I have previously reported on the fate of paramedic Sally-Anne John who was suspended by the NSW Paramedicine Council after taking part in a rally protesting against measures adopted in NSW to deal with the COVID-19 pandemic and publishing comments about the police on social media – see NSW Paramedic suspended after participation in COVID-19 protests. (April 14, 2023).  She admitted saying the following words on her social media live stream from the protest:

“Of course the police have turned this peaceful protest into shit. As usual its always the fucking cops that do this. Always turn something peaceful into something it shouldn’t be. Fucking pigs!”

“They’ve started everything. It was a peaceful protest. We were doing nothing wrong. Then they come in with the tear gas and the heavy handedness… It’s just bullshit.”

“And they’re supposed to serve us. And we pay them.”

“Lockdown is not the way to go. But they’re dictated by higher up to do what they’re doing today.”

“Everyone should just come around and come in front the back of the police and just push them along.”

“I think everyone should stand their ground actually. The men should be up there. Let’s get the men up there! Let’s go! Let the men stand the ground. You guys, get up there! Stand your ground!”

“The coppers are shitting themselves. They’re all standing back to back. They’re totally fucking outnumbered.

“And no we will not go home. Fuck you and your comments on here. You fucking go home. Least I care about my country and my family. You fucking arseholes sitting on your arse there in front of the computer. Doing fucking jackshit and taking the fucking vaccine. No we won’t go home. We are home. This is our home. Australia’s our home. And we’re trying to protect it. All you people saying go home…psshtt, youse got no idea. You’ve been brainwashed. Youse are all brainwashed. Is it nice to know you don’t have a free thought in your head. That you do everything the government tells you. Pssshht no thank you. And regardless of what job I have, I still am able to think about things. I still have an opinion and a thought. And know this wrong. But all you people, you sheep who like to lap it up. ‘Oh I’m going to get my vaccine’. Yeah right, it’s not even a vaccine. You should do your research.” (Sic)

The result of disciplinary proceedings under the Health Practitioner Regulation National Law was that Ms John’s registration as a paramedic was suspended for three months.  She was allowed to return to practice after that time subject to some conditions.

Ms John was also convicted of an offence contrary to the Public Health Act 2010 (NSW) because she attended the protest when she was required to be self-isolating after exposure to COVID-19. The offence was proved but she was released on a ‘conditional release order’ (in older terms, a good behaviour bond) but without conviction.

Apart from disciplinary proceedings and criminal proceedings, Ms John was dismissed from her position as a paramedic with NSW Ambulance.  In John v Health Secretary in respect of the Ambulance Service of NSW [2023] NSWIRComm 1073 (26 July 2023) Commissioner Sloan dealt with her application to be reinstated to her position on the basis that the decision to dismiss here was ‘unfair’.  To be unfair a dismissal must be ‘harsh, unreasonable or unjust’ (Industrial Relations Act 1996 (NSW) s 84. Because Ms John was employed by the NSW Government the relevant law is in the state Act, not the Fair Work Act 2009 (Cth) but the test of ‘unfairness’ is the same).

In an internal disciplinary process, NSW Ambulance raised seven allegations of misconduct.

Four related to Ms John’s behaviour [at the protest] on 24 July 2021, which was alleged to have been in breach of the NSW Health Code of Conduct Policy Directive PD2015_049, the NSW Ambulance Social Media Operating Procedure PRO2019_109 and/or the Code of Conduct for Registered Health Practitioners, as administered by the Australian Health Practitioners Regulatory Agency (“AHPRA”). One allegation arose from the charge and plea of guilty in the Local Court. Two related to Ms John’s alleged failure to report to NSW Ambulance, respectively, the criminal charge and the suspension of her registration on 30 July 2021.

Ms John was advised of the complaints and invited to respond. ‘She admitted to the allegations and did not dispute that it was her voice on the recordings or the words attributed to her. She expressed contrition and remorse’ ([14]).  She was advised that the relevant delegate was considering her dismissal and she was given the opportunity to make submissions with respect to the appropriate sanctions. She was dismissed on 17 March 2023.

Given the serious nature of her breach, in particular a wilful breach of the self-isolation requirements and the language inciting violence toward police, Commissioner Sloan found that the decision to terminate her employment was not ‘unjust’ ([43]).

Ambulance followed the appropriate process to inform Ms John of the allegations against her and allowed her to respond. The dismissal was not ‘unreasonable’ ([44]).

That left the question of whether the decision was ‘harsh’.  A consideration of whether the decision was ‘hash’ requires a balance to be struck between the offending conduct and any factors in mitigation including length of employment and employment record ([46]).  To a certain extent Ms John was ‘hoist on her own petard’. Commissioner Sloan said ([48]-[50]):

I accept that Ms John has expressed remorse and contrition, including from the day of the protest itself. That is in her favour. However, it is qualified, to some extent, by the following submissions she made in reply in these proceedings:

“Management goes on and on about policies and procedures, all neatly tied up in a bow and emailed to the masses who are burnt out and not only during the pandemic. The problem with large organisations, the bigger they get the more policies and procedures and then throw in all the policies and procedures from all the linked organisations and you’re under a pile of red tape and paper. Only a robot would be able to decipher and take in all this information WHILST working a 4 x 12+ hr shifts per week. Do you really think an on-road paramedic who is up at 5am in the morning, works a 12 + hr shift has the time to read all the emails, policies, and procedures[?] …The majority of us working paramedics are out there just earning a living luckily doing something we love and are good at in order to put food on the table for our family whilst helping out community when they need us. Not the world that management live in where they are sitting in an air-conditioned office all day, pushing the send button on emails that they have absolutely no idea if the masses are reading them. Those in management and leadership roles often lose sight of the fact that people are not machines, systems or projects and cannot be ‘managed’ as if they are inanimate objects incapable of thought and emotion. When do you consider the ‘human factor’[?]”

These submissions contain some echo of the comments made by Ms John during her livestream on 24 July 2021. Her reference to the “the world that management live in where they are sitting in an air-conditioned office all day, pushing the send button on emails that they have absolutely no idea if the masses are reading them” echoes the comments she made on 24 July 2021 to people “sitting on your arse there in front of your computer”.

The submissions also call into question the extent to which I could have confidence that Ms John would abide by NSW Ambulance policies and procedures were she to be reinstated. There is more to being a paramedic than clinical, on-the-road skills.

The Commissioner found the decision to dismiss was not ‘harsh’.  The application was dismissed.

Discussion

Ms John had been a paramedic for 18 years. She lost her career and has been subject to public criticism (including having her cases discussed on this blog) over a decision she made on one day, but, as she said (at [53]) “you cannot change what you have done but you have got to accept responsibility for what you have done and move on from it”.

In her submissions she gave details of her personal circumstances to put her behaviour into context. This circumstances, said the Commissioner (at [34]), ‘do not exonerate her from her conduct. They may help to explain why she felt it necessary to support her husband by attending the protest on 24 July 2021; they do not explain her decision to livestream the event, much less the damaging and offensive commentary which she offered to accompany it.’ 

Her decision to attack management in her submissions, and to imply that the issue was a breach of policy that it was unreasonable to expect her to know rather than an obvious and foolish departure of accepted conduct, did not help her case. As the Commissioner said (at [40]) ‘…as NSW Ambulance submitted, you do not need a policy to know that what Ms John did was wrong. NSW Ambulance submitted, with some justification, that “[i]t is difficult to imagine a more serious case of misuse of social media”.’

Minds could differ on whether the decision to terminate her employment given the periods of suspension, both from her employment and as a paramedic, was harsh.  One could argue that her suspension, the imposition of conditions on her registration and the outcome of the criminal proceedings were all determined to allow her to demonstrate that she understood the seriousness of her actions.  If she’s ‘done the time’ then arguably she has a clean slate.  And to a certain extent that is true. Ms John remains a registered paramedic and it is open to any other ambulance service (public or private) to employ her if they want to. The question in this case was whether NSW Ambulance was compelled to continue her employment. 

The Commission found that they were not. As Commissioner Sloan said (at [55]):

… I am not persuaded that Ms John’s dismissal was disproportionate to the gravity of the misconduct in which she engaged. I have given careful consideration to Ms John’s expressions of remorse and contrition. However, the question is not whether the Commission ought to give Ms John another chance, but whether it was harsh for NSW Ambulance not to have done so.

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.