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Young v Dawson[2019] QCAT 8

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Young v Dawson [2019] QCAT 8

PARTIES:

LUCAS YOUNG

(applicant)

v

ASSISTANT COMMISSIONER ALASTAIR DAWSON

(respondent)

APPLICATION NO/S:

OCR285-17

MATTER TYPE:

Occupational Regulation Matters

DELIVERED ON:

24 January 2019

HEARING DATE:

7 August 2018

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

  1. That part of the decision made by Assistant Commissioner Alastair Dawson on 1 December 2017 to substantiate a finding of misconduct in Matters 1(iii) and 1(vii) is confirmed.
  2. That part of the decision made by Assistant Commissioner Alastair Dawson on 1 December 2017 to substantiate a finding of misconduct in Matter 1(ix) is set aside.

THE TRIBUNAL DIRECTS THAT:

  1. The Application is to be set for a Directions Hearing at a time and date to be advised (not before four weeks after the giving of these Reasons) to consider the further conduct of the Application as to sanction, and to make Directions as required.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where four matters of misconduct were found following a police disciplinary hearing – where three particulars of one matter of improper conduct in engaging in negative workplace behaviour were challenged as to substantiation

Police Service Administration Act 1990 (Qld), s 1.4, s 7.4(2)

Briginshaw v Briginshaw (1938) 60 CLR 336

Newman v Assistant Commissioner Condon [2016] QCAT 153

Orme v Atkinson (Misconduct Tribunal, 17 September 1999)

Shauer v Banham (Misconduct Tribunal appellate jurisdiction, 24 February 1997)

Tolsher v Assistant Commissioner Hollands [2015] QCAT 391

APPEARANCES & REPRESENTATION:

 

Applicant:

M Black of Counsel, instructed by Gilshenan and Luton Legal Practice

Respondent:

S A McLeod QC of Counsel, instructed by QPS Legal Unit

REASONS FOR DECISION

  1. [1]
    Disciplinary proceedings were brought against Senior Sergeant Lucas Young (‘Mr Young’), and a decision was made on 1 December 2017 by Assistant Commissioner Alastair Dawson of the Queensland Police Service (‘QPS’).
  2. [2]
    Mr Young filed an application to review the decision in the Tribunal on 12 December 2017. The application was heard on 7 August 2018. This is the decision in relation to substantiation of particulars of a certain Matter which it was agreed were to be determined initially.

The decision

  1. [3]
    Mr Young was appointed as a member of the Queensland Police Service on 10 April 1987. On 1 August 2016 he was directed to attend a discipline hearing (misconduct). The hearing was heard ‘on the papers’.
  2. [4]
    Four Matters were considered as follows:

Matter 1

That between 1 June 2010 and 6 February 2015 at the Gold Coast and elsewhere your conduct was improper in that you engaged in negative workplace behaviour with members of Gold Coast Water Police.

Matter 2

That between 1 June 2010 and 6 February 2015 at the Gold Coast your conduct was disgraceful in that you used inappropriate language at the Main Beach Subway store.

Matter 3

That between 1 June 2010 and 6 February 2015 at the Gold Coast and elsewhere your conduct was improper as the Officer in Charge:

a) failed to use QPS resources efficiently and effectively.

b) failed to prevent a foreseeable, actual or apparent conflict of interest from arising

Matter 4

That between 1 January 2014 and 1 June 2015 at the Gold Coast and elsewhere your conduct was improper in that you, without an official purpose relating to the performance of your duties, accessed official and confidential information.

  1. [5]
    Particulars were provided of each of the Matters.
  2. [6]
    The decision-maker, Assistant Commissioner Alistair Dawson, gave a written decision on 1 December 2017. In that decision, he discussed the Matters, the particulars of the Matters, and the evidence he had considered. He found that Mr Lucas committed a ‘wide range of misconduct, over a period of time in the capacity of a Senior Sergeant and Officer in Charge’ and concluded that:[1]

I have formed the view that your misconduct seriously undermines your standing as a senior officer and the ability to be a supervising officer at the rank of Senior Sergeant within Operations Support Command. Your conduct has impacted negatively on your fellow officers, exposed the Service to embarrassment and a risk of loss of public confidence.

  1. [7]
    A sanction was imposed that Mr Young be demoted in rank from Senior Sergeant paypoint 4.52 to Sergeant paypoint 3.1. Further orders were:[2]

I further order you progress from paypoint 3.1 to paypoint 3.3 at the expiration of a 12 month operational period from the date of this finding by virtue of the provisions of section 12.1 of the Human Resource Policies. Your progression will be subject to you attaining an acceptable Performance, Development And Assessment (PDA) report for the preceding 12 month period. After this you may continue to progress subject to normal industrial arrangements.

  1. [8]
    In addition to the sanction imposed on, it was directed that Mr Young participate in the following Management Action Plan:[3]

You are to within four weeks of the date of the imposition of the sanction, personally engage with one of the following mentors:

  • Chief Superintendent Marty Mickelson
  • Superintendent Mark Plath
  • Superintendent Craig Huxley

or

A person nominated by you to perform the role as mentor, who is approved by your relevant Assistant Commissioner as a suitable person, a person who must be senior in rank and service to you as a Sergeant.

1) You are to meet with the selected mentor three times within the first month (within the first week, within weeks two and three and within the fourth week – three meetings in total in the first month).

2) You are to continue meeting with that mentor on a monthly basis for an additional two month period, such meetings are to be at no more than a four week interval.

3) After the first three month period of the mentor engagement you may:

with the agreement of the chosen mentor, continue meeting with the mentor on a monthly basis for the remaining nine months you hold the rank of Sergeant paypoint 3.1.

Or

For the remainder of the nine-month period you hold the rank of Sergeant paypoint 3.1 you may engage in a ‘Leadership Coaching Program ’, facilitated by Acting Inspector Wade Fuller or Senior Sergeant Howard Kemp. The Leadership program will consist of no less than eleven individual coaching sessions over that nine-month period.

4) In the 12 month period you hold the rank of Sergeant paypoint 3.1 you must:

  • receive a satisfactory PDA for the 12 month period you hold the rank of Sergeant at paypoint 3 .1

5) This management action plan is to be incorporated into a PDA for a 12 month period starting from the date of the above sanction.

6) The successful completion of this Management Action Plan is to be measured by:

  • You obtaining a satisfactory report from your chosen mentor and/or the successful completion of the Leadership Coaching Program encompassing the further nine-month period you hold the rank of Sergeant paypoint 3.1; and
  • you have not engaged in any misconduct in the preceding 12 months

During the period the Management Action Plan is operational the following conditions are placed upon you:

  • you are not eligible to apply for promotion from the date of this sanction being imposed for a 12 month period
  • you are not eligible to relieve at a higher rank from the date of this sanction being imposed for a 12 month period
  • the operational date for this Management Action Plan to commence will be the date of this finding

The application to review and hearing

  1. [9]
    In his Application To Review, Mr Young stated why he thought the decision was wrong or not properly made as follows:[4]

1. The decision to substantiate the disputed particulars of Matter 1, and Matter 3(b):

(a) failed to take into account relevant evidence;

(b) placed undue weight on certain evidence; and

(c) made findings based on insufficient evidence

2. The sanction imposed by the Respondent was:

(a) excessive and/or disproportionate to the applicant’s conduct; and

  1. (b)
    failed to take into account relevant considerations, and/or took into account irrelevant considerations
  1. [10]
    The application to review sought the following outcomes:[5]
    1. The Applicant seeks a review of the substantiation of the disputed particulars of Matter 1 and Matter 3 (b)
    2. The applicant seeks a review of the sanction imposed on him by the Respondent on 1 December 2017
  2. [11]
    At the hearing, the Applicant only contested the substantiation of particulars (iii), (vii) and (ix) of Matter 1, and did not contest the substantiation of Matters 2, 3 or 4 (including all particulars).[6]
  3. [12]
    At the commencement of the hearing, Counsel for the parties advised that it was agreed that the hearing should determine the question of substantiation of the disputed particulars of Matter 1, and requested that the Application then be set for a Directions Hearing as to further steps as to sanction, after the giving of the decision as to substantiation.
  4. [13]
    This is the decision as to substantiation of the disputed particulars of Matter 1. That Matter, and the particulars, are as follows:

Matter 1

That between 28 June 2010 and 6 February 2015 at the Gold Coast and elsewhere your conduct was improper in that you engaged in negative workplace behaviour with members of Gold Coast Water Police.

(iii) When [Officer A] confronted you, concerning you calling him ‘puss nuts’, you retaliated by having the gym in the GCWP station dismantled.

(vii) You spoke to CGCWP staff in a manner which was threatening, intimidating, demeaning and demoralising, such as threatening to move staff out of the water police.

(ix) You specifically targeted Constable David Ashbolt through changes in the roster which made it difficult for him to arrange custody of his children.

Relevant Provisions

  1. [14]
    Relevant provisions to be considered are contained in the Police Service Administration Act 1990 (‘the PSA Act’). Section 7.4 (2) provides as follows:

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.

  1. [15]
    Misconduct is a more serious level of conduct than breach of discipline.
  2. [16]
    ‘Breach of discipline’ is defined in Section 1.4 of the PSA Act 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

  1. [17]
    ‘Misconduct’ is defined in section 1.4 of the PSA Act as follows:

Misconduct means conduct that –

(a) is disgraceful, improper or unbecoming an officer; or

(b) shows unfitness to be continue as an officer; or

(c) does not meet the standards of conduct the community reasonably expects of a police officer

  1. [18]
    The distinction between breach of discipline and misconduct has been extensively discussed in prior decisions.
  2. [19]
    Presiding Member Forbes referred to a similar provision in earlier Regulations in Shauer v Banham and noted:[7]

Regulation 9 of the Police Service (Discipline) Regulations recognises that breaches of discipline often fall short of ‘misconduct’; while all misconduct is a breach of discipline not every breach of discipline is misconduct. Misconduct is merely one of seven grounds of disciplinary action and on a generally ascending scale it comes just below the stigma of a ‘conviction…of an indictable offence’. The more serious the charge the more careful the tribunal must be before it finds itself satisfied that the person charged is guilty.

The legislature cannot have intended any and every breach of discipline to be classifiable as ‘disgraceful’ or ‘showing unfitness to be an officer’ or even below ‘the standard of conduct (which) the community reasonably expects of a police officer.

And:[8]

Reasonable members of the community do not regard police officers as professionally unfit or sub-standard just because they fail to obey every jot and tittle of departmental instructions. Reasonable people may say; ‘He could have done better there’ or ‘that was a bit risky” without implying the stigma of ‘misconduct’ which is a perjorative charge to be used with due discrimination.

  1. [20]
    The Misconduct Tribunal in Orme v Atkinson[9] noted that for conduct to amount to misconduct rather than a breach of discipline:

There needs to be some nexus or some factor which raises the conduct to another level or ‘puts it over the line’ so far as the reasonable expectation of the public are concerned.

  1. [21]
    These earlier principles were confirmed by the Tribunal in Tolsher v Assistant Commissioner Hollands.[10]
  2. [22]
    I commented in Newman v Assistant Commissioner Condon[11] that each case must be considered on its merits:

Breaching the provisions of Clause 12(a) of the Standard of Practice does not necessarily constitute misconduct. Not every breach of the Standard of Practice will necessarily translate into misconduct. There must be a consideration of the severity of the treatment and the circumstances in each case.

Submissions on behalf of Mr Young

  1. [23]
    It was submitted for Mr Young that an officer’s conduct can only be classified as misconduct if it is so ‘morally and socially blameworthy’ that nothing short of a misconduct finding is called for.[12]
  2. [24]
    It was submitted that the Tribunal’s role in the police discipline involves hearing and deciding a review by way of a fresh hearing on the merits; that for the purpose of the review, the party alleging misconduct bears the onus of proof; and that the standard of proof is the Briginshaw standard as to whether the issue has been proved to the reasonable satisfaction of the tribunal.[13]
  3. [25]
    The submissions put Mr Young’s position in the context of the role he took on when being appointed to the Gold Coast Water Police as the Officer in Charge, which was a position with a history of difficulties:[14]

Put simply, the applicant was appointed as the OIC of a unit rife with cultural and behavioural difficulties. It was a unit where a number of previous OIC’s had been removed under a disciplinary cloud arising from managerial problems, including the immediate past OIC being removed with an unfulfilled recommendation for a formal, external review of the GCWP ‘to address negative workplace behaviours’.

  1. [26]
    The submissions referred to an investigation report which identified the Gold Coast Water Police as being a challenging environment in which to be an officer in charge, and referred to conflict with Sergeants within the unit.
  2. [27]
    The submissions refer to expressions in the investigation report which queried whether there had been any collusion between the officers in the unit, and submitted that having regard to the Briginshaw principles, the Tribunal should approach the Gold Coast Water Police officers’ evidence with special caution before being satisfied that it enables the QPS’s onus of proof to be discharged.[15]
  3. [28]
    In relation to Matter 1 (iii), as to retaliation by Mr Young against Officer A by having the gym dismantled, it is submitted that:[16]

… the evidence does not establish the respondent’s allegation of deliberate ‘retaliation’ and so it’s onus of proof has not been discharged. Such evidence as there is can fairly be described as flimsy and entirely insufficient upon which to ground such a serious allegation’. Matter 1(iii) should be found to be unsubstantiated.

  1. [29]
    In relation to Matter 1(vii), as to negative workplace behaviour with members of Gold Coast Water Police it is submitted that:[17]

… The applicant submits that the Tribunal should set aside the respondent’s decision regarding matter 1(vii) and substitute a decision that the allegation is unsubstantiated as ‘misconduct’ because the charge is vague and has been insufficiently particularised.

  1. [30]
    It is alternately submitted that if the Tribunal finds that Matter 1(vii) is sufficiently particularised to proceed, then the charge discloses nothing more than a ’breach of discipline’.
  2. [31]
    In relation to Matter 1(ix), as to the ‘targeting’ of Senior Constable Ashbolt, it is submitted that the onus of proof has not been discharged, and this matter should be found to be unsubstantiated.
  3. [32]
    Further submissions were made in reply to the submissions of the QPS. It was submitted as to the question of insight that exercise of Mr Young’s right to defend the disputed charges and place matters in an appropriate context is no basis for a finding of ‘no insight’.

Submissions of the QPS

  1. [33]
    The QPS generally accepted the submissions made on behalf of Mr Young as to the application of the Briginshaw standard, and the meaning of misconduct.
  2. [34]
    The QPS submitted that Mr Young seems to justify his own workplace behaviour in light of the workplace environment he found himself in. It suggests that this demonstrates that he has no insight into his behaviour and that his own actions and manner only added to a problematic workplace.
  3. [35]
    In relation to Matter 1(iii), as to the removal of the gym equipment, the QPS submits that the evidence supports a finding that Mr Young acted by way of retaliation, and that the evidence to ground such a finding is neither flimsy or insufficient, and the Tribunal should find that the allegation is substantiated.[18]
  4. [36]
    In relation to Matter 1(vii), as to engaging in negative workplace behaviour with members of the Gold Coast Water Police, QPS submits that Mr Young’s threat to move staff out of the Water Police cannot be seen as reasonable management action or a warning, and his management style presents as ‘my way or the highway’, and his conduct amounts to misconduct and cannot be characterised as a breach of discipline.[19]
  5. [37]
    In relation to matter 1(ix), as to targeting Constable Ashbolt, the QPS submits that the evidence supports a finding that Constable Ashbolt was targeted, that Mr Young’s explanations should be rejected, and that when read fairly, Constable Ashbolt’s evidence does not support a conclusion that he felt he had an ‘entitlement’ that his roster needs would be satisfied, and that this matter is substantiated.[20]

Matter 1(iii)

  1. [38]
    This matter concerns the removal of gym equipment as alleged retaliation against Officer A.
  2. [39]
    Officer A was interviewed by Detective Inspector Lowe on 17 December 2014. He was asked about his being called by the nickname ‘Puss Nuts’ by Mr Young. He said that it had started at a multi-agency briefing:[21]

[Officer A]: Marine Safety Queensland involved, Boating and Fisheries were involved, you know and obviously the Water Police agencies were involved Redland Bay, Brisbane Water Police, long story short we were doing an operation and I was, about to hold the briefing and ah and, and um as I went into my desk to grab my notes, ah he, he’s stuck his head out and said hey Puss Nuts are you coming into this, briefing

you know under, under normal circumstances I mean I’m not I’m not um, overly fond of the name puss nuts but um under, under, the environment we had a lot, a lot of people, from other agencies around, one in particular a bloke by the name of Dave Jackman who ah grew up with my wife, they were very young children together and families are very close and, he stuck his head around and said why do they call you puss nuts, inferring you know, possibly I’ve jumped the fence a couple of times and, I think that was direct reflection on my wife, which I took offence to, um and are so I, I you know, thought it was very poor, so anyway let it go. I didn’t say anything. I was very embarrassed by it and I’m sure the people in the room were very embarrassed by it as well.

  1. [40]
    Officer A said that on the following Monday he walked into the office, and his first greeting by Mr Young was ‘hey puss nuts’. He said that he then asked Mr Young to stop calling him that name:[22]

[OFFICER A]: I’ve told him asked him not to call me that, I said my, my name is [Officer A] you can call me [Officer A] , I’m happy to call you whatever you want me to call you, whether it be Senior, whether it be Lucas, whether it be Senior Sergeant Young, whatever, however I’m happy with the name [Officer A], not puss nuts. That was it.

DI: And how did that go?

[OFFICER A]: Not well. He got cranky, ah glared at me for a bit, and um, and uh walked off in a bit of huff. I didn’t say it with any, with any venom in my voice or anything like that, I just made it very clear that, that’s, I’m not happy with that name, based purely, and how embarrassed I was on that day and how disrespectful I found that name on that day I was holding the briefing um, so yeah I thought I’d put a stop to that now, it was the first time he’d ever called it to me, called me puss nuts, and I thought well I’d best, knock that on the head early, um go from there.

  1. [41]
    Officer A related a following incident in relation to an email where he had drawn up an action plan. The email was addressed to a number of people in the chain of command. He copied it to Mr Young, who sent it back to him, addressing it to ‘puss nuts’.
  2. [42]
    Officer A said that he then sent a private email asking Mr Young not to call him ‘puss nuts’ and that he thought that they had that discussion before. He said they then had a ‘bit of a chat’ about it, and that their interaction became very sterile after that.
  3. [43]
    Officer A said that the incident ’started to filter up the chain’ and that his understanding was that Mr Young was being asked about it, and responded ‘in a filthy mood’:[23]

… That whole Puss Nuts thing, that, that created a shit fight in head office up here, someone had, some mate, he had like a thousand people, every bastard and his dog was in that office, looking at this email, so it was just a matter of time before it started to filter up the chain, and got to someone up here and err I can’t verify anything what I’m about to say now, but my understanding is, is getting dragged up to office here, almost on a daily basis, and coming back in a filthy mood, and he started running around um which I, can confirm now, when started saying I got a dog in the camp um you’re a bunch of disloyal cunts and you know I, I’ve got the full backing of the DA, because you are, because you are disloyal I’ve got the full backing of the DA to move, to move you blokes out if need be…

  1. [44]
    Officer A said that there were repercussions[24], in that Mr Young ordered that gym equipment be removed which the officers had pooled their money to buy, for which he had built a timber platform, and which they were using for a fitness program designed by one of the other officers. He said that he left the Water Police as a result of the actions of Mr Young.[25]
  2. [45]
    An interview was held with Senior Constable Ashbolt (‘DA’) by Detective Inspector Lowe (‘DI’) on 4 December 2014. He was asked about the removal of the equipment, and said that he was told by Mr Young that the gym was to be dismantled as a punishment for everybody:[26]

DI: And we heard about the gym and were you ever explained by Senior Sergeant Young as to why the gym was dismantled?

DA: He said that it was going to be punishment for everybody. He said I’m going to punish everybody and and the way he expressed it was that everyone is going to get punished so you um because of what they’ve done. So that we turn against them or so that we realise what’s been done is um, these people have done this to me so everyone is going to get punished now. And you guys are going to realise that you’ve all been you’ll get I think, it was along the lines of you’ll be cranky at them because of what’s happened um. If anyone in the office does something to me everyone is going to get punished for it so.

  1. [46]
    Senior Constable Finlay was interviewed by Detective Inspector Lowe on 13 February 2015. He was asked about the order to dismantle the gym, and said that he saw it as a form of punishment:[27]

DOI: … Your observations on how he treated staff.

RF: Ah, he would just not communicate with them or only communicate via the Sergeants so I guess he would cut them. He would treat them by basically segregating them so that they would be given menial tasks um the punishment, one of the punishments that I thought was extraordinary, they had a really good gym there which I believe was paid for and set up by them, I don’t know the history of it but when [Officer A] fell out of favour with him over all that email stuff, the punishment was to all of them, that gym was dismantled and not one piece of that gym was allowed to be at the um Water Police base. So they were given an ultimatum that it had to be dismantled and pulled apart and removed from that premises within a couple of days and I was under the belief that it was a you know, a QPS approved and authorised gym. So that was one of the form of the punishments so if you don’t do what I, so the mentality and observation that I had was, if you don’t do what you’re told, and I’m going to take away your rewards.

  1. [47]
    The direction to remove the gym equipment was made by Mr Young less than two weeks after the confrontation with Officer A regarding the use of the term ‘puss nuts’.
  2. [48]
    Mr Young was interviewed by Detective Inspector Lowe on 27 February 2015 who asked him about the order for removal of the gym equipment and whether this was in retaliation to Officer A:[28]

DI: So you’ve been there for fourteen months, and then, within ten days of your being challenged by [Officer A], you’ve ordered the removal of the gym, that had to be done in their own time and Dave Ashbolt within your team has said that you told him, that someone was dogging on him and the gym had to go, so it’s been seen in the workplace as a reprisal against the staff and [Officer A] in particular, because as you appreciate [Officer A] built the gym floor as a builder?

LY: Hmm, that’s right

DI: So what was the driving force behind removing the gym, in such a short period of time, and I understand in such a definitive order at that time?

LY I guess I wasn’t going to take responsibility for their, the gear anymore in the workplace. And um.

DI: Was the gym being used for training? At that time.

LY: Actually no. It had dust on it, it wasn’t even really getting used. And that’s true, um, for what was there, and for the room it took up in that, err, shed, the amount of space it took up as well, I can’t remember too many guys using it on very many occasions, it was actually collecting dust. It was supposed to be used for training but wasn’t the case. Because there at one stage I don’t know whether it was before after this, that there was a, application through the, Sports Association to get a gym, or to get this one approved or something like that, and they said there was one at Regional Office that was close by, so it wasn’t approved.

  1. [49]
    Mr Young was then asked whether he had targeted and bullied Officer A:[29]

DI: See [Officer A] was feeling, ah, targeted and bullied at this time and kept some notes.

LY: Hmm

DI: He’s got one note here on the 5th of September 2011, that he received a phone call when he wasn’t there from Officer Banyari, who, and he said that yourself, has blown up about personal property in there, and these are the, this is the quote he put down ‘Who fucking put my stuff there, I better it was that fucking [Officer A], I’ve got crosshairs on that cunts back, you both watch happens to you, when you take me on’.

LY: No. Nup. Crosshairs I, don’t use that terminology.

DI: What about the other terminology, ‘You blokes watch happen, watch what happens, when you take me on’.

LY: No

  1. [50]
    It is clear that the removal of the gym equipment, which occurred without any obvious lead up, led to significant consternation amongst the officers at the base. There is no indication that there had been any consultation as to the removal of the gym equipment, or any organised procedure for the orderly removal of it.
  2. [51]
    The scenario that emerges from the sequence of events, is that Mr Young did abruptly and arbitrarily order the removal of the gym equipment. The evidence of other officers is that Mr Young had voiced his unhappiness with Officer A.
  3. [52]
    The evidence of the various officers, both those which I have expressly quoted, and other evidence contained in the statements of interviews which formed part of the Section 21 material, is generally consistent both in theme and particulars.
  4. [53]
    One possibility for the consistency of the officers’ evidence is that there has been collusion as part of a concerted movement against Mr Young. The other possibility is that the officers are independently truthfully recalling events.
  5. [54]
    I am satisfied that the Section 21 material of the officers’ evidence, as a whole, provides a consistent and coherent narrative. It is essentially disputed only by the denials of Mr Young. Further, the statements of evidence of the officers is logically supported by the timing of the events.
  6. [55]
    I am not satisfied that collusion has been shown by the officers. I view Mr Young’s evidence with suspicion where it conflicts as to matters of fact.
  7. [56]
    The combination of the short period of time between the confrontation between Mr Young and Officer A; Mr Young’s reportedly course descriptions of officers in his charge, notably Officer A; and the abrupt order for removal of the gym equipment (which was known to be identified with Officer A) strongly indicate that the removal was ordered by Mr Young in retaliation against Officer A.
  8. [57]
    In making an impulsive and retaliatory order for removal of the gym equipment, which would have the effect of upsetting and destabilising the work environment, Mr Young was not acting appropriately as would be expected of an Officer in Charge.
  9. [58]
    The deliberate and inappropriate acts by Mr Young in ordering removal of the gym equipment in reprisal against one of his officers, is a vindictive act which goes beyond responsible management.
  10. [59]
    It is also concerning that the action by Mr Young in ordering the removal of all of the gym equipment, which belonged to several of the officers, can properly be seen as collective punishment. The effect of collective punishment is that persons who have committed no breach, or acted wrongly in any way, are unfairly penalised without any form of due process. If there was a need to take management action against an individual officer, and an action in response was in order, such action by an Officer in Charge should only taken against the individual concerned and in a proper way.
  11. [60]
    I am satisfied to the Briginshaw standard that this particular of improper conduct, that Mr Young retaliated against Officer A by having the gym in the Gold Coast Water Police station dismantled, is substantiated as misconduct.

Matter 1(vii)

  1. [61]
    This matter relates to Mr Young allegedly engaging in negative workplace behaviour in speaking to GCWP staff in a manner which was threatening, intimidating, demeaning and demoralising, such as threatening to move staff out of the water police.
  2. [62]
    Senior Constable Sacha Thomson was interviewed by Detective Inspector Lowe on 4 December 2014. She was asked about her experience in the four months she had been at the Gold Coast Water Police, and replied as follows:[30]

ST: Um in general and overall um probably the most inappropriate environment, negative workplace I’ve ever worked in. And in seventeen years it probably says a lot. Um it’s just the constant intimidation or harassment that you see um at the moment probably other staff going through.

DI: And can you expand on what sort of behaviours are exhibited in that negative workplace, inappropriate harassment?

ST: Oh it’s all just where the boss Lucas is like Jekyll and Hyde. So you walk in and you don’t know what mood he’s going to be in and if you’re going to become a target. And then if you become a target he just rides you, just gives you, you know increases your workload, speaks down to you um and yeah just targets the person. And like I said one minute he’s nice as pie and the next minute he’s abusive or you know he’s got a tone that just um you know cuts through.

  1. [63]
    Senior Constable Singer was interviewed by interview conducted by Detective Inspector Lowe on 4 December 2014. He was asked about his experience at the Gold Coast Water Police in the six-months he had been there, and said that it was a negative environment and he could not work there:[31]

DI: What’s your experience been at the Water Police since you have been there?

PS: My feelings about being at the place um I’ve actually got a lateral transfer sitting on the Inspector’s desk at the Brisbane Water Police to get out. Um it’s a, I’m not, I can’t work in that environment. It’s a negative environment since I’ve been there, there is no morale. There are people that have animosity towards each other. That goes up to the Senior Sergeant level. Um I, a lot of the guys I work with I’m aware that they are stressed, anxious and don’t want to come into the office and probably for the last, probably for the three months of my six-month there I’ve felt that way as well. Ah feeling stressed coming to work um not knowing what’s going to what’s the vibe the mood is going to be like that. So I approached Senior Sgt Lucas Young in October and said to him that I wasn’t happy there and that I prefer to go back to general duties. I’m just I didn’t go into details with him but it’s a negative environment and I can’t work in that.

  1. [64]
    Senior Constable Singer said that he had witnessed Senior Sergeant Young belittle people and make derogatory comments:[32]

DI: So when you said he’s made comments about who to who?

PS: Um I’ve also done two relieving stints there in, one in 2013 and one earlier this year. There was one time where I saw or heard and saw the Senior Sergeant verbally aggressively um speak to one of the Sergeants in an office with an open door. I’ve seen him speak to other members in the room there. I’ve seen him belittle people in the room um after jobs have been completed in front of everyone. Um I’ve also heard him make a derogatory comment to one of the female officers there. I’ve heard that once.

  1. [65]
    Senior Constable Singer was asked what made him feel intimidated in the workforce, and said it was Mr Young’s approach to people:[33]

DI: and when you say you’re intimidated, what makes you feel intimidated when you go into the workplace?

PS: His approach to people. He doesn’t come out and you don’t know what you’re going to get. It’s almost like a bipolar um like a bipolar reaction. One day he’ll be okay and the next day he won’t even acknowledge you.

  1. [66]
    Senior Constable Banyari was interviewed by Detective Inspector Lowe on 18 December 2014. He was asked about the management of Mr Young, and described it as harassment and bullying and bastardisation:[34]

MB: I’d have to say the last four years I wouldn’t even call it management or leadership. I could honestly say the last four years at that station have been nothing short of absolute disgusting. The stress that staff have been put through arm has been unbelievable. I could say that the officer in charge of time is probably the worst leader I have ever encountered in my entire government career. I’ve never seen so much harassment, bullying, bastardisation ever...

DI: So I understand you’re referring to Senior Sergeant Young I expect.

MB: Yes

DI: And I understand Senior Sergeant Young came to the Water Police in about 2010.

MB: Yes he did.

  1. [67]
    Senior Constable Banyari was asked if he had observed any rationale to Mr Young’s behaviour, and said that he saw it as a response by Mr Young to any threat to his authority:[35]

DOI: and is there any from your observation, any rationale to this behaviour?

MB: I couldn’t see any rationale. He was basically judge and jury. If he felt something was wrong in his eyes, he didn’t like something in his eyes, if somebody was seen, if he perceived that it was a challenge to his authority or his position um he felt he was more than justified to dish out any sort of punishment of sorts whether it was through managerial type sanctioning or as he saw fit. Even more recent couple of years he basically threatened staff. It’s either my way or the highway, or if you’re not with me you’re off to the Railway Squad. Threats like that um I bore the fair brunt of the targeting when my spinal injury happened last year.

  1. [68]
    Senior Constable Howe was interviewed by Detective Inspector Lowe on
    30 December 2014. He was asked about Mr Young’s communication skills, and described them as a robust pub style that was not an appropriate management style for an officer in charge:[36]

AH: … My view of what an officer in charge should be like and representing a professional organisation, representing the QPS is vastly different to his management style.

DI: In what way?

AH: The, the abilities I suppose what’s required in that in a leadership or a management I don’t think or I know he doesn’t have. I think he struggles with trying to manage the staff and not all the staff. There’s a couple that need a strong management style to maintain um and I suppose is running the giving them direction like a leadership should. A consistent behaviour is not portrayed um the ability to delegate um and then allow those officers to do what’s been delegated to them rather than micro–managing them and I suppose dictating as to how they should do what’s been delegated to them, as in the Sergeants doing their jobs. I don’t believe the Sergeants, again from my personal experience, do what’s required of a Sergeant. Certain aspects of administration is good at but when it comes to managing the staff under their control um and assisting them in their career development or even the integration into the Water Police unit. I don’t believe occurs correctly. Communication skills that he has um is a unique style that he has (laughs).

DOI: In what way?

AH: Dictates rather than communicates, rather than gets interaction from the staff. I guess it’s more of a robust pub type communication style.… I suppose the commitment to the QPS values again I am old, being the second time round in the QPS, my again my expectations of senior officers, non-commissioned and commissioned offices is, is different to what is portrayed there. That’s again my personal opinion um I suppose we’re in an area that we should be portrayed as the elite, the most professional, as far as Water Police like a General Duties Officer in the street we’ve got constant eyes looking at you and mobile phones. We deal with a lot of public, where viewed with a lot of public, have high media scrutiny for search and rescue aspects. So there’s, there’s certainly deficiencies there and also his ability to inspire people isn’t there. As I said you know it’s a pub mentality…

  1. [69]
    Sgt Bruce Kolkka was interviewed by Detective Inspector Lowe on 17 December 2014. He described the management style of Mr Young as being unpredictable, and that he was threatened with transfer:[37]

DI: Now a lot of the allegations of the matters I’m investigating centre upon the management style of Senior Sergeant Lucas Young. From your experience how would you characterise that management style or the management, what’s your experience rather in the Gold Coast water police?

BK: Well with twenty-nine years of experience I’ve had a lot of different officers in charge and supervisors and ah and that type of thing. Um Lucas’ management style is one of it’s my way and no other way. He refers to himself as king of the world regularly you’ll probably hear that half a dozen times throughout the shift of the day and um if you don’t like it you can move out.

Like I said I’ve been there for fourteen years and I’ve had four different OIC’s during the period, Lucas has been there for just over three years I believe, and when he first arrived there leave the um everything was pretty good I suppose he was just feeling his way. And then it gradually changed over to ah maybe he didn’t like the way that staff were working or what was going on there but he just wanted to change things and we wouldn’t argue, but I just that ah that we’d been doing it this way and everything is happy and we seem to be doing really well we had the highest figures in the state for MINS and for street checks and all that type of thing and the station was going really well as far as SARS going marine SARS and land SARS. Um there’s really no need to change it Lucas we should you know discuss this maybe talk about things, and if there is some way to increase efficiency and productivity we we’ll all be involved in that. But he wouldn’t listen to anyone it was just like he’d turn up one morning and something would sort of snap in him and he’d just sort of say okay we’re going to do this today, and um we wouldn’t argue, we would just continue on that line, one of the major things that did introduce was having three people on a vessel when he first got there. And there was no reasoning behind this, he said as Officer in Charge it’s up to me to provide a safe work environment for everybody and I believe that we need three on a boat.

  1. [70]
    Sgt Kolkka said that he had been threatened with transfer:[38]

… And we had a fair few arguments of different things like that and um at one stage probable after an argument I can’t remember if it was or not, but he said well uh I’m going to transfer you to the Railway Squad because you’re not supporting me and I don’t believe you’re doing your job here, and I have the support to the Inspector to do that I can do that, and I just said well uh I’m not gonna leave here, I’m happy here ah I’m doing my work here, I’m not gonna go to the Railway Squad, and then just bluntly he said you’ve only got um less than or err 12 months to go, I suggest that you take your long service leave now and walk out the door.

  1. [71]
    Sgt Anthony Nelson was interviewed by Detective Inspector Lowe on 18 December 2014. He described how he had initiated a mediation session with Mr Young in 2012:[39]

AN: Yes. That particular circumstance escalated to the point that we ended up having mediation over it as a, similar circumstances to what’s being investigated now in relation to workplace behaviours, resulted in a mediation session in 2012.

DI: Who ran the mediation?

AN: Um, mediation unit from Brisbane. I initiated it, um I initiated it in response to a lot of these issues. I approached the, our Inspector and District Officer here about a number of issues and told them it was heading towards uh serious complaint and/or grievances and that I was trying to find a way to manage things cuz um and to get things back on track. I then spoke to the Human Services Officer here, Belinda Collins.

DI: What were the issues driving, so you’ve gone, obviously the workplace is difficult back in 2011 – 2012 when you approached the District Manager then, what were the issues back then I guess were driving the need to have a mediation involved?

AN: um, victimising, targeting, bullying, trying to drive people out of the office on, for personal reasons. What, the time I guess is worth mentioning now that in 2011, and 2011 things had which, as we said before, I said before in about Christmas 2010 was when I started to really getting into 2011, I started to really notice the, his behaviour. Maybe he was feeling more comfortable in his position, but his behaviour was becoming more and more domineering over staff. Very regularly saying things like “I’m the officer in charge, I’m the boss, you should do what I say".

  1. [72]
    The particulars of this matter are quite broad, as they describe a general behaviour. It is submitted for Mr Young that the charge is vague and that the particulars are insufficiently particularised; or that alternatively the charge discloses nothing more than a ‘breach of discipline’.
  2. [73]
    To some extent, a charge in relation to an overall behaviour must be general, in contrast to an allegation as to a specific incident or a specific action. A general behaviour is demonstrated by a pattern of similar actions.
  3. [74]
    There is a consistent body of evidence, as demonstrated by the excerpts referred to above, from a number of officers, as to Mr Young’s exhibiting negative workplace behaviour in speaking to Gold Coast Water Police in ways which can properly be described as threatening, intimidating, demeaning and demoralising.
  4. [75]
    Again, the options are that the consistency demonstrates collusion by the officers, or that it represents truthful evidence.
  5. [76]
    If the evidence only arose from long-standing members of the unit, which had a reputation for being an unhappy workplace, then the suspicion that there was a long-standing group of dissident officers, who were working collectively against a sequence of Officers in Charge, may suggest itself. It is notable however, that observations as to the negative workplace environment resulting from the management of Mr Young were also made by Senior Constable Thompson and Senior Constable Singer who each had only been at the unit for a matter of months – it is less likely that they would have adopted the attitudes of a long standing dissident group, than that they were giving independent recent observations.
  6. [77]
    The threats to move officers out of the unit to another branch of the police service should be seen in the context of the Gold Coast Water Police branch being seen as a desirable location. A threat to move an officer out of the unit may therefore have greater meaning than if it was from a less desirable position.
  7. [78]
    The consistency and frequency of the behaviour by Mr Young in trying to enforce his personal attitudes presents as dictatorial and arbitrary, rather than balanced management. The consistency and intensity of such behaviour, which permeated the unit and affected large numbers of officers, presents as behaviour that is ‘over the line’ as to appropriate behaviour by an Officer in Charge.
  8. [79]
    The extent of that behaviour, being ‘over the line’, moves it from a breach of discipline to misconduct, as discussed in the cases previously referred to.
  9. [80]
    I am satisfied to the Briginshaw standard that this particular of negative workplace behaviour, by speaking to Gold Coast Water Police staff in a manner which was threatening, intimidating, demeaning and demoralising, is substantiated as misconduct.

Matter 1(ix)

  1. [81]
    This Matter relates to the alleged targeting of Constable Ashbolt through changes in the roster which made it difficult for him to arrange custody of his children.
  2. [82]
    Senior Constable Beutel was interviewed by Detective Inspector Lowe on
    29 December 2014. He was asked about a discussion he had with Mr Young, which was at a time after he observed Constable Thomson’s reactions to being called a certain nickname by Mr Young, and after certain incidents at the local Subway store. In that discussion Mr Young referred to roster requests made by Constable Ashbolt, and commented on Mr Young’s attitude to those requests:[40]

DOI: do you remember a specific date?

GB: No I don’t. And that’s when the um the complaint started. I think he found out about this the complaint, he pulled myself and Bruce Kolkka into the office um and he said. He came and saw me. He said ‘I need to have a chat to you and Bruce about the rosters’. ’Have you done the rosters?’ Because I do the rosters at work and so I grabbed the latest roster I had and took it in and he said to me um. He closed the door behind us and he said ‘I’ve been shit on and um and people need to know runs this place’. He said that ah ‘There’ll be no more requests um and if anyone’s got a request they can come and see me’. ‘And if they don’t like it they can look for somewhere else you know”.

DOI: what else was said?

GB: Um I think there was a few there there was a discussion then about some, like he was very angry um and then he sort of his mood slowly started to improve after he’d said that. And yeah he wanted me to give him a copy of the roster, which I did. Um which I got a copy of, that’s a copy of the roster, (hands the document to DI), which I gave him and a few days later he came out with this one which is all just handwritten in with changes. So during that meeting after that was said he started talking about some action plans and operations that we had coming up.

DOI: So between the original roster you have drafted and this new roster.

GB: Yeah.

DA: What changed?

GB: Mainly the shifts of Dave Ashbolt um yeah Dave has a lot of requests in the request book that relate um to ah like when he has his kids um so he’ll generally put yeah a request for a lot of days off, usually five in a row, so that that’s when he has his kids.

DA: Would Senior Sergeant Young be aware of that?

GB: Yeah yeah definitely.

DOI: So why do you think Senior Constable Ashbolt’s roster was changed?

GB: um I just think he thinks Senior Constable Ashbolt is probably one of the characters of the office or the louder voices and I think, my impression was that he thought Dave was a driving force behind the complaint.

DI: Did he say as much?

GB: No no that was just sort of what I picked up on.

  1. [83]
    Sergeant Nelson was interviewed by Detective Inspector Lowe on 18 December 2014. He related a conversation he had with Mr Young after Mr Ashbolt’s roster was changed, where he expressed his view that the change was unfair:[41]

AN: Ah, on Wednesday I was on a day off and I came into the station and I asked Lucas if I could speak to him in relation to it. We went in and had a closed-door meeting in relation to the rosters. I expressed my view that it was unfair that Dave was being obviously in my mind targeted. Um that the roster met all the requirements of EB, met all the requirements of equity, met all the requirements of OSA. It also was fair to David, it had been done with consultation with him in relation to the custody of his children and his personal circumstances, and I felt that it was a fair roster and that no other person had been disadvantaged by it either. He told me that Dave needed to learn who the officer in charge was.

  1. [84]
    Sgt Nelson stated that Mr Young had told him that he was changing the roster for Constable Ashbolt because he believed that Constable Ashbolt had lodged a complaint:[42]

DI: Did Senior Sergeant Young ever express to you that he was changing the roster for Ashbolt because he uh was of the belief he’s involved in a complaint against him?

AN: Yes.

DI: what did he say?

AN: He rang me when I first returned from Cairns on, so it was Tuesday, I flew back from Cairns on the Monday. Tuesday he rang me at home. First part of the conversation was ‘how was your trip to Cairns?’, asked me lots of questions about my trip, the deployment, asked me whether I was comfortable being Master of the big boats in those areas that I said ‘Yes, it was great’. He then asked me whether or not I was available to do a special services overtime on the Friday at Schoolies. I said yes I could do that, he said thank you.

He then said ‘I suppose you’ve heard that there is a complaint against me’. I said ‘yes I have’ and he said ‘where do you stand?’ And I said ‘mate, I can’t talk about it’ and he said “oh, apparently, apparently Greg Campbell’s put in a complaint against me’ and I said ‘well, I guess we’ll have to let natural justice take its course’ and then he said ‘but I know Ashbolt’s behind it, he’s the ringleader and he’s rallying the troops’ and I said ‘why do you think that?’ He said “I’m not stupid, I just know”.

He then said to me, he said “where do you stand?” He said again “where do you stand?” And I said “Lucas I don’t stand anywhere” I said ‘a complaint has been made, it’s got to be investigated” and I said “well we have to let it take its course’ he said “I’ve got nothing to worry about. I’m still sleeping at night. These people have to know I’m the officer in charge and I’ve got the support of the bosses or something along those lines. I certainly felt initially that he was more friendly than he has been in more recent times to me at the start of the conversation and I felt that he was trying to draw me into, draw me into showing support for him. I also got the distinct, not just impression, he told me he believed that Dave Ashbolt was responsible or partially responsible for the complaint.

  1. [85]
    Senior Constable Ashbolt was interviewed by Detective Inspector Lowe on
    8 December 2014. He stated that relations between himself and Mr Young had soured in relation to a search for a missing person, where Constable Ashbolt had acted outside Mr Young’s directions which he considered were derelict:[43]

DA: I had a big run in with him in relation to a fatality we had down here. Studwell was um two people went out in the boat fishing um and ah what happened was at two in the morning a lady swam in one of the survivors, she swam in to the beach at the Sheraton Mirage. And she’s basically ended up lying on the beach for an hour and then got enough energy and made her way up to the foyer and she’s got to the foyer and they’ve called police. I was on call that night so um Michael Banyari was what we call DTC. He was the Duty Task Coordinator.

DI: So go back a bit. So who’s Studwell?

DA: Ah Studwell so Studwell was the deceased.

DI: Alright.

DA: He he was the man who died.

DI: And his female associated with him raised the alarm?

DA: Yes

DI: Right and what was the concerns?

DA: Um so Michael Banyari rang me um at home at two in the morning and said we’ve got a potential missing person offshore. Um Lucas has just rang me, cause Lucas would have got the phone call first as a SARMAC. Um Lucas has rang me. He wants you to go in and see what’s going on. I came into the office and I went straight to Sheraton Mirage just in plain clothes where cause I was aware that’s where it had happened. Um got to the foyer, I spoke to the people involved. I spoke to the um girl and identified there was still someone outstanding offshore, that she was out there with another person. Um, and where they were last at, parallel to Q1 and the boats just tip topped over and they’ve both ended up in the water and they were both swimming together and lost sight of each other. Um so I’ve rang Banyari. He wasn’t there and um mate we need to get everybody in because this person is still offshore um out there. There was two people offshore um he said Lucas has said it’s only you and I, the other guys can start in the morning.

I rang Lucas to say I need everybody in and he said it’s, I think by then it was three o’clock. He said they can start at six um we can get them out there at six. And I said no we need everyone in. There is a person offshore um we don’t know how long he’s been swimming for. They’ve been missing since 10 o’clock last night. The boat rolled over. We need to get people in. He said no I don’t think the need to come in so then I hung up. And I’ve called Tony Nelson and I called everybody in. I just went over the top of him then in that scenario and that’s it. I need people to come in here.

  1. [86]
    Senior Constable Ashbolt said that the deceased was not located during the search which went on for five or six days. He was asked about Mr Young’s response to his actions, and said he was ‘really cranky’:[44]

DOI: After you’ve called out people and they’ve claimed the overtime, was there any further conversations with Senior Sgt Young about you taking on that decision-making role in calling people?

DA: I remember at the time he was really cranky, he was really cranky at me and that the next morning. He was really cranky at me that I’d overruled his decision and done that. And we had a disagreement in the office and I sort of I remember at the time voicing I am the person on the scene. I’m I’m here on the scene. I can see, I’ve spoken to people, I’ve spoken to the victim who survived and she’s told me what’s going on. I’m the one who has full appraisal of it and that’s why it is essential to get people out there at night.

His argument was that oh you can’t see anything. You can’t see anything at night so it’s like wait till first light sort of scenario but we’ve done, we’ve never done that. We’ve never, the only first night scenario would be bush scenario where you don’t want SES walking around the bush with it could be Cliffs and they fall off a cliff. Um we’ve got radar, we’ve got spotlights, we’ve got everything offshore on our boats capabilities. And we also call out at that, for that search it was a huge search. We use probably 15 other resource boats VMR, coastguards from all NSW, Queensland, everywhere and we’d run a track line search up and down the coast for days. And that’s what we, that’s what I did that night I called them in as well volunteer units and by four or five in the morning the boys went out and there was I had eight boats doing a track line from her last known position. In our search we work out a search area of a drift pattern and so from that search area down um and that’s where the guys picked up the debris and stuff over those times with spotlights and torches. So if someone was in the water then that’s what we would have got hold of. But yeah we did have an argument yeah.

  1. [87]
    Mr Young was interviewed by Detective Inspector Lowe on 16 December 2014, and asked about the rostering changes. He referred to a conversation with Sgt Kolkka about the roster changes, as Sgt Kolkka had written most of the roster:[45]

LY: um, I asked him what was, what was going on and um, now he came in and said “why did you change the roster?’ I had it 85% written”. Now he’d been a way up north. We had G20 coming up and the roster needed to be out. I rewrote the roster as to include uh Op Summer Safe and action plans to go with it, oh pardon me. And um he came back and he more or less had a go at me for changing Ashbolt’s roster.

RL Why, why do you think?

LY: Why did he have a go at me?

RL: Mm

LY: Because he said that he asked Ashy what he wanted to work and I said so you’re writing a roster, you’re writing a roster to suit Ashy?. He said yes I am and I said how is that fair on the rest of the staff? What if we start writing the roster that suits Ashy and then say someone comes in and they, they come in and go well I want to write a roster that suits me. And then someone else does it. And then he goes if I can accommodate, I will. And then I said to him “mate, I’m trying to run a police station here. I’ve got the busiest time of year coming up and the rosters are being written around what suits the blokes”.

RL: And I understand this is about the time when the complaint was made you’d learnt that Ashbolt had been involved in bringing staff together to talk about you. Is it too much of a coincidence that Ashbolt’s roster becomes an issue?

LY: Ashbolt’s roster has been an issue for a long time sir.

  1. [88]
    Mr Young was again asked if there was a connection between the time of the complaint being made against him, and the change of rosters, and whether this was to victimise Senior Constable Ashbolt. He denied that was the case:[46]

RL: And this is the same time, so you see where this is of a concern is that the rosters done on the 20th. Campbell makes a complaint on the 18th. Following days when you’ve learnt through Wood that the complaints been made and staff have got together, you take the roster book home, you take the roster home and you change the roster for Ashbolt.

LY: No, I took the roster home cuz Beutel I think was having dramas trying to do it cuz Tony was away and when he, I gave, I did changes and I gave it to Rowdy. He gave it back to me, he picked up on a few anomalies where there was one up on an afternoon shift or something, changed those around.

RL: Interestingly, Beutel says when you found out about the complaint having been made, Beutel and Kolkka were called and for the, you asked for the latest roster and behind the closed door you said ‘I’ve been shit on and people need to know who runs this place. There will be no more requests and if anyone has request, they can come and see me and if they don’t like it, they can look for someone else to go’.

LY: No, I didn’t say that.

RL: He then gave you the draft copy of the roster and then a few days later you’ve come back with the changes to the roster that affected Ashbolt and Banyari.

LY: Mm

RL: That, that’s Senior Constable’s version is that the roster was changed arising out of this, you’ve taken the roster, you were angry, you were in a mood and you’ve taken it.

LY: No, he was struggling with it.

RL: Did you change the roster for Ashbolt to victimise him as a result of his involvement in this complaint?

LY: No, no I changed it to suit the roster requests and there were no request from Ashy for those days.

  1. [89]
    Mr Young was asked as to whether the change to Constable Ashbolt’s roster was an angry reaction to his knowledge that the Constable was involved in a meeting, and denied that suggestion, saying that the changes were made to put equity in the roster:[47]

RL: So I’m ask, again you are saying it was to do with your roster changes would do to a operational reasons to get Ashbolt out on the boat but Ashbolt was already out on the boat so the suggestion is, (unintelligible) conversations and the officer’s recollections is that the changes to Ashbolt’s roster were in response to a, an angry reaction to your knowledge that he was involved that he was involved in the meeting.

LY: No, as I said before also wanted to bring a bit of equity back into it and put him on um normally when he would have his kids so there’s no request so I moved him to that one. And there’s another one that he.

  1. [90]
    There must be a high degree of suspicion that Mr Young was generally reacting badly to having heard about a complaint made against him, and was in the context of a history of conflict between Mr Young and Senior Constable Ashbolt as related above.
  2. [91]
    This particular has echoes of particular 1(vii) as to negative workplace behaviour, but it is specific as to the roster change made by Mr Young as to Senior Constable Ashbolt.
  3. [92]
    Senior Constable Beutel was asked, in the statement quoted above, whether Mr Young had said ‘as much’ that Senior Constable Ashbolt’s roster was changed because Constable Ashbolt was a driving force behind the complaint, and he replied that Mr Young had not said that, but it was ‘just sort of what I picked up on’.
  4. [93]
    Sergeant Nelson stated, in the statement quoted above, that Mr Young had expressed to him that he was changing the roster for Constable Ashbolt because Mr Young was of the belief that Constable Ashbolt was involved in a complaint against him. However, the actual response that he relates that Mr Young gave, whilst it refers to his believing that Mr Young believed that Constable Ashbolt was responsible, or partially responsible, for the complaint, does not directly refer to a change of roster.
  5. [94]
    There is therefore no direct comment or admission made by Mr Young, which is related by the officers, that the roster change was made to target Constable Ashbolt.
  6. [95]
    Mr Young denies changing the roster to victimise Constable Ashbolt. He says that the change was made for operational reasons.
  7. [96]
    Mr Young gives cogent reasons for changing the roster. He said that in his view, the roster had not been properly drawn up, was not in response to specific requests from Constable Ashbolt, and would raise valid queries from other officers as to why Constable Ashbolt was being given preferential treatment, and lacked equity. He also says that the change was to provide Constable Ashbolt with more time on the water on the boat ‘Handron’. Those reasons are reasonable, and are not challenged as to fact.
  8. [97]
    Despite there being an air of suspicion about the basic motivation that Mr Young had in making the roster changes, in the absence of any clear statement recorded as having been made by Mr Young that he made the changes as retaliation, and in light of Mr Young’s denials, and his having given cogent reasons for changing the roster, I cannot be satisfied that the roster change was made as victimisation, and was not made for reasonable management reasons.
  9. [98]
    I am not satisfied to the Briginshaw standard that the particular of targeting Senior Constable Ashwell, through changes in the roster, is substantiated as being either misconduct or a breach of discipline.

Conclusion

  1. [99]
    These Reasons decide whether particulars (iii), (vii) and (ix) of Matter 1 are substantiated as misconduct.
  2. [100]
    I am satisfied that Matters 1(iii) and 1(vii) are substantiated as misconduct, and confirm that part of the decision of the Assistant Commissioner.
  3. [101]
    I am not satisfied that Matter 1(ix) is substantiated, and set aside that part of the decision of the Assistant Commissioner.
  4. [102]
    The application is to be set for a Directions Hearing at a time and date to be advised, to consider the further conduct of the application as to sanction, and to make Directions as required.
  5. [103]
    In order to enable the parties to consider these Reasons, I direct that the Directions Hearing be held not before four weeks after the giving of these Reasons.

Footnotes

[1] Findings and Reasons for Decision, Assistant Commissioner Dawson, 1 December 2017, 82.

[2] Findings and Reasons for Decision, Assistant Commissioner Dawson, 1 December 2017, 86.

[3] Ibid.

[4] Application to review a decision part C, 4.

[5] Application to review a decision part C, 5.

[6] Applicants outline of submissions re substantiation, 2

[7] The Misconduct Tribunal Appellate Jurisdiction, Criminal Justice Commission, Appeal No 11 of 1996, 24 February 1997, 15.

[8] Ibid 16.

[9] Misconduct Tribunal, 17 September 1999, 10.

[10] [2015] QCAT 391.

[11] [2016] QCAT 153, [46]

[12] Applicant’s outline of submissions re substantiation, [19].

[13] Ibid [24]–[26].

[14] Ibid [31].

[15] Ibid [39].

[16] Ibid [48].

[17] Ibid [56].

[18] Respondent's outline of submissions, [31].

[19] Respondent's outline of submissions, [37], [42].

[20] Respondent's outline of submissions, [52].

[21] Material provided pursuant to s 21(2) of the QCAT Act, p 1093, line 129.

[22] Ibid p 1094, line 191.

[23] Ibid p 1097, line 355.

[24] Ibid p 1102, line 562

[25] Ibid p 1102, line 560

[26] Ibid p 1153, line 586

[27] Ibid p 1316, line 744.

[28] Ibid p 1421, line 634.

[29] Ibid p 1422, line 653.

[30] Ibid, p 1061, line 99

[31] Ibid, p 1163, line 66

[32] Ibid, p 1164, line 89

[33] Ibid p 1166, line 184.

[34] Ibid p 1205, line 83.

[35] Ibid p 1205, line 119.

[36] Ibid p 1192, line 79.

[37] Ibid p 1019, line 50.

[38] Ibid p 1020, line 94.

[39] Ibid p 971, line 219.

[40] Ibid p 1284, line 292.

[41] Ibid p 0997, line 355.

[42] Ibid p 0998, line 384.

[43] Ibid p 1154, line 608.

[44] Ibid p 1155.

[45] Ibid p 1473, line 143.

[46] Ibid p 1476, line 287.

[47] Ibid p 1477, line 357.

Close

Editorial Notes

  • Published Case Name:

    Young v Dawson

  • Shortened Case Name:

    Young v Dawson

  • MNC:

    [2019] QCAT 8

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    24 Jan 2019

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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