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  • Unreported Judgment

Jackson v Deputy Commissioner Gollschewski

 

[2017] QCAT 464

CITATION:

Jackson v Deputy Commissioner Gollschewski [2017] QCAT 464

PARTIES:

Paul Jackson

(Applicant)

v

Deputy Commissioner Steve Gollschewski

(Respondent)

APPLICATION NUMBER:

OCR094-17

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 and 29 November 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

22 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Deputy Commissioner that Mr Jackson was guilty of misconduct is confirmed in respect of Ms B, Ms C and Ms D in incidents B1, B2, B3, B4, C1, C2, C3, C4, D1 and D2.
  2. In all other respects concerned with substantiation the decision of the Deputy Commissioner is set aside.
  3. The application is listed for 9.30am on 2 March 2018 to consider sanction.
  4. Pursuant to section 66 of the Queensland Civil and Administrative Act 2009 (Qld), the publication of the name of any person referred to in this decision other than a party, and the publication of any information that may enable such a person to be identified, is prohibited.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND where male officer had a personal relationship with a female officer under his command – where male officer was alleged sexually to have harassed the female officer and another female officer and other women – where Deputy Commissioner found all incidents substantiated – whether on review the incidents are substantiated – whether the substantiated incidents amounted to misconduct

Anti-Discrimination Act 1991 (Qld), s 119

Crime and Corruption Act 2001 (Qld), s 219BA

Police Service (Discipline) Regulations 1990 (Qld), s 3, s 9

Police Service Administration Act 1990 (Qld), s 1.4, s 7.4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Aldrich v Ross [2001] 2 Qd R 235

Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123

Flegg v Crime and Misconduct and Anor [2013] QCA 376

Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348

APPEARANCES AND REPRESENTATION:

APPLICANT:

Matt Black counsel, instructed by Gilshenan & Luton Legal Practice

RESPONDENT:

S A McLeod counsel, instructed by Queensland Police Service Legal Unit

REASONS FOR DECISION

  1. [1]
    On 2 May 2017 the Deputy Commissioner of Police decided that Paul Jackson, then Detective Senior Sergeant Jackson, should be dismissed from the Queensland Police Service for misconduct.  Mr Jackson had been a police officer for some 30 years having joined the service in early 1987.
  2. [2]
    The alleged misconduct occurred during a time when Mr Jackson was officer in command at the Child Protection and Investigation Unit (CPIU) at Surfers Paradise.
  3. [3]
    The allegations against Mr Jackson emerged in about late February 2015 when Ethical Standards Command was notified by a senior officer about concerns about sexual harassment.  On 12 March 2015 Mr Jackson was stood down pending the result of an investigation.  He has not been back to work since then.
  4. [4]
    The investigation resulted in a report dated 4 December 2015 which recommended that there be a disciplinary hearing. 
  5. [5]
    Mr Jackson was called to a disciplinary hearing on 14 July 2016.  The allegations were that:

between 8 September 2012 and 11 March 2015 your conduct as a senior officer was improper in that you engaged in:-

  1. sexual and other forms of harassment of (police officer Ms A);
  2. sexual and other forms of harassment of (police officer Ms B);
  3. sexual and other forms of harassment of (Ms C);
  4. sexual harassment of (Ms D);
  5. sexual and other forms of harassment of (Ms E).
  1. [6]
    The allegations were then set out in more detail.  In relation to Ms A there were 8 incidents listed in the particulars and then a list of 18 text messages that were objected to; for Ms B and Ms C there were 4 incidents each; for Ms D there were 2 incidents and for Ms E, 7 incidents.

The Application for Review

  1. [7]
    Mr Jackson has applied to the tribunal to review the disciplinary action taken against him by the Deputy Commissioner.
  2. [8]
    The disciplinary action taken by the Deputy Commissioner was under section 7.4 of the Police Service Administration Act 1990 (Qld) which reads:

7.4 Disciplinary action

  1. (1)
    In this section—

officer, in relation to a person liable to disciplinary action, includes a police recruit.

prescribed officer means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.

QCAT information notice means a notice complying with the QCAT Act, section 157(2).

  1. (2)
    An officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations.

(2A) If the prescribed officer—

  1. (a)
    decides an allegation of misconduct brought against the officer; or
  1. (b)
    when deciding an allegation of breach of discipline brought against the officer, finds that misconduct is proved against the officer;

the commissioner must give a QCAT information notice to the officer and the Crime and Corruption Commission for the decision or finding within 14 days after the making of the decision or finding.

  1. (3)
    Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of the following—
  1. (a)
    dismissal;
  1. (b)
    demotion in rank;
  1. (c)
    reprimand;
  1. (d)
    reduction in an officer’s level of salary;
  1. (e)
    forfeiture or deferment of a salary increment or increase;
  1. (f)
    deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units.
  1. (4)
    Every order made by way of disciplinary action takes effect in law and is to be given effect.
  1. (5)
    To remove any doubt, it is declared that a reference in the QCAT Act, section 157(2) to a decision includes a reference to a finding.
  1. [9]
    Section 9 of the Police Service (Discipline) Regulations 1990 (Qld) states what can be grounds for disciplinary action, and the one relied on by the Deputy Commissioner is 9(1)(f) - misconduct:

9 Grounds for disciplinary action

  1. (1)
    For the purposes of section 7.4 or part 7A of the Act, the following are grounds for disciplinary action—
  1. (a)
    unfitness, incompetence or inefficiency in the discharge of the duties of an officer’s position;
  1. (b)
    negligence, carelessness or indolence in the discharge of the duties of an officer’s position;
  1. (c)
    a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner;
  1. (d)
    a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned;
  1. (e)
    absence from duty except—
  1. (i)
    upon leave duly granted; or
  1. (ii)
    with reasonable cause;
  1. (f)
    misconduct;
  1. (g)
    conviction in Queensland of an indictable offence, or outside Queensland of an offence which, if it had have been committed in Queensland would have been an indictable offence.
  1. [10]
    The decision is a “reviewable decision” within the definition of those words in section 219BA of the Crime and Corruption Act 2001 (Qld) and that review comes to the tribunal.[1]
  2. [11]
    The purpose of police disciplinary proceedings is set out in section 3 of the Police Service (Discipline) Regulations 1990 (Qld), which sets out the objects of the regulations, as follows:
    1. (a)
      provide for a system of guiding, correcting, chastising and disciplining subordinate officers;
    2. (b)
      ensure the appropriate standards of discipline within the Queensland Police Service are maintained so as—
      1. to protect the public; and
      2. to uphold ethical standards within the Queensland Police Service; and
      3. to promote and maintain public confidence in the Queensland Police Service.
  3. [12]
    The application is for a review both as to whether the conduct alleged was substantiated and also as to the sanction imposed.
  4. [13]
    This decision is limited to the question of substantiation of the allegations.  A further hearing will deal with the review of the decision on sanction.
  5. [14]
    Under section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the function of the tribunal on a review application is to produce the correct and preferable decision by way of a rehearing on the merits. In doing so, I remind myself that it is also appropriate in coming to the correct and preferable decision to give considerable weight to the view of the Deputy Commissioner about what is needed for the maintenance of internal discipline given his expertise in the administration of the police service.[2]

What is “misconduct”?

  1. [15]
    It can be seen from section 7.4(2) of the Police Service Administration Act 1990 (Qld) that an officer is liable to disciplinary action in respect of two different types of conduct that is, “breach of discipline” and “misconduct”.
  2. [16]
    The two types of conduct are defined in the definition section of the Police Service Administration Act 1990 (section 1.4) as follows:

breach of discipline means a breach of this Act, the Police Powers and Responsibilities Act 2000 or a direction of the commissioner given under this Act, but does not include misconduct.

misconduct means conduct that—

  1. (a)
    is disgraceful, improper or unbecoming an officer; or
  1. (b)
    shows unfitness to be or continue as an officer; or
  1. (c)
    does not meet the standard of conduct the community reasonably expects of a police officer.
  1. [17]
    It is clear from these definitions that the same single conduct cannot come under both definitions.  Conduct capable of disciplinary action in this context is either the more serious misconduct or the less serious breach of discipline.  This mutual exclusion is reflected by the fact that reviews of disciplinary action misconduct are dealt with differently from reviews of disciplinary action for breach of discipline, which cannot come to the tribunal on review.[3]
  2. [18]
    The meaning of misconduct as defined in section 1.4 has been considered in the tribunal.  In particular, the use of the word “improper” in paragraph (a) of the definition has been considered.  This rather wide term could encompass many types of behaviour not included in the other parts of the definition of misconduct, in the sense that the behaviour was not disgraceful or below the reasonable expectations of the community.  But in Assistant Commissioner Stephen Hollands v Tolsher [2016] QCATA 123, Carmody J held that “improper” in the misconduct definition requires “more than mere impropriety, performance deficiencies or misjudgement” but denotes “wilful indifference or wanton abuse of professional privileges and confidences or a real lack of integrity capable of eroding the trust and confidence in the officer’s moral character” so that “the conduct is so morally and socially blameworthy that nothing short of a misconduct finding is called for”.[4]
  3. [19]
    This level of conduct is to be contrasted with breach of discipline which by the definition in section 1.4 is limited to breaches of the Police Service Administration Act 1990 (Qld), breaches of the Police Powers and Responsibilities Act 2000 (Qld) or breaches of a direction of the Commissioner.

The scope of the allegations

  1. [20]
    I need to refer to the submissions made by Mr Black on Mr Jackson’s behalf.  Mr Black points out that on the review, the tribunal is limited to considering whether the allegation against Mr Jackson is substantiated, and this is why it is important to identify the allegation precisely.  It was said that the allegation is that Mr Jackson had contravened section 119 of the Anti-Discrimination Act 1991 (Qld) by committing acts of sexual harassment as defined in that section.
  2. [21]
    Then Mr Black concentrated on whether each act complained of, if found proved, was sexual harassment as defined by section 119.  It was said that for one reason or another, none of them was sexual harassment as defined by section 119 and therefore they should all be found unsubstantiated.  Even if the tribunal found that an act was sexual harassment under section 119 then the tribunal would still need to go on to decide whether that act was an act of misconduct.  On any basis therefore, it was submitted, Mr Jackson was not guilty of misconduct.
  3. [22]
    In my view this does not accurately or completely describe my task. In particular, I do not agree that the allegation against Mr Jackson was that he had contravened section 119.  As showing this, Mr Black relied on the use of the words “sexual and other forms of harassment” in the disciplinary letter in respect of all but one of the women, and “sexual harassment” in the case of Ms D.  It was said that when the width of this allegation was questioned in submissions, the Deputy Commissioner clarified that he was considering the allegations to be of sexual harassment, rather than any other form of harassment.[5]  Therefore, says Mr Black, the allegation was a contravention of section 119. 
  4. [23]
    It was also said that there was an express reference to section 119 (a), (b), (c), (d) and (f) of the Anti-Discrimination Act 1991 (Qld) in the disciplinary letter.  Mr Black submitted that it was notable that paragraph (e) was omitted.  This is the paragraph which makes it sexual harassment for someone to act in certain ways “with the intention of offending, humiliating or intimidating the other person” [as opposed to the objective test in paragraph (f)].  Hence this demonstrated the precision with which the allegation had been crafted.  Therefore the allegation against Mr Jackson was that he had committed acts of sexual harassment as defined by section 119.
  5. [24]
    In my view however, the overall effect of the disciplinary letter viewed objectively, was that it alleged that Mr Jackson had been guilty of “misconduct” rather than acts of sexual harassment as defined by section 119.  After stating that the Deputy Commissioner was to consider whether a matter was misconduct, the letter then listed the allegations in two stages.  The first stage was to list the women concerned and describe the conduct in relation to them as being “sexual and other forms of harassment” and in respect of one woman as “sexual harassment”. The list was followed by a number of references in parenthesis.  The second stage then listed the factual allegations one by one.
  6. [25]
    The references given in parenthesis in the first stage are important.  The first was to section 1.4 of the Police Service Administration Act 1990 (Qld) which as we have seen, is the definition section of that Act and which contains the definition of misconduct.  The second was to section 9(1)(f) of the Police Service (Discipline) Regulations 1990 (Qld) which lists misconduct as one of the grounds for disciplinary action.  Then came the reference to section 119 (a), (b), (c), (d) and (f) of the Anti-Discrimination Act 1991 (Qld).  Then there was a reference to two internal policy documents.  The first was the Preventing and Resolving Negative Workplace Behaviours Policy and the second was to section 12 of the Standard of Practice. 
  7. [26]
    The first of these internal policy documents explained that negative workplace behaviours would not be tolerated under any circumstances.  It described such behaviours as being any behaviour that may be defined as unlawful discrimination (including sexual harassment) or workplace bullying.  It said that negative workplace behaviours breach legislation and/or the conduct standards outlined in the Standard of Practice.  It then set out the legislation in detail including setting out section 119 of the Anti-Discrimination Act 1991 (Qld).
  8. [27]
    Section 12 of the Standard of Practice is headed “Conduct Towards Members and other Persons”.  There are then 10 principles listed, which members of the police service are obliged to follow.  The ones of particular relevance to this case are those that require members to treat everyone with respect and dignity and in a reasonable, equitable and fair manner; not to “intimidate, engage in sexual or other forms of harassment, unlawfully discriminate or otherwise abuse any person”; not inappropriately to “distract other members of the Queensland Police Service from carrying out their duties”; and not to “allow personal relationships to adversely affect their work performance or that of other members”.
  9. [28]
    It is clear that an officer who is in breach of one of the principles listed in section 12 could be in breach of discipline as statutorily defined.  But in a serious case, or where there was a course of such conduct, such breaches could amount to misconduct as statutorily defined.
  10. [29]
    To my mind, the allegation in the disciplinary letter as reasonably understood by someone in the position of Mr Jackson as properly advised, was that he had engaged in the conduct as listed in the factual details, and that conduct either taken separately or collectively amounted to misconduct, more specifically that he had engaged in sexual or other forms of harassment in respect of four complainants and sexual harassment in the case of one of them. 
  11. [30]
    Objectively the expression “sexual harassment” as used here was used colloquially and not as defined in section 119 of the Anti-Discrimination Act 1991 (Qld).  I say this because of the addition in four cases of the words “or other forms of harassment”.  There are no other types of harassment in the Anti-Discrimination Act, so that could not be a reference to a statutory definition.  When the Deputy Commissioner’s clarified that he was only looking at sexual harassment, this did not change the allegation.  It simply confirmed that there was no other form of harassment that was being alleged.  In the one instance where sexual harassment was referred to alone (that is in the case of Ms D) had this meant sexual harassment as statutorily defined I would have expected a reference to section 119, bearing in mind the formality shown in the remainder of the document.  Instead, I think the reference to sexual harassment is similar to a reference in a race allegation to an officer making a “racist comment”.  This is a colloquial expression and is not to be found in any anti-discrimination statutes.
  12. [31]
    Whilst the test for the correct understanding of the allegation in the disciplinary letter is an objective one as above, it is notable that the arguments now put forward were not those in the submissions from Mr Jackson’s lawyers before the Deputy Commissioner.  It was not then suggested that the allegation was that he had engaged in conduct which amounted to sexual harassment contrary to section 119 of the Anti-Discrimination Act 1991 (Qld) and therefore they should be addressed on that basis.  It is also to be noted that the Deputy Commissioner did not make any findings that any act was sexual harassment under the Act, and instead made findings of misconduct.[6]
  13. [32]
    During argument at the hearing before me however, two other justifiable reasons for considering whether there had been a breach of section 119 did emerge. The first was that if there was any conduct which appeared to breach section 119 then this was more likely to be misconduct.  This is because it would expose the Queensland Police Service, as an employer of the officer concerned, to a possible claim for compensation.[7]  Conversely, for the same reason, conduct outside section 119 was less likely to be misconduct.  The second reason was that when it comes to considering sanction, conduct within section 119 would be more serious than conduct not within section 119.
  14. [33]
    For these reasons I will be considering whether the conduct which I find substantiated comes within the definition of sexual harassment in section 119.  That definition is:

119 Meaning of sexual harassment

Sexual harassment happens if a person—

  1. (a)
    subjects another person to an unsolicited act of physical intimacy; or
  1. (b)
    makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or
  1. (c)
    makes a remark with sexual connotations relating to the other person; or
  1. (d)
    engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—

  1. (e)
    with the intention of offending, humiliating or intimidating the other person; or
  1. (f)
    in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

Examples for paragraph (a)—

  • physical contact such as patting, pinching or touching in a sexual way
  • unnecessary familiarity such as deliberately brushing against a person

Example for paragraph (b)—

sexual propositions

Examples for paragraph (c)—

  • unwelcome and uncalled for remarks or insinuations about a person’s sex or private life
  • suggestive comments about a person’s appearance or body Examples for paragraph (d)—
  • offensive telephone calls
  • indecent exposure

The tribunal’s approach to findings of fact

  1. [34]
    It is uncontroversial between the parties that the Deputy Commissioner has the burden to prove the alleged conduct, and that the standard of proof is what is commonly referred to as the Briginshaw standard.  That is, as explained in later cases, the standard of proof is the balance of probabilities but that since these are disciplinary proceedings capable of resulting in serious consequences, reasonable satisfaction is not to be lightly reached or on flimsy evidence.[8]
  2. [35]
    I need to examine each allegation carefully but before doing so I would preface my considerations with some general comments.  Firstly, by section 219H of the Crime and Corruption Act 2001 (Qld), the tribunal must conduct the review by way of rehearing on the evidence given in proceeding before the original decision maker.  By section 219H(2), put shortly, it is possible to hear additional evidence if its existence was not reasonably known at the time, or if it would be unfair not to do so.
  3. [36]
    In this case there has been no attempt to adduce any new evidence.  The tribunal’s position in deciding this review is the same as the Deputy Commissioner’s position, that is having to decide the truth or falsity of what was said by those interviewed during the investigation process.  The recordings of the interviews were in evidence as well as a full transcription of them.  But neither the Deputy Commissioner nor I saw any of the witnesses, nor had their evidence tested under cross examination.  This makes it more difficult to decide whether the witnesses were truthful or telling the whole truth when interviewed.
  4. [37]
    Importantly in this case, it is accepted on both sides that Mr Jackson had no warning prior to his interview about the detail of the allegations against him.  This means in his interview his opportunity to make considered responses when issues were put to him was limited.  In turn this means that his responses were more likely to be spontaneous and truthful than if he had had time to consider his responses.
  5. [38]
    The extent to which it is right to take the apparent spontaneity of Mr Jackson’s responses into account is informed by another factor.  It was said in the investigation report, and this was also the view of the Deputy Commissioner, that in the interviews Mr Jackson showed little insight into how unwelcome his behaviour had been.  I tend to agree with this.  As a result he was not defensive in the interviews, and he was more likely openly to admit to indiscretions that he recalled.
  6. [39]
    Another factor which is helpful when assessing credibility of the witnesses on paper is the way in which they were interviewed.  Here the interviews were done carefully and generally without any attempt to lead any witnesses.  This resulted in reliable evidence from most of the witnesses.
  7. [40]
    In some instances some less serious allegations were not put to Mr Jackson in his interview at all so we do not have his spontaneous response to those.  Also in most cases, his response and the context that he described for certain events was not put to the witnesses to obtain their comments.  This may be understandable for the sake of efficiency, but it has meant that in some factual matters I only have Mr Jackson’s evidence.
  8. [41]
    I am going to make my factual findings in respect of each incident first.  Then since an overview needs to be taken about whether the incidents taken as a whole amounted to misconduct, I shall consider them in context for each of the women Ms A to Ms E and at that time consider whether they amount to sexual harassment as defined by section 119.

Allegations about police officer Ms A

  1. [42]
    Police officer Ms A became under Mr Jackson’s command when she joined the unit in January 2013. 
  2. [43]
    There are a number of allegations in respect of Ms A.
  3. [44]
    Incident A1.  “On a date unknown between 6 March 2014 and 30 May 2014 at Surfers Paradise you made a comment in relation to you feeling her boobs in your back”.
  4. [45]
    On my findings what happened was that on about 6 March 2014 there was a training event and members of staff huddled together for the purposes of a staff photograph.  Ms A was standing immediately behind Mr Jackson and she was pressing up close to Mr Jackson and then asked him at that time or soon afterwards whether he could feel her boobs in his back.[9]  At that time, Mr Jackson only had a working relationship with Ms A.
  5. [46]
    In May 2014 the staff photograph was being shown round the office.  On that day Mr Jackson reminded Ms A that she had pressed her boobs into his back when it was taken.  I think on the balance of probabilities he said this privately to her.  By then, Mr Jackson and Ms A had developed a non-sexual friendship.
  6. [47]
    Incident A2.  “On 6 March 2014 at Surfers Paradise you grabbed her face and attempted to kiss her”.
  7. [48]
    This is a reference to what happened in the evening after refreshments following the training event referred to in incident A1.  There is a direct conflict of evidence about what happened.  Ms A’s version is that Mr Jackson offered her a lift to her car, which she accepted.  Then unexpectedly he parked and tried to force himself upon her by kissing her.  Mr Jackson’s account is quite different.  He says that after parking up they had a talk about her situation at home and she told him things were not going well, that she had separated from her partner but was still living under the same roof and there was no sex.  He says they kissed and she gave him oral sex and this was all consensual.
  8. [49]
    Mr Jackson’s account was put to Ms A in a subsequent interview and she vehemently denied it.
  9. [50]
    In resolving this conflict of evidence, I take into account that it is difficult to think of a reason why Mr Jackson would consider it necessary to make up what happened that evening; instead it would have been sufficient merely to deny that he had tried to force himself on Ms A by trying to kiss her.  On the other hand, if Ms A wished to hide the fact that she had oral sex with Mr Jackson it might have been better for not to mention the incident in the car at all.  So this suggests that her version is correct.
  10. [51]
    However, I believe Mr Jackson for various reasons.  Firstly, his account appears to have been spontaneous at the interview.  Since he was not aware in advance of the allegations against him, and since he lacked insight into what he had done wrong, it is unlikely he would have had this detailed response ready to the question “she said that you tried to kiss her as she was leaving the vehicle”, unless it were true.[10]  Secondly, I am quite sure (because it is corroborated by another officer) that earlier that day Ms A had been sexually suggestive to Mr Jackson when the photograph was taken as described above in incident A1.  This makes Mr Jackson’s version about what happened in the car much more likely.  But also Ms A was not open about incident A1 which makes it likely that she wishes to conceal what happened on that day in the car.  Finally, I agree with submissions made on Mr Jackson’s behalf that the continuing friendship between Ms A and Mr Jackson in which she confided with Mr Jackson about her relationship with her partner is more consistent with his version of events.[11] 
  11. [52]
    It is said however, that a note written by Ms A supports her version of events.  This note was a list of events written out by Ms A much later, after she became aware that Mr Jackson was facing allegations of sexual harassment from a number of women,[12] so it is not strong corroboration.
  12. [53]
    Incident A3: “On 3 December 2014 at the Gold Coast whilst conducting work related inquiries you attempted to get her to go to your residence.”
  13. [54]
    Incident A4: “On or about 4 December 2014 in your office at Surfers Paradise, whilst she was performing a body wire job and providing you with a briefing, you said how great she looked or how sexy she looked in her civvies.”
  14. [55]
    Incident A5: “On dates unknown between 1 November 2014 and 11 March 2015 at Surfers Paradise you made comments similar to how ‘hot’ she was looking and ‘don’t bend over like that’ and ‘I wouldn’t mind smacking that’ and ‘now you’re in ANCOR, I’m not your boss so we can go out’.”
  15. [56]
    Incident A6: “On date unknown between 6 March 2014 and 11 March 2015 at Surfers Paradise you made several comments stating words to the effect ‘I just want to get you out of my system just once’ and ‘I woke up early this morning thinking about you’.”
  16. [57]
    Incident A7: “On a date unknown between 6 March 2014 and 11 March 2015 at Surfers Paradise you placed both of your hands on her.”
  17. [58]
    Incident A8: “On a date unknown between 6 March 2014 and 11 March 2015 at Surfers Paradise after visiting your ex wife on the Sunshine Coast, you told Ms A how great you were in bed.”
  18. [59]
    I am satisfied that incidents A1 to A3 and A5 to A8 occurred as described.  As for A4 I think Mr Jackson used the word “hot” rather than “sexy”.[13]  Some of the incidents are partly admitted by Mr Jackson.[14]  Incident A3 is corroborated by the text messages.  Some were not put to him at all in interview but were dealt with in his submissions to the Deputy Commissioner mostly by absolute denials.  In deciding on the balance of probabilities that these incidents did occur, I think it is more likely that Ms A remembered them more clearly than Mr Jackson.  They also seem typical of his conduct as I have found elsewhere.
  19. [60]
    Incident A9: “That between 4 March 2015 and 11 March 2015 at the Gold Coast you sent a number of text messages to Ms A.” 
  20. [61]
    There is no dispute that these texts were sent by Mr Jackson.

Allegations about police officer Ms B

  1. [62]
    Ms B was a police officer who was under Mr Jackson’s command.
  2. [63]
    Incident B1:  “On a date unknown between 1 January 2014 and 27 February 2015 in the muster room of CPIU, Surfers Paradise you touched her stomach and said words similar to ‘Oh that’s hard’ before then whispering in her ear words similar to ‘Now I’m hard’.  Ms B subsequently told you to ‘Fuck off’.”
  3. [64]
    In fact, Ms B said that she told Mr Jackson immediately to “fuck off” and told him never to say that to her again[15] also not to touch her again[16] or she would belt him.[17]  In so far as the allegation suggests that Ms B admonished Mr Jackson some time afterwards, this is incorrect.
  4. [65]
    Ms B says that Mr Jackson told her later that day not to swear at him in front of other people as he was Senior Sergeant.  She explained that there were about four other officers there at the time.[18]
  5. [66]
    But Ms B also said that after this incident Mr Jackson did not touch her again, and she thought he was treading very carefully.
  6. [67]
    In his interview Mr Jackson said he could not remember having touched Ms B on the stomach but he denied saying the words alleged.  Unlike the evidence for incidents B2, B3 and B4 below, the evidence from both sides about this incident cannot be reconciled.
  7. [68]
    I think on the balance of probabilities, this incident did occur.  Whilst I accept the point made on Mr Jackson’s behalf that it is not corroborated by the people who are alleged to have witnessed it, there is no reason for Ms B to invent it, and what I have found below tends to make this incident more likely to have happened.  That is because there had been some prior physical contact between Mr Jackson and Ms B, and Mr Jackson had expressed a desire to go out with her. 
  8. [69]
    Incident B2: “On or about 21 February 2015 at Surfers Paradise you grabbed her on the shoulders and massaged her neck”.
  9. [70]
    According to Ms B, the context of this was that the staff were ready to go for a coffee soon after the start of the shift and Mr Jackson asked Ms B is she was ready to go.  Then Mr Jackson touched her on the shoulder to prompt to her go, but then started to massage her neck and she told him not to.[19]
  10. [71]
    In his interview, Mr Jackson accepted that he massaged Ms B but this was because she said she had a sore shoulder or neck[20] and he had done the same to men.  This seems to be a spontaneous reaction to this allegation from Mr Jackson and there is no reason for me to disbelieve it. 
  11. [72]
    It seems to me likely that both these accounts are correct.[21]  Ms B said that Mr Jackson did touch her on the shoulder on other occasions, when sitting at her desk – and from what she said these occasions were likely to be before the happening of incident B2.  These were probably the occasions of the type that that Mr Jackson was referring to.  After that, in incident B2 Mr Jackson touched Ms B as a prompt to go for coffee, but went too far with this, with the result that she told him not to.
  12. [73]
    There is a real difference between these two types of events; the first seemingly welcome, but the second not invited at all. 
  13. [74]
    Incident B3: “On a date unknown between 1 October 2014 and 2 March 2015 at Surfers Paradise you told her words to the effect ‘you’re a nice package’.”
  14. [75]
    According to Ms B, the words actually used were “really nice little package”.[22]  In his interview Mr Jackson appeared spontaneously to say that Ms B would refer to herself as being a nice package and that she used to show pictures round of herself in a bikini[23] so that he did say similar words but as a compliment.  There is no reason for me to disbelieve him.
  15. [76]
    Incident B4: “On 1 March 2015 at Surfers Paradise whilst having coffee at the Coffee Club you asked her out on three occasions.”
  16. [77]
    It seems to me that the date of this incident was in September or October 2014 at a time when Ms B was going to work elsewhere and so when the two of them were out for a coffee Mr Jackson said to her that they could go out when he was not her boss any more.  Ms B said that she told him no but he continued to ask her out when they were walking back, and her refusal became more emphatic.[24] 
  17. [78]
    Again Mr Jackson had a spontaneous answer to this allegation and there is no reason for me to disbelieve it.  He said that Ms B told him that men never asked her out because she made them feel intimidated, so he asked her out.  Ms B said that Mr Jackson had asked her out several times before and it seems to me likely that she was referring to the type of conversation that Mr Jackson was referring to.
  18. [79]
    I accept that Mr Jackson asked Ms B out with more serious intent and persistently in incident B4. 

Allegations about Ms C

  1. [80]
    Ms C was an employee of an organisation which had reason to contact the unit from time to time.  She was in a permanent relationship with a partner as Mr Jackson was aware.[25]
  2. [81]
    Incident C1:  “On a date unknown between 1 July 2013 and 30 November 2013 at Mermaid Beach you said to her (she was pregnant at the time), words to the effect ‘it should have been my baby’.”
  3. [82]
    This was a comment said to Ms C just before she went on maternity leave.  It was said in front of a work placement student with whom she was working.  The way it was described by Ms C was that he said it in a joking and jovial way.[26]  However, she was shocked, uncomfortable, very embarrassed, found it disrespectful and did not consider it was a good thing to say in front of a student.[27]  The student was interviewed and corroborated what was said, saying that it made them both feel really uncomfortable.[28]  Ms C told her manager what had happened.  Her manager was interviewed and said that after that visit they discussed whether her manager should discuss with Mr Jackson about his being too flirtatious but Ms C did not wish to do this.[29]  Subsequently after her return from maternity leave Ms C told an officer in the unit about what had been said.[30]
  4. [83]
    Although Mr Jackson denied making this comment,[31] there is an abundance of evidence that this comment was made and I accept this incident occurred as described.
  5. [84]
    Incident C2:  “On a date unknown between 8 September 2012 and 27 February 2015 at Gold Coast you sent her an email which stated words to the effect ‘It was really nice to see you today’ and ‘I could talk to you all day even over a drink’ and further you made mention of catching fish and having fish available for her which she considered flirtatious and unprofessional.”
  6. [85]
    Ms C could not find this email but described it.[32]  Although the date of this allegation spans a long time, on the balance of probabilities it was sometime in 2013.  Mr Jackson admits sending this email. 
  7. [86]
    Incident C3:  “On a date unknown between 1 December 2013 and 1 January 2014 at a Christmas party at the Youth Justice Conferencing Centre Mermaid Beach you asked everyone present to move out of the photograph and took a photograph of Ms C, who was pregnant at the time, on your mobile phone.”
  8. [87]
    Ms C described this incident as being embarrassing and inappropriate, and that everyone was a little bit shocked.[33]  I accept this incident occurred as described.
  9. [88]
    Incident C4:  “On a date unknown between 8 September 2012 and 27 February 2015 at Gold Coast you said to her words to the effect ‘Don’t worry about this’ and flicked your wedding ring.”
  10. [89]
    Ms C explained that this comment was said in a flirtatious way.[34]  Although Mr Jackson’s answer to this was that he did not wear a wedding ring, it appears from the interview that he was talking about not wearing a wedding ring at a later time.[35]  For that reason, I think this comment was earlier rather than later in date.  I accept this incident occurred as described.

Allegations about Ms D

  1. [90]
    Incidents D1 and D2: “On a date unknown between 1 September 2014 and 1 October 2014 at Surfers Paradise it is alleged that you spoke to her on the phone discussing her recent birthday party and said words similar to:

D1. ‘The idea of you swapping side and getting physical with Hooters girls is quite intriguing to me’;

D2. ‘The idea of you engaging in physical activity with women is having a physical effect on me’.”

  1. [91]
    Ms D was an employee in an organisation which had some sporadic contact with Mr Jackson’s unit.  She was in her mid-thirties when in about July 2014 she met Mr Jackson on a blind date organised by Ms A.  After that, they went out for dinner on three occasions, and this on my findings included having sex on one occasion.[36]  Then a couple of months after they had last met[37] she had occasion to telephone the unit seeking some information and Mr Jackson answered.
  2. [92]
    It was during that telephone conversation that Mr Jackson made the comments alleged.[38]  The context was that Mr Jackson was aware that Ms D had gone to a restaurant with her girlfriends on her birthday and he wanted to tell Ms D that he was having fantasies about her engaging in lesbian activities. 
  3. [93]
    I accept that this type of conversation with Mr Jackson was unwelcome for Ms D who called simply to obtain some information, and I accept as she says, that it made her feel very uncomfortable and she found an excuse to end the call.[39] 

Allegations about Ms E

  1. [94]
    “On dates unknown between 1 April 2013 and 11 March 2015 at Surfers Paradise you:

E1. Visited at her desk .. and you kept asking her out.

E2. Looked at her right hand and made the comment about checking to see if her partner had put a ring on her finger.

E3. Told her you’d been going on walks around her area to see if you could bump into her.

E4. Told her she should invite you to her place for dinner.

E5. Asked her if she was single yet.

E6. Said to her she would be like a trophy wife and that you would love to take her out and have her on your arm.

E7. Said to her ‘you can’t hide from me’ after she moved in District Office.”

  1. [95]
    Ms E worked in the unit but was not under Mr Jackson’s command.  Mr Jackson would go of his way to visit her and spend 10 minutes or so sometimes over coffee in the office.   She said he would visit her almost every day, but a senior officer on the same floor who was in a position to know about the frequency of the visits put it as every other day[40] and I think this is likely to be more accurate.
  2. [96]
    Ms E believed Mr Jackson came to her floor to visit that senior officer on police matters.  That belief was correct but there is no doubt he also went to her floor to see her specifically. 
  3. [97]
    Mr Jackson accepts all the allegations except for E3.  In answer to that allegation he says that Ms E informed him that she had moved to a particular area and he said that he regularly walked in that area so he may see her one day.[41]  There is no other suggestion that Mr Jackson had behaved in any way similar to E3, and it seems to be perfectly possible on the evidence that Ms E misheard this comment.[42]  I accept Mr Jackson’s account of what he said and the context in which it was said. 

Was this misconduct?

  1. [98]
    The question now arises whether what happened amounted to “misconduct”.  I remind myself of the statutory definition of misconduct, that there is a distinction to be made between breach of discipline and misconduct, and the clarification of the meaning of “improper” in previous decisions of the tribunal.
  2. [99]
    Whether or not the incidents found substantiated amounted to misconduct will need to be considered by taking an overall view of them.  So I shall look again at these incidents with respect to each of the women, and assess their seriousness.  In doing so, I will also find whether they were sexual harassment as defined in section 119 of the Anti-Discrimination Act 1991 (Qld).  After giving a summary of my findings, I will then take an overall view on the question of misconduct.
  3. [100]
    With respect to the allegations with respect to Ms A, I differ from the Deputy Commissioner about the context of the incidents which occurred.  On my findings it was Ms A who first made a sexually suggestive remark to Mr Jackson and not the other way round.  Later that day there was consensual sexual intimacy.  Contrary to the way the allegation was put, incident A2 (the kissing incident) was consensual in nature.  In the circumstances it did not amount to sexual harassment under section 119.  It did not occur during work hours or on police property or vehicle.
  4. [101]
    Incident A1 (Mr Jackson’s boob comment) on my findings was made privately to Ms A on the day when the photograph was shown around the office.  It was not unwelcome and to a reasonable person could not have offended or humiliated Ms A.  It was not sexual harassment under section 119.
  5. [102]
    In the circumstances I do not think that incidents A1 and A2 should potentially be regarded as misconduct.  I propose therefore to ignore them altogether when considering the question of misconduct.
  6. [103]
    After incidents A1 and A2, Ms A and Mr Jackson developed a friendship.  There was an abundance of evidence about this from them both and from colleagues.  Their closeness was so obvious to work colleagues that a strong rumour developed that they were having an affair.  Sexual intimacy only occurred once however, as described in incident A2.
  7. [104]
    In that context, none of the incidents A3 to A6 and A8 amounted to sexual harassment within section 119.  All these incidents happened in private and could not have been witnessed by others.[43]  In the context, there would be no reason for Mr Jackson to think that any of these incidents could offend, humiliate or intimidate Ms A.
  8. [105]
    The exception is incident A7.  The allegation was that Mr Jackson placed both his hands on Ms A.  In fact what happened was that in the open office, Mr Jackson put his hands on Ms A’s shoulders and she said “don’t - people will see” to which he answered that he checks first.  In the interview Ms A explained that another officer came in with her lunch and Ms A said she did not know whether that officer saw anything.[44]  Ms A was naturally sensitive to any appearance that she might be having an affair with Mr Jackson.  The fact that this incident could be witnessed by others in the office meant it had the potential to humiliate her in this way and since the touching was unsolicited it was capable of being sexual harassment under section 119.   
  9. [106]
    As for the texts in incident A9, there were a large number of these.  Many of the texts were about work and people at work.  Any texts containing suggestive or sexual comments were in the particulars and alleged to be misconduct.
  10. [107]
    Discerning the degree to which Ms A was unhappy with the texts in incident A9 is difficult on the available material.  The text messages in incident A9 were between 5 and 10 March 2015.  Only a few days before, Ms A had complained to another officer about Mr Jackson hassling her by text on a daily basis, that this was making her so uncomfortable that she did not want to be at work anymore.[45]
  11. [108]
    When reading the texts in full however, it can be seen that she encouraged their continuation and did not discourage remarks with sexual connotations.[46]  In the absence of any suggestion that Ms A continued the text conversations in some sort of attempt to entrap Mr Jackson, I need to treat them on their face.  On reading the texts as a whole, it cannot be said that they could come within section 119 because they were all private between two people and there was nothing to indicate to Mr Jackson that his texts might offend, humiliate or intimidate Ms A in the context of their relationship.  Further, as Ms A explained when interviewed, she had previously participated in the text conversations with Mr Jackson and the only time she told him not to text her was at a time when the text could be diverted to her husband’s phone if she did not reply to it.[47]
  12. [109]
    As Ms A explained in interview however, Mr Jackson had made her feel very uncomfortable at work.  She said that he had made her feel that she was not respected as a person, that she was just there to be perved at, and that he made comments including trying to get her to his house to have sex within him.[48]  She expressed her mindfulness that since he was the officer in command she needed to divert the situation, brush it off, continue to come to work, do her job and go home, and not be bothered up until 9.30pm with text messages from him “hitting (her) up for sex” or telling her that he loved her when she had not indicated in any way she felt the same because “he has a lot of power in relation to what happens to me and where I am and what I do”.[49]  She said that she had told him on numerous occasions that she did not want a relationship with anyone, and not with him.
  13. [110]
    Ms A’s extreme discomfort at the time is also shown by the fact that she told another officer in January 2015 that since she could not report Mr Jackson because he was the officer in command, she was considering leaving the unit because of his behaviour.[50]
  14. [111]
    Therefore, rather than to say anything directly to Mr Jackson or to complain about his behaviour to a more senior officer, Ms A decided to handle the situation by trying to control it on a daily basis.  She was aware that Mr Jackson could make life very difficult for her, and she said that she tried to avoid contact without being rude[51] and had done everything “to avoid any contact with him outside of work or at all even at work”.[52]
  15. [112]
    Then in early February 2015 Ms A heard about the office rumour that she was having an affair with Mr Jackson, which she was not happy about.  She spoke to Mr Jackson about this and he promised to tone it down.[53]  It can be seen from Mr Jackson’s interview that he too was sensitive to this issue.[54]
  16. [113]
    In gauging the seriousness of the incidents A3 to A9, it is necessary to take into account that Ms A having initiated the sexual contact between herself and Mr Jackson, then decided to manage their relationship by not disclosing to him the fact that at least by 2015 she found him tiresome.  I believe he would have been receptive if she had told him this, as can be seen from his comments in the interview.[55]  From his perspective they had a friendship and it reasonably appeared to him that she did not mind the type of behaviour typified by incidents A3 to A9.
  17. [114]
    Ms B dealt with the incidents quite differently.  She responded immediately and emphatically to incident B1 (touching her on the stomach and whispering in her ear).  This was clearly sexual harassment because it subjected Ms B to an unsolicited act of physical intimacy accompanied by remarks with sexual connotations in relation to her, and was unwelcome conduct of a sexual nature in relation to her.  The requirement is also satisfied that a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated by the conduct.  I say this because although Ms B was well able to handle the matter with her strong retort, the fact remains that the incident was perpetrated by the officer in command so it could well have caused difficulties for her.  The conversation later that day shows this did in fact happen.  And the fact that there were others who may have witnessed the incident would be likely to increase any such humiliation for her.
  18. [115]
    Incident B2 (grabbing Ms B on the shoulders and massaging her neck) happened in the open office and although there were not many people in the office that day, it could have been witnessed by others.  In those circumstances, the incident did amount to sexual harassment under section 119 because a reasonable person would think it possible that an officer would be humiliated if they were seen to be massaged by the officer in command.
  19. [116]
    Incident B3 (calling Ms B a really nice little package in the open office) was sexual harassment because, as Mr Jackson accepted, it was possible that others may have overhead this in the office.[56]  In those circumstances, it would be possible for Ms B to be humiliated by this comment being made to her by the officer in command.  Also I think the comment had sexual connotations, because the word “package” suggests a benefit being received.  The words can be tested by considering whether they would have been expressed to a male officer.  In my opinion this comment amounted to sexual harassment under section 119.
  20. [117]
    I do not think that incident B4 (asking Ms B out persistently) amounted to sexual harassment under section 119 because asking someone out does not necessarily have sexual connotations and in the light of the earlier discussion or discussions about going out which were initiated by Ms B, a reasonable person would not have anticipated the possibility that she would be offended, humiliated or intimidated by this incident.
  21. [118]
    The seriousness of the interaction between Mr Jackson and Ms B is reflected by the fact that she would try to avoid going for a coffee with him alone.[57]  She found it difficult to have a serious conversation with him because he would make comments about the way she looked and she would have to end the conversation.[58]
  22. [119]
    As for Ms C, incident C1 (the “it should have been my baby” comment) was another serious matter.  This amounted to sexual harassment under section 119 because it was a remark with sexual connotations relating to Ms C which a reasonable person would anticipate could offend or humiliate her, particularly as it was said in front of Ms C’s work placement student.
  23. [120]
    Turning to incidents C2 (email about fish), C3 (taking photograph) and C4 (flicking wedding ring) it is said that none of them amount to sexual harassment under section 119 because they do not come within any of the categories (a) to (d) in that section and because it would not be reasonable to anticipate that the person could be offended, humiliated or intimidated by the conduct.
  24. [121]
    Ms C said that every time she saw him he would make a comment, and it made her feel uncomfortable.  So for example she would sit away from him at meetings and make sure she was not with him alone.[59]  She had however, told him that she was in a relationship so that his behaviour was not “necessary”, or she gave him a look “as if I don’t appreciate the comment”.[60]
  25. [122]
    Had the email been sent, and the ring remark been made, at a time when Ms C had made it clear she wanted no such advances or remarks then they are capable of being acts of sexual harassment.  The difficulty here is that there is no evidence that she had made it clear at the time when these things happened.  In the circumstances I cannot see that either incident C2 or C4 come within section 119.
  26. [123]
    As for the photograph, although there was no reason for Mr Jackson to insist on taking a photograph of Ms C alone, he did take a photograph of another person in a Santa Claus outfit.[61]   Linked with the earlier “baby” comment, it is understandable why Ms C should be embarrassed by the incident.  The only sub-paragraph which could possibly apply is (d) engaging in any unwelcome conduct of a sexual nature in relation to the other person.  I agree that it is difficult to say this incident is within paragraph (d).  At the time, I do not think the conduct was unwelcome nor was it outwardly of a sexual nature.  I do not think this was an act of sexual harassment under section 119.
  27. [124]
    Ms C explained why she had not complained about these incidents.  She said they had not quite reached the point where she needed to make a formal complaint but it was not a comfortable and professional working environment.[62]  She explained that if she needed to complain she was very conscious of the repercussions which would affect the relationship that her department had with the police and affect the team, given his position.[63]
  28. [125]
    The allegations with respect to Ms C emerged when after she had come back from maternity leave she spoke to an officer in the unit “as a friend” but that officer felt obliged to transmit the contents of the conversation to a senior officer and through that route Ethical Standards Command were informed.[64]  The officer made notes of the conversation which was on 27 February 2015.[65]
  29. [126]
    As for Ms D, the incidents D1 and D2 (offensive comments on telephone) I have found the comments to have been unwelcome and they were remarks with sexual connotations relating to Ms D which a reasonable person would anticipate could offend or humiliate her.  It was therefore sexual harassment within section 119.
  30. [127]
    The remarks were inappropriate when the caller was seeking information and had not called for a personal chat, when considering whether or not they amounted to misconduct needs to be considered in the context of the recent and short lived sexual relationship between Mr Jackson and Ms D, and the fact that it would be unusual for there to be any contact at work between Ms D and Mr Jackson. 
  31. [128]
    As for the allegations with respect to Ms E, I have found them all proved except for incident E3.  I accept what Mr Jackson said in his interview, that he was flirtatious with Ms E and he would make her laugh.  They would discuss each other’s personal relationships and he considered it a friendship.[66]
  32. [129]
    Ms E said she regarded Mr Jackson as a “sort of friend” who was just being silly and mucking around.[67]  Despite her informing him that she was in a relationship and that she would not go out with him even if she was not in a relationship, he would continue to visit her and ask her out or ask if she were single yet on most of the visits.  Ms E never told Mr Jackson that she did not want his attentions.[68]  She could have said so without concern.  However, she did feel uncomfortable with comment E3, although she took it as a joke.  She also felt uncomfortable with comment E4 and regarded E6 as an odd thing to say.[69]
  33. [130]
    For flirtatious behaviour to be within the definition of sexual harassment in section 119 it would firstly have to come within one of the types of sexual harassment listed in that section.  For that type of behaviour it would need to be an unsolicited request (whether directly or by implication) for sexual favours or a remark with sexual connotations or other unwelcome conduct of a sexual nature relation to the other person.  Taken together, I accept that the suggestions in E1, E2 and E4 to E7 amount to unsolicited requests for sexual favours under section 119(b).
  34. [131]
    It is not suggested that Mr Jackson intended to offend or humiliate Ms E.  So, to be sexual harassment, a reasonable person would need to anticipate the possibility that the flirtatious behaviour would offend or humiliate.
  35. [132]
    The comments were not so bad that they would obviously have the potential to offend or humiliate in the circumstances.  This is shown by the fact that they were said in such a way that Ms E considered Mr Jackson to be “mucking around”.
  36. [133]
    Although there were at least two others who were on the same floor although perhaps not in the same office, it is not suggested that this fact caused Ms E any further offence or humiliation.[70]
  37. [134]
    There is nothing else to make a reasonable person anticipate the possibility that Ms E would be offended or humiliated by the comments.  Had Ms E been concerned about what others were saying about her, being visited by Mr Jackson so much, or had Ms E said to Mr Jackson that she did not want him to make comments like this any more, but he persisted, then it would be different.  However, none of those things happened.  In my opinion the allegations under E did not come within section 119. 

Summary of findings

  1. [135]
    I have found that these incidents did occur and amounted to sexual harassment under section 119: A7, B1, B2, B3, C1, D1, and D2.
  2. [136]
    I have found that these incidents did occur but did not amount to sexual harassment under section 119: A3, A4 (as varied), A5, A6, A8 and A9, B4, C2, C3, C4, E1, E2 and E4, E5, E6, E7.
  3. [137]
    I have found that incidents A1 and A2 did not occur in the manner alleged, and that E3 did not occur.

Overall view on the question of misconduct

  1. [138]
    It is an aggravating factor that Mr Jackson’s behaviour involved more than one woman and was a course of conduct over a period of time.  But it is not suggested that any of the women involved were vulnerable because of their age, or that any of them suffered any emotional or psychological harm as a result of it, even temporarily.  Further, there is no allegation that the operation of the unit was adversely affected by what happened.  For example, there is no allegation that Mr Jackson favoured those who responded to him in the way he wanted, or that he disfavoured those who did not do so.
  2. [139]
    I think it is significant that none of the women complained about Mr Jackson’s behaviour to a senior officer while the behaviour was continuing.  It must be accepted however, that this was made more difficult for them to do because he was the officer in command of the unit, and because he was a likeable but dominant character.[71]  But the fact that there was no complaint tends to demonstrate the level of seriousness of the misconduct.  Instead of complaining, each of the women found a way to handle his behaviour.  Ms A and Ms E found ways to constrain Mr Jackson, although this caused some strain over a period of time particularly for Ms A.  Ms C and Ms D only had infrequent contact with Mr Jackson and that itself was sufficient.  Ms B successfully challenged his behaviour head-on without the need for the matter to go further.
  3. [140]
    Ultimately, the way in which Mr Jackson’s behaviour was exposed was through talk in the office, and collation of material by one female officer which found its way to a more senior officer who then involved Ethical Standards Command.  That Unit interviewed a number of women and asked them about their experiences with Mr Jackson.  The allegations were then put together from what they said in the interviews.
  4. [141]
    I now consider the question of misconduct more specifically by reference to each of the women concerned. 
  5. [142]
    As for Ms A, I have already found that incident A1 and A2 could not potentially amount to misconduct.  As for incidents A3 to A9, whilst it might be said that Mr Jackson as officer in command should have been more sensitive to possible pressure on Ms A arising from his relationship with her, but this is not the allegation made against him.  In my view none of the incidents A3 to A9 either taken separately or together, amount to misconduct because of that relationship.
  6. [143]
    With respect to Ms B, in my view incident B1 alone was misconduct since it was clearly “improper” in the way the word is used in section 1.4.  Taken together, all the incidents B1 to B4 were misconduct because Ms B had clearly indicated her disapproval with Mr Jackson’s behaviour and as officer in command his conduct had the potential of affecting morale and discipline.
  7. [144]
    The incident C1 concerning Ms C was serious and in my view was misconduct even standing alone.  The other incidents C2 to C4, despite not being within section 119 taken together with incident C1 amounted to misconduct because this behaviour was capable of affecting the relationship between Ms C’s organisation and the unit which was important for proper functional operations.
  8. [145]
    With respect to Ms D, although it was just by accident on the day in question that Mr Jackson answered the telephone, the fact is that these comments were made at a time when he commanded the unit and during police time, and during an official call to the unit.  In those circumstances I think what was said in the telephone calls did amount to misconduct.
  9. [146]
    For Ms E, in the circumstances I do not think it can be said that the incidents found proved amounted to misconduct.  They did not amount to sexual harassment and Ms E was not directly under Mr Jackson’s command.

Conclusion as to misconduct

  1. [147]
    In the circumstances I confirm the finding of the Deputy Commissioner that Mr Jackson was guilty of misconduct but only in respect of Ms B, Ms C and Ms D in incidents B1, B2, B3, B4, C1, C2, C3, C4, D1 and D2.
  2. [148]
    Submissions as to sanction will be heard at a further hearing.

Footnotes

[1]By section 219BA the tribunal can review a finding that “corruption” is proved against an officer.  In Schedule 2 “corruption” means corrupt conduct or police misconduct.  The definition of “police misconduct” in Schedule 2 is the same as the definition of “misconduct” in section 1.4 of the Police Service Administration Act 2001 (Qld).  The Commissioner’s finding was for “misconduct” hence it is it reviewable in the tribunal.

[2]Aldrich v Ross [2001] 2 Qd R 235, [43], [45]; also Flegg v Crime and Misconduct and Anor [2013] QCA 376, [16].

[3]Reviews of disciplinary action for breach of discipline are dealt with by the Commissioner for Police Service Reviews, which can make a non-binding recommendation to the Police Commissioner.

[4]Paragraphs [5] to [7].

[5]Page 8 of the Findings and Reasons (page 104 of the bundle).

[6]See in particular, pages 15 and 16 of the Findings and Reasons.

[7]Under section 133 of the Anti-Discrimination Act 1991 (Qld).

[8]Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348, Member Howard.

[9]My finding relies on Mr Jackson’s response in his interview which appears to have been spontaneous with no reason to disbelieve him, together with the fact that this was not put to Ms A so we do not know if she contradicts it.  Mr Jackson’s response is corroborated by another officer who recalled Mr Jackson telling him about this that day and asking him what he thought of it (pages 252, and 255 line 300).  And Ms A when referring to this incident seemed unclear about whether it happened when the photograph was taken or when the photograph was shown round the office (pages 86, 87).

[10]Page 788.

[11]The references to the evidence are given on pages 9 and 10 of the submissions made on Mr Jackson’s behalf.  It also appears from the evidence of other officers for example pages 276, 317, 326, 332.

[12]This was from discussions with another female officer who was collating complaints.

[13]This accords with Ms A’s note of events and also with Mr Jackson’s evidence (page 803).

[14]Incident A4: pages 802, 803; incident A5: page 807; incident A7: pages 803, 907.

[15]Page 475.

[16]Page 476 line 125.

[17]Page 493 line 677.

[18]Page 476.

[19]Page 478, 483.

[20]Pages 758 to 760.

[21]Mr Jackson’s explanation was not put to Ms B so we do not know whether she would have contradicted it.

[22]Page 486.

[23]Page 761.

[24]Pages 478, 479.

[25]As he accepted – page 731.

[26]Page 520, 524, 525.

[27]Page 523, 524, 525, 553.

[28]Page 562, 566.

[29]Page 576.

[30]Pages 600, 613.

[31]Pages 724, 732.

[32]Page 518, 532, 544.

[33]Page 519, 530.

[34]Page 530.

[35]Pages 727, 732.

[36]I accept Mr Jackson’s evidence about this because I cannot see he would have any reason to make this up, and his description of this on pages 738, 744 and 746 seems to have the ring of truth about it.  Where Ms D says “we went out for dinner a few times nothing really came of it” (page 660) – the evidence can be reconciled on the basis that she is referring here to there being no continuing romance.  Ms A believed from her conversation with Ms D that they had had sex (page 177).

[37]The timing appears from page 661 line 201.

[38]Although Mr Jackson does not remember the conversation, Ms D remembers it quite clearly and mentioned it to Ms A.

[39]Pages 668-669.

[40]Page 653.

[41]Submissions made to the Deputy Commissioner page 38.

[42]See page 633 line 234.

[43]A3: Ms A’s note and pages 104, 111, 140; A4: 130; A5: pages 158, 159, 181; A6: pages 171, 172, 181, 182; A8: pages 140, 153.

[44]Page 154.

[45]Page 468.

[46]Examples are given in the submissions made on behalf of Mr Jackson page 20.  Also for example, when Mr Jackson said “yr a great chick and deserve to be, I’m glad I know you” she replied “Aww Thanks that’s very sweet”.  She said she really appreciated Mr Jackson’s advice (about her marriage).  On 5 March 2015, after a series of evening texts when Mr Jackson said “I’ll leave you alone, enjoy the night”, instead of leaving it at that, Ms A replied with a question “OK no worries. Is something up?”.  This continued the discussion, and then Ms A continued the text conversation for another 1½ hours including asking Mr Jackson questions of a personal nature and answering similar questions from him.  A similar series of texts occurred on 10 March 2015.

[47]Page 101 and 179.  Mr Jackson said his impression was that Ms A was encouraging the texts: page 882.

[48]Page 193.

[49]Pages 193 and 194.

[50]Page 466.

[51]Page 162.

[52]Page 190.

[53]Pages 133, 431 and 466.

[54]Pages 839, 880.

[55]Pages 878 to 883.

[56]Pages 760 to 763.

[57]Page 480.

[58]Page 488.

[59]Pages 517, 530, 535.

[60]Page 527, 532.

[61]As he explained at page 720.

[62]Pages 517, 530, 537, 539, 540, 544, 551.

[63]Page 528.

[64]Page 592.

[65]Pages 620.

[66]Pages 753 to 756.

[67]Pages 629 and 630.

[68]Page 637.

[69]Page 639.

[70]The evidence about the office is at pages 629 line 125, and page 631, page 632 line 211.

[71]Listening to the recordings of his interview discloses that he had an extravert and strong personality.  Other evidence shows that he had a jovial character and a quick wit, and was also highly appreciative and praising. 

Close

Editorial Notes

  • Published Case Name:

    Paul Jackson v Deputy Commissioner Steve Gollschewski

  • Shortened Case Name:

    Jackson v Deputy Commissioner Gollschewski

  • MNC:

    [2017] QCAT 464

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    22 Dec 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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