Farrelly v Queensland Ambulance Service [2006] QIRC 100 (2006) 182 QGIG 731

[Extract from Queensland Government Industrial Gazette, dated 25 August, 2006, Vol. 182, No 18, pages 731-736] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 75 - application for reinstatement David Farrelly AND Queensland Ambulance Service (TD/2005/139) COMMISSIONER BECHLY 10 August 2006 DECISION This is an application for reinstatement of Mr David Farrelly who was dismissed by his employer, Queensland Ambulance Service (QAS) on 14 September 2005. The reason for termination was a belief held by QAS that Mr Farrelly, a paramedic with over nineteen years service, made hoax calls on Friday 1 October 2004, reporting a single vehicle accident on the Brisbane Valley Highway. Mr Farrelly was stationed at the Lowood Ambulance Centre at that time. Emergency Service Units were despatched to the stated scene but no accident was discovered. Mr Farrelly denies making the calls. The principal issues to be determined are whether the method used to identify Mr Farrelly as the caller were appropriate and whether the respondents applied an appropriate standard of proof in reaching the determination to terminate Mr Farrelly's employment. Apart from matters directly related to those issues it was not argued that procedural fairness was not afforded to Mr Farrelly. The circumstances can be described in the following terms:  At about 3.14 a.m. on Friday 1 October 2004 a call was made on 000 and received by the QAS Communications Centre in Brisbane. The caller reported a single car, four wheel drive accident on the Brisbane Valley Highway heading towards Esk at a place called Hamon Cove. It was established by the operator that the caller was using a mobile phone. On request the caller advised a somewhat garbled number for the phone. The caller identified that there was only one young male person at the accident who did not appear to be injured, just shaken up. The caller indicated that he had left the scene to get better phone coverage down the road. After some routine questions were put by the operator the caller apparently discontinued the call.  The operator at the Brisbane Communications Centre then contacted the South East Area Communications Centre (SECOMM), that being the centre responsible for allocating units to attend the accident, and passed on the information from the unknown caller. The operator also contacted the Police Service and provided the same information.  The nominated scene of accident was approximately halfway between the Lowood and Toogoolawah QAS stations. The computer aided dispatch system selected Toogoolawah as the centre to provide emergency services. A crew was dispatched from that centre at about 3.18 a.m. Police and Fire Rescue Services were also directed to the stated scene of accident.  It was established during the investigation into the matter that the caller was using a mobile phone with the sim card removed. This enabled an emergency call to be made but prevented the phone from being identified. Such calls are transmitted via the nearest available carrier's system whether it is the carrier that the sim card is connected to or not. Evidence was provided that it was due to the lack of telephone identity that the communication system directed the call towards the Brisbane Communications Centre.  At about 3.40 a.m. on the same day a second call was received from the same caller about the same incident. The call was made to 000. It can be safely stated that it was the same caller because the caller identified himself as the first caller. The caller enquired as to how long it would be before an ambulance arrived. By that time an ambulance and other emergency services had been dispatched from Toogoolawah and were on the Highway searching for the accident scene at Hamon Cove.  The second call was received at SECOMM on the Gold Coast. It was received at that centre because the system could identify the phone by which the call was being made. When emergency 000 calls are made some location details of the phone being used to make the call are passed from Telstra to the Department of Emergency Services Communication Centres. This information is known as Caller Line Identification (CLI) and, as well as being stored in a database, is displayed to the communications centre and printed on a printer attached to the computer. The CLI identified the mobile telephone being used as that having the call number 0411 053 483 and belonging to "Farrelly" of 6 Wyndham Street, North Ipswich 4305. The area from which the call was being made was Lowood. -- 1 of 6 -- 2  The communications centre operator obtained information from the hoax caller which placed the alleged incident near the Split Yard Creek turnoff which is about twenty kilometres closer to the Lowood ambulance centre than the information given in the previous call.  This information was despatched to the emergency services crews, including the QAS crew from Toogoolawah, who were already investigating the first call and police were advised of the phone details which had been shown on the CLI.  The Police Service contacted that mobile phone and held a conversation with Mr Farrelly. During that conversation Mr Farrelly contacted the SECOMM operator by way of landline. He denied knowledge of the previous calls, claiming that he had been asleep. Following these occurrences, the matter was the subject of detailed investigation by the respondent with the applicant being provided with appropriate opportunity to respond. The essence of this matter is the identification of the caller. The respondent relies upon the CLI identification and voice recognition by QAS staff. Recordings of the relevant calls were tendered. For the applicant it is proposed that the CLI material is inadmissible because no evidence was produced from Telstra that its equipment was functioning accurately at the time and that the voice recognition was tainted because those called to identify the voice were aware at the time of the second call that the screen showed Mr Farrelly as the caller. During the pre-trial processes a number of witness statements were filed in the Registry and included in the case file. Each was examined by me in preparation for the trial. By decision of one or other of the parties a number of these witnesses were not called or not cross-examined. It is appropriate to consider the content of these witness statements. For the applicant the following statements were filed but not subject to cross-examination:  Eric Eyre, Paramedic QAS with eighteen years employment. Mr Eyre identifies an occasion on 14 June 2005 when Mr Farrelly was his partner for the day at the Laidley Station and when Mr Peter Dennis, the Area Manager incorrectly identified the voice of a Paramedic, Mr Ken Weimers, whose voice was in the background, as that of Mr Farrelly. Mr Eyre estimates that there would be up to one hundred paramedics employed within the Ipswich Area with whom SECOMM operators would converse with regularly. The respondent elected not to cross-examine Mr Eyre.  Matthew David Hunter who recalls an incident in May 2002 when the Area Manager, Mr Peter Dennis, at a meeting referred to complaints from SECOMM operations about Mr Farrelly. Mr Hunter identified himself as being the person making the calls complained of, not Mr Farrelly. The calls were said to have been abusive and challenging to directions of a dispatcher.  Geoffrey Raymond Edwards, Technical Specialist employed by Optus Administration Pty Ltd. This material deals with maps indicating the extent of boundaries and the most likely serving "call" of the Optus GSM network in the region involved in this matter.  David Finlay, Support Liaison Officer, Optus Administration Pty Ltd who provided information about a mobile telephone account thought to be the number nominated by the caller making the first call. This has little, if any, relevance to the matter.  The applicant's wife also provided evidence as to voice identification and, while stating that there were some similarities between her husband's voice and the voice of the person making the emergency calls, that person was not her husband. Mrs Farrelly was not cross-examined by the respondent. For the respondent the following statements were provided but not cross-examined.  David John Mapstone, Acting Principal Industrial Relations Officer, Department of Emergency Services. Mr Mapstone's evidence goes to procedures adopted to secure forensic voice analysis of the three recordings involved in the matter and contains a report prepared by Dr John Ingram PLD.  Paola De Tina, Communications Officer, stationed at the Communications Centre, Boundary Street, Brisbane. Ms De Tina took and dealt with the first call made at about 3:14 a.m. and was interviewed by the investigator enquiring into the matter for the Department of Emergency Services. In this matter the onus of proof of the allegations against Mr Farrelly lies with the respondent. The allegations are serious, more so, because of the nature of the applicant's employment. (Gold Coast District Health Service v Walker 168 QGIG 258 at 259 per Hall CC) -- 2 of 6 -- 3 The respondent relies heavily upon the voice identification made by communications officers of the two hoax calls made by the caller and the Telstra mobile phone identification through the CLI System to satisfy the onus required of it. By not cross-examining the two witnesses who provided evidence about previous alleged errors of identification, the Commission is left with the belief that the events attested to are factual. What then is the relevance or strength of this evidence in the face of the voice identification provided for the respondent? The evidence for the applicant identifies occasions where a voice was heard in the background and incorrectly identified as that of the applicant by one of the respondent witnesses. Further, unidentified communication officers, on one occasion, were alleged to have complained to the same management witness for the respondent about alleged communication by the applicant when, in fact, the communication was not from the applicant. This evidence was provided by Messrs Eyre and Hunter. As against that evidence, the respondent has provided voice recordings of the caller and drawn evidence from staff who have known the applicant for relatively lengthy periods both personally and by way of transmitted voice communication. One of those witnesses is a person said to have incorrectly identified a background voice as the applicant's during a telephone conversation. Each of these witnesses identifies the applicant as the person who made the hoax calls. Three of the witnesses make no concessions as to possibility of error. One reluctantly concedes that there might be a possibility. This concession was not further examined by the respondent. In considering this evidence I have taken into account the report of Dr John Ingram from the Department of English, University of Queensland. This report was jointly funded by the parties subsequent to mediation following the filing of the application. It was not, of course, available to the respondent at the time a decision was made to terminate the applicant's employment. Dr Ingram's brief was to ascertain the quality of the two hoax recordings with a view to determining whether the voice of the male caller could be identified with the male speaker in the third recording (that being the call made by the applicant to SECOMM). Dr Ingram states that "...speaker identification on the basis of short telephone conversations where there is little overlap in terms of the verbal content of the recordings is inherently problematic. Persons who are well acquainted with a particular speaker's voice may be in a position to make a positive identification, but the method I employ in situations such as this relies on corroborative acoustic measurements from the speech sequence, specifically measurements of the vocal tract resonances - formant frequencies.". With respect to recording quality Dr Ingram said "…I find that the male caller's voice was quite intelligible and that the first call was of adequate quality to permit tracking of the speaker's format frequencies." "...The speech of the male speaker on the second call was intelligible for the most part, but of insufficient acoustic quality to permit tracking of the first two or three formants and therefore not amenable to acoustic analysis. The caller's voice kept 'breaking up'. It may be possible for a person familiar with the caller to form an opinion of the identity of the speaker. But I would reject this sample for voice analysis. The signal quality of the male speaker in the third recording is comparable to that of the recording in the first call. It is possible to track formant frequencies. I have not analysed the content of the speech in any detail to ascertain the amount of content overlap, but my impression is that there is insufficient material to make a detailed analysis worthwhile on a cost-benefit basis. Again I stress that the option of independent witnesses who can testify to the identity or otherwise of the voices on the first or the third recording may be given due credence. In summary, I have not formed an opinion one way or the other on the question of the identity of the speakers on these tapes on the basis of this preliminary evaluation. I doubt that further detailed acoustic/phonetic analysis of the voices on the recordings would yield conclusive evidence and recommend against pursuing this course of action on the grounds of cost/effectiveness. This recommendation, of course, is restricted to the question of forensic voice analysis and does not apply to considerations involving the substantive content of the telephone conversations (what was said) or to the circumstances surrounding the conversations.". -- 3 of 6 -- 4 While this body of evidence is not helpful in the provision of incontrovertible scientific evidence as to the recognition of the applicant's and to the hoax caller's voices it is helpful in that it supports the concept of voice recognition by persons familiar with the applicant. Several witnesses have attested to the fact that they recognise the applicant's voice as the same voice as the hoax caller. They fit within the category of persons described by Dr Ingram i.e., "persons who are well acquainted with a particular speaker's voice" and "I stress that the opinion of independent witnesses who can testify to the identity or otherwise of the voices on the first or third recording may be given due credence." Evidence as to recognition of the hoax caller's voice was given by the following:  Ms Natasha Allen, a communications officer who received the second hoax call, who had a telephone conversation later that morning with the applicant and who later listened to recordings of the two hoax calls. Ms Allen had some five years experience as a communications officer and has known the applicant both prior to her employment as a communications officer and subsequent to that employment over a period of some eight years. Ms Allen estimates that she has spoken to the applicant hundreds of times at least in her role as a communications officer. Ms Allen, under cross-examination, was definite in her identification of the voice in the second hoax call as being that of Mr Farrelly. She would not concede that there was any possibility of mistake in identification.  Mr Stuart Wayne Clark, a communications officer who listened to the recordings of the two hoax calls. Mr Clarke has been employed at SECOMM for the last two years. Prior to that he was a QAS transport officer. He is responsible for the receipt and handling of radio and telecommunications traffic in the South East Region. He dispatched emergency service personnel following the receipt of the first hoax call. Staff were dispatched from the Toogoolawah station, that being the station indicated in the computer aided dispatch system was being the closest station to the accident indicated by the first hoax call. Upon listening to the recordings of the two hoax calls Mr Clark identified Mr Farrelly as being the hoax caller. Mr Clark based his identification on some four years of communication with Mr Farrelly by phone and radio. He states that he has become more familiar with the voice of QAS staff in country stations, stations where Mr Farrelly generally worked. On examination Mr Clark clearly identified that he was sure that the voice on each of the calls was that of Mr Farrelly. He heard the voice of the second hoax call on the morning in question while working in the communication centre, and was given the opportunity to listen to the first and second hoax calls and, during the hearing, listened to the call from Mr Farrelly to the SECOMM. He stated that he recognised the voice in the second hoax call and discussed that with Ms Allen at the time. He also saw Mr Farrelly's name appear on the CLI system. On cross-examination Mr Clark agreed to the proposition put to him that he was not infallible and acknowledged, reluctantly, the proposition put to him that there was a possibility of mistake.  Ms Jan Michelle Tooth, a Station Officer who listened to the recordings of the two hoax calls. Ms Tooth is currently the Officer in Charge at Ipswich and has been employed in the QAS for over twelve years. She has worked with Mr Farrelly since 1998 and has had radio and telephone communications with him since that time. She has personally supervised him for periods on four occasions. Ms Tooth identified Mr Farrelly's voice as being that contained in the two hoax call recordings and a later call made by him to SECOMM. On cross-examination Ms Tooth rejected that there was any possibility that she had incorrectly identified Mr Farrelly's voice or that her recognition had been inappropriately coloured by a perception, gained from some pre-knowledge of the investigation that she was going to hear Mr Farrelly's voice. Her evidence was that she was confident, beyond a shadow of doubt that the voice in the hoax calls was Mr Farrelly's.  Mr Peter Joseph Dennis who, at the time of the incident, was the Area Director for the Ipswich Area and listened to the recordings of the two hoax calls. Mr Dennis has been an employee of QAS for twenty-five years. His evidence is that he is certain that the voice in the two hoax calls is that of Mr Farrelly. He has known Mr Farrelly since about 1991. He has worked with Mr Farrelly and listened to him on a radio scanner. Mr Dennis, in his role, was required to deal with internal disputes between Mr Farrelly and other staff. His role was to mediate on these issues. He did not file complaints against Mr Farrelly. When he became aware of the hoax calls incident he notified his supervisor. An investigation was instigated. He did not manage the investigation. Mr Dennis has had significant face to face and telephone conversations with Mr Farrelly. His evidence is that he recognises the voice in the hoax calls as being Mr Farrelly. On cross-examination his evidence is that he is absolutely certain that the hoax caller's voice is that of Mr Farrelly and that that recognition was not affected by any pre-knowledge that Mr Farrelly's telephone had been identified on the CLI system. These witnesses either knew the applicant personally through working with him, or supervising him, or by communicating with him by way of telephone or other electronic means. The contact ranges up to eight years of personal contact and many voice contacts. -- 4 of 6 -- 5 Their evidence is not, in my mind, diminished by the evidence provided by Messrs Eyre and Hunter. While the events they describe no doubt occurred the evidence of those occurrences is not such that the firm evidence of the witnesses Allen, Clark, Tooth and Dennis should be called into doubt. I also take into account the suggestion in Mr Farrelly's evidence that there was an unsatisfactory relationship between three of the respondent's witnesses and himself. This was explored by the respondent and I am satisfied that there is nothing untoward in the respondent's witnesses relationships with Mr Farrelly such as would taint their evidence. It is noteworthy that Mr Farrelly states that there is a long list of communication officers in the QAS that he has attitudinal problems with. On a full consideration of the evidence on this voice identification, I do not believe that it is inappropriately tainted by either the applicant's name and telephone number appearing on the CLI System, or an awareness that the applicant was under investigation. While the overall voice recognition evidence seems to be the prime determinant as to identification of the hoax caller it was supported by the CLI which received the applicant's name and telephone number from Telstra as a result of a call being made to 000. It is that information which is said should not be admitted because the respondent has not provided assurance from Telstra that the computer involved was functioning correctly. I take into account the evidence of Commissioner Higgins drawn from his considerable knowledge from his past experience in setting up the CLI System. While not so described during the hearing it seems to function in a similar manner as caller identification on other phone systems and is a transmission activated by the callers use of a particular telephone with its own individual number. In this case the number identified as the caller was the applicant's mobile phone number, the number which he had provided to the ambulance service as his point of contact. The coincidence of this number appearing on the Call Identification System and the compelling voice identification is too great to ignore. It was not inappropriate for Commissioner Higgins to take this evidence into account when making the decision to terminate the applicant's services. The standard of proof applied by Commissioner Higgins as described in his evidence was appropriate. In reaching the conclusion that it was the applicant who made the hoax calls, I take into account the evidence of the applicant's wife who, while acknowledging some similarities, holds the view that it is not her husband's voice. I also take into account the material provided as to the recording or non recording of 000 emergency calls on telephone accounts. The information from Optus is that the call would not be so recorded, but the applicant produced a telephone account from Optus showing a 000 emergency call. This emergency call was made by private arrangement by the applicant with the emergency call operator. What the arrangement was was not dealt with during the hearing. Whether that arrangement caused a call to be registered on the account is unknown. An opportunity to test whether 000 emergency calls are recorded on telephone accounts was not taken up by the parties. Under cross-examination Mr Farrelly revealed that he had recently made such a call on his new mobile phone. The Carrier was OPTUS and he retained the same telephone number. He reported an accident and apparently the emergency call operator had some difficulty making a connection to the QAS communication centre. On about six occasions Mr Farrelly requested the name of the QAS communications officer, who refused to answer. Mr Farrelly described it as a frustrating experience. The telephone account which might have reflected this call was not dealt with. I also take into account the applicant's statement that his mobile phone was stolen sometime prior to these events and that somehow his sim card may have been cloned and used by an unknown person to perpetrate the hoax calls. In taking this into account I have also considered other material provided through the telecommunication company Optus dealing with the unlikely possibility of this occurring. Having been satisfied that Mr Farrelly was properly identified as the hoax caller with little, if any, room for doubt it now remains to be considered whether termination of employment was a reasonable action to be taken by the respondent. Making hoax calls is a serious matter, more so by an employee engaged in provision of emergency services. As a result of these calls ambulance, police and fire services were despatched in a fruitless search for a nonexistent accident. It was open to the Commissioner of the Queensland Ambulance Service to dismiss the applicant instantly, however the applicant was provided with five weeks pay in lieu of notice and paid all accrued benefits. In my view this was a reasonable course of action. -- 5 of 6 -- 6 I find that the dismissal was reasonable in the circumstances and decline to make the orders sought. The application is dismissed. R.E. BECHLY, Commissioner. Hearing Details: 2006 13, 14, 15 June Released: 10 August 2006 Appearances: Mr D. Kent instructed by Mr L. Forsyth of Hall Payne Lawyers on behalf of the Applicant. Mr D. Mapstone of the Department of Emergency Services on behalf of the Respondent. Government Printer, Queensland The State of Queensland 2006. -- 6 of 6 --