A reminder (if one is required) that workplaces should be safe places for all and not involve sexually inappropriate conduct can be find in two recent decisions of the Queensland Industrial Relations Commission – O’Neill v State of Queensland (Queensland Ambulance Service) [2022] QIRC 241 (22 June 2022) and Moxey v State of Queensland (Queensland Ambulance Service) [2022] QIRC 254 (30 June 2022).

O’Neill

In O’Neil’s case Mr O’Neil was demoted from Clinical Support Officer to Advanced Care Paramedic due to “inappropriate conduct by making two inappropriate statements whilst facilitating a Tier 1 training course at Gladstone Ambulance Station” ([10]). It was established that during Occupational Safety Training, where he was a trainer, Mr O’Neil said:

(i) ‘If a guy is coming at you, girls can lift their shirt and it will stop them in their track as they’ll be too busy gawking at your breasts that she could then react’, and

(ii) ‘If out around town and a male was about to sexually assault you, all you have to do is lift your skirt and invite the perpetrator to rape you. Whilst the perpetrator has his pants around his ankles, it will give you the chan[c]e to run and escape’.

Mr O’Neil admitted that the conduct was inappropriate but argued that the penalty, with significant financial implications, was excessive. Further this was a ‘technique that [he claimed] …had been taught in other self-defence classes’ ([21]) and he ‘was genuinely concerned for his colleague’s safety and was sharing his knowledge’ ([24]).

The Commission’s job was conduct ‘a review of the decision arrived at and the decision-making process associated with it’ not conduct a fresh hearing ([8]). In her review Commissioner Hartigan said (at [27]):

As noted by the decision maker, as an employee in a supervisory role, Mr O’Neill occupied a unique position of trust and responsibility. I consider it was fair and reasonable for the decision maker to conclude that the inappropriateness of Mr O’Neill’s action in the workplace did not project the desired image of a QAS employee in such a position. Mr O’Neill’s conduct fell well short of the behaviour expected of an employee employed at Mr O’Neill’s level.

Commissioner Hartigan was satisfied that the original decision maker took into account all the matters raised by Mr O’Neil and ‘it was open, on the material before the decision maker, to form a view that the proposed disciplinary action was fair and reasonable’ ([34]). There were other grounds of appeal that were also rejected.  Commissioner Hartigan held ([56]-[57]) ‘that the decision was open to be made on the information before the decision maker’ and ‘the decision was fair and reasonable’.

Moxey

The allegations were that Mr Moxey said to a female paramedic who is in a same-sex relationship:

“As a Muslim, how do your parents react to your lifestyle?” and

“If it wasn’t for the way she is, she would be Mrs Moxey.”

A third allegation was not substantiated and therefore not the subject of the disciplinary decision or the appeal. The decision maker found that Mr Moxey’s conduct ‘failed to comply with standard 1.5 of the Code of Conduct … Demonstrate a high standard of workplace behaviour and personal conduct’ ([24]).  Mr Moxey was advised that the proposed penalty was a formal reprimand and an order transferring Mr Moxey to a different ambulance station ‘along with a number of management actions regarding training and performance’ ([25]).  He was invited to make submissions on the proposed penalty but rather than do that, he lodged an appeal against the finding that the relevant offences were established. This appeal was lodged out of time, and he therefore had to persuade the Commission to allow him to file his appeal out of time.

The grounds of appeal were that the ‘decision was not fair or reasonable’ and the decision maker ‘could not have been made based on the evidence before the decision maker at the time the decision was made’ ([9]).

Commissioner power considered Mr Moxey’s submissions, but she was ‘not satisfied that the appeal has good prospects of success’ ([47]) and that leave to file the appeal out of time should not be granted.

That is not the end of the matter. That means the finding that the conduct occurred and that it breached the code of conduct stands, but it is now up to QAS to determine the appropriate consequence. Mr Moxey can still make submissions on what that outcome should be and can appeal that decision if he is dissatisfied with that final outcome.

Conclusion

In the 21st century it is still a surprise to me that such cases continue to arise, but perhaps not a surprise to the women in ambulance services and women in all walks of life. These cases remind paramedics, and all of us that there are consequences for failing to (to quote from the QAS code of conduct) ‘treat co-workers … with courtesy and respect [and] be appropriate in our relationships with them’ and ‘ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment’.  This obligation is particularly incumbent on those in authority or leadership who need to set the standard.

T

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.