Willmott v Assistant Commissioner Carless
[2021] QCAT 185
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- Unreported Judgment
- Willmott v Assistant Commissioner Carless[2021] QCAT 185
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Willmott v Assistant Commissioner Carless[2021] QCAT 185
Willmott v Assistant Commissioner Carless[2021] QCAT 185
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Willmott v Assistant Commissioner Carless & Anor [2021] QCAT 185 |
PARTIES: | paul john willmott (applicant) v ASSISTANT COMMISSIONER MAURICE CARLESS (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) |
APPLICATION NO/S: | OCR083-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 17 May 2021 |
HEARING DATE: | 14 May 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
ORDERS: | The Tribunal refuses the application to stay the decision of Assistant Commissioner on 1 March 2021 that Paul John Willmott be sanctioned by way of:
|
CATCHWORDS: | POLICE – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – STAY OF PROCEEDINGS – OTHER MATTERS – where allegations of bullying and other workplace misconduct – where police officer demoted from Sergeant to Senior Constable, transferred and required to undertake professional development strategy ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for stay of operation of decision – whether stay desirable – where applicant may have arguable case on review – whether balance of convenience favours stay – where far greater significance is public aspect of staying orders in disciplinary proceedings – where alleged misconduct would present serious distraction for other officers in their ability to perform their duties for the benefit of the community whom they are sworn to protect – where prejudice to public significant – where prejudice to public not mitigated – where individual circumstances do not outweigh need to preserve public confidence in integrity of Queensland Police Service and its disciplinary process – where balance of convenience favours refusal of stay Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22 Aldrich v Boulton & Anor [2000] QCA 501 Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595 Bui v Queensland Law Society Incorporated [2017] QCAT 441, [9] DA v Deputy Commissioner Stewart (No. 2) [2013] QCATA 162 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 Fleming v Qld All Codes Racing Industry Board [2013] QCAT 393 Jackson v Deputy Commissioner Gollschewski [2017] QCAT 464 Jones v Acting Assistant Commissioner Horton [2020] QCAT 304 King v Queensland Law Society Incorporated [2012] QCAT 489 Legal Services Commissioner v Baker (No. 1) [2005] QCA 482 McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309 NSW Bar Association v Stevens [2003] NSWCA 95 Robb v Law Society of ACT, unreported, Federal Court, No. ACT G34 of 1996, 21 June 1996 VG v Deputy Commissioner Barnett [2013] QCAT 449 |
APPEARANCES & REPRESENTATION: | |
Applicant: | M Black of Counsel instructed by Gilshenan and Luton Legal Practice |
First Respondent: | MD Nicolson of Counsel instructed by Office of the Queensland Police Service Solicitor |
Second Respondent: | K Donovan, Solicitor |
REASONS FOR DECISION
What is this Application about?
- [1]Assistant Commissioner of Police Maurice Carless found that Sergeant Paul Willmott engaged in workplace bullying and other workplace misconduct.[1]
- [2]As a result of these findings, Assistant Commissioner Carless demoted Mr Willmott from Sergeant pay-point 3.6 to Senior Constable pay-point 2.10, allowing Mr Willmott to reapply on merit for Sergeant positions after 12 months.
- [3]Assistant Commissioner Carless also required Mr Willmott to undertake professional development and transferred him from Coomera Road Policing Unit to a general duties position.[2]
- [4]Assistant Commissioner Carless did not consider suspending the sanction to be in the best interests of the Queensland Police Service or the community.[3]
- [5]Mr Willmott has applied to the Tribunal to stay the sanction decision, pending the outcome of his application for review of both the findings of misconduct and the resulting sanctions.
Is a stay ‘desirable’?
- [6]The Tribunal may grant a stay if desirable, having regard to Mr Willmott’s interests, the Acting Commissioner’s submissions and the public interest.[4] In considering whether a stay is ‘desirable’, the Tribunal must consider whether Mr Willmott has an arguable case on review and whether the balance of convenience favours a stay.[5]
Does Mr Willmott have an arguable case on review?
- [7]Mr Willmott submitted that he had an arguable case for both the findings of misconduct and sanction. He submitted that the alleged behaviour was either unsubstantiated or did not amount to misconduct.[6] He also submitted that the sanction was excessive, unsupportable and not consistent with comparable cases.[7]
- [8]
- [9]However, the Tribunal should still consider whether Mr Willmot has at least an arguable case – usually done by Mr Willmot identifying points showing some error.[10] Without making any conclusive findings, I would make some preliminary observations:
- In a review proceeding, the Tribunal considers the matter afresh[11] – it is not necessary for Mr Willmott to show any error by the Assistant Commissioner;
- Despite this, the Tribunal should give considerable weight to the view of the original decision-maker, who as an Assistant Commissioner ‘might be thought to have particular expertise in the managerial requirements of the police’;[12]
- Mr Willmott disputes many of the findings, raising both questions of fact and law and whether the allegations have been proven to the requisite standard;[13]
- If Mr Willmot does succeed in overturning any of the findings of misconduct, the Tribunal will need to reconsider sanction according to a new factual matrix;[14] and
- Sanction is invariably a matter of discretion. Mr Willmot has cited previous Tribunal decisions[15] to support a reduction in his sanction. While their circumstances may differ, they nevertheless lend some support for an arguable case on severity and parity of sanction.
- [10]Of course, these issues will be fully ventilated and determined upon the hearing of the review application. Although not appropriate to conduct a detailed and forensic examination, for the purposes of the stay application, I am satisfied that Mr Willmot may have an arguable case on review.[16] He has raised issues that are at least arguable on review, including whether the evidence is sufficient to substantiate the findings, whether the findings amount to misconduct and the appropriateness of the sanction.
Does the balance of convenience favour a stay?
- [11]
- [12]The public expectation is that a police officer will serve the sanction imposed by internal police disciplinary proceedings unless and until that sanction is set aside. This is because the protection of the public, the maintenance of public confidence in the Queensland Police Service and the maintenance of integrity in the performance of police duties are the primary purpose of police disciplinary proceedings:[19]
This is not ordinary civil litigation in which the contest is between two parties where a major consideration is whether it is reasonable to hold a successful party out from the benefit of a judgment. In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public “are in a class different from cases involving no more than the suspension of the operation of orders affecting to private litigants only”. The example given by His Honour was of the deregistration of a professional lawyer, but his observation was general in relation to the disciplinary process under laws designed to protect the public.[20]
- [13]
- [14]Despite this, Mr Willmot submitted that his case is distinguishable because the orders which he seeks to stay are more limited than an order for dismissal and has little significance for protection of the public or public confidence in the Queensland Police Service.[23]
- [15]However, refusing a stay in these circumstances is not without precedent. The Tribunal has previously refused to grant a stay in disciplinary proceedings of police officers where the orders sought to be stayed were less than dismissal.[24] The Tribunal must consider the seriousness of the misconduct, the likely prejudice to public confidence in the integrity of the disciplinary process and the reputation of the police service if a stay is granted and the means available to mitigate the prejudice.[25]
- [16]The alleged misconduct here includes workplace bullying and negative workplace behaviour over an extended period. This is particularly concerning where any negative workplace behaviour may not only adversely affect the morale and mental health of colleagues, but also impede their ability to perform their duties.
- [17]It should be emphasised that Mr Willmot strongly disputes the allegations and I make no findings about them. However, for the purposes of this stay application it suffices that the alleged behaviour is inconsistent with supervisory obligations and leadership responsibilities and, if proven, would show a considerable lack of insight into, and respect for, police operations.
- [18]Mr Willmot also submitted that because the Queensland Police Service allowed him to continue as a sergeant pending the outcome of its internal investigation, granting the stay would simply continue the holding pattern. However, the Assistant Commissioner’s findings and sanction ended the holding pattern. It was only after the Assistant Commissioner’s substantiation of the allegations and formal determination that a sanction could have been imposed.
- [19]The Queensland Police Service is dependent on the confidence and trust of the public it serves. That confidence and trust is undermined if an officer of rank with leadership responsibilities, whose workplace behaviour is the subject of serious challenge, is able to successfully call upon the Tribunal to exercise a discretion in his favour permitting him to continue to serve at the same rank and on the same pay-point, pending his review application.[26] This applies a fortiori where findings of misconduct and a determination on rank and pay-point have already been made following a hearing.[27]
- [20]The prejudice to the public is significant. The work of police is inherently dangerous. Its officers are exposed to life-threatening situations on a daily basis. They must maintain a constant state of vigilance to protect both themselves and the public whom they serve. The alleged behaviour would, at the very least, present a serious distraction for other officers in their ability to perform their duties for the benefit of the community whom they are sworn to protect. The effect of granting the stay would allow Mr Willmott to continue his previous rank of Sergeant at the same pay-point - within the same operational unit (if not location) and with the same level of authority, responsibility and privilege. This cannot be conducive to workplace harmony[28] or facilitate the smooth operation of a unit attuned to the needs of the community whom it serves. Moreover, it would not promote public confidence in the integrity of the disciplinary process that addressed these utilitarian issues, or the reputation of the Queensland Police Service as a whole.[29]
- [21]Demotion is a serious matter affecting a person’s livelihood. For the purposes of these stay proceedings, the Tribunal accepts that these disciplinary proceedings have and will continue to affect Mr Willmott’s finances, reputation and career progression.[30] However, apart from the “loss of a chance” to progress his career, most can be rectified if Mr Willmott succeeds in his review. Their impact can be also minimised by expediting the proceeding.[31]
- [22]The personal and financial impact on Mr Willmot do not outweigh the public interest factors.[32] Mr Willmot’s position is similar to other persons faced with adverse disciplinary findings[33] and does not outweigh the ‘very distinct prejudice to the public interest which would be sustained if the stay was granted’.[34]
- [23]On this occasion, Mr Willmot’s circumstances do not outweigh the need to preserve public confidence in the integrity of the Queensland Police Service and its disciplinary process. This means that the balance of convenience favours a refusal of the stay.
What is the appropriate Order?
- [24]Cogent reasons are needed before staying an order following a regular investigation and determination.[35] Merely showing an inability to continue in a profession until a review is determined has been held not to be sufficient.[36] Similar reasoning applies where the consequences for Mr Willmott are less serious: he can continue to serve as a police officer, albeit at a lower rank and pay-point.
- [25]Mr Willmott has not shown sufficiently cogent reasons for a stay.
- [26]The appropriate Order is that the application for a stay is refused.
Footnotes
[1]Decisions dated 20 November 2020, 1 March 2021.
[2]Decision dated 20 November 2020.
[3]Decision dated 1 March 2021.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(4).
[5]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [17]-[23].
[6]Applicant’s Outline of Submissions dated 14 April 2021, [16] to [31].
[7]Applicant’s Outline of Submissions dated 14 April 2021, [32] to [35].
[8]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [15].
[9]Jones v Acting Assistant Commissioner Horton [2020] QCAT 304, [14].
[10]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [15], [16].
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[12]Aldrich v Boulton & Anor [2000] QCA 501, [43] (Thomas J, with whom Pincus and Muir JJ agreed).
[13]Applicant’s Outline of Submissions dated 14 April 2021, [16] to [31].
[14]DA v Deputy Commissioner Stewart (No. 2) [2013] QCATA 162, [21].
[15]McKenzie v Acting Assistant Commissioner Tony Wright [2011] QCATA 309, [49]; VG v Deputy Commissioner Barnett [2013] QCAT 449; Jackson v Deputy Commissioner Gollschewski [2017] QCAT 464.
[16]Fleming v Qld All Codes Racing Industry Board [2013] QCAT 393, [7]-[8].
[17]Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [30].
[18]Aldrich v Boulton & Anor [2000] QCA 501; Legal Services Commissioner v Baker (No.1) [2005] QCA 482; Deputy Commissioner Stewart v Kennedy [2011] QCATA 254; Bui v Queensland Law Society Incorporated [2017] QCAT 441, [9], (Daubney J); Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595; King v Queensland Law Society Incorporated [2012] QCAT 489.
[19]Aldrich v Boulton & Anor [2000] QCA 501, [42].
[20]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [29].
[21]Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [36].
[22]Ibid, [31].
[23]Applicant’s Outline of Submissions dated 14 April 2021, [37].
[24]Jones v Acting Assistant Commissioner Horton [2020] QCAT 304; Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595; Tolsher v Commissioner Stewart [2013] QCAT 47.
[25]Ibid, [31], citing Robb v Law Society of ACT, unreported, Finn J, Federal Court, No. ACT G34 of 1996, 21 June 1996.
[26]NSW Bar Association v Stevens [2003] NSWCA 95, [150]-[151].
[27]Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [24].
[28]Jones v Acting Assistant Commissioner Horton [2020] QCAT 304, [9], [23].
[29]Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [31];
[30]Affidavit of Paul John Willmott sworn 14 April 2021, [38] to [59].
[31]Jones v Acting Assistant Commissioner Horton [2020] QCAT 304, [27].
[32]Jones v Acting Assistant Commissioner Horton [2020] QCAT 304, [9].
[33]Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [28]; Bui v Queensland Law Society Incorporated [2017] QCAT 441, [24]-[25] (Daubney J).
[34]Legal Services Commissioner v Baker (No. 1) [2005] QCA 482, [21].
[35]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [35].
[36]Bui v Queensland Law Society Incorporated [2017] QCAT 441, [9] (Daubney J), citing with approval King v Queensland Law Society Incorporated [2012] QCAT 489, [14] (Wilson J).