had a "copper mentality" and he was arrogant; • Anderson agreed there had been an incident earlier in the week when he felt that Larkin big-noted himself in front of other staff members in the dining room when he approached him (Anderson); • Anderson said he told Larkin to back off and later confronted him about what had happened in the dining room; • Anderson did not want to pursue anything which had occurred as he felt the issue was over; • he confirmed with Anderson that he understood that a physical altercation would mean the sack, which Anderson acknowledged; • he told Anderson that his role was to assist with resolution, mediation and de-escalation; • he told Anderson that he was happy to go back to Larkin to inform him that as far as Anderson was concerned the matter was finished; • as far as possible, he (Anderson) and Larkin would be separated on shifts; and • Anderson agreed to the course of action proposed. [44] Mr Pocklington also said that Mr Anderson's version of their conversation had been misrepresented and not fully recorded. The correct version of events was as set out above. Mr Pocklington also denied screwing up the paper he was writing on and attached a copy of his notes, said to have been taken at that meeting, as an exhibit to his Affidavit (Exhibit 8). -- 8 of 21 -- 9 [45] In the course of his cross-examination Mr Pocklington said: • an investigation into allegations of unacceptable conduct would not always be required under the Public Service Commission's Discipline Guidelines (Exhibit 9 at page 8), an example being where there was sufficient information/evidence to enable the matter to be dealt with without a formal investigation; • generally, the more serious the allegation the higher degree of probability required to substantiate the allegation; • after receiving Ms Telfer's statement on 14 October 2011 he discussed the allegation with the Executive Director and Director Corporate Services of the District and, based on their response, prepared a recommendation to QH Head Office that Mr Anderson be suspended on pay pending a formal investigation into the allegation; • in the course of his email to QH Head Office he referred to a history of similar behaviour by Mr Anderson stretching back to 1995 (two reprimands and a warning) and expressed his concern for the safety of Ms Telfer and Mr Dillewaard, recommending that the Internal Witness Support Unit be contacted; • after receiving Mr Anderson's response, dated 3 November 2011, he prepared a draft letter for Professor McNeil to send to Mr Anderson which called upon him to respond as why his employment should not be terminated. In the course of this letter he referred to Mr Anderson having received two previous reprimands and a warning as well as being involved in another recent incident; • the best words he could use to describe Mr Larkin's demeanour when he met him (on 17 June 2011) was that "he was rattled"; • based on the information then before him he thought there was some urgency for the "problem" between Mr Larkin and Mr Anderson to be addressed (Transcript 2-26); • he wanted to work through the issues with Mr Larkin and Mr Anderson (individually) "just to get a feel for what was happening"; • as a result of the conversation he counselled Mr Anderson about getting into situations of violence with someone else; • he did not see the incident as requiring a disciplinary solution; • his purpose in talking to Mr Anderson was to satisfy himself that some sort of incident had happened involving Mr Larkin. Once he established that an incident had happened, he needed to ensure it had been addressed from the perspective of each party, feedback had been given to the person who was aggrieved and, hopefully, the situation was going to be diffused - leading to a reasonable outcome (Transcript 2-33); and • he was surprised that Mr Larkin subsequently put in an incident form, in that he thought he wanted the matter dealt with informally. [46] In her Affidavit (Exhibit 17) Ms Telfer said she had worked as a casual OSO since 2009. Shortly after she commenced employment she worked some common shifts with Mr Anderson. She found him to be very tactile in his dealings with her, frequently seeking to touch her hand. As time went on she became increasingly more uncomfortable as his attentions towards her became more frequent. For example, he would ask her to hold his hand, give him a kiss, give him a hug and ask her to do star jumps. He also made comments such as "damn, you look good today". Such comments were usually accompanied by "a seedy stare when he would look at my breasts". [47] On 23 September 2011 she was detailed to work on a complex shift with Mr Anderson and Mr Dillewaard. She recalled joking around and mentioning Code Black moves, at one point telling Mr Anderson that she would "Code Black him" in response to his being sleazy. Ms Telfer gave the following evidence about the incident during that shift: "At around 2.30pm Mr Anderson and myself were cleaning outside the toilets outside the paediatric ward. Mr Dillewaard was in the toilet block. Mr Anderson had been making sly comments such as asking me to 'hold his hand' or 'give him a kiss', touching my hand as he had been earlier in the shift. I tried to laugh it off and the following exchange took place: Me: 'No you're a dirty old man Ando cut it out.' Mr Anderson: 'Call me that again and I'll smash your f**king head through the door.' Mr Anderson said this in an aggressive tone as he raised his fist and stepped towards me. Me: 'Well stop acting like a dirty old man and I'll stop calling you one.' -- 9 of 21 -- 10 Mr Anderson: 'Go on, keep going, I'll smash you into this door, just keep going.'. Whilst I had detected a change in Mr Anderson's tone of voice I had not fully appreciated just how angry he was when I told him again 'to stop acting like a dirty old man'. I felt very threatened and I felt scared. Mr Dillewaard had come out of the toilet block and came between us and steered me away from Mr Anderson, nudged me and told me to shut up. I was shaken. This incident was very different to the other behaviour of Mr Anderson that I had been putting up with. For the rest of the shift I worked with Mr Dillewaard and kept away from Mr Anderson.". [48] Ms Telfer said that she tried to avoid Mr Anderson in the days following the incident, hiding in the staff room or a store room if she heard the sound of linen trolleys in the hallway. She also remembered discussing the incident with Mr Larkin who told her that it was something she needed to report because Mr Anderson had done the wrong thing. [49] On or around 30 September 2011 Mr Greg Daniel, a Supervisor, approached her and said he had heard something about her being sexually harassed. He told her he had a duty of care and was concerned. She told him about what had happened with Mr Anderson on 23 September 2011. The same day she went to speak to Ms Nibbs in the Workplace Relations area of the hospital. Later, she decided to lodge a written complaint (see paragraph [5] above). [50] In response to certain matters raised in Mr Anderson's Affidavit, Ms Telfer responded (in her Affidavit) as follows: • Ms Harris did not tell her that Mr Anderson was her slave for the day; • she would not have told Mr Anderson that he could kiss her hand and held it out for him to kiss. Given how uncomfortable his attentions made her feel she would not have encouraged his behaviour by acting in the way he alleged; • Ms Harris may have jokingly made comments to the effect of "you're slaving with us today" or "I've been slaving today", referring to herself as a slave; • it was completely false to say that Mr Anderson said "what if they were coming at you saying 'I'm going to slam your head through the wall', like this"; • the Code Black conversation took place before the incident where she told Mr Anderson he was a dirty old man. It was at this point he raised his fist and stepped towards her and said "call me that again and I'll smash your f**king head through the door"; • there were two different conversations. Mr Anderson's threat to smash her head through the door did not occur in the context of the Code Black conversation; • it was completely untrue to suggest that Mr Anderson was role playing and that he used an aggressive voice and leaned towards her to demonstrate that it was not a laughing matter. The Code Black conversation had taken place before this; • she did not overhear any conversation between Mr Anderson and Mr Dillewaard as Mr Anderson alleged at paragraph [21] above. Mr Anderson was escalating the matter and Mr Dillewaard stepped between the two of them and nudged her; • Mr Anderson's claim there were no apparent problems and everyone worked together as normal after the incident was completely false. She felt very uncomfortable and there was "definitely" an atmosphere; • Mr Anderson did not have a subsequent conversation with her about how Michael Buble was going because she made sure she avoided him following the incident. If she saw Mr Anderson in the corridor and he called out her name she would have ignored him; • it was a "straight lie" that Mr Anderson had not asked her for hugs. On the occasion after she gave in, and Mr Anderson did hug her, he later made comments about feeling her breasts against his body. [51] In the course of her cross-examination Ms Telfer said: • she had discussed the incident that occurred outside the toilets with Mr Dillewaard on more than one occasion since it happened; • her recollection of the time Mr Anderson asked her to sit on his lap was that Ms Harris had been sitting on his lap "doing eyebrows". After she left the room Mr Anderson asked her (Telfer) to sit on his lap. She declined. When Ms Harris came back into the room Mr Anderson said something like "Oh, Aimee won't sit on my lap". Because Ms Harris did not know what had gone on in the room during her absence she might have thought it was just a joke; • Mr Anderson asked her "every now and then" to do star jumps but it was so long ago she did not remember whether it was anything like weekly or fortnightly; -- 10 of 21 -- 11 • some other staff members had also asked her to do star jumps. However, it was also a long time ago and she did not want to make accusations about anyone in circumstances where she could not fully remember the details; • prior to the incident on 23 September 2011 Mr Anderson had been sleazy throughout the earlier part of the shift; • he had been asking her to hold his hand or give him a kiss, that sort of thing, repeatedly; • she told Mr Anderson she would Code Black him because he was being a bit sleazy (Transcript 2- 49); • she did not remember commenting about being approached by a man the night before and wanting to do a Code Black on him, but that was not to say it did not happen; • the term "ghetto beat down" was familiar to her but "…I would personally not have said ghetto beat down. I would have said – I think I'd call it a kick-in there's just like a – it's not a move or anything like that. It's just a saying."; • she didn't say "ghetto beat down" specifically. "If he (Dillewaard) remembers it like that, he does, but I would have said [indistinct] kick-in"; • after he came out of the toilet Mr Dillewaard stood "sort of next to me but in front of me" close enough to be able to nudge her; • it was her allegation that Mr Anderson was genuinely threatening her; • "I, at the time, didn't feel like he was going to do it right then but he was like escalating it and that's why I felt really scared"; • while Mr Anderson's behaviour was similar to how a patient might react, that was not what was happening. It was not like a role play or anything like that (Transcript 2-58); • she did not immediately report the incident because she was scared and didn't like confrontation; • "confrontation", in her mind, included talking to her bosses. This was because the majority of staff who worked at the hospital had been there for a really long time and she felt that maybe there was a friendship there (with Mr Anderson). She was also afraid of stepping on people's toes; • instead, she decided that she would leave the hospital and made enquiries about transferring to Redcliffe Hospital, where she had an interview even before she spoke to Ms Nibbs and Mr Daniels (see paragraph [49] above); • the people she spoke to after the incident included Mr Dillewaard, Ms Brierley and Mr Larkin, who told her that it was something she really needed to report; • when she spoke to Ms Brierley she said she was planning on leaving "and this is why". Ms Brierley said she understood if she (Telfer) wanted to leave but that she should report the matter; • Ms Harris may have jokingly made comments to the effect of "you're slaving it with us today", or "I've been slaving today"; and • Mr Anderson's statement about her offering to take over the telephone was completely untrue. She had not received the full Code Black training and he would have not offered to give her the phone. Further, it was highly unlikely, from her experience, that Mr Anderson would have taken both the complex phone and the CCU phone. Usually it would be the case that the Senior OSO would take the complex phone because it was likely that they were Code Black trained and could therefore respond to any calls for assistance. [52] Somewhat surprisingly, Ms Cerrato, who represented Mr Anderson on the first two days of hearing, put to Ms Telfer that Mr Dillewaard's version of the incident of 23 September 2011 was the correct version. In response, Ms Telfer said that her version was how she remembered it all happening. While there were a few differences between Mr Dillewaard's version and her own, she wrote it all down in the way that she remembered them having happened. [53] Professor McNeil gave evidence about how, and why, he formed the view that Mr Anderson should be required to show cause in response to the allegations made against him about the events of 23 September 2011. [54] In particular, Professor McNeil said that after having carefully read through and considered all of the documentation provided to him in relation to the allegation he formed the view that Mr Anderson should be required to show cause in response to those allegations. [55] When he received Mr Anderson's response and considered it he provided it to Mr Pocklington for his analysis, comment and recommendation. After he reviewed Mr Pocklington's draft letter to Mr Anderson he agreed that allegation one was not substantiated but that allegation two was substantiated. [56] In arriving at this conclusion, Professor McNeil said he found Mr Anderson's explanation that he was demonstrating Code Black moves to Ms Telfer, and made his threat to her as part of this scenario, to be highly implausible. He also found Ms Telfer's account was supported by the statement of Mr Dillewaard. He formed the view that this was a very serious incident which involved the threat of an assault. -- 11 of 21 -- 12 [57] After noting that Queensland Health has a zero tolerance policy in respect of physical violence or threats of physical violence, and that the behaviour Mr Anderson exhibited was unacceptable conduct in any workplace, Professor McNeil said he found Mr Anderson to be liable for discipline on the grounds of misconduct. As such he caused for his second show cause letter to be sent to Mr Anderson on 28 November 2011. [58] After receiving Mr Anderson's response to his second letter he requested for a briefing note be prepared for the Deputy Director-General, Human Resource Services, who held the relevant delegation, recommending Mr Anderson's termination. [59] Under cross-examination Professor McNeil was taken to his second show cause letter to Mr Anderson and questioned about his reference to an incident said to have occurred between Mr Larkin and Mr Anderson on 15 June 2011. In the course of his response Professor McNeil agreed that he would have accepted there was a record of an incident having occurred on that date, but also said he did not know whether there had been an investigation conducted in relation to that matter. [60] Later, when questioned about whether Mr Anderson's previous disciplinary action or warnings were too old to be taken into account, Professor McNeil responded by stating that they provided "context" to the pattern of behaviour. He also agreed that the fact that Mr Anderson had received no warnings between 1999 and 2011 represented a context, stating "that, too, represents a context, yes". [61] As to Mr Anderson's complaint that the June 2011 incident involving Mr Larkin had not been investigated, and whether Mr Anderson was denied the opportunity to state his version of events, Professor McNeil said that he could not now remember what his interpretation was at the time of Mr Anderson's response but his interpretation now was that there was an investigation which Mr Anderson interpreted as not having been correctly discharged, not that it did not occur. [62] In his Affidavit (Exhibit 23) Mr Dillewaard said he was now a permanent part-time OSO in the Emergency Department of the Caboolture Hospital, having commenced at the hospital in October 2007. He was studying part-time at Queensland University of Technology for a Bachelor of Science, Paramedic - which he intended to finish by the end of 2013. [63] Prior to the incident on 23 September 2011 he had worked with both Ms Telfer and Mr Anderson on several occasions. Generally he would work with Ms Telfer about once a month and with Mr Anderson at least once a month. [64] In relation to the events which occurred on 23 September 2011 Mr Dillewaard said: • just before 2.30pm he entered the male toilet in block three and could hear Mr Anderson and Ms Telfer joking about Code Black moves; • Ms Telfer was talking about the fact that she had been approached by a man the night before and that she was going to do a new Code Black move on that person as he had been paying her unwanted attention; • he heard Ms Telfer describe the move as a "ghetto beat down" or words to that effect; • he heard Mr Anderson challenging Ms Telfer to do the Code Black move on him; • at around 2.30pm on the ground floor he entered the female toilet just outside the paediatric ward; • whilst in the female toilet he overheard Ms Telfer say words to Mr Anderson to the effect of "don't be a creepy old man"; • he then heard Mr Anderson reply in a very aggressive tone saying words to the effect "what did you call me"; • because things seemed to be getting out of hand and he was concerned he came out of the toilet to see what was going on; • as he came out of the toilet block he could see Mr Anderson coming towards Ms Telfer putting his fist in the air. He was facing her and leaning in towards her, about half a meter away from her, and said "don't ever say that to me again or I will put your head through the wall"; • he was alarmed by the way Mr Anderson moved towards Ms Telfer and the aggression he displayed towards her; • he stepped between them and nudged Ms Telfer away; • he (then) heard Mr Anderson saying words to the effect "don't ever say that shit to me, don't ever call me that again". • Mr Dillewaard opined that Ms Telfer was shaken after the incident; • he spoke to her and asked her if she was okay and whether she was going to do anything about it; • Ms Telfer responded by saying she did not know whether she was going to make a complaint or not; -- 12 of 21 -- 13 • he ensured that for the rest of the shift he worked with Ms Telfer. However, sometime later during the shift Ms Telfer said words to the effect "I'm going up here because I don't want Michael to put my head through a wall" to which Mr Anderson replied "it might still be on the cards"; and • he told Ms Telfer not to provoke Mr Anderson and she responded by saying she was not going to be intimidated by him. [65] In response to matters canvassed by Mr Anderson in his Affidavit, Mr Dillewaard said: • he had no recollection of Ms Harris commenting that Mr Anderson would be Ms Telfer's slave for the day or, at other times saying that "Ando's the slave for the day"; • it was untrue that Mr Anderson would have had both the complex phone and the phone for the CCU. Indeed, he recalled that he had the CCU phone that evening; • the reason he came out of the female toilets was because he was alerted by the aggressive tone of Mr Anderson's voice; • he did not overhear any of the conversation Mr Anderson alleged occurred between he and Ms Telfer (which was set out in the third paragraph of Mr Anderson's response dated 3 November 2011 and largely repeated at paragraph [15] of Exhibit 2); • it was untrue to suggest that Mr Anderson was role playing. From the conversation he overheard he did not gain the impression that Mr Anderson was trying to teach Ms Telfer how to protect herself; • the conversation about Code Black moves, when Mr Anderson asked Ms Telfer to do the move on him, took place in the corridor before the incident when he saw Mr Anderson threatening Ms Telfer; and • he may have made a comment earlier to Mr Anderson about showing Ms Telfer the moves but that was in the context of the earlier conversation about Code Blacks, not just after the incident described above. [66] Under cross-examination Mr Dillewaard agreed that his witness statement, signed on 18 October 2011, was drawn up approximately 25 days after the incident on 23 September 2011. He also agreed that he understood it was important that the sequence of events be accurate and that the contents of his statement also be true and accurate. [67] Mr Dillewaard also agreed that while he heard "snippets" of the conversation between Ms Telfer and Mr Anderson he did not hear all of it. He also agreed that he would not have seen any actions that might have accompanied things that were said between Ms Telfer and Mr Anderson while he was in the toilets. [68] Mr Dillewaard was also subjected to intense cross-examination about the differences between the contents of his original statement concerning the events of 23 September 2011 (see paragraph [6] above) and his recounting of the events of that day as set out in his Affidavit (Exhibit 23). In addition, because there were a number of different versions of events before the Commission, he was also questioned about Mr Anderson's version of events. [69] In relation to a question about whether it was possible that Mr Anderson had said "what if they're coming at you saying 'I'm going to slam your head through the wall like this'" Mr Dillewaard said it was "not impossible" but he was fairly certain that "don't ever say that me to me again" preceded "I'll put your head through a wall". That was what raised his alertness to the situation and made him come out of the female toilets (Transcript 4- 38). [70] Later, after further questioning, Mr Dillewaard said that he did not recall the introduction of "what if somebody came at you…", or anything along those lines (Transcript 4-47). Nonetheless, he also conceded that his recollection was not entirely perfect. [71] Mr Dillewaard also gave evidence to the effect that while he had spoken to Ms Telfer about the incident on the day it occurred he had not spoken to her about the actual incident since that time. Even on the day, their conversation was more to the effect of Ms Telfer asking his advice about putting in a complaint. He also said that after he completed his initial witness statement on 18 October 2011 he had been asked not to speak to Ms Telfer or anyone else about the incident. [72] In terms of his discussion with Ms Telfer on the evening of 23 September 2011, Mr Dillewaard said that while they didn't discuss how the matter unfolded, Ms Telfer was enquiring whether he thought Mr Anderson would seriously hit her on the basis that just prior "to all this" she thought he was just joking and was still not entirely sure that it was serious. When asked for clarification of his evidence, Mr Dillewaard said he arrived at the opinion that "initially she was uncertain". -- 13 of 21 -- 14 [73] When asked to explain some of the differences between what he said in his Affidavit and what he initially wrote on 18 October 2011 Mr Dillewaard said that when he made his first statement the Human Resource people did not want him to include anything that he was not 100% certain of. When he said, in his later Affidavit, that he heard Mr Anderson say words to the effect "don't ever say that shit to me. Don't ever call me that again" he wrote these words because Mr Anderson said something to that effect, although he could not say that was exactly what he said. [74] Under re-examination Mr Dillewaard agreed that since preparing his original statement in October 2011 he had time to reflect on what happened on 23 September 2011. As such, he stood by the evidence set out in his Affidavit (Exhibit 23). [75] Ms Lynette Rowland said that in April 2012 she was the acting Deputy Director-General of Human Resource Services within Queensland Health. She had over 30 years experience in Human Resources and had worked in both the public, including local government, and private sectors. [76] She first became aware of the matter involving Mr Anderson when she received a briefing note and attachments on 29 March 2012. After reading through these documents she arranged a conference with the Head of Workplace Services and asked to be taken through the material. After this briefing she then considered the material again by herself and ultimately came to the decision to terminate Mr Anderson's employment. In arriving at this decision she noted that while the allegations of sexual harassment against Mr Anderson had not been substantiated, another allegation that he had threatened to smash Ms Telfer's head through the door had been substantiated. She was also concerned that Mr Anderson had recently made a similar threat to another employee, Mr Larkin. Such behaviour, in her view, could not be tolerated in the workplace. [77] Ms Rowland said she took employee safety in the workplace very seriously. Queensland Health's employees often faced threats of violence from patients and clients which made the threat of violence from a work colleague even more unacceptable. [78] In making her decision that termination was an appropriate penalty, Ms Rowland said she was conscious of the fact she could have made a different decision in that she had a range of disciplinary options open to her. However, having read all of the material, she formed the view that termination was the appropriate disciplinary action to take in relation to Mr Anderson's conduct. [79] Under cross-examination Ms Rowland was asked what she found so disgraceful about Mr Anderson's behaviour that she needed to dismiss him from his employment. In response, she said she found Mr Anderson's actions "of being in a threatening and imposing nature to a young employee", and as having been overheard to a degree and viewed by another employee, to be grave and serious misconduct. She also said that although she could not establish what might have provoked Mr Anderson's behaviour she made a finding that, on the balance of probability, "it was an aggressive response to something". She also found that his "response" (to the "something") was that he threatened to smash Ms Telfer's head through the door, or a threat to that effect. [80] Under further cross-examination Ms Rowland said that in addition to taking into account Mr Anderson's threat to Ms Telfer she also noted that he had been specifically warned in 1999 that if "he continued his behaviour down this path" (i.e. acting in an intimidating and threatening manner towards another staff member and a member of the public) it would lead to termination. Further, he was advised in June 2011 that "this sort of behaviour" could lead to termination. [81] When it was canvassed with her that Mr Anderson was not actually counselled in relation to the events of June 2011 and, on that basis, had no disciplinary record going back for 12 years, Ms Rowland responded by saying that while she took into consideration the events of June 2011 she would not have been troubled about making the same decision (of termination of employment) based on all of the other information before her. [82] Ms Belinda Harris said she was employed at the Caboolture Hospital in a variety of roles including OSO, Operational Services Supervisor and Security Guard. She worked full-time and had been working at the hospital for the past 13 years. In September 2011 she was the supervisor of both Ms Telfer and Mr Anderson. [83] Ms Harris said that in about September 2011 Mr Anderson came up to her and said words to the effect "I think I went too far with Aimee". At around this time she was also asked to ensure that Ms Telfer did not work together with Mr Anderson on any shifts. She was aware that something had happened between them but did not know when it might have happened. [84] Ms Harris also said: • it was completely untrue that she told Ms Telfer, in words to the effect, "… Ando's your slave for the day"; -- 14 of 21 -- 15 • it was also untrue that she would often refer to Mr Anderson as "the slave for the day"; • Ms Telfer often spoke about Michael Buble, including on the day in question, but she did not witness her offering her hand to Mr Anderson so that he could kiss it; and • she recalled an occasion where she was sitting on Mr Anderson's lap, doing his eyebrows, in the supervisor's office and Ms Telfer was at the door. [85] Under cross-examination Ms Harris said she had never referred to Mr Anderson or any other staff members as being someone's slave for the day. She also said that she had never used the word "slave". She also denied doing a grinding action while sitting on Mr Anderson's lap. [86] Mr David Larkin said that he was now employed as a Security Officer at the Caboolture Hospital having been employed by QH since September 2009. At the time of the relevant events he was employed as an OSO. [87] Mr Larkin said he worked with Mr Anderson on several occasions as an OSO and became aware that he (Anderson) had a problem with him in that he would make snide comments to him personally or behind his back. Although he really did not know what Mr Anderson's problem was he came to believe it was linked to him gaining some relief work as a security officer in circumstances where a colleague of Mr Anderson's had not received a security clearance. [88] Mr Larkin said that on 15 June 2011 he came to understand that Mr Anderson was asked to assist a patient with a wheelchair while his phone was on divert during his meal break. Just prior to 10pm he approached Mr Anderson in the canteen in the belief that he should explain that he had not received the call for assistance, because his phone was on divert, and that it was not because he did not want to help out. [89] At the end of the shift Mr Anderson followed him into the change rooms, raised his finger to point at him and said "I don't give a f**k who you are Dave, I'll put your f**king head through the wall". Mr Larkin said Mr Anderson repeated this comment several times and he felt very threatened. Mr Anderson was extremely angry and he believed that if he had made a move or put a foot forward Mr Anderson would have assaulted him. Mr Larkin also said that he prepared a contemporaneous note of the event as soon as he went home that evening. This was attached to his Affidavit (DL-1). [90] On 17 June 2011 he met with Mr Pocklington in relation to the matter. In the course of this discussion he agreed to try to resolve the issue informally. However, he also asked Mr Pocklington to try to find out why Mr Anderson had "taken this attitude towards me". [91] Mr Larkin also rejected Mr Anderson's suggestion that he had telephoned him (Larkin) on the evening in question. He also said: • Dan Winter did not come into the toilets; • Anderson and he did not shake hands; • the conversations which Anderson alleged occurred did not take place; and • the actual conversation in the change rooms was: "Anderson: 'I don't give a f**k who you are Dave, I'll put your f**ken head through the wall. It's after 10 o'clock so I don't give a f**k.' Larkin: 'Michael, I don't know what the problem is, but I don't want there to be a problem.' Anderson: 'Yes you do, you know, I'll put your f**ken head through the wall, I don't give a fuck who you are.' Mr Anderson repeated similar threats at least 2-3 more times before he left the toilet / locker room area.". [92] Under cross-examination Mr Larkin said: • Mr Anderson did not contact him to ask him to assist the lady outside Emergency; • he did not tell Mr Anderson that he was not going to help her; • he did not aggressively approach Mr Anderson and "get in his face" in the tea room; • he did not ask Mr Anderson if he had a problem; • he only approached Mr Anderson because he had been informed that Mr Anderson had walked some distance to see him in and agitated state and he wanted to let him (Anderson) know that he had not received the phone call; • Mr Anderson did not tell him that he was not impressed with the way he (Larkin) dived into his face in the lunch room because it was embarrassing; -- 15 of 21 -- 16 • Mr Anderson did not say words to the effect that "all we have to do, man, is work as a team and get stuff done"; • they did not shake hands in the change rooms; • Mr Winter was not present; • he was quite shaken up by the events of that evening; and • he did not tell Mr Pocklington that he wanted an informal resolution. After their discussion he was happy for Mr Pocklington to try an informal resolution. [93] Ms Karen Brierley said she had been employed as an OSO for the past eight years, the last three years of that time in the Emergency Department of the Caboolture Hospital. She received a phone call from a security officer at approximately 6.10pm on 15 June 2011 who asked her if she could come to the front of the hospital to assist with getting an electric wheelchair into a car. Because she was on her own and busy and Mr Larkin and another OSO were on their dinner break at the time she asked the security officer if he could call Ms Wolfenden, the supervisor, to ask for assistance. [94] Some time later Mr Anderson came to the Emergency Department looking for Mr Larkin. She told Mr Anderson he was on his dinner break. Mr Anderson then told her Mr Larkin was asked to help put a wheelchair in the back of an old lady's car and that Mr Larkin had told him (Anderson) he was busy. She told Mr Anderson it was actually her that the security officer had spoken to and she told him she was busy. Mr Anderson then said he had also been busy at the back of the hospital and he had to come down to "do it". He then stormed off. [95] Ms Brierley said that when Mr Larkin came back off his dinner break she asked him whether he had received a call to help someone with a wheelchair. He said he had not. She told Mr Larkin what had happened with Mr Anderson. They just continued with their work and did not discuss it any further. [96] On 17 June 2011 she was going to the X-ray Unit and Mr Anderson was emptying rubbish. He "flew at her" and said "what did you say to Larkin?". She said she told Mr Larkin that he (Anderson) had come into the Emergency Department looking for him. Mr Anderson then told her he pushed Mr Larkin into a wall and threatened him. [97] Ms Brierley also said Mr Anderson then told her, in a threatening manner, that she needed to be very careful as both herself and Mr Larkin had broken confidentiality about the death of the baby of a colleague's bother. She explained to Mr Anderson that she had not broken confidentiality and the colleague needed someone to talk to. Mr Anderson then said that the colleague did not trust Mr Larkin either. [98] Ms Brierley also said she did not tell Mr Anderson, on 15 June 2011, that she could not assist because she did not want to hurt her back. She also said it was "a complete lie" to say that she told Mr Anderson that "Dave's been sitting in there for an hour and I don't know why he couldn't have helped". [99] Ms Brierley also referred to an email she sent to Mr Larkin at 4.59pm on 23 August 2011 in relation to the events of 15 and 17 June 2011, respectively. [100] Under cross-examination Ms Brierley said that after Mr Anderson told her about pushing Mr Larkin into a wall she saw Mr Larkin and asked him what had happened after work the evening or so before. He responded by saying that he did not want to talk about it, as a result of which she said "well Michael told me that he pushed you into the wall". Mr Larkin then said "did he really tell you that?" and she responded in the affirmative. [101] Some time later, after she had not seen Mr Larkin for a while, she saw him again and asked him what had happened in relation to the incident. He said that nothing had happened and he did not feel comfortable working at the hospital. She asked him if he wanted her to write an email to back him up and he responded by saying "oh, if you want to". He didn't press the matter either way. As a result of that conversation she prepared and sent an email the next day, a copy of which was attached to her Affidavit. [102] Ms Brierley also refuted the suggestion that Mr Anderson had phoned her to ask for assistance on 15 June 2011 stating that she only saw him for "a two-second conversation" in the Emergency Department when he was looking for Mr Larkin. She also rejected the proposition that she told Mr Anderson, pointing to the tea room, that Mr Larkin had been sitting in there for an hour and that she did not know why he could not help. [103] Ms Trisha Wolfenden said she had worked at the Caboolture Hospital for 13 years in the capacity of OSO and occasionally as a Supervisor. [104] In response to Mr Anderson's account of the events of 15 June 2011 in the tea room Ms Wolfenden said she saw Mr Larkin enter the room at around 9.50pm but he was not acting aggressively. She did not see Mr Anderson raise his arms in a defensive gesture and did not hear a conversation between them in the form set out by Mr Anderson in paragraph [47] of his Affidavit. -- 16 of 21 -- 17 [105] Instead, she heard a conversation to the following effect: "Mr Larkin: 'I did not get the call.' This was said in a casual manner. Mr Anderson: 'Why didn't you do it.' There were then words back and forth between Mr Anderson and Mr Larkin. I then said 'that's enough, time to go home'." [106] After she finished her shift and went to the car park Mr Larkin was there and asked if he could speak to her. He asked if she knew what Mr Anderson's problem was. She explained that Mr Anderson did not speak to her about "those things" because he respected that she worked as an OSO and as a Supervisor. She suggested to Mr Larkin that he should speak to Mr Hicks, who was her line manager. [107] Under cross-examination Ms Wolfenden said that she did not recall step-by-step what happened in the tea room. All she knew was that they were arguing between themselves. She did not recall who was standing in what position and could not recall whether Mr Anderson might have raised his arms in a defensive gesture. [108] What she did remember was that neither Mr Anderson nor Mr Larkin was backing down. It was not until she said it was time to go home that everybody left. After everybody left she went to her office because she had to cover a shift. While she was in the office Mr Winter went past and said "yep, all good". Mr Anderson went past and nodded "as if to say everything was fine". That was her understanding of it. [109] Four other witnesses called by QH (Mr Paul Durham, Mr Gregory Daniel, Mr Bruck Hicks and Ms Roslyn Nibbs) provided Affidavits of evidence but were not required for cross-examination. As such, I have not specifically referred to their evidence above. However, if it becomes necessary I will refer to that evidence in the course of reaching my findings and conclusions in this matter. Findings and conclusions [110] In the course of summarising the evidence given during the course of these proceedings I have not recorded those aspects which were not relevant to the matters I am required to consider pursuant to s. 77 of the Industrial Relations Act 1999 (the Act) in deciding whether Mr Anderson's termination was harsh, unjust or unreasonable. Aspects of the evidence not recorded include some of the cross-examination of Ms Telfer and, in particular, Mr Pocklington. [111] Relevantly, s. 77 of the Act provides as follows: "77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider— (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to— (i) the operational requirements of the employer’s undertaking, establishment or service; or (ii) the employee’s conduct, capacity or performance; and (c) if the dismissal relates to the employee’s conduct, capacity or performance— (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant.". [112] In terms of that section, it is abundantly clear from the evidentiary material presented that Mr Anderson: • was notified of the reason for dismissal (s. 77(a)); and • the dismissal related to Mr Anderson's conduct (s. 77(b)(ii)); and • Mr Anderson was given an opportunity to respond to the allegation about his conduct (s. 77(c)(ii)). [113] Insofar as s. 77(d) is concerned, my assessment of the evidence and submissions leads me to conclude that there are two primary matters to be considered in this case in order to establish whether Mr Anderson's termination was harsh, unjust or unreasonable. Those two matters are: -- 17 of 21 -- 18 • whether the incident on 23 September 2011 occurred in the manner described by Ms Telfer and/or Mr Dillewaard or whether it occurred in the circumstances described by Mr Anderson; and • irrespective of that determination, did the punishment of termination of employment fit the "crime". Which version is to be preferred? [114] Ms Telfer, Mr Dillewaard and Mr Anderson are ad idem that Mr Anderson said words to Mr Telfer to the effect "I'm going to smash (put) your head through the door (or wall)", in an aggressive tone with his fist raised, whilst standing quite close to Ms Telfer. What is not agreed is: • whether those words were preceded by the words "what if they come at you saying…"; • whether Mr Anderson used expletives; and • whether the words were used in the context of a role play or as a result of something else that might have happened between Ms Telfer and Mr Anderson. [115] The resolution of these questions essentially requires me to accept Ms Telfer and/or Mr Dillewaard's versions of events or the version advanced by Mr Anderson. [116] In this respect, I note that while there are differences between the respective versions, there are important areas of commonality in the version of events proffered by Ms Telfer and the version advanced by Mr Dillewaard. [117] Mr Dillewaard said he heard Ms Telfer say "don't be a creepy old man" and then Mr Anderson reply in a very aggressive tone saying words to the effect "what did you call me" followed by "don't ever say that to me again or I will put your head through the wall". This is to be compared to Ms Telfer's version where she said "no you're a dirty old man Ando, cut it out" as a result of which Mr Anderson aggressively approached her saying "call me that again and I'll smash your f**king head through the door". [118] While I am unable to establish what might have caused Mr Anderson to advance on Ms Telfer and make the comments he did, the similarity between the above versions sits uncomfortably with Mr Anderson's claim that he advanced on Ms Telfer in the context of a role play saying "what if they were coming at you saying 'I'm gonna slam your head through the wall' like this". [119] Importantly, Mr Dillewaard was not receptive to the suggestion put to him by Mr Rebetzke, Counsel for Mr Anderson on the final two days of hearing, that Mr Anderson might have said "what if they are coming at you saying 'I'm going to slam your head through the wall' like this". Instead, Mr Dillewaard said he was fairly certain that the words "don't ever say that to me again" preceded the words "I'll put your head through a wall". [120] Relevantly, on Mr Dillewaard's evidence, the words he believed he heard, and the manner in which they were stated, prompted him to come out of the female toilets to see what was happening between Mr Anderson and Ms Telfer. In that context, given that it was that exchange which prompted Mr Dillwaard to come out of the toilets to see what was happening, significant respect must be given to his evidence on this point. [121] Quite apart from my clear preference of the evidence of Ms Telfer and Mr Dillewaard that an actual physical threat was directed at Ms Telfer for some unknown reason, many other parts of Mr Anderson's evidence were either untrue, or clearly called into question by the evidence of other witnesses. Examples of where Mr Anderson's evidence was untruthful are as follows: • his claim that he spoke to Mr Larkin by telephone on the evening of 15 June 2011 about helping the old lady with her motorized wheelchair; • his claim that Mr Larkin told him (during this alleged conversation) that he was not going to help the lady because he did not want to hurt his back and because he was on a break; • his claim that Mr Larkin told him (in the same alleged conversation) "too bad, I'm on a break"; and • his claim that Mr Winter went into the change rooms with him, on the same evening, to collect their bags, (see paragraph [32] above and page 1 of his response to the show cause letter of 28 November 2011, which he signed on 13 December 2011). Mr Winter clearly came in later. [122] Some examples of differences in the evidence given by Mr Anderson compared to that given by other witnesses are as follows: • his claim the Ms Harris introduced him as Ms Telfer's slave for the day. This was rejected by both Ms Telfer and Ms Harris*; • his claim that Ms Telfer held out her hand and invited him to kiss it. This was absolutely rejected by Ms Telfer for the reasons set out in her evidence at paragraph [50] above; -- 18 of 21 -- 19 • his claim that Ms Brierley told him that Mr Larkin had been sitting in the tea room for an hour, on the evening of 15 June 2011, and she did not know why he could not have helped the old lady. This was rejected by Ms Brierley; • his claim that Mr Pocklington screwed up the note he was making during their meeting on 17 June 2011 and saying, in effect, that that was the end of the matter. Mr Pocklington denied screwing up the note, and also attached it to his affidavit; • his claim that Mr Pocklington did not make him aware, and he did not acknowledge, that a physical altercation would mean dismissal. Mr Pocklington said he confirmed with Mr Anderson that he understood that a physical altercation would mean the sack; and • his claim he did not tell Ms Harris that he thought he went too far with Aimee. Ms Harris gave unchallenged evidence that he had made this comment. (* I have not accepted Mr Jobling's evidence about Ms Harris's alleged practice of referring to people as "a slave for the day". This evidence was clearly a misguided attempt to try to help Mr Anderson.) [123] The extent of the above differences, as well as the number of individual witnesses who gave evidence which was contrary to that given by Mr Anderson, caused me to have serious reservation about accepting Mr Anderson's evidence about the events of 23 November 2011, as well as the incident involving Mr Larkin on 15 June 2011. [124] In respect of the latter event, and the lead up to it, Mr Anderson's own evidence is to the effect that when he spoke to Mr Hicks on 14 June 2011 he made it clear he did not like Mr Larkin and said that if he continued working with him would end up giving him an upper cut and sending him home. [125] In terms of the evidence about what actually happened in the change rooms at about 10pm on 15 June 2011, I prefer the evidence of Mr Larkin over that of Mr Anderson. This is for a number of reasons, as follows: • Mr Larkin approached Mr Pocklington less than two days after the incident to complain about Mr Anderson's threat to put his head through the wall; • Mr Pocklington said that when Mr Larkin came into his office he appeared to be rattled and in a very distressed and agitated state; • Mr Pocklington said Mr Anderson told him, on 17 June 2011, that he had "confronted" Mr Larkin about what had happened in the dining room; • in his letter of 13 December 2011, to Professor McNeil, Mr Anderson acknowledged he "had words" with Mr Larkin on the evening in question but denied threatening him; and • Ms Brierley said that Mr Anderson told her, not long after the event, that he had pushed Mr Larkin into a wall. [126] In addition to the above matters, all of the evidence - including that given by Mr Anderson himself - clearly points to Mr Anderson being in a very agitated and upset state on the evening of 15 June 2011 because of his belief that other staff members, especially Mr Larkin, had avoided assisting the old lady with her motorized wheelchair. Ms Brierley gave evidence that when she saw Mr Anderson he had come over from his usual work location to the Emergency Department. He was in a very agitated state about what had gone on that evening with the old lady and was looking for Mr Larkin. A few hours later Mr Anderson "confronted" (see paragraph [31]), and "had words" with (see paragraph [16]), Mr Larkin in the change rooms. [127] After taking this background into account, and the evidence of other witnesses after the event, I am quite comfortable in preferring the evidence of Mr Larkin ahead of Mr Anderson about what happened in the change rooms on 15 June 2011. As such, I conclude that Mr Anderson did say to Mr Larkin "I don't give a f**k who you are Dave, I'll put your f**king head through the wall.". In arriving at this conclusion I also note that Mr Anderson did not call Mr Winter to give evidence about what he might have witnessed in the change rooms, despite being in regular contact with him. Did the punishment fit the crime? [128] Although I have been unable to establish what might have caused Mr Anderson to aggressively advance on Ms Telfer and threaten, in a loud voice, to "… smash (put) your f**king head through the door (or wall)" I am very clear that Ms Telfer did nothing to provoke Mr Anderson's behaviour and actions, and so find. Indeed, Mr Anderson did not suggest any provocation by Ms Telfer, simply stating that the incident occurred as part of a role play. [129] While Ms Telfer might have been uncertain, at the time, whether Mr Anderson's threat towards her was real, or whether he was joking, Mr Dillewaard was in no such doubt. He was sufficiently concerned for Ms Telfer's welfare to step between her and Mr Anderson and nudge Ms Telfer away. For the balance of the shift he kept a watchful eye on her, making sure that he stayed with her. -- 19 of 21 -- 20 [130] It was only later, after she discussed the matter further with Mr Dillewaard - and perhaps reflected back on the incident - that Ms Telfer became concerned about her safety. In this respect, she later spoke to Ms Brierley and Mr Larkin, each of whom encouraged her to make a complaint about the matter. [131] In my view, Ms Telfer was entitled to be concerned, indeed scared, about the physical threat Mr Anderson made towards her. He is a very solidly built individual, whose physical presence and manner make him appear quite intimidating - especially, I believe, to a female some 25 - 30 years his junior. Ms Telfer was also entitled, as is any employee placed in similar circumstances, to formally complain about the threat made to her and request her employer to provide her with a safe workplace, free of such behaviour. [132] In my view, Mr Anderson's unprovoked threat of physical violence towards Ms Telfer was a serious event which needed to be dealt with appropriately by the employer, taking all the circumstances into account. [133] Based on Ms Telfer's complaint, and Mr Dillewaard's substantial conformation of it, QH was entitled to implement its show cause process during which Mr Anderson was called upon to explain why his employment should not be terminated. [134] In this case, the threat of physical violence was made by an individual, with many years of service with QH, who had been trained in the organisation's code of conduct as well as having been instructed in aggressive behaviour management techniques. This included not just a physical "take-downs" but, also, training in methods and techniques to diffuse potentially aggressive patients. Further, and particularly relevant in this case, the aggressor was a mature, well-built male while Ms Telfer was a much younger, and smaller, female employee. The difference in their physical appearance was demonstrable. Mr Anderson had also previously been warned about aggressive behaviour towards other staff members. [135] In deciding what action to take in relation to the physical threat towards Ms Telfer, which QH found on the balance of probabilities that Mr Anderson had made, QH was entitled to have regard to the whole of Mr Anderson's employment history. In this respect, Mr Anderson had a history of previous aggressive behaviour, as reflected in the warnings in the 1990's. The last of those warnings, although given in 1999, made it clear to Mr Anderson that any future intimidating or threatening behaviour towards co-workers would lead to his dismissal. [136] Quite apart from the above facts, the decision maker, Ms Rowland, had additional information before her to suggest that Mr Anderson had also threatened to put Mr Larkin's head through the wall during the course of an incident in June 2011. While this matter had not been fully investigated, the existence of Mr Larkin's complaint and Mr Pocklington's file note that Mr Anderson understood that any future incidents involving a workplace altercation would lead to his dismissal, considered in combination with the other material before her, provided sufficient grounds to justify Ms Rowland's decision to terminate Mr Anderson's employment. [137] In any event, even if there was insufficient material before QH in April 2012 to underpin a decision to terminate Mr Anderson's employment for misconduct, the position is now, as a result of evidence led by QH during the course of these proceedings and my findings in relation to that evidence, there is adequate evidence to support the "penalty" of dismissal of employment for misconduct. (Byrne and Frew v Australian Airlines Ltd1 and Shepherd v Felt and Textiles of Australia Ltd2, at 373, 377-378 confirmed in Concut Pty Ltd v Worrell3 , at [29]). [138] For the above reasons I find that the decision of Queensland Health to dismiss Mr Anderson from his employment for reasons of misconduct on 12 April 2012 was not harsh, unjust or unreasonable. As such, I refuse, and now dismiss, Mr Anderson's application for reinstatement. [139] I determine and Order accordingly. A.L. BLOOMFIELD, Deputy President. 1 Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410. 2 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359. 3 Concut Pty Ltd v Worrell [2000] HCA 64. -- 20 of 21 -- 21 Hearing Details: 2012 25 October (Hearing) 26 October (Hearing) 31 October (Hearing) 12 November (Hearing) Released: 29 November 2013 Appearances: Ms M. Cerrato of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) for the Applicant on 25 and 26 October 2012. Mr G. Rebetzke of Counsel instructed by Maurice Blackburn for the Applicant on 31 October and 12 November 2012. Dr M. Spry of Counsel instructed by Crown Law for the Respondent. -- 21 of 21 --