Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2021
  4. Jones v Acting Assistant Commissioner Horton - [2021] QCAT 209

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Jones v Acting Assistant Commissioner Horton[2021] QCAT 209

Jones v Acting Assistant Commissioner Horton[2021] QCAT 209

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jones v Acting Assistant Commissioner Horton [2021] QCAT 209

PARTIES:

senior Constable Lynette Jones

(applicant)

v

Acting Assistant Commissioner Glenn Horton

(respondent)

APPLICATION NO/S:

OCR 214-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 June 2021

HEARING DATE:

15 December 2020

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

DECLARATION,

ORDERS &

DIRECTIONS:

  1. Acting Assistant Commissioner Glenn Horton had (and has) power or authority under the Police Service Administration Act 1990 (Qld) to make the decision which is the subject of the current proceeding, and that the Tribunal has jurisdiction to review that decision.
  2. Part of the decision made by Acting Assistant Commissioner Glenn Horton on 18 May 2020 to substantiate a finding of misconduct in Matter 1 as to particulars 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 15, and 16, is set aside.
  3. Part of the decision made by Acting Assistant Commissioner Glenn Horton on 18 May 2020 to substantiate a finding of misconduct in Matter 1 as to particulars 3, 11, 13 and 14, is confirmed.
  4. The matter is to be set for a Directions Hearing before Member Paratz AM, at a date and time to be advised by the Registry, not before 28 days after the issuing of this order, to discuss:
    1. (a)
      Directions as to the procedure as to dealing with the aspect of Sanction;
    2. (b)
      Further directions in the matter as appropriate.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – whether disciplinary proceedings which were commenced by a prescribed officer prior to amendments to the relevant Act were continued by a notice given by a subsequent prescribed officer – whether particulars of improper conduct by engaging in negative workplace behaviour were substantiated

Police Service Administration Act 1990 (Qld), s. 1.4, s 7.25, s 7.27, s 7.4, s 7.10, s 7.12, s 11.20, s 11.22

Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340

Briginshaw v Briginshaw (1938) 60 CLR 336

Chapman v Crime and Misconduct Commission [2012] QCATA 16

Crime and Corruption Commission v Dawes & Anor [2017] QCAT 66

Crime and Misconduct Commission v Assistant Commissioner Swindells and Ors [2009] QSC 409

Young v Assistant Commissioner Dawson [2020] QCATA 160

APPEARANCES &

REPRESENTATION:

 

Applicant:

M. Black of Counsel instructed by Maurice Blackburn Lawyers

Respondent:

M. Nicholson of Counsel instructed by the Queensland Police Service Legal Unit

REASONS FOR DECISION

  1. [1]
    Lynette Jones (‘the Officer’) is a Senior Constable with the Queensland Police Service.
  2. [2]
    Assistant Commissioner Glenn Horton (‘the Assistant Commissioner’) made two disciplinary decisions in relation to the officer, one on 18 May 2020 as to substantiation (‘the substantiation decision’), and one on 24 June 2020 as to sanction (‘the sanction decision’).
  3. [3]
    The officer filed an Application to Review the two decisions on 21 July 2020.
  4. [4]
    There are several aspects raised by the officer:
    1. (a)
      A preliminary point of jurisdiction as to whether the Assistant Commissioner had (and has) power or authority to make the decisions, and a further jurisdictional issue as to disciplinary grounds.
    2. (b)
      A review of the substantiation decision.
    3. (c)
      A review of the sanction decision.
  5. [5]
    I heard the matter on 15 December 2020.
  6. [6]
    At the commencement of the hearing, it was agreed by Counsel for the parties that the appropriate procedure would be for me to determine the jurisdiction and substantiation aspects first, and then, depending upon my findings in relation to those aspects, the procedure as to dealing with the further aspect of sanction would be considered at a Directions Hearing held after the parties had time to consider my findings.
  7. [7]
    The preliminary point as to jurisdiction arises as a disciplinary proceeding was commenced against the officer in August 2019 under the Police Service Administration Act 1990 (Qld) (PSAA). Substantial amendments were made to that Act with effect from 30 October 2019. The act in its form before the amendments is referred to in this matter as ‘the Old Police Act’, and in its form after the amendments as ‘the New Police Act’.
  8. [8]
    In the course of the hearing, a further jurisdictional question arose, as to whether the tribunal could make a finding that the conduct was not misconduct, but was a ‘breach of discipline’ under section 7.4 of the Old Police Act. I gave directions at the end of the hearing for the parties to make submissions on that question, which they subsequently did.
  9. [9]
    These are my reasons in relation to the jurisdiction and substantiation aspects.

The substantiation decision

  1. [10]
    The substantiation decision concerned one matter, and 16 further and better particulars were provided of that matter:

Matter 1:

That between 1 December 2013 and 30 April 2018 at Brisbane your conduct was improper in that you engaged in negative workplace behaviour directed towards members attached to the Forensic Services Group.

Further and better particulars:

Between 1 December 2013 and 30 April 2018, whilst attached to the Forensic Services Group you:

  1. Failed to treat co-workers with courtesy and respect, saying inappropriate comments about Senior Sergeant Stuart Cross and Senior Sergeant Michell Roberts
  2. Repeatedly used Assistant Commissioner Condon’s association to intimidate others
  3. Failed to treat Sergeant Kathryn Denny with courtesy and respect by placing Sergeant Catherine Denny (sic) in a storeroom and yelling at her aggressively
  4. Failed to treat Sergeant Wayne Roberts and Sergeant Kylie Blumson with courtesy and respect, by using inappropriate language in the workplace
  5. Repeatedly caused disharmony in the workplace, by failing to follow supervisor instructions to actively avoid workplace responsibilities
  6. Repeatedly caused disharmony in the workplace, by failing to follow and disregard supervisor advice, bypassing the chain of command
  7. Used inappropriate and discriminatory language in the workplace
  8. Inappropriately intimidated Senior Sergeant Stuart Cross through a non-consensual search of the Senior Sergeant’s desk and threatened disciplinary action against the Senior Sergeant
  9. Intimidated co-workers in the workplace by covertly audio recording conversations had with co-workers in the workplace
  10. Intentionally created negativity in the workplace
  11. Failed to follow specific supervisor instructions to attend team briefings
  12. Intimidated supervisors by intentionally ignoring requests to commence work at your rostered start time and repeatedly arriving late for work
  13. Failed to comply with directions to attend a mid-cycle Performance Review and Development (PRD) meeting with your PRD supervisor
  14. Failed to comply with instructions to engage in the PRD process
  15. Failed to follow instructions of a supervisor, Sergeant Kylie Blumson
  16. Constantly directed repeated and unreasonable behaviour towards co-workers persistently over a substantial period, creating a risk to the health and safety of your co-workers.

The Sanction decision

  1. [11]
    The sanction decision was as follows:

I impose the following sanction under part 7, division 5:

  1. 1.You are demoted from Senior Constable pay point 10 to Constable pay point 6 for a period of three (3) months.

Your demotion is suspended on the following conditions:

  1. a)you have no further allegations of misconduct substantiated against you for a six-month period; and
  1. b)you satisfactorily complete a Performance Development Assessment within six months of commencement in a new position

and;

  1. 2.You are locally transferred from Forensic Services Group to another position at the determination of the Assistant Commissioner, Operations Support Command.

and

Professional Development Strategy

I impose a Professional Development Strategy under section 7.42, which is to be completed by you within six months of development of the strategy by your new work unit manager.

The professional development strategy is to focus on developing your communication skills, including verbal and non-verbal behaviour; judgement and ethical decision-making; and a period of mentoring by a supervisor or senior officer to provide guidance during the development stage. The strategy may include completion of the QPS learning products as determined by the work unit manager.

The above sanctions/strategies will form part of your disciplinary history and may be taken into account in the future when deciding;

  1. 1.Whether to start a disciplinary proceeding; or
  1. 2.Your suitability to be or continue to be a police officer, including a police officer of a particular rank.

Submissions of the applicant as to the preliminary point

  1. [12]
    The situation in relation to jurisdiction is submitted by the officer to be as follows:[1]
  1. a)A disciplinary proceeding was commenced against the applicant in August 2019 under the Old Police Act, but that proceeding was withdrawn and thereby finally dealt with.
  1. b)When the respondent purported to start a new disciplinary proceeding under the New Police Act in February 2020, he had no power or authority to do so.
  1. c)Alternatively, if there was a power or authority for the respondent to start a new disciplinary proceeding under the New Police Act, the procedures for validly commencing a new proceeding were not complied with.
  1. [13]
    The officer submits that the disciplinary proceeding commenced by the Assistant Commissioner, and the substantiation and sanction decisions that followed, are invalid.[2]
  2. [14]
    The officer submits that a Disciplinary Hearing Notice was issued on 22 August 2019, and that as a result disciplinary proceedings under the Old Police Act had started before the New Police Act came into force.[3]
  3. [15]
    The officer notes that s 11.20 of the New Police Act provided that this section applies if a disciplinary proceeding against an officer was started under the Old Police Act and immediately before the commencement, the proceeding had not been finally dealt with. She also notes there is an exception in s 11.20 (2) that s 11.20 ‘does not apply if the disciplinary proceeding is withdrawn with the officer’s consent’.
  4. [16]
    The officer submits that she did not consent to the withdrawal of the August 2019 Notice. She notes that she advised Acting Assistant Commissioner Mickelson that she was proceeding on the basis that the August 2019 Notice was continuing, and requested an extension of time to respond to that Notice; and that on 15 November 2019 her solicitors wrote to Acting Assistant Commissioner Mickelson and requested further and better particulars to enable the officer to respond to the August 2019 Notice.
  5. [17]
    The officer submits that the August 2019 notice was clearly withdrawn because on 9 January 2020 Acting Assistant Commissioner Mickelson issued a new Disciplinary Proceeding Notice dated 9 January 2020, and that accompanying correspondence stated that the notice had the effect of ‘commencing disciplinary proceedings’.
  6. [18]
    She submits that whilst the August 2019 notice must have been withdrawn, it was not withdrawn with her consent (or even knowledge).[4]
  7. [19]
    The officer notes that she was advised on 3 February 2020 that Acting Assistant Commissioner Mickelson was retiring, that a new ‘prescribed officer’ would be allocated to her matter; and that a new Disciplinary Proceeding Notice dated 14 February 2020 was issued after that.[5]
  8. [20]
    The officer submits that the result is that s 11.20 (3) of the New Police Act which had operated so as to apply s 7.4 of the Old Police Act to the original proceeding has no further application; and that if the disciplinary proceeding commenced by the current notice is to be valid, it must find its validity in the New Police Act.[6]
  9. [21]
    The officer submits that either:
    1. (a)
      the respondent had no power to start disciplinary proceedings under the New Police Act, or alternatively
    2. (b)
      the essential preconditions for starting a proceeding under the New Police Act were not complied with.
  10. [22]
    As to power to start proceedings under the New Police Act, the officer says that the Assistant Commissioner has relied on s 11.22 of the New Police Act as authorising disciplinary proceedings against her, and that reliance is misplaced.[7]
  11. [23]
    Section 11.22 is as follows:

(1)  This section applies if –

  1. (a)
    misconduct or a breach of discipline is alleged to have occurred before the commencement; and
  2. (b)
    a disciplinary proceeding for the alleged misconduct or breach of discipline----
  1. has not been started before the commencement; or
  2. was started before the commencement but has been or is withdrawn with the officer’s consent.
  1. 2. A disciplinary proceeding in relation to alleged misconduct or breach of discipline may be started under new part 7 as if the misconduct or breach of discipline were a ground for disciplinary action under that part.
  1. 3. The disciplinary proceeding must be started within the later of the following periods to end –
  1. (a)
    the period mentioned in new section 7.12;
  2. (b)
    6 months from the commencement.
  1. [24]
    The officer submits that a disciplinary proceeding for the relevant conduct was not started before the commencement date, and that the disciplinary proceeding that was started before the commencement was withdrawn unilaterally by the prescribed officer and was not withdrawn with the officer’s consent, so s 11.22(1)(b)(ii) is not met.[8]
  2. [25]
    The officer submits the result is that s 11.22 of the New Police Act did not authorise the commencement of the proceedings started by way of the current notice, and the Assistant Commissioner cannot rely on the ability under s 11.22(3)(b) to start disciplinary proceedings within six months from the date of commencement of the New Police Act.
  3. [26]
    The periods provided by section 7.12 (1) of the New Police Act are as follows:
  1. (1)
    A disciplinary proceeding against the subject officer must start within the latest of the following periods to end –
  1. (a)
    1 year from the date the ground for disciplinary action arises;
  2. (b)
    6 months from the date the complaint mentioned in section 7.2, or another complaint substantially relating to the same ground for disciplinary action, is received by the Commissioner or the CCC;
  3. (c)
    if a relevant criminal proceeding has been started – 6 months from the day the criminal proceeding is finally dealt with.
  1. [27]
    The officer submits as to validity of the proceeding as follows:[9]

22. The current notice was not issued within any of the time limits stipulated in s 7.12(1): the latest date pleaded in the current notice is 30 April 2018 and the current notice was issued on 14 February 2020. Accordingly, the proceedings purportedly commenced by the current notice were not authorised by s 7.12 and are invalid. It is submitted that it follows that the substantiation decision and sanction decision are also necessarily invalid and there is no power for the respondent (or this Tribunal) to make any disciplinary decision in respect of the allegations that appear in the current notice.

  1. [28]
    Alternatively, the officer submits that the proceedings purportedly commenced by the current notice are invalid due to a failure by the QPS to comply with the essential preconditions for commencing disciplinary proceedings under the New Police Act.[10]
  2. [29]
    The officer refers to provisions under section 7.9 which require the Commissioner to consider whether to impose a professional development strategy on the subject officer; section 7.10 which requires the Commissioner or a delegate to make a decision whether to refer the complaint to a prescribed officer having regard to specified matters; and section 7.11 which provides that the prescribed officer may start a disciplinary proceeding only if the Commissioner had referred the complaint to a prescribed officer.[11]
  3. [30]
    The officer submits this alternatively as to the validity of the proceeding:[12]

31. The short point is this: in the absence of a valid decision under s. 7.9 of the New Police Act, there could not have been a valid referral to the respondent under s 7.10. Without a valid referral under s 7.10, the respondent had no authority under s 7.11 to commence a disciplinary proceeding by way of the current notice. It is submitted that the proceeding and the substantiation and sanction decisions are invalid on that alternative basis.

  1. [31]
    The officer submits in conclusion that the orders of the tribunal should be as follows:[13]
    1. (a)
      that the respondent’s decisions of 18 May 2020 and 24 June 2020 be set aside and substituted with the decision that no action be taken in respect of the disciplinary proceeding notice dated 14 February 2020.
    2. (b)
      That it be declared that the respondent had and has no power under the Police Service Administration Act 1990 (Qld) to commence disciplinary proceedings against the applicant in respect of the allegations described in the disciplinary proceeding notice dated 14 February 2020.

Submissions of the Assistant Commissioner as to the preliminary point

  1. [32]
    The Assistant Commissioner submits that even if it is accepted that the discipline proceedings were withdrawn, this does not finally deal with the matter; and that withdrawal of the proceedings does not act as a bar to commencing new discipline proceedings by way of a new or amended Discipline Proceeding Notice.[14]
  2. [33]
    The Assistant Commissioner notes that the course of the discipline proceedings was as follows:[15]
    1. (a)
      Discipline proceedings were issued by Acting Assistant Commissioner Mickelson on 22 August 2019.
    2. (b)
      A proposal by the officer to deal with the matter through an Abbreviated Discipline Proceeding was sent on 25 September 2019, which was accepted on 9 October 2019, and an invitation to participate in Abbreviated Discipline Proceeding was sent on 21 October 2019, but on 8 November 2019 the officer demanded the matter proceed by a discipline hearing.
    3. (c)
      In accordance with the officer’s request, a new Disciplinary Proceeding Notice was issued to the officer by Acting Assistant Commissioner Mickelson on 9 January 2020, in the same terms as that previously issued on 22 August 2019, but with extended dates for compliance.
    4. (d)
      The officer was advised on 3 February 2020 that Acting Assistant Commissioner Mickelson was due to retire, and it became evident that discipline proceedings were unable to be concluded prior to his retirement, and that the discipline process was required to be transferred to another prescribed officer for completion.
    5. (e)
      The discipline process was transferred to the Assistant Commissioner on 14 February 2020.
  3. [34]
    The Assistant Commissioner submits that once a discipline process was transferred to him, the discretion to be exercised and the requirement to ensure procedural fairness rested solely with him.[16]
  4. [35]
    The Assistant Commissioner submits that the PSAA is silent as to whether proceedings, once commenced pursuant to section 7.25 PSAA, can be progressed by a different prescribed officer, and that there is no express requirement that these be the same prescribed officer.[17]
  5. [36]
    The Assistant Commissioner contends that the issuance of the further discipline proceeding notices of 9 January 2020 and 14 February 2020 did not expressly or implicitly withdraw the earlier discipline proceedings, and contends that the issuance of the second and third disciplinary proceeding notices was a continuation of the original disciplinary proceeding commenced on 22 August 2019.[18]
  6. [37]
    In the alternative, the Assistant Commissioner submits that even if the earlier disciplinary proceeding notice was withdrawn, nothing in the PSAA acts as a bar to commencing new discipline proceedings, whether under the old or new provisions of the PSAA, provided such notice was issued within the statutory time frames.[19]

Discussion as to the preliminary point

  1. [38]
    Section 11.20 of the amended PSAA provides for the previous section 7.4 and the repealed regulations to continue to apply to an existing disciplinary proceeding (s 11.20 (3)), providing the disciplinary proceeding has not been withdrawn with the officer’s consent, as follows:

11.20 Existing disciplinary proceedings – saving of previous s 7.4 and repealed regulations

  1. (1)
    This section applies if
  1. (a)
    Before the commencement, a disciplinary proceeding against an officer was started; and
  1. (b)
    immediately before the commencement, the proceeding had not been finally dealt with.
  1. (2)
    However, this section does not apply if the disciplinary proceeding is withdrawn with the officer’s consent.
  1. (3)
    Previous section 7.4 and the repealed regulations continue to apply, despite their repeal for the completion of the disciplinary proceeding.
  1. (4)
    This section applies subject to section 11.21.
  1. [39]
    The New Police Act provides, by section 11.22, for the institution of a new disciplinary proceeding for misconduct or a breach of discipline alleged to have occurred before the commencement of the New Police Act, providing appropriate time limits have been adhered to, and the original proceedings have not been withdrawn with the officer’s consent.
  2. [40]
    I do not consider that the previous disciplinary proceeding was withdrawn with the consent of the officer, or was discontinued by the QPS, as there is no point at which it could be said that there was no disciplinary proceeding in progress since the initial disciplinary proceeding was issued on 22 August 2019.
  3. [41]
    The current decision being reviewed by the tribunal is that of the Assistant Commissioner, who issued a new disciplinary notice in his own name, in light of the retirement of Acting Assistant Commissioner Mickelson.
  4. [42]
    It cannot be the intention of the legislature that a proceeding initiated by a specific prescribed officer would come to an end upon the retirement of that person, and that such retirement would bring any current disciplinary proceedings in relation to the matter at an end, and act as a bar to future disciplinary proceedings. Such an automatic administrative outcome would not be in the interests of justice, and would not be seen as desirable by any reasonable person.
  5. [43]
    I accept the submission of the Assistant Commissioner that, upon being assigned the matter, he re-evaluated the evidence and independently satisfied himself that grounds for discipline existed before issuing the disciplinary proceedings notice in his name,[20] which I consider is a continuation of the existing disciplinary proceeding.
  6. [44]
    I accordingly accept the submission of the Assistant Commissioner that section 11.20 of the PSAA is applicable, and that the previous section 7.4 applies for the completion of the disciplinary proceeding.[21]
  7. [45]
    I therefore determine the preliminary point of jurisdiction by declaring that the Assistant Commissioner had (and has) power or authority under the Police Service Administration Act 1990 (Qld) to make his decisions which are the subject of the current proceedings, and that the Tribunal has jurisdiction to review that decision.

The further jurisdictional issue

  1. [46]
    The further jurisdictional issue is as to whether the tribunal can make a finding in this matter as to whether a ground for disciplinary action is proved.
  2. [47]
    The Assistant Commissioner notes that the officer in oral submissions at the hearing was seeking to suggest that the tribunal needs to determine whether the matter is misconduct or a breach of discipline, and that this was particularly important in previous proceedings under the old provisions, as responsibility for misconduct rested solely with the Commissioner, and the Crime and Corruption Commission had no power to review such matters.[22]
  3. [48]
    The Assistant Commissioner notes that in previous decisions such as Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340 and Crime and Corruption Commission v Dawes & Anor [2017] QCAT 66 it was held that a matter was not a reviewable decision unless the person was ‘charged’ with misconduct as opposed to investigated for misconduct (Arndt) or when the person was charged with ‘misconduct’ not breach of discipline (Dawes).[23]
  4. [49]
    The Assistant Commissioner refers to the provisions of the New Police Act and submits that the tribunal does not need to distinguish the type of conduct as to whether it is breach of discipline or misconduct, as the provisions of the New Police Act simply provide for conduct identified in s. 7.4 of the New Police Act as ‘disciplinary action’, and were introduced to overcome the Arndt and Dawes issues to permit a review in relation to discipline findings against officers (or declarations against former officers).
  5. [50]
    The Assistant Commissioner also submits that when the tribunal is dealing with a number of particulars as contained in the same matter or charge, the tribunal may have regard to the totality of the matters in a compendious approach rather than dealing with each particularised complaint as a separate issue, and refers to the decision of Crime and Misconduct Commission v Assistant Commissioner Swindells and Ors [2009] QSC 409 as support for this proposition.[24]
  6. [51]
    The officer submits that a disciplinary proceeding is commenced by a Prescribed Officer giving a Disciplinary Proceeding Notice under s. 7.25, and refers to s 7.25(a) which requires the Notice to state the disciplinary charge’, that is, the ‘particulars of the alleged ground for disciplinary action’, and that once the subject officer has been heard in relation to the ‘disciplinary charge’, s 7.27(2) provides that the prescribed officer must decide whether the disciplinary charge or another ground for disciplinary action is proved.[25]
  7. [52]
    The officer submits that if the tribunal decides that the disciplinary charge of misconduct is not proved, then s. 7.27 (2) requires the tribunal to decide whether another ground for disciplinary action is proved – that is, the Tribunal must determine whether the conduct alleged in Matter 1 (insofar as any of it is substantiated) amounts to one of the other grounds in section 7.4 (1) of the New Police Act (and, in particular, s.7.4(1)(e)(ii).[26]
  8. [53]
    I have found that the disciplinary notice issued by the Assistant Commissioner in his own name is valid, and will consider whether misconduct is proved.
  9. [54]
    The officer submits that the tribunal may have regard to the totality of the conduct alleged in matter 1 (insofar as any of it is substantiated) when determining whether a ground for disciplinary action has been proved.[27] That submission is consistent with the submission of the Assistant Commissioner. I will have regard to those submissions.

Substantiation principles

  1. [55]
    The officer has been charged with conduct that was improper. Improper conduct is incorporated within the definition of misconduct, which is the same in the Old Police Act and the New Police Act, and appears at section 1.4 of the New Police Act as follows:

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. [56]
    The officer submits that the level of satisfaction required of the tribunal to make a finding of misconduct is as follows:[28]

… Here, the disciplinary charge against the applicant alleges ‘improper’ conduct, that being an allegation of ‘misconduct’: see s 1.4. An allegation of ‘misconduct’ is a serious one, so the ‘necessary reasonable satisfaction’ of the allegation is ‘not to be reached lightly, or on flimsy evidence’[29]. Rather, ‘a high degree of caution and restraint in the fact-finding process is both required and appropriate’[30]. As Dixon J said in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (emphasis added):

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect references...When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues… But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

  1. [57]
    In Young v Assistant Commissioner Dawson,[31] the Appeal Tribunal considered a matter where an officer was directed to attend a disciplinary hearing concerning four matters of alleged misconduct. The Appeal Tribunal referred to the Tribunal’s role in a review disciplinary proceeding as follows:[32]

… The sole task of the Tribunal on review is to arrive at the correct and preferable decision and, in assessing the evidence and determining whether the allegation is proven, the Tribunal on review must be satisfied on the balance of probabilities that the allegation is proven to the required civil standard commonly referred to as the Briginshaw standard.

  1. [58]
    The Appeal Tribunal in Young discussed the importance of particulars as follows:[33]

[49] In the present matter, we accept Mr Young’s submission that, consistent with established authority in Kirk, the applicant or person subject to allegations being proven in a disciplinary proceeding is entitled to know the case against him or her. In the present matter that is a police disciplinary review proceeding, the respondent decision-maker has a duty to formulate the allegation properly at first instance and to furnish all material relevant to the allegation to the applicant or person subject to allegations.

  1. [59]
    The Appeal Tribunal found in Young that the tribunal at first instance did not properly consider that the allegations contained in a particular were vague and insufficiently particularised and did not consider the weight of the evidence relevant to workplace conduct.[34] In that matter, there were complaints from numerous offices of workplace harassment by a superior. The Appeal Tribunal formed a view that the officers’ evidence was unreliable:[35]

[56] In proceeding to rehear the matter it is open for us to find on the evidence before the Tribunal in the proceeding below that the officers’ evidence was unreliable. There was a complaint made by Senior Constable Campbell on 18 November 2014 alleging workplace harassment and on 29 November 2014, 10 different offices from the unit signed a joint statement. The joint statement shows that the officer had discussed the matters closely amongst themselves at though willing to assert that they were suffering ‘mentally and physically’. There is also evidence in the form of a document that sets out a summary of evidence that a particular officer considered other officers should give against Mr Young. It is open for us to draw the reasonable inference that a number of officers who signed an agreed statement had an agreed position about Mr Young’s workplace conduct and the officers’ evidence should be approached with caution.

[57] It is established law that ‘judgement may be given as ought to be given if the case came at that time before the court of first instance’. We are not satisfied to the required standard that particular (vii) of matter 1 is proven. The allegations are vague and insufficiently particularised. The allegation identifies a period of some 4 years during which Mr Young is alleged to have spoken to staff in a manner which was threatening, intimidating, demeaning and demoralising such as threatening to move staff out of the water police unit. There is evidence to suggest that, in the absence of any particulars as to specific dates and time of the alleged conduct, the evidence of officers, although consistent as to Mr Young’s conduct or management style over a period of time, may be unreliable. The evidence does not meet the standard required to establish a finding of misconduct and is no more than ‘inexact proofs, indefinite testimony, or indirect references’. The correct and preferable decision is that the allegation contained in particular (vii) of matter 1 is not substantiated.

Submissions and discussion on substantiation

  1. [60]
    The Officer submits that many aspects of the discipline charge in this case are not sufficiently particularised and there should be findings that the purported ‘particulars’ are not capable of substantiation on that basis, and also endeavours to answer the substance of each of the ‘particulars’.[36]
  2. [61]
    The Assistant Commissioner has made submissions as to the charge in each particular.
  3. [62]
    For convenience, I will outline the submissions of the Officer and the Assistant Commissioner respectively, and make a finding as to substantiation, in relation to each particular in turn.

Particular 1

  1. [63]
    Particular (1) relates to an alleged failure to treat co-workers with courtesy and respect, saying inappropriate comments about two Senior Sergeants between 1 December 2013 and 30 April 2018.
  2. [64]
    This particular relates to the Acting Commissioner’s finding that the officer made a comment on 7 October 2014 to Acting Inspector Morley alluding to a relationship between the Senior Sergeants, and that they were conspiring against her.
  3. [65]
    The Acting Commissioner notes that the officer recalled making comments about the relationship between the Senior Sergeants during a directed discipline interview on 26 July 2018, and submits that those comments about members in the workplace were inappropriate, and failed to treat the Senior Sergeants with courtesy and respect.[37]
  4. [66]
    The officer submits that this aspect of the charge is insufficiently particularised as it does not identify the ‘co-workers’, or the ‘comments’ or how they were ‘inappropriate’, and does not identify ‘the time, place and manner of the (officer’s) acts or omissions’.[38]
  5. [67]
    The officer submits that her comments to Acting Inspector Morley involved making a complaint about the conduct of other officers, and that she was simply conveying a workplace complaint to an appropriate senior officer.[39]
  6. [68]
    I am not satisfied that this particular is made out to the standard as discussed in Young, as the officer has raised a cogent explanation as to her comments, being in the nature of an appropriate workplace complaint, and there is not clear contrary evidence as to the basis of her comments that would support a finding of misconduct.
  7. [69]
    The particular also refers to failing to treat the Senior Sergeants with courtesy and respect, however the evidence relates to comments made to a third person, and are not actual treatment of the Senior Sergeants in any event.
  8. [70]
    I find that this particular is not substantiated.

Particular 2

  1. [71]
    Particular (2) relates to the officer’s conduct allegedly being improper in that she allegedly used Assistant Commissioner Condon’s association to intimidate others.
  2. [72]
    The Assistant Commissioner submits it was inappropriate to email Assistant Commissioner Condon when aggrieved by decisions made by her immediate superiors, and that there were more appropriate avenues.[40]
  3. [73]
    The Assistant Commissioner submits that in August 2016 the officer attended a training day at Wacol with most of the staff in the workplace, where there was discussion amongst the group about a proposal, however the officer disagreed and said that she had discussed the proposal with Assistant Commissioner Condon, stating that he also didn’t agree.
  4. [74]
    The Assistant Commissioner refers to comments by other officers that the officer would mention Assistant Commissioner Condon’s name frequently, would refer to him as ‘Condo’, and used other people’s names during conversations to give her credit.[41]
  5. [75]
    The Assistant Commissioner refers to the directed interview with Acting Inspector Morley where he was asked if the officer used Assistant Commissioner Condon’s name more as a threat to others when she didn’t seem to get her own way and if it was seen as a deliberate method to train and intimidate others, and he replied ‘I’d say that’s a fair comment’, which was the impression he got from the officer.[42]
  6. [76]
    The officer submits that this aspect of the charge is insufficiently particularised as it does not identify the ‘others’, what the phrase ‘Assistant Commissioner Condon’s association’ means, does not identify how the officer ‘used’ that association, and does not identify ‘the time, place and manner of the (officer’s) acts or omissions’.[43]
  7. [77]
    The officer submits that the Assistant Commissioner’s first finding as to particular (ii) was that in January 2018, she emailed Assistant Commissioner Condon in relation to an employment grievance, which the Assistant Commissioner said was ‘inappropriate because ‘there are more appropriate avenues for QPS employees who are aggrieved by a decision’ - and that the finding should be disregarded because it is irrelevant to, and beyond the scope of, the allegation, and does not disclose anything improper.[44]
  8. [78]
    The officer submits that the Assistant Commissioner’s second finding was that in November 2017 during a training day, she referred to Assistant Commissioner Condon as if she and he ‘were best mates’ - and that such a finding cannot support the allegation that she used an association ‘to intimidate others’.[45]
  9. [79]
    The officer submits that the Assistant Commissioner’s third finding as to discussions at a training day at Wacol in August 2016 described various assertions made by different officers, some of which went no further than claiming that the officer spoke as if she was ‘best mates’ with Assistant Commissioner Condon - and that none of the assertions could substantiate an allegation of using an association to intimidate others.[46]
  10. [80]
    The officer notes that the Assistant Commissioner made a finding that Inspector Morley got the impression from the officer that she used Assistant Commissioner Condon’s name more as a threat or deliberate way to intimidate others. She submits that Inspector Morley’s transcript of interview does not support that finding as he said ‘But ahh, she never used it as a, threat it was just more a statement, oh I don’t know what it was like a bragging type of thing’. [47]
  11. [81]
    I am not satisfied that this particular is made out to the standard as discussed in Young, as there is not clear evidence that the references to Assistant Commissioner Condon were made in a threatening or intimidating way. The suggestion that the comments were made in a bragging type of way is credible.
  12. [82]
    I find that this particular is not substantiated.

Particular 3

  1. [83]
    Particular (3) relates to the officer’s alleged failure to treat Sergeant Denny with courtesy and respect by closing her in a storeroom and yelling at her aggressively.
  2. [84]
    The Assistant Commissioner submits that the officer became extremely aggressive and shut the storeroom door, entrapping Sergeant Denny inside with her, and that the officer then raised her voice and instructed Sergeant Denny not to talk over her while she proceeded to verbally abuse Sergeant Denny.[48]
  3. [85]
    The officer submits that no part of particular (3) alleges that the officer was physically aggressive or threatening. The officer refers to Sergeant Denny’s handwritten notes of the event which use the term ‘extremely aggressive’ in relation to the officer, and state that the officer ‘shut the door’, but submits they make no suggestion that the shutting of the door was intended to trap Sergeant Denny (or that she felt that way).[49]
  4. [86]
    The officer accepts that there was a heated discussion in the storeroom with Sergeant Denny, but she explained that she had shut the door simply to stop others from overhearing the argument.[50]
  5. [87]
    There is clear evidence that the officer closed the door of the storeroom whilst Sergeant Denny was inside with her, and that a heated discussion took place. The notes of Sergeant Denny relate that the officer was extremely aggressive.
  6. [88]
    The explanation of the officer that she shut the door to prevent others from overhearing the argument is not a satisfactory explanation for her behaviour, even if it were not considered to be an action of entrapment.
  7. [89]
    I consider that the very action of shutting the door, and having an aggressive and heated confrontation with a colleague out of the hearing of others, is in itself unacceptable conduct, as it served to isolate the Sergeant, and was conduct that the officer herself obviously felt was not appropriate to be observed.
  8. [90]
    I am satisfied that the officer intended to have an aggressive and heated one-on-one confrontation with Sergeant Denny, and to do so in a place and manner in which she would not be observed, and that such conduct failed to treat Sergeant Denny with courtesy and respect, and was improper.
  9. [91]
    I find that this particular is substantiated.

Particular 4

  1. [92]
    Particular (4) relates to allegedly failing to treat a Sergeant with courtesy and respect by using inappropriate language in the workplace on 6 November 2017 in relation to parking of a car in a space allocated to the photographic section, where it should not have been.
  2. [93]
    The Assistant Commissioner refers to the Sergeant knowing the owner of the other vehicle, who was a colleague, and wanted to protect her from the officer’s aggression and confrontation.[51]
  3. [94]
    The officer submits that this aspect of the charge does not identify what ‘language’ is said to have been used, how that language was ‘inappropriate’, does not identify ‘the time, place and manner of the (officer’s) acts or omissions’, and is incapable of being substantiated.[52]
  4. [95]
    The officer notes that the Assistant Commissioner found that she had complained of the parking to the Sergeant by saying ‘f…en c..t parked in our spot’ and that when Sergeant R suggested the officer speak with the owner of the car by phone, she said ‘I am not talking to the f…ed c..t she can go and get f…ed’, and found the officer and Sergeant R swore at each other, but seemed to find the officer did more of the swearing.[53]
  5. [96]
    The officer accepts in her submissions that the language exchange between herself and the Sergeant was inappropriate, however her language was a response to the Sergeant’s language. She submits that not all swearing in the workplace is misconduct, and that not every verbal altercation between police officers within the confines of a police station is misconduct.[54]
  6. [97]
    The exchange between the officer and the Sergeant obviously escalated, to the point where they were swearing at each other. Whilst it may be seen as a likelihood that the officer instigated the use of swearing, the use of swearing in return by the Sergeant is likely to have prolonged and intensified the exchange, and indicates a mutual lack of civility.
  7. [98]
    I am not satisfied that the use of swearing by the officer in the incident, whilst uncivil and not edifying, amounts to misconduct in the context of an exchange of swearing and a mutual lack of civility.
  8. [99]
    I find that this particular is not substantiated.

Particular 5

  1. [100]
    Particular 5 relates to the officer allegedly causing disharmony in the workplace, by failing to follow supervisor instructions to actively avoid workplace responsibilities, between 1 December 2013 and 30 April 2018.
  2. [101]
    The Assistant Commissioner refers to an email which the officer had sent on 22 October 2014 to Senior Sergeant Roberts and Acting Inspector Morley stating:[55]

Please do not override the Inspector’s instructions. This is both disrespectful and unprofessional. I suggest you take (this) up with the Inspector. I would ask that you stop harassing me about matters that are outside my job description. If it continues I will (be) forced to file a formal complaint.

  1. [102]
    The Assistant Commissioner notes that in a directed interview on 13 March 2018, Senior Sergeant Roberts explained the situation and said ‘I think this is a perfect example of her going around her supervisors’. He notes that Senior Sergeant Roberts felt that by the officer going through her supervisors she was undermining her authority and trying to damage her reputation, which she described as exhausting, and explained that each time this occurs it feels like a new battle and she is constantly defending herself to her supervisors as every decision is being questioned.[56]
  2. [103]
    The officer submits that this aspect of the charges is insufficiently particularised as it does not identify the ‘supervisor’, the ‘instructions’, what ‘workplace responsibilities’ were avoided, and does not identify ‘the time, place and manner of the (officer’s) acts or omissions’.[57]
  3. [104]
    The officer submits that the Assistant Commissioner’s findings in this respect are unclear, and that he appears to have found that the officer failed to perform some task assigned to her by Senior Sergeant Roberts on 21 or 22 October 2014. [58]
  4. [105]
    The officer notes an email exchange between herself, Senior Sergeant Roberts and Acting Inspector Morley, which shows that Senior Sergeant Roberts asked the officer to undertake a task related to identifying procedures for photographing tattoos and side views of offenders, and that her email response shows that her understanding was that the request was inconsistent with instructions given by Acting Inspector Morley.[59]
  5. [106]
    This particular lacks clarity as to how the officer’s actions in questioning whether a task was properly assigned to her necessarily causes disharmony in the workplace. Her questioning whether a supervisor’s instructions as to her workplace responsibilities was consistent with other instructions she had received, may be seen as resulting in tension between her and her supervisor, but a mere presence of tension between those two persons does not necessarily result in disharmony being caused in the workplace.
  6. [107]
    I am not satisfied that the occurrence of tension equates to disharmony, and that the actions of the officer in contributing to that tension by referring to other instructions which she believed she had been given, amounts to causing disharmony.
  7. [108]
    I find that this particular is not substantiated.

Particular 6

  1. [109]
    Particular (6) relates to the officer allegedly causing disharmony in the workplace, by failing to follow and disregarding supervisor advice, and bypassing the chain of command, between 1 December 2013 and 30 April 2018.
  2. [110]
    The Assistant Commissioner submits that the repeated tone of the officer’s emails to superiors caused disharmony in the workplace,[60] and refers to several instances of what are described as by-passing the officer’s chain of command:
    1. (a)
      the officer emailed an inspector objecting to the conduct of a midcycle performance and development appraisal with the officer by the appointed Acting Senior Sergeant, and requested someone external to the photographic section complete the review and copied the email to a superintendent.[61]
    2. (b)
      the officer emailed an Inspector on 21 March 2018 in relation to a training course which she wished to attend where the Senior Sergeant responsible had indicated no further staff in the section were required to be trained and copied in Assistant Commissioner Condon.
    3. (c)
      The officer exchanged a number of text messages with a Senior Constable on 15 September 2019 in relation to the Commonwealth Games deployment and advised the Senior Constable that the officer would be happy to approach Assistant Commissioner Condon about the swap.[62]
  3. [111]
    The Assistant Commissioner refers to a Senior Sergeant who when providing an example of the officer’s behaviour in the workplace stated:

There is just a general disdain for seniority. So, whether that be Sergeants, Senior Sergeants, just seems not to have any regard or respect for that at all.

  1. [112]
    The officer submits that this aspect of the charge is insufficiently particularised as it does not identify the ‘supervisor’, the ‘advice’, how her not following ‘advice’ (as opposed to instructions) is improper, does not identify what is meant by ‘bypassing the chain of command’ or how that relates to the ‘advice’, and does not identify ‘the time, place and manner of the (officer’s) acts or omissions’. [63]
  2. [113]
    The officer refers to emails relied upon by the Assistant Commissioner, which were sent by the officer to Inspector Freeman and Superintendent Freiburg in June 2017 in which she ‘objected’ to Inspector Freeman overviewing the performance appraisal and ‘requested’ that someone external complete the review. The officer says that she was not ‘instructing’ her superior officers, or bypassing the chain of command, because she had been advised if she had concerns about the process she could raise those with the ‘overviewing officer’ (Inspector Freeman).[64]
  3. [114]
    The officer refers to email exchanges of 22 January 2018 and 21 March 2018 between her and Assistant Commissioner Condon and Inspector Philip Stevens, and submits that she approached Inspector Stevens in his role as ‘OIC of the section’ only after she felt she had exhausted her avenues with Senior Sergeant Roberts, and was simply attempting to raise a workplace grievance up the chain of command.[65]
  4. [115]
    The officer also refers to an exchange of text messages between her and Senior Constable Huff which she submits do not reveal anything improper.[66]
  5. [116]
    The officer refers to assertions relied on by the Acting Commissioner, made by Senior Sergeant Cross to the effect that the officer had a ‘general disdain for seniority’, ‘was disrespectful of rank’, and mistook ‘reasonable management action for unauthorised behaviour’, which she submits were not probative of anything other than the opinions of Senior Sergeant Cross.[67]
  6. [117]
    The officer refers to an assertion by Senior Sergeant Roberts that she would go around Senior Sergeant Roberts to her supervisor and make complaints, which appears to be the same issue relied upon by the Assistant Commissioner in respect of particular (5).
  7. [118]
    The various examples referred to by the Assistant Commissioner relate to the officer having a practice of questioning decisions or directions. It is significant that Assistant Commissioner Condon replied to the officer in response to one of these occasions when the officer emailed him in relation to decisions of her superiors that the preferable course was to observe regular procedures:[68]

It is a matter for you. Clearly the policy provides a mechanism for you to take the matter further if you are not satisfied with the response.

  1. [119]
    Whilst the various incidents identified by the Assistant Commissioner indicate a questioning by the officer of decisions of her superiors, it does not appear that such questioning amounted to failing to comply with a direction of a superior, which would give rise itself to a specific disciplinary ground.
  2. [120]
    Whilst the actions of the officer in questioning directions given to her, and seeking to involve other superiors, may give rise to a need for management intervention, they fall short of the level of behaviour necessary for disciplinary proceedings.
  3. [121]
    I find that this particular is not substantiated.

Particular 7

  1. [122]
    Particular 7 relates to the officer allegedly using inappropriate and discriminatory language in the workplace.
  2. [123]
    The officer submits that this aspect of the charge is insufficiently particularised as it does not identify the ‘language’ said to have been used, how that language was ‘inappropriate and discriminatory’ and does not identify the ‘workplace’, or identify ‘the time, place and manner of the (officer’s) acts or omissions’.
  3. [124]
    The officer notes that the Assistant Commissioner found that on 6 June 2017 there was a morning briefing at the photographic section and police headquarters, and a discussion was had about having a team BBQ in the Roma Street Parklands, and the officer said ‘what, with our Abo friends’, and that the officer quickly corrected herself to say either ‘Oh, I mean with aboriginal friends’ or ‘my indigenous brothers’.[69]
  4. [125]
    The officer said during her interview that she did not say ‘my aboriginal friends’ but rather ‘my indigenous brothers’, that she apologised, and that Sergeant Denny then spoke to her about the issue. The officer notes that Sergeant Denny’s evidence was to the effect that after the meeting she asked the officer to stay behind and told the officer that her comment was not acceptable and that it was not to occur again – and reprimanded the officer for her conduct.[70]
  5. [126]
    The officer submits that she accepts that her comment was inappropriate, which she realised at the time, and that she apologised and accepted her reprimand from Sergeant Denny.[71]
  6. [127]
    The officer submits that in circumstances where the language was inappropriate, but used in a non-public setting and quickly retracted, the tribunal would not find that it meets the definition of ‘misconduct’, and that her immediate reprimand for the behaviour supports a conclusion that it is not now appropriate to find the allegation substantiated as misconduct.[72]
  7. [128]
    The Assistant Commissioner noted a similar history of the incident and noted that the officer did acknowledge it was inappropriate language for the workplace.[73]
  8. [129]
    There is no dispute as to the facts of this incident. It is acknowledged by the officer that her language was inappropriate. The officer used the language in a restricted setting, and immediately sought to correct her comment.
  9. [130]
    This incident discloses a use of inappropriate language, however the use was a single incident which the officer immediately corrected, and she has not questioned the correctness of her reprimand by her Sergeant.
  10. [131]
    I do not consider that this incident is significant to the level of a disciplinary proceeding.
  11. [132]
    I find this particular is not substantiated.

Particular 8

  1. [133]
    Particular (8) relates to the officer allegedly inappropriately intimidating a Senior Sergeant through a non-consensual search of the Senior Sergeant’s desk and threatened disciplinary action against the Senior Sergeant.
  2. [134]
    The Assistant Commissioner notes that the Senior Sergeant worked within the photographic section where the officer was working at police headquarters, and had reported his police identification had been lost, and later found it in an operational kitbag which he had prepared for deployment to the G 20, which he placed in the rear of the top drawer of his desk, and that he planned to deal with its return to the identification office following the G20 event.[74]
  3. [135]
    The Assistant Commissioner notes that the Senior Sergeant was advised that the officer had approached the identification office and requested they question him regarding the previously reported lost identification, and that the only inference that could be drawn from this by him was that the officer had searched his drawers and located the identification without his consent to conduct any search of the desk.[75]
  4. [136]
    The Assistant Commissioner notes that the officer emailed Acting Inspector Morley on 12 January 2015 advising that she was aware that the Senior Sergeant had failed to hand in his old police identification when collecting a new identification prior to the G20 and ‘instructed’ Acting Inspector Morley that the Senior Sergeant was in breach of the operational procedures manual, and that if the Senior Sergeant did not hand in his old police identification to building services by close of business on Friday, 16 January 2015, she would be forced to file a formal complaint in accordance with s 7.2 of the Police Act.[76]
  5. [137]
    The Assistant Commissioner notes that Acting Inspector Morley replied to the email and advised that the officer need not further concern herself about the matter, and that the officer then queried whether the Senior Sergeant had been given some special dispensation, and that otherwise Acting Inspector Morley was required to file a complaint.
  6. [138]
    The Assistant Commissioner noted that Acting Inspector Morley replied to the applicant advising the matter had been resolved in a professional and ethical manner, and that the officer sought further clarification on how that occurred so that she could make an informed decision regarding further action.[77]
  7. [139]
    The Assistant Commissioner notes that when questioned about the matter, the officer said it was Sergeant Denny who had advised of the identification sitting in the top drawer of the Senior Sergeant’s desk, and that the officer opened the drawer and the ID was sitting there.
  8. [140]
    The officer submits that there is no evidence to support a finding that the officer searched the Senior Sergeant’s desk at all, let alone for the purpose of intimidating him.[78]
  9. [141]
    As to the second part of the allegation, as to a threat of disciplinary action, the officer submits that she had a genuine concern that the Senior Sergeant was inappropriately in possession of an old identity card, that there is a clear importance in police IDs being controlled and returned as required to avoid falling into the wrong hands, and that the officer was under a statutory obligation to report misconduct if she reasonably believed it had occurred. The officer submits that in that context there was nothing inappropriate about her emails to superiors about the matter and her comments did not amount to an improper threat.[79]
  10. [142]
    This particular specifically relates to intimidation of the Senior Sergeant by a non-consensual search. It is not accepted by the officer that she did conduct a search of the Senior Sergeant’s desk, and she contended that she was told of the presence of the ID in the drawer by Sergeant Denny. There is no clear evidence that the officer did search the Senior Sergeant’s drawer, or that she intimidated the Senior Sergeant by doing so.
  11. [143]
    It does appear that the officer raised the spectre of disciplinary action against the Senior Sergeant with Acting Inspector Morley, and challenged the Acting Inspector as to whether the matter had been properly resolved. The officer contends that she was acting properly in bringing attention to perceived misconduct by the Senior Sergeant in the handling of his police ID.
  12. [144]
    The querying of Acting Inspector Morley by the officer does give rise to some concern, and may be seen as attempting to usurp authority, but in the context of her drawing attention to what she perceived as misconduct by the Senior Sergeant, may also be seen as acting in a ‘whistle-blower’ role.
  13. [145]
    In the absence of clear evidence as to the officer having conducted an unauthorised search of the Senior Sergeant’s drawer, and having regard to her contention that she was acting within the Police Act in taking steps which may have led to a formal complaint, the allegation is not established to the necessary standard.
  14. [146]
    I find that this particular is not substantiated.

Particular 9

  1. [147]
    This particular relates to the officer allegedly intimidating co-workers in the workplace by covertly audio recording conversations had with co-workers in the workplace.
  2. [148]
    The Assistant Commissioner refers to the officer providing four recordings to the investigator, in the course of the internal investigation, and that during the meeting with Superintendent Freiburg on 28 August 2017 she advised that she had covertly recorded conversations with Inspector Freeman and Acting Senior Sergeant Denny.[80]
  3. [149]
    The Assistant Commissioner notes that the officer agreed with Superintendent Freiburg in a meeting of 28 August 2017 that she would advise all parties that she was recording conversations.[81]
  4. [150]
    The Assistant Commissioner refers to suspicions voiced by other officers that the officer was in a habit of recording conversations[82] but specific instances are not identified, apart from the four acknowledged recordings.
  5. [151]
    The officer submits that this charge is insufficiently particularised as it does not identify the co-workers, how they were intimidated if the recordings were covert, and does not identify ‘the time, place and manner of the (officer’s) acts or omissions’.[83] The officer notes that the Assistant Commissioner refers to a meeting between the officer and Superintendent Freiburg on 28 August 2017, and that the Superintendent directed the officer that she was not to covertly record conversations and that if she wished to record conversation she was to declare that to the other parties.
  6. [152]
    The officer notes that the Assistant Commissioner refers to various instances where people might believe their conversations were recorded, but he made no finding about any particular conversation in fact having been recorded after Superintendent Freiburg’s direction.[84]
  7. [153]
    The officer submits that there is no evidence that she had the purpose of intimidating any co-workers by covertly recording conversations.[85]
  8. [154]
    This particular lacks detail of the allegations. It refers to a general impression that the officer was in a habit of recording the staff, an allegation that the officer refuted as indicated by her email to Inspector Philip Stevens on 20 November 2017 where she said as follows:[86]

I have noted, with the rumour that I record staff, that certain members are now speaking to me in a polite tone. For this reason, let them think I record them. It makes for a more pleasant working environment.

  1. [155]
    Were it established that the officer had made clandestine recordings in the workplace of co-workers, with the intent of intimidating them, such activity may constitute misconduct, as it would be seen as improper behaviour by the public. However, it is not established to the necessary standard on the evidence that the officer did act in such a way.
  2. [156]
    I find that this particular is not substantiated.

Particular 10

  1. [157]
    Particular (10) relates to the officer allegedly intentionally having created negativity in the workplace between 1 December 2013 and 30 April 2018.
  2. [158]
    The Assistant Commissioner in his submissions refers to the following instances of such behaviour:
    1. (a)
      The Officer emailed Inspector Freeman on 14 August 2017 as to a mid-cycle review and copied in Superintendent Freiburg. The Assistant Commissioner submits that the officer could have easily requested a meeting to discuss those issues with Inspector Freeman instead of sending the email.[87]
    2. (b)
      Sergeant Blumson made notes about the officer’s negativity in the workplace in which she stated that the officer tried to get others to take photos of the graduation ceremony at the QPS Academy and had refused help from others.[88]
    3. (c)
      An external contractor was in the photographic section of police headquarters rewiring a lighting system, and he was approached by the officer who questioned his qualifications and required the contractor to justify his answers to her. The Assistant Commissioner submits that the conduct directed towards a contractor was inappropriate and caused him to write three pages of notes and submit them to an inspector to ensure he wouldn’t be the subject of a complaint from the officer.[89]
    4. (d)
      The officer emailed Sergeant Denny on 31 December 2016 requesting that the Sergeant cease her conduct in the New Year and move forward in a positive and cohesive manner, and advised that mediation was an available option if the Sergeant was unwilling or unable to comply with the request, and copied Inspector Freeman into that email. The Assistant Commissioner notes that Sergeant Denny could not understand why the officer had sent that email after they both had a conversation, and this email had triggered Sergeant Denny to approach Inspector Freeman.
    5. (e)
      Senior Sergeant Cross in an internal interview had discussed the stress the officer’s behaviour was having on the team, and stated that it created anxiety and tension every day, and that it was not a positive workplace because everything had to be double checked, and the officer had a general disdain for seniority and that whether it be Sergeants or Senior Sergeants there was no respect.[90]
    6. (f)
      In October 2014 the officer was requested by Senior Sergeant Roberts to complete a task and review related procedures relating to photographs, and the officer spoke to Acting Inspector Morley about the task and advised Senior Sergeant Roberts it was her job. Senior Sergeant Roberts made enquiries with another colleague and again emailed the officer in relation to the task. The officer replied to Senior Sergeant Roberts and copied in the Inspector advising she had been unprofessional and that the officer would make a complaint if she was asked to perform duties outside of her job description. In her internal interview, Senior Sergeant Roberts explained this was exhausting and she felt like she was constantly required to defend herself to her supervisors because she was constantly being questioned.[91]
  3. [159]
    The officer submits that this particular of the charge is insufficiently particularised as it does not identify what ‘negativity’ means, or how negativity was ‘created’, or ‘the time, place and manner of the officer’s acts or omissions’.[92]
  4. [160]
    The officer refers to five of the instances relied on by the Assistant Commissioner:
    1. (a)
      The email from the officer to Inspector Freeman dated 14 August 2017. The officer notes that this is the same email referred to in particular 6. The officer submits that the email does not evidence any intention to create negativity.[93]
    2. (b)
      The officer submits that the notes from Sergeant Blumson are to the effect that on a particular (unspecified) day the officer was ‘obviously not happy’ and had always complained about certain jobs, and was said to have been in a ‘bad mood’ and submits that they do not establish an intention to create workplace negativity.[94]
    3. (c)
      The officer submits that the allegation in relation to the external contractor having submitted written notes to Inspector Freeman about a discussion the officer was said to have had with the contractor appears to go no higher than that the officer questioned the contractor and that the contractor’s work ‘had nothing to do’ with her, and that this does not establish an intention to create negativity.[95]
    4. (d)
      The officer submits that the email from her to Senior Sergeant Denny (which she says does not appear to be in evidence), which the Assistant Commissioner described as the officer requesting the Senior Sergeant to move forward in a positive and cohesive manner or alternatively to engage in a mediation option, is not evidence of an intention by her to create negativity, but to the contrary she was attempting to improve the situation (presumably following the heated discussion of 21 December 2016).[96]
    5. (e)
      The officer submits that the Assistant Commissioner relies on general assertions from Senior Sergeants Cross and Roberts, and fails to demonstrate any intention by her to create negativity in the workplace.
  5. [161]
    The instances identified by the Assistant Commissioner may indicate situations in which the actions of the officer have resulted in there being negativity in the workplace. However, the particular is that the officer intentionally created negativity. I am not satisfied that the officer set out with that intention in the identified situations.
  6. [162]
    These situations also could be seen to overlap with the other particulars as to the officer causing disharmony in the workplace and bypassing the chain of command as referred to in particular 6, and would have similarly failed to be at the level of behaviour necessary to constitute misconduct.
  7. [163]
    I find that this particular is not substantiated.

Particular 11

  1. [164]
    This particular relates to the officer allegedly failing to follow specific supervisor instructions to attend team briefings between 1 December 2013 and 30 April 2018.
  2. [165]
    The Assistant Commissioner submits that as a Senior Constable of Police, a key accountability in the officer’s position description requires her to undertake duties as directed by the officer in charge and submits as follows:[97]

184. Section 3.1 of the Procedural Guidelines for Professional Conduct outlines all members have an obligation to obey any lawful direction, instruction or order given by a member or other person authorised by law to do so. This is a very clear statement by the Service to all members in relation to their requirements when subject to lawful directions. Where members fail to comply with any lawful direction in the performance of their official duties, they should expect to be subject to appropriate corrective or disciplinary action. Pursuant to s.3 of the QPS Standard of Practice, members are to obey any lawful direction, instruction or order by any member or person authorised by law to do so.

  1. [166]
    The Acting Commissioner notes that Acting Senior Sergeant Denny was the Operations Senior Sergeant within the Photographic and Electronic Recording Section, and was responsible for managing the sworn staff in the section, which included actioning job requests through allocating tasks to team members. He notes that Acting Senior Sergeant Denny had implemented a morning meeting which included a short briefing and allocation of tasks for the day, which were implemented to bring people together, improve morale and task staff to undertake operational jobs required of the section.[98]
  2. [167]
    The Acting Commissioner notes several occasions when the officer did not attend or remain at the morning meetings:
    1. (a)
      The officer would not initially attend the morning meetings and Acting Senior Sergeant Denny allowed for a period of adjustment to occur.[99]

On 4 January 2017 the officer was late for the meeting and then stood outside. The Acting Commissioner notes Senior Sergeant Denny’s description in her interview with Senior Sergeant Leech which was as follows:[100]

Denny: So on the, the 4th of January

Leech: Mmm

Denny: Called a morning meeting. I called a 8 o’clock for a start time of 8:10. Ah when 8:10 rocked around, the only person who came into the meeting was Wayne Roberts. There were other members including Alan Butters, Kylie Blumson, Grant Noonan, Lynn Jones and Selena Huff. They remained in the day, in the day room chatting.

Leech: All of them?

Denny: All of them. Wayne asked me if I’d like him to round them up. He walked out to, um to do that but I went in over the top of him and said in a very loud, clear and direct tone, I called a meeting for 8:10, everyone is to be in here now. So that included Lyn. So we discussed the issues of the day. Lyn left the room at 8:36 and stood outside the doorway whilst I continued the meeting. On one occasion she walked away from the meeting to look down the hallway so she was just actively, I felt that she was actively trying to disrupt or to make me feel that I did, had, had lost control of the situation.

Leech: Yeah

Denny: So she was just, I think she was trying to, and I also think she was trying to really display to the rest of the team that she was in control, and that she could do what she liked. That’s how it kind of came across to me.

  1. (b)
    On 21 April 2017 Acting Senior Sergeant Denny had facilitated a morning briefing in the photographic section, and all staff rostered had been required to attend.[101] The Acting Senior Sergeant recorded in her notes that the officer did not attend the meeting and had left the section as it commenced, which was deliberate as the officer had been in attendance when she began speaking to the group.[102] Her notes were as follows:

21/4/17 0830 Morning meeting

All raid participants had arrived early and explained the shift had been changed last minute. Grant had received phone call and arranged to notify all others. Meeting discussed raid and what was required, vehicles and arrangements.

…..

Lyn Jones did not attend meeting and had left the section as it commenced. This was deliberate as she had been in the pit when I began speaking to the group.

  1. [168]
    The officer submits that this aspect of the charge is insufficiently particularised as it does not identify the ‘supervisor’, whether the ‘instructions’ were written or oral, and does not identify ‘the time, place and manner of the (officer’s) acts or omissions’, or the ‘particulars of the alleged ground for disciplinary action’.
  2. [169]
    The officer notes that Senior Sergeant Denny said in her interview that there was some number of officers who would not come to meetings, and ‘a lot of people in the section… who don’t really respond well to change’ so she let them ‘work into it slowly’ which cast doubt on the existence of any ‘specific supervisor instructions to attend team briefings’.[103]
  3. [170]
    The officer refers to the meeting on 4 January 2017 where it is alleged she stood outside the doorway at 8:36am whilst the meeting continued, and submits that finding does not show that she failed to follow a specific instruction to attend a briefing, and to the contrary, she did attend the meeting.[104]
  4. [171]
    The officer submits there is no basis to find that the officer walking away to look down the hallway means the officer did not attend the briefing.[105]
  5. [172]
    The officer refers to the meeting on 21 April 2017, and submits there is no evidence that she was given a specific direction to attend that particular meeting. The officer notes that she gave evidence that on the date she had been assigned to undertake certain training with Brett Schnitzerling and was not involved in the morning meeting, and did not purposely walk out of a morning meeting. Her evidence in that respect is recorded in her interview with Ms Leech on 26 July 2018:[106]

143 LJ: okay, 21st of April 17.

PL: 17.

PL: um, do you recall that particular incident, that you walked out of the meeting that particular morning?

LJ: It was a training day and I was um tasked to work with Brett Schnitzerling.

PL: can you tell me about that then? What you recall?

LJ: yeah, it’s on the roster here um. Training day OC and VIC Training I had written ah with Brett Schnitzerling. We weren’t ah involved in the meeting, I don’t even remember walking out, um, I know was working with Brett Schnitzerling on the VAC (sic) training as I’d been asked to from 8 to 4.

162 PL: can you tell me what VIC training stands for?

…..

188 PL: right… That aside… Thank you for explaining that but, do you umm… so my understanding is that…um… Kathryn had organised morning meetings to be held all the time…

LJ: Yeah.

PL: … For those purposes.

LJ: Yeah, we always had morning meetings, sometimes for training days we don’t bother…

PL: okay

LJ:… But I don’t remember purposely walking out of a morning meeting, I don’t do that.

PL: Did you make any notes yourself?

LJ: No, I just see on here I had a training day and I’ve got VIC training written on there and then Zed next to it, which is his nickname. Brett Schnitzerling his nickname is Zed.

  1. [173]
    There is a clear discrepancy between the contemporaneous notes of Acting Senior Sergeant Denny, and the evidence of the officer as to whether the officer did walk out of the meeting on 21 April 2017 or not.
  2. [174]
    Given that the notes of the Acting Senior Sergeant are contemporaneous, and contained in her sequential notebook, which would make it difficult to create those at a later date, and there is no suggestion that she did so, I accept the evidence of the Senior Sergeant as set out in her contemporaneous notes.
  3. [175]
    Whilst the officer has referred to her not having particular notes of the day, but having a notation that she was attending a training day, this does not answer the particular that she did not attend a meeting as required, particularly in light of her comment that ‘sometimes for training days we don’t bother’. Given that a directive had been given to attend the training day, it is not appropriate for an officer to simply ‘not bother’ – if the officer became aware that she would not be able to attend the meeting because of a training day, the appropriate course would have been to advise the Acting Senior Sergeant in advance and obtain approval to not attend the meeting.
  4. [176]
    I consider that the submissions of the officer in relation to this particular are disingenuous. She submits that she did attend meetings at times where she agrees she stood outside the door, or looked down a hallway – on a fair assessment that could not be said to be proper attendance at a meeting.
  5. [177]
    I am satisfied, whilst taking into account the alternative explanations offered by the officer, having regard to the evidence of the Acting Senior Sergeant, that this particular is made out to the appropriate standard.
  6. [178]
    I find that this particular is substantiated.

Particular 12

  1. [179]
    Particular (12) relates to the officer allegedly intimidating supervisors by intentionally ignoring requests to commence work at her rostered start time and repeatedly arriving late for work.
  2. [180]
    The Assistant Commissioner has identified several specific occasions upon which the officer was late for work. For convenience I have set these out in a table as follows:[107]

Date

Time Due

Time Arrived

21 December 2016

not stated

not stated

16 January 2017

8:00am

8:05 am

(still needed to get changed into her uniform)

18 January 2017

2:00pm

2:08pm

‘Another occasion’

2:00pm

2:25pm

15 May 2017

8:00am

8:25am

23 May 2017

2:00pm

2:05pm

(still needed to get changed into her uniform)

5 June 2017

2:00pm

2:20pm

(still needed to get changed into uniform)

  1. [181]
    The Assistant Commissioner also refers to evidence of other officers expressed in general terms. He notes that Sergeant Butters said ‘there was a period in which the officer was 10 to 15 minutes late all the time, turning up in plainclothes and needing to get changed’; and that Sergeant Hansen explained that ‘he had seen an argument between the officer and Acting Senior Sergeant Denny when the officer turned up late for work’.[108]
  2. [182]
    The officer submits that this aspect of the charge is insufficiently particularised as it does not identify the ‘supervisors’, the ‘requests’, how being late for work intimidated supervisors, and does not identify ‘the time, place and manner of the (officer’s) acts or omissions’.[109]
  3. [183]
    The officer submits that the Assistant Commissioner has failed to discharge the onus of proving that this particular is substantiated to the relevant standard, and submits as to explanations for her being late for work as follows:

96(b) The applicant, during her disciplinary interview, understandably explained that she could not productively respond to a suggestion that she had generally been late to work some months ago. In relation to the date of 15 May 2017, the applicant was able to refer to notes to explain that she got caught in unusual traffic and arrived for work 10 minutes late.

  1. [184]
    The officer submits that the allegation that she intimidated supervisors is ‘simply not made out on the evidence’ and that there is no evidence capable of supporting such a finding.
  2. [185]
    The evidence in this matter does not provide support for the proposition that the officer being late for work did intimidate her supervisors.
  3. [186]
    The officer has provided an explanation for being late on 15 May 2017 but has said that she is unable to ‘productively respond’ to the other alleged dates.
  4. [187]
    The time that the officer is alleged to have been late varies from three minutes to 25 minutes (excluding time to change into uniform). Whether the officer was able to, and did, make up this time under some administrative process, if she was late, has not been addressed in the submissions of either party.
  5. [188]
    Given the general nature of the allegations, and the absence of any indication as to how they caused the officer’s supervisors to be intimidated, I am not satisfied that this allegation is made out.
  6. [189]
    I find this particular is not substantiated.

Particular 13

  1. [190]
    This particular relates to the officer allegedly failing to comply with directions to attend a mid-cycle Performance Review and Development (PRD) meeting with her PRD supervisor.
  2. [191]
    The Assistant Commissioner refers to the officer failing to attend a performance review and development meeting with Acting Senior Sergeant Denny who was her PRD supervisor, which had been scheduled at 10:00 am on 7 June 2017 and, and notes that the officer said she had spoken to Inspector Freeman and told him that she was declining the invitation.[110]
  3. [192]
    The Assistant Commissioner says the officer was then directed by Acting Senior Sergeant Denny to attend a meeting on 12 June 2017, which she failed to attend, as follows:[111]

199. Acting Senior Sergeant Denny had then issued the applicant with an official direction to attend a professional development assessment (PDA) midcycle review meeting on 12 June 2017. The applicant was directed to attend Acting Senior Sergeant Denny’s office to discuss her PRD. Acting Senior Sergeant Denny explained the direction and that failure to comply would result in disciplinary action. The meeting had been scheduled and forwarded to the applicant via an Outlook calendar request.

200. The Applicant failed to attend the meeting as directed by Acting Senior Sergeant Denny (the PRD supervisor).

  1. [193]
    The Assistant Commissioner submits that the officer’s failure to attend the PRD mid-cycle review meeting was in contravention of a lawful direction from her supervising officer pursuant to s 3.1 of the Procedural Guidelines for Professional Conduct and section 3 of the QPS Standard of Practice.
  2. [194]
    The officer submits that this particular of the charge is insufficiently particularised as it does not identify the ‘directions’, the ‘supervisor’, or ‘the time, place and manner of the (officer’s) acts or omissions’.[112]
  3. [195]
    The officer submits that she did attempt to attend the meeting on 12 June 2017 as directed, and did attend the meeting later that day, as follows:[113]
    1. (a)
      The direction given to the applicant was that she was to ‘Attend the Senior Sergeant (operations) office on Monday, 12th of June 2017 at 9:00am to discuss your PDA’.
    2. (b)
      The applicant’s evidence was that on 12 June 2017 at 9:00am, she walked up to Denny’s office and stood in the doorway. She saw that Denny was typing on her computer. Denny did not acknowledge the applicant as she stood in the doorway. After a while, the applicant went back and sat down but kept an eye out to see when Denny was free.
    3. (c)
      At about 9:15, Denny left her office for a time and then returned. After that, Inspector Freeman then approached the applicant and told her she had an appointment at 9:00am. The applicant explained that she had been waiting for Denny to be free and Freeman said he wanted her there now. The applicant complied.
    4. (d)
      Denny’s evidence is that the applicant did not attend the meeting at 9:00am on 12 June 2017, although the applicant’s account was not put to her. Significantly, Denny also said that the applicant was then given an opportunity to re-attend the meeting at 10:00am, and the applicant did attend a meeting at 10:00am.
  4. [196]
    I consider that the officer made no genuine attempt to participate in the meeting at 9:00 am as:
    1. (a)
      Her submission is that the Senior Sergeant was typing, but there is no suggestion that the officer attempted to attract the Senior Sergeant’s attention by knocking on the door, or other suitable surface, or gesturing as to her presence.
    2. (b)
      The officer then left the operations office. She says she kept an eye out for Sergeant Denny, but does not appear to have engaged the Sergeant when the Sergeant left her office and then returned.
    3. (c)
      It is significant that Inspector Freeman told the officer that she was to see the Senior Sergeant ‘now’, which suggests that the Senior Sergeant was available to conduct the meeting, to his knowledge, and should also have been to the officer’s knowledge.
  5. [197]
    I am satisfied that it is established that the officer failed to comply with the directions of her PRD supervisor to attend the meeting.
  6. [198]
    I find that this particular is substantiated.

Particular 14

  1. [199]
    Particular (14) relates to the officer allegedly failing to comply with instructions to engage in the PRD process.
  2. [200]
    The Assistant Commissioner notes all members of the Service are to participate in all aspects of the 12 month Performance Review and Development cycle which includes a mid-year review and says that the officer rejected the PRD process in 2017 and 2018, and had effectively been two years without a PRD having been completed.[114]
  3. [201]
    The Assistant Commissioner notes that Inspector Austin was tasked with conducting an independent review of the PRD process, as a result of the officer declining to attend a mid-cycle review, and that Inspector Austin recommended that the mid-cycle review be completed by Acting Senior Sergeant Denny and overviewed by Inspector Freeman.[115]
  4. [202]
    The Assistant Commissioner notes that the officer later rejected the mid-cycle review by emailing Inspector Freeman and copying in Superintendent Freiburg claiming there was nepotism and bias and rejected Inspector Freeman having any further involvement, and requested an external member complete the mid-cycle review.[116]
  5. [203]
    The Assistant Commissioner says that in the following year (2018), the officer again rejected the PRD process, and says that on 20 March 2018 the officer rejected a PRD plan formulated by Senior Sergeant Roberts who was the officer’s PRD supervisor at the time, and she then sought Inspector Stevens to conduct an overview of the PRD process.[117]
  6. [204]
    The Assistant Commissioner says that Inspector Stevens requested the officer to take up with Senior Sergeant Roberts regarding her PRD upon return from the Commonwealth Games, and that Inspector Stevens stated in his internal interview that every time he did something the officer rejected it.[118]
  7. [205]
    The officer submits that this particular of the charges is insufficiently particularised as it does not identify the ‘instructions’, identify who gave the instructions, or identify the ‘time, place and manner of the (officer’s) acts or omissions’.
  8. [206]
    The officer submits that it is not clear whether the Assistant Commissioner was referring to the same alleged contravention as he relied on for particular 13, but if so it should not also form the basis of this aspect of the charge.[119]
  9. [207]
    The officer submits that her emails to Inspector Freeman were not a matter of her failing to engage with the process, rather that she was engaging directly with the Inspector (who was the PDA reviewer) in raising a genuine workplace grievance regarding the process.[120]
  10. [208]
    The officer refers to an exchange of correspondence and opinions between herself and Inspector Stevens as to the conduct of the PDA, and says that this is evidence of her engaging in the process:

105. The allegation here is that the applicant failed to ‘comply with instructions to engage in the PRD process ‘. The evidence shows, however, that the applicant actively engaged with the process. The QPS might disagree with the applicant’s views about the review process, but the records show that she was genuinely attempting to follow the policy and engage with the review. It is submitted that particular (xiv) should be set aside as unsubstantiated.

  1. [209]
    I consider that whilst this particular in part involves specific actions relating to particular 13, it is not simply a restatement of that particular in a different form, but rather is a distinct particular as to the officer’s conduct in relation to the PRD process over the two-year period.
  2. [210]
    The officer has raised a contention that she was engaging in the process, by her acts in taking issue as to it. I do not consider it to be a convincing argument that challenging a process equates to engaging in it as directed.
  3. [211]
    I consider that the officer was determined not to participate in the PRD process on the basis of what she saw as procedural flaws or issues, which she describes as a workplace grievance, but that no option was available to her to ‘opt-out’ of the PRD process in the face of clear directions to participate in it over a two-year period.
  4. [212]
    I find that this particular is substantiated.

Particular 15

  1. [213]
    Particular (15) relates to the officer allegedly failing to follow instructions of a supervisor, Sergeant Kylie Blumson.
  2. [214]
    The Assistant Commissioner alleges that on 14 March 2016 Sergeant Blumson instructed the officer to do a public-relations job at 9:00am, but that the officer decided instead to attend the Central Exhibit Facility (CEF) and do a job which the sergeant had asked her not to do.[121]
  3. [215]
    The Assistant Commissioner refers to comments of Sergeant Blumson that the officer appeared to exhibit a real sense of entitlement, entering into a debate when given a task, and appeared to not respect the management or rank structure.[122]
  4. [216]
    The officer submits that this aspect of the charge is insufficiently particularised as it does not identify the ‘instructions’ or ‘the time, place and manner of the (officer’s) acts or omissions’ and fails to state the ‘particulars of the alleged ground for disciplinary action’.
  5. [217]
    The officer takes issue with the suggestion that she attended the CEF job in contravention of a contrary direction:

108

  1. (b)
    However, Blumson’s handwritten notes record that on 14 March 2016 when she asked the Applicant why the Applicant had not attended the public-relations job, the applicant apparently said ‘isn’t that on Thurs’. Thus, on Blumson’s own account there was nothing more than a mistake by the applicant about the timing of tasks.
  1. (c)
    Further, Blumson’s evidence falls short of establishing that Blumson directed the applicant not to attend to the CEF job that she attended on 14 March 2016. In her interview in this proceeding, Blumson said the applicant regularly attended CEF jobs whereas ‘most of us couldn’t be bothered going to CEF’. Blumson claimed to have said to the applicant, in respect of the particular CEF job in question, ‘don’t worry about it, like I’m sorting it’ and ‘it’s not your job, don’t worry about it’. Even if that is accepted, in the context of the applicant’s accepted general practice of attending CEF jobs, Blumson’s words could not be construed as a formal direction not to do the job.
  1. (d)
    Perhaps unsurprisingly, when the Applicant was interviewed about this over two years later, she could not recall being told not to do a CEF job or overlooking a particular public relations job.
  1. [218]
    The officer has put forward an explanation for not attending the public-relations job on 14 March 2016 as being nothing more than a mistake, rather than a wilful failure to follow instructions of a supervisor.
  2. [219]
    The officer did attend to other work at the Central Exhibit Facility and submits that she had not been given a formal direction not to do so.
  3. [220]
    Having regard to the officer’s evidence as to mistake, and the lack of evidence of there being a prohibition against her undertaking the CEF job, I am not satisfied that the allegation of failing to follow instructions is made out.
  4. [221]
    I find that this particular is not substantiated.

Particular 16

  1. [222]
    Particular (16) relates to an allegation that the officer constantly directed repeated and unreasonable behaviour towards co-workers persistently over a substantial period, creating a risk to the health and safety of her co-workers.
  2. [223]
    The Assistant Commissioner refers to a meeting on 4 January 2017 between Acting Senior Sergeant Denny and Acting Superintendent Freeman in which Acting Senior Sergeant Denny discussed her personal feelings about managing the officer, referring to her insubordination, her emails, and her conduct generally.[123]
  3. [224]
    The Assistant Commissioner also refers to comments which Senior Sergeant Cross made as to the stress which the officer had put on him, which he said negatively affected his work and that it wasn’t a positive workplace, and that he had seen the officer’s conduct affect other staff members, citing stress, anxiety and bewilderment and stated that the officer was intimidating and agreed that other staff members were intimidated by her behaviour.[124]
  4. [225]
    The Assistant Commissioner also refers to comments of Senior Sergeant Roberts who said that managing the officer was exhausting, and that she was frustrated for her staff knowing that the officer could not be removed from the workplace.[125]
  5. [226]
    The Assistant Commissioner also refers to comments by Sergeant Butters that he felt as though he didn’t want to deal with the officer; by Sergeant Hansen that some staff members would avoid working with the officer and seek roster changes; and by Inspector Stevens that staff members’ attitudes changed when they saw the officer on the roster, and several other staff members just avoided the officer and did not raise concerns with him. [126]
  6. [227]
    The officer submits that this aspect of the charge is insufficiently particularised, does not identify the ‘co-workers’, the ‘behaviour’, does not identify how the behaviour was ‘unreasonable’, or ‘the time, place and manner of the (officer’s) acts or omissions’.[127]
  7. [228]
    The officer submits that this particular is a restatement of the previous particulars and should be rejected accordingly:[128]

112. Further, the respondent’s finding in respect of particular (xvi) appears to be that it was the matters that he found substantiated in particulars (i) to (xv) that were the ‘repeated and unreasonable behaviour’ for the purposes of particular (xvi). In other words, particular (xvi) appears to be an attempt to punish the applicant again for the same conduct described in the first 15 particulars. Particular (xvi) should be set aside on the (sic) ground.

    1. [229]
      This particular is phrased in very broad language. It encompasses a general behaviour. The Appeal Tribunal in Young referred to the decision-maker having a duty to formulate the allegation properly at first instance and to furnish all material relevant to the allegation to the applicant or person subject to allegations,[129] and to the need for the Tribunal to assess a charge of broad behaviour having regard to all of the evidence and being satisfied to the required standard that the particular was proven:[130]

    [53] On a fair reading of the tribunal’s reasons, the learned Member did not properly consider that the allegations contained in particular (vii) were vague and insufficiently particularised and did not consider the weight of the evidence relevant to workplace conduct.

    [54] The task required of the tribunal below is to determine whether the charge is proven to the required standard. Although the tribunal below proceeded to address Mr Young’s proposition of the charge being quite broad, the learned Member proceeded to consider the evidence in the context of, as found in paragraph [73] of the Tribunal’s reasons, Mr Young’s general behaviour demonstrated by a pattern of similar actions.

    1. [230]
      The opinions of the officers referred to by the Assistant Commissioner act as a summary of their impressions of the officer’s behaviour in the workplace, and the effect of her behaviour upon the workplace. This particular is phrased in broad language, which encompasses matters traversed in the previous particulars. The particular is vague and is insufficiently particularised as required by the comments in Young.
    2. [231]
      I find that this particular is not substantiated.

    Conclusion

    1. [232]
      I find that the disciplinary proceeding notice issued by the Assistant Commissioner on 14 February 2020 was valid.
    2. [233]
      I find that the particulars of the charge have not been substantiated in relation to particulars 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, and 16.
    3. [234]
      I find that particulars 3, 11, 13 and 14 of the charge have been substantiated, and that a ground for disciplinary action is proved, as such conduct was improper, and constitutes misconduct.
    4. [235]
      My Declaration, Orders and Directions are as follows:
    1. I declare that the Assistant Commissioner had (and has) power or authority under the Police Service Administration Act 1990 (Qld) to make his decisions which are the subject of the current proceedings, and that the Tribunal has jurisdiction to review that decision.
    2. I order that part of the decision made by Acting Assistant Commissioner Glenn Horton on 18 May 2020 to substantiate a finding of misconduct in Matter 1 as to particulars 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 15, and 16, is set aside on the basis that the allegations are not proven to the required standard.
    3. I order that part of the decision made by Acting Assistant Commissioner Glenn Horton on 18 May 2020 to substantiate a finding of misconduct in matter 1 as to particulars 3, 11, 13 and 14 is confirmed.
    4. I direct that the matter is to be set for a Directions Hearing before me, at a date and time to be advised by the Registry, not before 28 days after the issuing of this order, to discuss:
      1. (a)
        The procedure as to dealing with the aspect of sanction;
      2. (b)
        Further directions in the matter as appropriate.

    Footnotes

    [1]Applicant’s outline of submissions filed 19 October 2020, [8].

    [2]Ibid [9].

    [3]Ibid [10].

    [4]Ibid [14].

    [5]Ibid [15].

    [6]Ibid [16].

    [7]Ibid [17].

    [8]Ibid [19].

    [9]Ibid [22].

    [10]Ibid [23].

    [11]Ibid [24] to [29].

    [12]Ibid [31].

    [13] Ibid [32].

    [14]Outline of submissions on behalf of respondent, filed 17 November 2020, [17].

    [15]Ibid [18] to [27].

    [16]Ibid [28].

    [17]Ibid [31].

    [18]Ibid [36] and [37].

    [19]Ibid [38] and [40].

    [20]Ibid [32] and [33].

    [21]Ibid [44].

    [22]Further Outline of Submissions on behalf of Respondent filed 21 December 2020, [2] and [3].

    [23]Ibid [4].

    [24]Ibid [14] and [15].

    [25]Applicant’s Further Submissions, [3] and [4].

    [26] Ibid [7].

    [27] Ibid [2(a)].

    [28] Applicant’s Outline of Submissions, [35].

    [29] Chapman v Crime and Misconduct Commission [2012] QCATA 16, [13].

    [30] Op cit.

    [31][2020] QCATA 160.

    [32] Ibid [11].

    [33]Ibid [49].

    [34]Ibid [53].

    [35] Ibid [56].

    [36]Applicant’s outline of submissions, [44].

    [37]Respondent’s outline of submissions, [87] and [89].

    [38]Ibid [46].

    [39]Ibid [47].

    [40]Respondent’s submissions, [92].

    [41]Ibid [94] to [98].

    [42]Ibid [101].

    [43]Applicant’s outline of submissions, [50].

    [44]Ibid [51(a)].

    [45]Ibid [51(b)].

    [46]Ibid [51(c)].

    [47]Section 21 material, part B, p 875.

    [48]Respondent's submissions, [105].

    [49]Ibid [54(c)].

    [50]Ibid [54(g)].

    [51] Respondent’s submissions, [113].

    [52]Applicant’s submissions, [58].

    [53] Ibid [59(a)].

    [54] Ibid [60].

    [55] Ibid [130].

    [56] Ibid [132] .

    [57] Applicant’s submissions, [62].

    [58]Ibid [63(a)].

    [59]Ibid [63(b)].

    [60]Respondent’s submissions, [134].

    [61] Ibid [135].

    [62] Ibid [142].

    [63] Ibid [67].

    [64] Applicant’s submissions, [69(a)].

    [65]Ibid [69(b)].

    [66] Ibid [69(c)].

    [67]Ibid [69(d)].

    [68]Ibid [141].

    [69]Applicant's submissions, [73].

    [70] Ibid [74].

    [71] Ibid [74(d)].

    [72] Ibid [75].

    [73] Respondent’s submissions, [149].

    [74] Ibid [150].

    [75] Ibid [151].

    [76]Ibid [153].

    [77]Ibid [154].

    [78]Applicant’s submissions, [78].

    [79] Ibid [79].

    [80]Ibid [165].

    [81]Respondent’s submissions, [166].

    [82] Ibid [167].

    [83] Applicant’s submissions, [82].

    [84]Ibid [83(b)].

    [85]Ibid [84].

    [86] Ibid [163].

    [87] Respondent’s submissions, [173].

    [88] Ibid [174].

    [89] Ibid [175].

    [90] Ibid [177] and [178].

    [91] Ibid [179] to [182].

    [92]Applicant’s submissions, [87].

    [93] Ibid [88(a)].

    [94] Ibid [88(b)].

    [95]Ibid [88(c)].

    [96] Ibid [88(d)].

    [97] Respondent’s submissions, [183] and [184].

    [98] Ibid [185].

    [99]Ibid [186].

    [100] Respondent’s bundle, Part B Appendix 1, p 42.

    [101]Ibid [188].

    [102] Respondent’s bundle, Part C, p 76.

    [103] Applicant’s submissions, [92(a)].

    [104]Ibid [92(b)].

    [105] Ibid [92(c)].

    [106]Respondent’s bundle part B, p 699.

    [107]Respondent’s submissions, [190] to [197].

    [108]Respondent’s submissions, [197].

    [109]Applicant’s submissions, [95].

    [110] Applicant’s submissions, [198].

    [111]Ibid [199] and [200].

    [112] Ibid [98].

    [113]Ibid [100].

    [114]Respondent’s submissions, [201] and [207].

    [115] Ibid [203] and [204].

    [116] Ibid [205].

    [117]Ibid [206].

    [118] Ibid [207].

    [119]Applicant’s submissions, [104 (a)].

    [120] Ibid [104(b)].

    [121]Respondent’s submissions, [209].

    [122] Ibid [211].

    [123] Respondent’s submissions, [215].

    [124]Ibid [222] and [223].

    [125] Ibid [226].

    [126]Ibid [231] – [233].

    [127]Applicant’s submissions, [111].

    [128] Ibid [112].

    [129] Young v Assistant Commissioner Dawson [2020] QCATA 160, [49].

    [130] Ibid [54].

    Close

    Editorial Notes

    • Published Case Name:

      Jones v Acting Assistant Commissioner Horton

    • Shortened Case Name:

      Jones v Acting Assistant Commissioner Horton

    • MNC:

      [2021] QCAT 209

    • Court:

      QCAT

    • Judge(s):

      Member Paratz AM

    • Date:

      11 Jun 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
    Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340
    2 citations
    Jump To
    Cite 1 - [2013] QCATA 340
    Cite 2 - [2013] QCATA 340
    Briginshaw v Briginshaw (1938) 60 C.L.R 336
    2 citations
    Jump To
    Cite 1 - (1938) 60 C.L.R 336
    Cite 2 - (1938) 60 C.L.R 336
    Chapman v Crime and Misconduct Commission & Rynders [2012] QCATA 16
    2 citations
    Jump To
    Cite 1 - [2012] QCATA 16
    Cite 2 - [2012] QCATA 16
    Crime & Misconduct Commission v Assistant Commissioner J P Swindells [2009] QSC 409
    2 citations
    Jump To
    Cite 1 - [2009] QSC 409
    Cite 2 - [2009] QSC 409
    Crime and Corruption Commission v Kelly [2017] QCAT 66
    2 citations
    Jump To
    Cite 1 - [2017] QCAT 66
    Cite 2 - [2017] QCAT 66
    Young v Assistant Commissioner Dawson [2020] QCATA 160
    8 citations
    Jump To
    Cite 1 - [2020] QCATA 160
    Cite 2 - [2020] QCATA 160
    Cite 3 - [2020] QCATA 160
    Cite 4 - [2020] QCATA 160
    Cite 5 - [2020] QCATA 160
    Cite 6 - [2020] QCATA 160
    Cite 7 - [2020] QCATA 160
    Cite 8 - [2020] QCATA 160

    Cases Citing

    Case NameFull CitationFrequency
    William Peter Hulbert v Queensland Racing Integrity Commission [2022] QCAT 1302 citations
    1

    Require Technical Assistance?

    Message sent!

    Thanks for reaching out! Someone from our team will get back to you soon.

    Message not sent!

    Something went wrong. Please try again.