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  4. McKenzie v Deputy Commissioner Linford - [2021] QCAT 175

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McKenzie v Deputy Commissioner Linford[2021] QCAT 175

McKenzie v Deputy Commissioner Linford[2021] QCAT 175

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McKenzie v Deputy Commissioner Linford & Anor [2021] QCAT 175

PARTIES:

william mcKENZIE

(applicant)

v

deputy commissioner tracy linford

(first respondent)

CRIME AND CORRUPTION COMMISSION 

(second respondent)

APPLICATION NO:

OCR064-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

12 May 2021

HEARING DATE:

3 March 2021

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

  1. The decision made by Deputy Commissioner Tracy Linford on 31 January 2020 is set aside, and the following decision is substituted.
  2. William McKenzie is:
    1. (a)
      reduced in rank from senior sergeant pay-point 4.5 to sergeant pay-point 3.1 from 31 January 2020 until 30 January 2021;
    2. (b)
      progressed to the rank of sergeant pay-point 3.7 from 31 January 2021 until 30 July 2021; and
    3. (c)
      returned to the rank of senior sergeant pay-point 4.5 from 31 July 2021.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where police officer breached rules and fatigue management guidelines, disobeyed directions, submitted false information, and failed to report misconduct – whether permanent demotion appropriate

Police Service Administration Act 1990 (Qld), s 1.4, s 7.1, s 7.2, s 7.4, s 7.34

Aldrich v Ross [2001] 2 Qd R 235

Re Bowen [1996] 2 Qd R 8

Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96

Deputy Commissioner Stewart v Dark [2012] QCA 228

McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309

Newman v Deputy Commissioner Linford APM & Anor (No 2) [2020] QCAT 328

The Queen on the application of Darren Williams v Police Appeals Tribunal & Anor [2016] EWHC 2708 (Admin)

APPEARANCES &

REPRESENTATION:

Applicant:

C R Gnech of Gnech and Associates

First respondent:

I P Fraser, Senior Legal Officer, Queensland Police Service

Second respondent:

Z Valeska, Principal Legal Officer, Crime and Corruption Commission

REASONS FOR DECISION

Introduction

  1. [1]
    William McKenzie is a police officer in the Queensland Police Service. I will refer to him as Mr McKenzie, rather than by his rank as would normally be preferable. This is because he has held different ranks at relevant times. Further, the point of controversy in this matter is whether he should retain the rank of senior sergeant.
  2. [2]
    He seeks review by the tribunal of the disciplinary sanction imposed by Deputy Commissioner Linford on 31 January 2020 for misconduct committed in the period 23 May 2014 to 27 August 2015. The sanction imposed by the Deputy Commissioner was a reduction in rank from senior sergeant pay-point 4.3 to sergeant pay-point 3.1, and then a progression to sergeant pay-point 3.7 after 12 months.
  3. [3]
    Pay-points 3.1 and 3.7 are respectively the lowest and highest pay-points in the rank of sergeant.
  4. [4]
    The Deputy Commissioner noted in her reasons that Mr McKenzie had progressed to senior sergeant pay-point 4.5 on 10 May 2017, but was currently at senior sergeant pay-point 4.3. This was said to flow from a tribunal order restoring Mr McKenzie to that rank and pay-point. It is not apparent, however, why he was not restored to the pay-point, 4.5, that he had attained on 10 May 2017.
  5. [5]
    Mr McKenzie argues that the ‘permanent’ demotion in rank ordered by the Deputy Commissioner is excessive. (Although the demotion ordered by the Deputy Commissioner is not permanent in the sense of prohibiting later promotion to the rank of senior sergeant, such promotion would happen only in the event of a successful application in a competitive process.) Mr McKenzie contends that the appropriate sanction would be a demotion to the rank of sergeant for a period, followed by a return to the rank of senior sergeant, as well as requirements to undertake mentoring and associated activities.
  6. [6]
    The Crime and Corruption Commission has elected to become a party to the proceeding. The CCC, along with the Deputy Commissioner, submits that the decision of the Deputy Commissioner should be confirmed by the tribunal.

Disciplinary framework

  1. [7]
    ‘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]
  1. [8]
    An officer who has committed misconduct may be disciplined.[2]
  2. [9]
    The main purposes of the disciplinary part of the Police Service Administration Act are:
    1. (a)
      to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers; and
    2. (b)
      to ensure appropriate standards of discipline are maintained within the service to—
  1. (i)
    protect the public; and
  1. (ii)
    uphold ethical standards within the service; and
  1. (iii)
    promote and maintain public confidence, and officers’ confidence, in the service.[3]
  1. [10]
    Related principles drawn from the observations of courts and tribunals include that:
  1. (a)
    disciplinary proceedings are not punitive in character, but sanctions must be ‘adequate to signify the public disapproval of the conduct and deter the officer and others from similar future conduct’;[4]
  1. (b)
    disciplinary proceedings should serve to protect the reputation of the police service;[5] and
  1. (c)
    they should maintain confidence that powers are not being abused and that officers are performing their duties with integrity.[6]
  1. [11]
    The tribunal must conduct a fresh hearing on the merits, to produce the correct and preferable decision.[7]
  2. [12]
    As was observed in Aldrich v Ross,[8] it is proper in a police disciplinary matter to afford considerable respect to the views of the original decision-maker on sanction. This is because the original decision-maker will have ‘particular expertise in the managerial requirements of the police force’.[9] Further:

… the Commissioners of the Police Service … have the important and difficult task of managing a large institution whose officers play an important part in society and who are given substantial powers and responsibilities for their task. They must be kept honest, efficient and conscientious. The Misconduct Tribunals do not have particular experience in managing the Police Service.[10]

  1. [13]
    The tribunal, however, brings a ‘public point of view’.[11] After affording due respect to the views of the original decision-maker as to what is needed to maintain internal discipline, the tribunal must reach its own decision on what constitutes the correct and preferable decision.
  2. [14]
    Available disciplinary sanctions include dismissal, demotion (whether permanently or for a stated period), and probation.[12]

The misconduct

  1. [15]
    At the time of the conduct in question, Mr McKenzie was 50 to 51 years of age. He occupied the role of tactician for a police district. His officer-in-charge was an inspector.
  2. [16]
    Mr McKenzie does not dispute that the conduct in question was misconduct.
  3. [17]
    There were a number of aspects to the misconduct. Several related to special duties: additional tasks that are not part of an officer’s normal duties, and which can attract overtime payments. Special duties in the present case included escorting wide loads and providing traffic control at cycling events. Such services are delivered by the Queensland Police Service on a fee-for-service basis.
  4. [18]
    The first aspect of the misconduct was failing to obtain approval ‘to perform numerous special duties between 23 May 2014 and 25 June 2015’.[13]
  5. [19]
    Emails sent to staff in 2012 and 2013 established a requirement for officers to seek the approval of their officer-in-charge before undertaking special duties. The emails explained that officers were required to submit information about their surrounding shifts so that compliance with fatigue management guidelines could be assessed.
  6. [20]
    The second aspect of Mr McKenzie’s misconduct was failing to obtain authorisation from his officer-in-charge before submitting overtime claims to the payment processing centre. This occurred on 16 occasions between June 2014 and May 2015. It was contrary to the requirement in a Commissioner’s Circular for officers to obtain authorisation from their officer-in-charge before performing overtime.
  7. [21]
    There was a space on overtime claim forms for the signature of the officer-in-charge, but this was left blank on the forms submitted by Mr McKenzie. The claims were nonetheless paid.
  8. [22]
    The third aspect of the misconduct involved failure to comply with the Queensland Police Service fatigue management guidelines. One of the guidelines is that an officer should have at least eight continuous hours free from work in any 24-hour cycle. Another is that when performing wide load escort duties, an officer shall not be rostered to work more than 14 hours in any one continuous period, unless specifically approved by the officer-in-charge where justified.
  9. [23]
    Five instances of non-compliance were noted. The first three involved wide load escort special services:
  1. (a)
    on an occasion in February 2015, performing the service for 19 continuous hours;
  1. (b)
    on an occasion in March 2015, performing the service for 20 continuous hours; and
  1. (c)
    on an occasion in April 2015, performing the service for 24.75 continuous hours.
  1. [24]
    These long hours of continuous duty included return travel to Mr McKenzie’s home base without taking a break apart from meal stops.
  2. [25]
    Mr McKenzie had undertaken training for wide load escorts, which covered the fatigue management requirements.
  3. [26]
    The last two instances involved Mr McKenzie having less than eight continuous hours free from work in two, overlapping, 24-hour periods soon after the third incident. The first involved work-free time of only 7.5 hours, while the second involved work-free time of only 3.75 hours.  
  4. [27]
    The fourth aspect of the misconduct involved failure to comply with industrial agreements concerning rostering:
  1. (a)
    in the fortnight ended 1 May 2015, Mr McKenzie rostered himself six rest days, an optional rest day, and a programmed day off; and
  1. (b)
    in the fortnight ended 29 May 2015, he rostered himself five rest days and a programmed day off.
  1. [28]
    The number of rest days exceeded the limit of four per fortnight set out in the industrial documents.
  2. [29]
    The fifth aspect of the misconduct involved submitting forms that Mr McKenzie knew contained false and/or misleading information. This related to the occasion mentioned above, when he worked for 24.75 hours on a wide load escort. This period of work ended at 1.45 pm on 15 April 2015. In statements of special services, an overtime claim form, and a claim for travelling allowance, Mr McKenzie showed a break from 5.00 pm on 14 April to 6.00 am on 15 April, which he had not taken. As a result of the travelling allowance claim indicating an overnight stay, Mr McKenzie received meal allowances totalling $149.64 to which he was not entitled.
  3. [30]
    The sixth aspect of the misconduct involved failing to comply with a direction of a senior member of the Queensland Police Service, namely the inspector who was Mr McKenzie’s officer-in-charge. During a performance review on 9 June 2015, the inspector gave Mr McKenzie a verbal and a written direction to submit all overtime claims through his supervising inspector for approval. However, soon after this, on 15 and 26 June 2015, Mr McKenzie submitted overtime claims without an authorising signature.
  4. [31]
    The seventh aspect of the misconduct involved Mr McKenzie failing to answer questions directed to him during a disciplinary interview ‘truthfully, completely, competently and promptly’[14] and failing to report misconduct. This arose from responses given by Mr McKenzie in his directed disciplinary interview in August 2015. At the commencement of the interview, one of the interviewers reminded Mr McKenzie that the Commissioner had directed all officers to answer questions in such interviews truthfully, completely and promptly. During the interview, Mr McKenzie said he was aware of other senior sergeants who did not comply with the requirement to seek approval to perform special duties. He then declined to name them even after being reminded of the Commissioner’s direction.
  5. [32]
    This involved a breach of the statutory obligation upon an officer who knows or reasonably suspects misconduct has occurred to report the misconduct to the Commissioner and the Crime and Corruption Commission.[15]
  6. [33]
    The conduct outlined above did not meet the standard of conduct that the community reasonably expects of a police officer, and so it constitutes misconduct.

Mr McKenzie’s career

  1. [34]
    Mr McKenzie has spent his whole career in the Queensland Police Service. He began his training in 1983 at the age of 18, and was sworn in as a constable in July 1983. He reached the rank of senior sergeant in 2011. He is now 57 years of age. There is a mandatory retirement age of 60 for officers up to the rank of senior sergeant.

Disciplinary proceedings concerning the misconduct

  1. [35]
    Mr McKenzie was suspended from duty for some nine months before a disciplinary decision was made by Assistant Commissioner Condon on 6 September 2017. The sanction imposed was to reduce Mr McKenzie in rank from senior sergeant pay-point 4.3 to senior constable pay-point 2.9.  (It is not apparent why pay-point 4.3 was specified, when other information indicates that Mr McKenzie had attained pay-point 4.5 on 10 May 2017). However, in a review proceeding before the tribunal, that sanction was set aside by consent on 21 August 2018. The matter was sent back to Queensland Police Service for a new decision to be made. 
  2. [36]
    On 30 August 2018 Mr McKenzie was again stood down, until the new disciplinary decision was made by the Deputy Commissioner on 31 January 2020.

Service history memorandum

  1. [37]
    A service history memorandum dated 11 October 2019 notes some substantiated disciplinary allegations earlier in Mr McKenzie’s police career. These included, in 1991 to 1992, being untruthful in a court proceeding and in interviews with inspectors, and, a year or two later, carelessness in failing to lodge $152 in cash, which came into Mr McKenzie’s possession in an investigation, in the exhibit room.
  2. [38]
    The memorandum indicates that some performance reviews over the years were either neutral, or indicated a need for improvement. Many, though, were favourable, referring to qualities such as diligence, competence, dedication and high performance. The most recent favourable comments were in July 2018, where an officer described tenacity and thoroughness by Mr McKenzie and another officer in the course of a ‘significant arrest’.[16] There are also references to letters of appreciation or phone calls received by Queensland Police Service commending Mr McKenzie for compassion, a high standard of work, and so on. Various awards are noted over the course of Mr McKenzie’s career.

Directed disciplinary interview

  1. [39]
    Mr McKenzie participated in a lengthy directed disciplinary interview on 26 and 28 August 2015. He conceded that he had breached several rules and requirements. In relation to the long wide load escort trips, for example, he said he had thought the maximum hours of work allowed was 16 rather than 14. However, he acknowledged that he had exceeded 16 hours. He referred to one instance when he decided not to take an overnight break because he was ‘such a short distance away from home’[17] and did not feel fatigued. It is not clear from the interview whether it was on that or another occasion when, according to Mr McKenzie, he ‘just wanted to get home for family reasons’.[18] In relation to the 24.75 hour trip, Mr McKenzie said there was no movement in the first two hours and so he rested then in the car. He admitted that when he returned to his home base he submitted incorrect forms in an effort to avoid scrutiny over breach of the fatigue management policy.
  2. [40]
    In relation to the overpaid meal allowance, Mr McKenzie said he had repaid it once he became aware that he was not entitled to it. The repayment is verified in statements of other witnesses.
  3. [41]
    Mr McKenzie said his motivation for undertaking so many special duties was to build up an emergency fund, and that this had coloured his judgment. He outlined health conditions of family members, and said he wanted to have a fund in case they needed to pay for treatment in the future.
  4. [42]
    He acknowledged that the submission of overtime claims without his supervisor’s approval after the performance review breached the individual direction, but he said the contravention was not deliberate.

Mr McKenzie’s affidavit 

  1. [43]
    Mr McKenzie said in an affidavit prepared for the disciplinary proceeding that he made a few mistakes in his junior years, but he had matured into a professional and competent police officer. He said that the misconduct occurred when he was in a toxic work environment, and when he did not believe he was receiving fair treatment from his supervisors. He said that during his performance review on 9 June 2015, when he received the individual direction about overtime claims, he just wanted to get in and out. He did not listen to the inspector or read the documents. Mr McKenzie also mentioned personal issues that he had raised during his directed interview. Mr McKenzie said that in hindsight, if he had been in a better state of mind, he would have dealt better with problems in the work environment. 
  2. [44]
    I note that in relation to the alleged toxic work environment, the Deputy Commissioner in her reasons said that an investigation was conducted concerning workplace bullying and management practices in the district in question, but no wrongdoing was identified.

References

  1. [45]
    Mr McKenzie provided references from current and retired officers, cycling officials, and legal practitioners. The main observations are summarised below.

Police references

  1. [46]
    An Assistant Commissioner spoke of his observations, when he was an inspector, of Mr McKenzie’s training duties between 2001 and 2008. He said Mr McKenzie was committed and innovative. The Assistant Commissioner also spoke of later observing Mr McKenzie’s very high level of professionalism and commitment in his work planning for a royal visit.
  2. [47]
    An inspector who worked in the same district as Mr McKenzie between 2011 and 2014 described Mr McKenzie as displaying an ‘exemplary level of professionalism and ethics’[19] in various roles. During the Grantham flood disaster response and recovery phase, Mr McKenzie was operations coordinator and received a Commissioner’s certificate and the national emergency medal for outstanding commitment ‘over an exacting and protracted period of time’.[20] The inspector also commented favourably on Mr McKenzie’s work for the royal tour, and for agreeing to step into a leadership role in a unit experiencing workplace conflict. The inspector spoke highly of Mr McKenzie’s achievements in the role of district tactician.
  3. [48]
    A retired inspector who worked in the same district as Mr McKenzie between 2011 and 2017 described him as a person of good character who performed a strategic role as tactician. This inspector also described a toxic culture associated with the inspector who was Mr McKenzie’s supervisor, and said that both himself and Mr McKenzie were ‘driven to working independently’[21] as a result. 
  4. [49]
    A retired senior sergeant said that he had found Mr McKenzie honest and trustworthy. He recalled the occasion when Mr McKenzie was disciplined because seized money had not been placed in the exhibit room. He said he believes this was the result of a mistake by Mr McKenzie, who had disclosed the matter when he realised he had left money in his locker.
  5. [50]
    Some references were from serving senior sergeants who had known Mr McKenzie for many years. One said Mr McKenzie is dedicated and hard-working, and that he provides sound and ethical advice. She added that she had been subjected to repeated and unreasonable workplace behaviours in the period 2014 to 2016, primarily by the inspector who was Mr McKenzie’s supervisor.
  6. [51]
    Another described Mr McKenzie as a respected police prosecutor and staff trainer. Another described him as ‘one of the most skilled, prepared, dedicated and knowledgeable instructor/facilitators I have observed within the Queensland Police Service’.[22] Another said he had been Mr McKenzie’s overall supervisor for some months from late 2017 when Mr McKenzie had been reduced in rank. He said that Mr McKenzie had maintained enthusiasm and professionalism, and his work performance had been outstanding. This officer also described Mr McKenzie’s operations work in the aftermath of the Grantham floods as outstanding. He also praised Mr McKenzie’s interactions, as tactician, with external agencies. The officer also described ‘negative workplace behaviours’[23] by the inspector who was Mr McKenzie’s supervisor.
  7. [52]
    A sergeant who is officer-in-charge of the local police prosecution corps described Mr McKenzie’s work in that office while under investigation for the disciplinary matter. The sergeant described Mr McKenzie’s work and collegiality in glowing terms.
  8. [53]
    A ‘district officer’ said that he had received good reports of Mr McKenzie’s work, while the investigation was ongoing, in the prosecution corps and another role.
  9. [54]
    An administrative officer who coordinated the wide load escort arrangements said that Mr McKenzie was well-regarded by clients and by officers who were learning the role.

Cycling references

  1. [55]
    A cycling official praised Mr McKenzie’s exceptional planning for cycling events, and said that he received very positive comments from cyclists about the safety of the events.  Another cycling official spoke of Mr McKenzie’s problem-solving and diplomatic approach. This official said he found Mr McKenzie to be honest and highly ethical, so he was very surprised to learn of the misconduct.

Lawyers’ references

  1. [56]
    A solicitor, who was previously a court clerk and who had interactions with Mr McKenzie over many years, described him as professional, respectful, honest and ethical. The solicitor regarded the misconduct as out of character. Another solicitor described Mr McKenzie, in the role of police prosecutor, as professional, efficient, fair and reasonable. Another solicitor spoke in similar terms, as well as referring to Mr McKenzie’s diligence and thoroughness. This solicitor also regarded the misconduct as out of character. A barrister also spoke in similar terms.

Medical reports

  1. [57]
    Mr McKenzie provided two medical reports. One was from the family’s general practitioner confirming the health conditions of the family members that Mr McKenzie had discussed.
  2. [58]
    The other was a report by Dr James Dodds, psychiatrist, dated 11 March 2018. Dr Dodds assessed Mr McKenzie on one occasion, in February 2018. Dr Dodds said that Mr McKenzie reported a toxic work environment in which he felt isolated, scrutinised and unsupported. ‘This created in him a sense of powerlessness and fear-avoidance psychodynamics’.[24] At the same time, he was dealing with intense family stress arising from the health problems of two family members. Dr Dodds considered that Mr McKenzie had an adjustment disorder with anxiety, and it seemed that Mr McKenzie had acted defiantly as a result of unconscious mechanisms. Dr Dodds considered that the ‘mental health issues were the significant causal factors for his poor decision making and conduct’.[25] Dr Dodds assessed the risk of re-offending as very low, and said that Mr McKenzie has insight and remorse.

Mr McKenzie’s position on sanction

  1. [59]
    Mr Gnech for Mr McKenzie submits that the appropriate sanction would be to demote Mr McKenzie from senior sergeant pay-point 4.5 to sergeant pay-point 3.7 for 12 months from 31 January 2020 and for Mr McKenzie to then revert to the rank of senior sergeant pay-point 4.5. Mr Gnech also proposes that Mr McKenzie be required to engage with a human services officer for 12 months, and to engage with a senior officer mentor for six months. The tribunal could also consider a probation order, Mr Gnech submits.

The respondents’ position on sanction

  1. [60]
    The Deputy Commissioner and the CCC submit that the sanction imposed by the Deputy Commissioner was appropriate, and should be confirmed.

Approach to be taken by the tribunal

  1. [61]
    It is undisputed that the tribunal should, in accordance with the established principle mentioned earlier, pay due regard to the views of the Deputy Commissioner about the appropriate sanction because of the expertise of internal decision-makers in police disciplinary matters.
  2. [62]
    The CCC submits that Mr McKenzie ‘bears a heavy onus in seeking to disturb a sanction made in the exercise of discretionary power’.[26]
  3. [63]
    Even taking into account the practice of placing considerable weight on the views of original decision-makers in police disciplinary matters, which the CCC next mentions, the submission that Mr McKenzie bears a heavy onus in seeking to disturb a discretionary decision is not a correct statement of principle in my view. In a merits review, there is no presumption that the original decision is correct, and no party bears an onus. The caution adopted by appellate bodies in relation to discretionary decisions should not be transposed into a proceeding that must be a fresh hearing on the merits.

The nature of the misconduct

  1. [64]
    Mr Gnech submits that while Mr McKenzie conceded in the proceeding conducted by the Deputy Commissioner that he had engaged in misconduct, there were some contested sub-elements left undecided by the Deputy Commissioner. In particular, it was submitted to the Deputy Commissioner that Mr McKenzie ‘did not act with any malice, corrupt or dishonest intention’.[27]
  2. [65]
    In relation to the overtime forms, it was submitted to the Deputy Commissioner that:

This matter is not accepted on the basis that there was a local culture for McKenzie’s overtime claims forms to be forwarded directly to payroll given the unique position he held and the unwillingness of an individual police unit to accept responsibility for his overtime claims. If McKenzie’s conduct in this regard was not authorised McKenzie was operating under an honest and reasonable but mistaken belief that it was.[28]

  1. [66]
    Further, in relation to the overpaid allowance, it was submitted to the Deputy Commissioner that if Mr McKenzie was not entitled to receive it, he was operating under an honest and reasonable but mistaken belief that he was. In relation to the failure to comply with the directions of the inspector, it was submitted to the Deputy Commissioner that the allegation was accepted on the basis that Mr McKenzie should have read the contents of the notice served on him.
  2. [67]
    Mr Gnech submits to the tribunal that ‘the perhaps most significant issue in this regard is that the Applicant accepts the conduct was misconduct on the basis that he did not act with any malice, corrupt or dishonest intent’.[29]
  3. [68]
    The CCC, noting that Mr McKenzie had previously advised that he was seeking review only of the sanction decision and not the substantiation decision, submits that Mr McKenzie is impermissibly attempting to limit and mischaracterise the misconduct.
  4. [69]
    I accept that there may be cases where submissions amount in substance to a denial of misconduct. However, given that there is a single ‘matter’ of misconduct alleged with various particulars, the better view in this case is that the relevant submissions made on Mr McKenzie’s behalf relate to the gravity of the misconduct rather than constituting a denial of it.
  5. [70]
    In any event, while some of the misconduct may have been due to laxness rather than deliberate wrongdoing, I do not accept that there was a complete absence of dishonest intent. There was clearly dishonesty involved in Mr McKenzie’s decision to lodge incorrect forms relating to the 24.75 hour trip. As he acknowledged during his directed interview, he did so in an effort to avoid scrutiny in connection with the fatigue management policy.
  6. [71]
    I see no reason to doubt that Mr McKenzie believed that he was entitled to the overpaid allowance, but it was only paid because he had lodged deceptive forms about his hours of work. 
  7. [72]
    As an experienced officer who had advanced to the rank of senior sergeant, and who had experience in prosecutions and training, Mr McKenzie must have been well aware of rules and policies. He chose not to comply with them. Even if Mr McKenzie believed that particular rules were not enforced in his locale, it was not reasonable for an officer in his position to nonetheless disobey them. Any misapprehension about whether he needed his supervising inspector’s approval for overtime should have been dispelled at the performance review on 9 June 2015. The requirement was communicated verbally by the inspector and in writing, by way of an ‘additional comment’ in the performance review document that Mr McKenzie signed. Mr McKenzie says in his affidavit that he did not listen to the inspector nor read the document. If that is accurate, it was irresponsible behaviour.
  8. [73]
    The fatigue management guidelines would have been produced for the safety of police and the wider community. It was risky and irresponsible of Mr McKenzie to breach them. His failure to obtain approval for special duties and for overtime assisted in his evasion of the guidelines.
  9. [74]
    Mr McKenzie’s refusal to answer follow-up questions during his directed interview about which peers had engaged in similar conduct is also a serious matter, though as the CCC has suggested in its submissions the reference to similar conduct by others may have simply been an unfounded effort to dilute responsibility. Mr Gnech submits that the refusal would not have prevented the investigation of any wrongdoing by peers because the relevant records would have been available for scrutiny. That is true, though cooperation by Mr McKenzie in answering questions may have narrowed the field of enquiry. In any event, it was of course Mr McKenzie’s duty to fully cooperate, yet he chose not to comply with that duty.

Mental health and personal pressures

  1. [75]
    Mr Gnech submits that:

… the driving force behind the conduct was:

… the overarching toxic work environment and the Applicant’s real perception that bullying was occurring and the Applicant and other staff were suffering significantly from mental health/welfare issues because of the toxic work environment;

…mental health and welfare issues suffered by the Applicant.[30]

  1. [76]
    Mr Gnech submits that the evidence of Dr Dodds explains why an officer with ‘such outstanding reference evidence and reputation’[31] has ended up facing a disciplinary proceeding.
  2. [77]
    Dr Dodds’ opinion rests on the underlying facts as reported by Mr McKenzie about the workplace culture and the family circumstances. There is confirmation of the family members’ health problems in the general practitioner’s report. In relation to the workplace culture, a number of serving or former officers refer to it as toxic in their references. I see no reason to doubt their perceptions. Accordingly, even though it is said that a workplace investigation found no wrongdoing, I accept that it was a very difficult work environment. Accordingly, I am persuaded that Dr Dodds’ diagnosis of adjustment disorder with anxiety should be accepted.
  3. [78]
    Dr Dodds describes the mental health issues as being ‘the significant causal factors’ for Mr McKenzie’s ‘poor decision making and conduct’.[32] 
  4. [79]
    On the other hand, it is not suggested that Mr McKenzie was so severely affected that he was unable to work, make judgements, control his actions, and so on. Further, Mr McKenzie’s past conduct was not unblemished. There is force in the submission made by the CCC that:

The misconduct was prolonged, purposeful and plainly motivated by financial gain and/or self-interest – even where it is accepted that the Applicant was subject to substantial personal and professional stress causing impacts to his mental health.[33]

  1. [80]
    Overall, I consider that the mental health of Mr McKenzie is only a partial explanation for his misconduct. I accept that it is unlikely that he would have engaged in the misconduct in ordinary circumstances. On the other hand, a more principled person would probably not have engaged in misconduct even under the psychological pressures that Mr McKenzie faced.

Mr McKenzie’s other conduct during his career

  1. [81]
    Mr McKenzie has had a long police career. His service history includes adverse matters from earlier in his career, and I accept the CCC’s submission that this demonstrates a capacity for self-serving, unethical conduct. On the other hand, the service history memorandum predominantly contains positive assessments, and the CCC acknowledges that much of Mr McKenzie’s service history is favourable.
  2. [82]
    The references provided for Mr McKenzie are very impressive, attesting to exceptionally good performance both before and after the period of misconduct in question.
  3. [83]
    Mr Fraser for the Deputy Commissioner submits:

The First Respondent accepts that prior good conduct and extensive policing experience should be regarded in the Applicant’s favour. However, the First Respondent equally submits that this factor is an aggravating element of this case.[34]

  1. [84]
    At first glance, this seems to suggest that prior good conduct may be an aggravating circumstance, which I would not accept. However, the submission was made in the context of discussing the relevance of Mr McKenzie’s experience and seniority, which heightened the expectations for ethical conduct.

Insight

  1. [85]
    As the CCC submits, it may be telling that Mr McKenzie refers in his affidavit to his earlier disciplinary breaches merely as ‘a few mistakes’.[35] The CCC also submits that Mr McKenzie in his directed interview attempted to characterise the misconduct ‘as acceptable local practice, and/or mere administrative lapses, and/or technical breaches for good operational purposes’,[36] and that this demonstrates a concerning lack of insight. The CCC also points to Mr McKenzie’s answers in the directed interview to the effect that he did not believe he was affected by fatigue when he breached the fatigue management guidelines. He did not concede that his self-assessment might be mistaken.
  2. [86]
    I accept that there has been a degree of defensiveness and self-justification in Mr McKenzie’s response to the disciplinary allegations.
  3. [87]
    On the other hand, it is important to bear in mind that Mr McKenzie acknowledged in the interview that he had failed to comply with the guidelines, and with other rules. He has not contested the finding of misconduct in the present proceeding. Dr Dodds, who assessed Mr McKenzie in a setting less confrontational than an exhaustive directed interview, found that Mr McKenzie has insight and remorse.

Other factors such as anguish and delay

  1. [88]
    Mr Gnech submits that it was humiliating and unnecessary for Mr McKenzie to be stood aside from duty prior to each of the disciplinary determinations. Mr Gnech submits that a procedural shortcoming in the first disciplinary process led to that decision being set aside by consent. Mr Gnech submits that this caused anguish and delay, and that meanwhile Mr McKenzie had suffered humiliation by being demoted two ranks.
  2. [89]
    It is not for me to determine whether Mr McKenzie should have been stood down. Regardless of whether the actions in question were justified, I accept that the stand-downs and the demotion to the rank of senior constable would inevitably have caused humiliation and anguish for Mr McKenzie. The demotion to the rank of senior constable also had a financial impact. These matters should be taken into account.

Seniority

  1. [90]
    Mr McKenzie was a senior sergeant.
  2. [91]
    The tribunal observed in Newman v Deputy Commissioner Linford APM & Anor (No 2) that the position of sergeant ‘is a senior position and junior members of the QPS will look to their respective superiors for guidance and leadership’.[37] The tribunal endorsed an observation that the ethical health of the police service depends on senior officers promoting organisational values to junior members.
  3. [92]
    Mr Fraser submits:

Through his conduct, the Applicant not only let himself down, but also those who looked to him for guidance. Rather than providing a positive role model to junior officers, the Applicant demonstrated through his conduct a disregard of QPS organisational values. In so doing, he has had a corrosive effect upon the integrity of the officers under his command. …[38]

  1. [93]
    However, there is no evidence that any officers under Mr McKenzie’s command were aware of the misconduct. It might be surmised from the evidence that Mr McKenzie may have discussed with peers of equivalent rank the overtime claim practices, but there is no evidence that he discussed that matter or his other misconduct with subordinate officers. It would be surprising if he had. There were more junior officers on the wide load escort trips, who also breached the fatigue management guidelines. However, Mr McKenzie said in his directed interview that he travelled back independently. The summaries of the questioning of the other officers indicate that they were aware of the guidelines. Those who were asked indicated they had not had discussions with Mr McKenzie about whether they should comply with the guidelines. While Mr McKenzie could be criticised for not taking the opportunity to remind the other officers of the guidelines, and to stress their importance, it is not apparent how, in the circumstances, his non-compliance could have had the corrosive effect contended by Mr Fraser. Similarly, I do not accept the submission made by the CCC that Mr McKenzie ‘acted … to undermine / misdirect more junior officers’[39] in connection with the guidelines.
  2. [94]
    That is not to suggest, of course, that misconduct is acceptable if it is done in secret. Further, the fact that an officer has engaged in misconduct has a bearing on whether they can be trusted to consistently model ethical behaviour. However, it is fair to observe that what would be an aggravating factor, namely misconduct modelled to more junior staff, has not been established in this case.
  3. [95]
    Mr Fraser for the Deputy Commissioner also relies on comments in The Queen on the application of Darren Williams v Police Appeals Tribunal & Anor:

High rank and long service carry with them responsibilities … and the maintenance of public confidence and respect in the police service may mean that a high-ranking officer must suffer a harder fall than would a junior officer in similar circumstances.[40]

  1. [96]
    That observation no doubt has application in varying degrees throughout the chain of command, but it should be added in fairness that it was made in a case involving an officer who had attained a significantly higher rank, namely chief superintendent.

Impact of demotion

  1. [97]
    The tribunal observed in McKenzie v Acting Assistant Commissioner Wright:

The effect of demotion must be recognised as very severe. Apart from the disgrace associated with it, the demotion is accompanied by what is on any view a serious financial sanction.[41]

  1. [98]
    In that case, the tribunal on appeal set aside a demotion from sergeant to senior constable for two years, which was estimated to have a financial impact of between $14,000 and $30,000, and substituted a decision demoting the officer for only one year.
  2. [99]
    In the present case, there is no quantification of the financial impact of the sanction imposed by the Deputy Commissioner. However, it would be considerable. Further, I accept the submission made by Mr Gnech that for Mr McKenzie, at the age of 57 and nearing mandatory retirement, ‘the prospect of career recovery from a permanent demotion is difficult and improbable’.[42] Mr Gnech submits that the financial impact will endure post-retirement because Mr McKenzie’s superannuation entitlement will be calculated by reference to his salary during his final two years of service.
  3. [100]
    Overall, while I do not have the benefit of evidence quantifying the financial impact of the decision made by the Deputy Commissioner, it is reasonable to proceed on the basis that it would be a serious impact.

Decisions in other cases

  1. [101]
    The material before the tribunal includes a collection of police internal disciplinary decisions, but none are said to be closely comparable to the present case. It is apparent from the many court, tribunal and internal disciplinary cases cited in argument that a variety of sanctions have been imposed in misconduct cases, including permanent demotions and demotions for fixed periods. Each case must be assessed on its merits. As none of the cases is closely comparable, they do not set a benchmark for the type of misconduct engaged in by Mr McKenzie.

What is the correct and preferable decision?

Submissions on behalf of Mr McKenzie

  1. [102]
    Mr Gnech for Mr McKenzie submits that the sanction imposed by the Deputy Commissioner is punishment-focussed and excessive, and that is therefore not the correct and preferable decision. Mr McKenzie performed all of the duties for which he was paid. The only overpayment was the meal allowance. The misconduct, while serious, was not serious enough to warrant a loss of rank, bearing in mind Mr McKenzie’s lengthy career of generally good service and the ‘perfect storm’ of personal and professional pressures he faced at the time. Sufficient condemnation and deterrence would be achieved by a fixed period of demotion, Mr Gnech submits.

Respondents’ submissions

  1. [103]
    Mr Fraser for the Deputy Commissioner submits that the sanction is not excessive, taking into account the seriousness and length of the misconduct, and the fact it was committed by a senior sergeant. Officers of that rank are expected to provide leadership and guidance. Mr McKenzie was an experienced officer but he chose not to follow policies and procedures. The public cannot be confident that such a person is suitable to hold the rank of senior sergeant. The sanction meets community expectations, and fulfills the purposes of discipline, Mr Fraser submits.  
  2. [104]
    Mr Fraser and the CCC both note the point made by the Court of Appeal in Deputy Commissioner Stewart v Dark that police are commonly placed in situations of stress, but are nonetheless expected to continue to act with due propriety.[43]
  3. [105]
    The CCC submits:

The misconduct is prolonged, multi-faceted and grave, and the sanction of demotion appropriately reflects the purposes of the discipline process and community expectation.

…

An informed analysis of the evidence bespeaks a character that, under pressure, lacks the high level of integrity required to function in a senior leadership role. The Applicant presents as someone who knows the rules and was capable of good service, who directed the game, but under personal and professional pressure came to regard himself as existing beyond those rules. He considered himself victimised and due some greater entitlement from the service, which he obtained by purposeful manipulation.[44]

  1. [106]
    The misconduct raises serious concerns over Mr McKenzie’s ‘judgment and ability to model appropriate ethics’.[45] It has the potential to risk the reputation of the police service, and to affect community confidence in the service. An appropriate sanction must be imposed to address such concerns, the CCC submits.

Tribunal’s assessment 

  1. [107]
    In my view, the appropriate sanction is a reduction in rank from senior sergeant pay-point 4.5 to sergeant pay-point 3.1 for 12 months from 31 January 2020, followed by a progression to sergeant pay-point 3.7 for six months from 31 January 2021, followed by a return to senior sergeant pay-point 4.5 from 31 July 2021.
  2. [108]
    This sanction serves to condemn the misconduct, which extended over time, and involved elements of risky, deceptive, defiant, and lax behaviour. The sanction serves as a deterrent to Mr McKenzie and other officers.
  3. [109]
    It must be borne in mind that Mr McKenzie also suffered additional adverse consequences arising from his misconduct, particularly the demotion to the rank of senior constable for almost a year. Had that not occurred, I would have imposed a longer period of demotion. I also take into account, though they are of lesser significance, the disgrace of having been stood down on two occasions, and the stress of an elongated disciplinary process.
  4. [110]
    Unlike the decision of the Deputy Commissioner, however, the sanction provides for a return to the previous rank of senior sergeant held by Mr McKenzie. That is warranted on account of Mr McKenzie’s long period of generally commendable service; the fact that the misconduct was committed during a period of prolonged workplace stress; the psychological effects of that prolonged stress; the insight and remorse noted by Dr Dodds; the reality that a ‘permanent’ demotion in rank at this late stage of career is likely to be permanent in effect; the substantial and long-reaching financial repercussions of such a demotion; and the impression this leaves of such a demotion being disproportionate to the misconduct.
  5. [111]
    It has been submitted by the respondents that the sanction imposed by the Deputy Commissioner meets community expectations. While I accept that the public expects misconduct to be met with firm disciplinary action, it can be assumed that there would be a range of views in the community about what is a proportionate and justified response to particular misconduct.
  6. [112]
    I am mindful that the rank of senior sergeant requires qualities of integrity and leadership that Mr McKenzie did not display when he committed the misconduct. However, I also consider that the misconduct was not typical of Mr McKenzie’s performance during his career, and no doubt the disciplinary process, as well as the associated stress and embarrassment, has strongly reinforced in his mind the importance of integrity and role-modelling. It is also relevant to note that the sanction imposed by the Deputy Commissioner involved demotion to a rank, namely sergeant, that also involves leadership and guidance, albeit to a lesser extent.
  7. [113]
    I have had regard to the informed view of the Deputy Commissioner on what sanction is appropriate. However, the Deputy Commissioner appears to have placed less weight than I consider is warranted on some matters: for example, she mentioned the references only briefly. Further, it is not apparent that the Deputy Commissioner took into account factors that I regard as influential: the fact that Mr McKenzie has served the period of demotion to the rank of senior constable in connection with the misconduct, and the likely quite significant financial effects of permanently demoting Mr McKenzie at this stage of his career.
  8. [114]
    Although Mr Gnech suggested mentoring and similar orders, I do not consider they are warranted. Similar orders were not imposed by the Deputy Commissioner, and they do not seem called for in the case of an experienced officer who would be well aware of expected norms of behaviour.

Conclusion

  1. [115]
    For these reasons, I set aside the decision made by the Deputy Commissioner, and substitute the decision described above.

Footnotes

[1] Police Service Administration Act 1990 (Qld), s 1.4 (definition of ‘misconduct’) (‘Police Service Administration Act’).

[2]  Ibid, s 7.4.

[3]  Ibid, s 7.1.

[4] Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96, [78].

[5] Re Bowen [1996] 2 Qd R 8, 10.

[6]  Ibid.

[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

[8]  [2001] 2 Qd R 235.

[9]  Ibid, 257.

[10]  Ibid, 250 (quoting observations of the judge below).

[11]  Ibid, 257.

[12]  Police Service Administration Act, s 7.34.

[13]  Exhibit 1, Part A, 70.

[14]  Exhibit 1, Part A, 70.

[15]  Police Service Administration Act, s 7.2 (as at the time of the conduct).

[16]  Exhibit 1, Part A, 52.

[17]  Exhibit 1, Part B, 223.

[18]  Ibid, 222-223.

[19]  Exhibit 1, Part A, 42.

[20]  Ibid.

[21]  Ibid, 45.

[22]  Ibid, 40.

[23]  Exhibit 1, Part A, 47.

[24]  Ibid, 49.

[25]  Exhibit 1, Part A, 50.

[26]  CCC’s written submissions dated 25 January 2021, [6].

[27]  Written submissions on behalf of Mr McKenzie dated 3 November 2020, [17].

[28]  Written submissions on behalf of Mr McKenzie dated 3 November 2020, [17].

[29]   Ibid, [18].

[30]  Written submissions filed on behalf of Mr McKenzie dated 3 November 2020, [19].

[31]  Ibid, [24].

[32]  Exhibit 1, Part A, 50.

[33]  CCC’s written submissions dated 25 January 2021, [4].

[34]  Written submissions on behalf of the Deputy Commissioner dated 9 December 2020, [13].

[35]  Exhibit 1, Part A, 18.

[36]  CCC’s written submissions dated 25 January 2020, [16].

[37]  [2020] QCAT 328, [35].

[38]  Written submissions on behalf of the Deputy Commissioner dated 9 December 2020, [35].

[39]  CCC’s written submissions dated 25 January 2021, [33].

[40]  [2016] EWHC 2708 (Admin), [71].

[41]  [2011] QCATA 309, [49].

[42]  Written submissions on behalf of Mr McKenzie dated 3 November 2020, [5].

[43]  [2012] QCA 228, [35].

[44]  CCC’s written submissions dated 25 January 2021, [9], [19].

[45]  Ibid, [57].

Close

Editorial Notes

  • Published Case Name:

    McKenzie v Deputy Commissioner Linford & Anor

  • Shortened Case Name:

    McKenzie v Deputy Commissioner Linford

  • MNC:

    [2021] QCAT 175

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    12 May 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Aldrich v Boulton[2001] 2 Qd R 235; [2000] QCA 501
5 citations
Jump To
Cite 1 - [2001] 2 Qd R 235
Cite 2 - [2001] 2 Qd R 235
Cite 3 - [2001] 2 Qd R 235
Cite 4 - [2001] 2 Qd R 235
Cite 5 - [2001] 2 Qd R 235
Crime and Corruption Commission v Acting Deputy Commissioner Barron [2015] QCAT 96
2 citations
Jump To
Cite 1 - [2015] QCAT 96
Cite 2 - [2015] QCAT 96
Darren Williams v Police Appeals Tribunal & Anor [2016] EWHC 2708
2 citations
Jump To
Cite 1 - [2016] EWHC 2708
Cite 2 - [2016] EWHC 2708
Deputy Commissioner Stewart v Dark [2012] QCA 228
2 citations
Jump To
Cite 1 - [2012] QCA 228
Cite 2 - [2012] QCA 228
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
2 citations
Jump To
Cite 1 - [2011] QCATA 309
Cite 2 - [2011] QCATA 309
Newman v Deputy Commissioner Linford APM & Anor (No 2) [2020] QCAT 328
2 citations
Jump To
Cite 1 - [2020] QCAT 328
Cite 2 - [2020] QCAT 328
Re Bowen [1996] 2 Qd R 8
2 citations
Jump To
Cite 1 - [1996] 2 Qd R 8
Cite 2 - [1996] 2 Qd R 8

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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