Alfred v State of Queensland (Department of Justice and Attorney General)
[2016] QIRC 28
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Alfred v State of Queensland (Department of Justice and Attorney General)[2016] QIRC 28
- Add to List
Alfred v State of Queensland (Department of Justice and Attorney General)[2016] QIRC 28
Alfred v State of Queensland (Department of Justice and Attorney General)[2016] QIRC 28
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Alfred v State of Queensland (Department of Justice and Attorney General) [2016] QIRC 028 |
PARTIES: | Alfred, George (Applicant) v State of Queensland (Department of Justice and Attorney General) (Respondent) |
CASE NO: | TD/2014/133 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 4 March 2016 |
HEARING DATES: | 29 and 30 June 2015 |
MEMBER: | Deputy President O'Connor |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – UNFAIR DISMISSAL – HARSH, UNJUST OR UNREASONABLE – Whether a higher degree of satisfaction required due to penalty being termination – Whether decision was predetermined – Whether penalty was disproportionate to behaviour – Where applicant submits dismissal unfair due to dissimilar treatment – Where dishonesty of applicant contributed to breakdown of employment relationship – Matters referred to in section 77 of Industrial Relations Act 1999 considered. |
CASES: | Industrial Relations Act 1999 (Qld), ss 73, 74, 77 Public Service Act 2008 (Qld), s 188(1) Workplace Relations Act 1996 (Cth) s 170CG(3) Queensland Corrective Services - Correctional Employees' Certified Agreement 2013 Byrne v Australian Airlines (1995) 185 CLR 410 Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 Stewart v University of Melbourne [2000] AIRC 779 Gold Coast District Health Service v Walker (2001) 168 QGIG 186 Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1988) 166 CLR 69 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 Cherti v Queensland Rail [2014] QIRC 220 Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506 Daly v Bendigo Health Care Group [2006] AIRC 414 Barclay v Nylex Corporation Pty Ltd [2003] AIRC 593 Moreton Bay Regional Council v Moorhead [2014] ICQ 013 Queensland Teachers’ Union of Employees v Department of Education (2000) 165 QGIG 767 Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 Scott Challinger v JBS Australia Pty Ltd [2014] FWC 7963 Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter [2014] FWCFB 7198 |
APPEARANCES: | Mr D.W. Honchin, Counsel instructed by Harrington Legal. Mr J.W. Merrell, Counsel instructed directly by the Respondent. |
Decision
- [1]Mr George Alfred ('the applicant') was employed as a Custodial Correctional Officer ('CCO') by the Department of Justice and Attorney-General - Queensland Corrective Services ('QCS') at the Townsville Correctional Centre ('the TCC'). He commenced full-time employment with the QCS on 12 November 2007.
- [2]On 10 November 2014 the applicant was dismissed.
- [3]It is not in dispute that at the time of the applicant's dismissal he was employed under the Public Service Act 2008 ('PS Act') and the Queensland Corrective Services - Correctional Employees' Certified Agreement 2013.
- [4]This is an application for reinstatement as a CCO.
Statutory Provisions
- [5]Section 73 of the Industrial Relations Act 1999, relevantly provides:
"73 When is a dismissal unfair
- (1)A dismissal is unfair if it is -
- (a)harsh, unjust or unreasonable; or
- (b)for an invalid reason.
…"
- [6]The phrase 'harsh, unjust or unreasonable' was considered by the High Court in Byrne v Australian Airlines[1] ('Byrne') where McHugh and Gummow JJ wrote:
"In Bostik (Aust) Pty Ltd v Gorgevski (No 1)(174), a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:
'These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct.'"[2]
- [7]The respondent drew the attention of the Commission to the decision of Stewart v University of Melbourne.[3] In that decision, Ross VP (as his Honour then was) considered s 170CG(3) of the Workplace Relations Act 1996 (Cth) in which he followed the joint judgment of McHugh and Gummow JJ in Byrne. Ross VP wrote:
"… a termination of employment may be:
- Harsh, because of its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;
- Unjust, because the employee was not guilty of misconduct on which the employer acted; and/or
- Unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer."
Onus of proof
- [8]The applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[4] It was submitted by the applicant that:
"The standard of proof required is that established in Briginshaw v Briginshaw (1938) 60 CLR 336 - on the balance of probabilities. However, that standard is ambulatory in practice, depending upon the consequences - the consequences in this case being termination. Here, where a finding of such gravity is involved, a high degree of satisfaction is required."
- [9]Whilst it is correct to submit that the standard of proof to be applied is on the balance of probabilities, it is not, in my view, correct to submit that this is a case which requires a high degree of satisfaction. The applicant was dismissed for a breach of the Code of Conduct. It does not, therefore, follow that simply because the applicant was dismissed then a higher onus, as described in Briginshaw v Briginshaw[5] and M v M,[6] ought to be applied.
The allegations
- [10]Three allegations against the applicant are set out in the show cause letters of Ms Kerrith McDermott (Assistant Director-General of Queensland Corrective Services) dated 2 May 2014 and 21 May 2014.[7] They are as follows:
"Allegation 1
It is alleged you were asleep in the Officer's Mess at approximately 0315 on 25 February 2014 whilst rostered on duty at the Townsville Correctional Centre.
Allegation 2
It is alleged that at approximately 0330 on 24 February 2014 when the matter of your alleged sleeping on duty was raised with you and others, you responded to CSO Gough with the words to the effect:
"I will sleep when I fucking like."
Allegation 3
It is alleged that during your rostered night shift on 26 February 2014 at the Townsville Correctional Centre, in the early hours of the morning on Thursday 27 February 2014 you abused staff members who objected to you turning off the lights in the Officers Mess."
The Applicant's case
- [11]The applicant "… admits the substance of the allegations, that is that he was sleeping when woken by CSO Gough, that he said 'I will sleep when I fucking want' and that he had an argument with CCOs Neville and Manson."[8]
- [12]Notwithstanding the admissions of the applicant, it is his case that his termination was unfair because:
- (a)An opportunity was taken to make an example of him and that the decision to terminate had been predetermined and thus there was a denial of natural justice; or, alternatively
- (b)Having regard to the culture or practice of sleeping on night duty and his personal circumstances including the stress he was under and that the conduct was out of character, his termination in the circumstances was disproportionate to the substantiated behaviour.
Was the decision to terminate predetermined?
- [13]The applicant argues the decision to terminate his employment was predetermined.
- [14]To support that contention, the applicant relies on the memorandum of Ms McDermott to the Director-General of 20 August 2014[9] as well as the discussions said to have been held between Mr Peter Shaddock (Acting Assistant Director-General of Queensland Corrective Services) and Ms McDermott about the culture within the TCC; in particular, their discussions about the culture at the TCC during the consideration of the allegations against the applicant.
- [15]In that regard, the evidence of Mr Shaddock was as follows:
Now, between this period of your email of the 2nd of April and Mr Alfred’s termination in about, I think, November – I’ll just get the date – it’s the 10th of November – yes, the 10th of November 2014 – did you have cause to have discussions about this matter with Ms McDermott? I can’t recall specific discussions, but I would imagine that we may have discussed the matter, along with the raft of other matters.
Of course. It’s not unusual for you to meet with her and have discussions about operational matters, and disciplinary matters, and those sorts of things? That’s correct.
And is it the case that you would have also expressed to her this opportunity to impact the culture of the workplace? No. I don’t recall discussing that specifically with her.[10]
- [16]The evidence of Ms McDermott concerning the conversations she had with the Mr Shaddock regarding the consideration of the allegations against the applicant was as follows:
During this process of the consideration of these allegations against Mr Alfred – and, say, from – I think it’s February through ‘til November of 2014. Do you recall ever speaking directly with Mr Shaddock about the Townsville correctional facility? I’m sure I would have.
And were concerns raised about the staff at the centre, generally – not individuals, but generally about the staff and their conduct? Correct, yes.
Right. And do you recall him ever – that is, Mr Shaddock – ever talking to you – in terms of this – these incidents – or this – the sleeping incident, I should say – talking to you about it – presenting an opportunity – or a real opportunity to impact the culture of the workplace, and reinforce the agency’s position on inappropriate workplace behaviour? Not that in particular – not those words.
Right? But that would – it would be expected that we would have conversations along that line.
Right. Did you see this as an opportunity to have a real impact on the culture of the Townsville correctional centre? No, not at all.
Because what I want to ask you is, did you see this as an opportunity to set an example ? No.
for staff? Not at all.
Right. So there was no intention on your behalf to make an example of Mr Alfred in respect of the sleeping activity? That’s correct.
or in relation to the behaviour between he and the other officers? That’s correct.[11]
- [17]Ms McDermott's memorandum of 20 August 2014[12] under the subject heading "Proposed termination of Custodial Correctional Officer, George Alfred" set out the following recommendation:
"Given the serious [sic] of the substantive allegations against Mr Alfred, a determination has been made to implement termination of employment as the appropriate disciplinary penalty."
- [18]It is the contention of the applicant that he was denied natural justice as a decision to terminate his employment had already been made and any subsequent submission on penalty would have "… no real chance of persuading the delegate to any course other than termination of the Applicant…"
- [19]Ms McDermott by letter dated 9 September 2014[13] advised the applicant the three allegations had been substantiated and, as a consequence, she sought submissions on the range of penalties under s 188(1) of the Public Service Act 2008. The applicant was specifically advised:
"I have taken all of the evidence into consideration in relation to the imposition of a penalty and I can advise that I am currently giving serious consideration to terminating your employment with QCS."
- [20]The evidence of Ms McDermott was that the memorandum to the Director-General was to advise him of her intention to propose a disciplinary penalty of termination rather than to "implement" this penalty. In her affidavit, Ms McDermott deposes:
"Further, at the time, I did not form the view as to whether or not I would impose the penalty of termination against Mr Alfred. This is because Mr Alfred had not provided his response to the proposed disciplinary penalty."[14]
- [21]Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam,[15] in discussing the manner in which procedural fairness cases are approached by the courts, said (at [37] ):
"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
- [22]I accept the evidence of Ms McDermott that at the time she prepared the memorandum to the Director-General, she had not formed a view on penalty. Her evidence before the Commission is consistent with the heading to the memorandum "Proposed termination of Custodial Correctional Officer, George Alfred". I have no doubt that after assessing the allegations and reaching the conclusion they had been substantiated, she had in her contemplation the possibility of termination as an appropriate penalty. However, it does not necessarily follow that she had predetermined the question of penalty.
- [23]
Was the applicant's termination disproportionate to the substantiated behaviour?
- [24]The applicant accepted his conduct in sleeping on duty was contrary to policy and inconsistent with the Code of Conduct. He said in cross-examination:[18]
Am I correct in suggesting this, by paragraphs 13 and 14 of your affidavit in these proceedings, are you saying that it was the policy of Queensland Corrective Services at the Townsville Correctional Centre that custodial officers could sleep when on night shift?‑‑‑It was common practice but it wasn’t policy ‑ ‑ ‑
I’m sorry, can you ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ sir. It was common practice but it wasn’t policy.
My suggestion to you is that your response back in June 2014 to Ms McDermott was correct, wasn’t it, there was no policy, formal or informal, that officers were permitted to go to sleep in the officer’s mess on night shift. That’s correct, isn’t it?‑‑‑That’s correct, sir.
Thank you. Mr Alfred, you knew that you could not make a bed on the floor in the officer’s mess to sleep when you were on night duty, didn’t you?‑‑‑Yes, sir.
You knew that was against the code of conduct?‑‑‑Yes, sir.
And you knew that, pursuant to the code of conduct, you were required to stay awake and stay alert at all times?‑‑‑Yes, sir.
- [25]It is submitted by the applicant his failure to comply with the Code of Conduct ought to be excused by reason of there being a culture of sleeping on duty. That submission is made notwithstanding the acknowledgement by the applicant in his evidence before the Commission he knew that sleeping on duty was a breach of the Code of Conduct.
- [26]During cross-examination, CSO Gough gave the following evidence in respect of staff sleeping on duty:[19]
You can only answer for when you’re on duty. You don’t know about any scuttlebutt or other talk at the ‑ ‑ ‑?‑‑‑Rumour and – rumour and innuendo and generalisations aren’t proof. So I’m not going to put it out there.
All right. Well ‑ ‑ ‑?‑‑‑I only talk about my shifts and when I’m on duty and the expectations of my staff.
All right. Fair enough. Well, all right. Well, I’ll just ask you this then, is there a rumour that staff sleep on night duty?‑‑‑Only from what I’ve read in these proceedings.
So you’ve never heard of it before; in all your time there ‑ ‑ ‑?‑‑‑There probably is but am I going to listen to rumours when I’m not on?
I’m not asking you whether you listen to them but I’m asking if you’d heard a rumour that the staff would sleep on night shift?‑‑‑Not specifically that I can remember.
You don’t want to answer the question, do you?‑‑‑Well, how can I answer something when I’m not there?
No. Because the question was ‑ ‑ ‑?‑‑‑You know, like, I don’t – I don’t buy into rumours and innuendo and career destroying statements by people.
I’m not asking you to buy into them. I’m just asking you to tell us whether or not you had heard rumours?‑‑‑I can’t remember specifically hearing any rumours about staff sleeping on duty, you know. So ‑ ‑ ‑
You don’t want it repeated because you don’t want people to get in trouble, is that right?‑‑‑I’m a bit bigger than that, I think. If I knew of stuff I would have answered your question the way you want to hear it. I haven’t heard of rumours of staff sleeping on duty. It’s not a common practice and it’s not an acceptable practice.
- [27]Ms Sonja Neville gave evidence during cross-examination that she had occasionally seen staff sleeping on night shift:[20]
‑ ‑ ‑ every night shift. But has it been from the beginning of your career seven years ago through until now that you’ve – have seen staff or has it just been in the last two years or was it just in the beginning or what?‑‑‑Occasionally over the years I’ve seen ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ some staff sleep at different times.
All right?‑‑‑Not every shift.
Yep?‑‑‑Not every staff member.
No. Not every staff member and not every shift but it is something you have seen happen?‑‑‑I have seen it happen, yes.
- [28]The affidavit of Mr Shaddock clearly states he was unaware there was a culture of sleeping on night shifts or any shifts at correctional centres.[21] He went on to note:
"Significantly, sleeping on duty is not and, to the best of my knowledge (having regard to my 30 years of employment with corrections), has never been accepted or permitted. In particular:
12.1 sleeping on duty could compromise security of the centre on the basis that the officer in question would be unable to immediately respond to an emergency; and
12.2 given the amount of work to be performed each night and the smaller number of staff rostered, sleeping on duty would compromise the officer's ability to perform their duties efficiently and effectively and their ability to address any variables should they arise during the night. The workplace is very dynamic and, in my experience, I have never known a single shift to go to plan. There are many variables and unplanned for circumstance, such as:
12.2.1. the number of prisoners on observation regimes alters daily;
12.2.2. the requests from prisoners through the night are unpredictable;
12.2.3. the requirement for external escorts is unknown; and
12.2.4 attempts at self-harm and suicide occur, as do codes and contingencies.
By way of an example, one external escort has the potential to remove two staff members from the night shift cohort, thus increasing the workload and expectation on the remaining staff until replacements can attend the centre or the escort returns. Therefore, it is not viable to permit officers to sleep in night shifts."
He also states:
"I am aware that there have been isolated incidents of officers sleeping on duty in correctional centres. In circumstances where an officer was found to be asleep on duty, that officer was generally subject to a disciplinary process. I am personally aware of recent and ongoing investigation into such reported poor and unacceptable behaviour."
And:
"In particular, having regard to departmental records, I am aware that there have been approximately seven instances since 2008 where an officer was found to be asleep on duty and was subject to a disciplinary process."[22]
- [29]Mr Shaddock confirmed in cross-examination that he was not aware of a culture of sleeping on night shifts, or any shifts, at the correctional centres. Nor did he believe that there was a culture of staff not reporting incidents of staff sleeping whilst on duty.
- [30]The evidence before the Commission, in particular the evidence of Mr Shaddock, which I accept, is, in my view, not supportive of the submission there was a 'culture of sleeping' whilst on night shift at the TCC.
- [31]It is, with respect to the applicant, a nonsense to suggest that nobody had instructed them not to sleep on the job.
- [32]The applicant held a position of trust. He was a member, and team leader, of what is known as CERT (Correctional Emergency Response Team). In his affidavit, the applicant described the CERT team as follows:
"4. During my employment I was chosen to be a member of the Correctional Emergency Response Team (CERT team). The CERT team is responsible for any emergencies that take place in the centre including but not limited to prisoners fighting, assaults on officers, prisoner self-harm, damaging the jail etc. The CERT team can be described as being like the police officers of the jail.
5. To be chosen to be part of the team I was required to put in an expression of interest for this position. I was shortlisted, required to undergo a physical test and complete a course in relation to weapons etc. There are only approximately 19-20 people in the CERT team at any given time. It was a privilege to be in the team."[23]
- [33]In cross-examination, the applicant gave the following evidence:[24]
Yes. Am I correct in suggesting this, Mr Alfred, that on that particular shift, 7 pm to 7 am, over the 24th and 25th of February 2015, by way of a change of shift with another officer, you were actually team leader of the CERT team that night? Yes, sir.
Yes. So if there had been a contingency or a code that required immediate assistance, if you were asleep on duty at the time you were, you wouldn’t be in a position to be able to immediately respond, would you? Yes, if someone woke me.
Beg your pardon? There – there were other officers in the mess as well, sir.
But I think you agreed with me that because of a change of shift with another officer – and, look, I know that you say that this was unofficial, but at the time because of the change of shift with another officer, you were actually the team leader of the CERT team? Yes, sir.
And if you were asleep and there was another officer who was being assaulted by a prisoner, you wouldn’t have been in a position to immediately respond, would you? No, sir.
No. Because you agree with me – you agreed with me before that in those sorts of emergency situations when a prisoner is assaulting an officer, seconds count? Yes, sir.
Seconds can mean the difference between life and death? That’s correct, sir.
And indeed there have been serious assaults at the Townsville Correctional Centre over the years, haven’t there? Yes, sir.
- [34]It was submitted by the applicant his conduct was uncharacteristic and the lies he told Ms McDermott occurred in the contemplation that he may lose his employment, with five children in his care and no permanent accommodation.
- [35]The applicant raised for the first time in his response of 10 October 2014 the suggestion his conduct was impacted by his separation and the pressures associated with raising five children. It did not feature as a reason in his evidence in chief.[25]
- [36]
"I note your comments in your response dated 10 October 2014 that you are disappointed in your actions, and at the time surrounding this incident you and your family were encountering a stressful time. I further note the letter from Gary Scott of the Aboriginal & Torres Strait Islander Legal Service (Qld) dated 3 October 2014 and Optum dated 8 October 2014 regarding your access of their services.
Whilst the aforementioned documents and your latest response gives me some insight into your state of mind since June 2014, the conflicting dates do not indicate you were under the same stressors at the time of the most recent allegations which occurred in February 2014. Further, your latest behaviour and lack of respect for Queensland Correctional Services (QCS) property in the past. In particular, I refer to the reprimand issued to you on 6 October 2013 for wilfully damaging a computer monitor by punching it with your fist.
Through the disciplinary process in relation to you wilfully damaging a computer monitor, you provided the following undertaking to me:
'Let me also take this opportunity to reassure you Deputy commissioner [sic] that this inappropriate and unprofessional behaviour will not occur in the future'.
I note that you have again engaged in inappropriate behaviour within less than 3 months of providing me with the aforementioned undertaking, which resulted in you receiving a reprimand. Accordingly, I cannot accept the assurance provided in your most recent response dated 10 October 2014, that your behaviour will never be called into question again."
- [37]The evidence before the Commission does not support a submission the lies the applicant told Ms McDermott occurred in the contemplation he may lose his employment, with five children in his care and no permanent accommodation. The reason why he lied to Ms McDermott in his written response to the show cause process was clear from the applicant's evidence in re-examination when he was asked:
All right. And why was - why did you tell her that; why did you write that down?---Why did I say I wasn't asleep?
Yes. Did you have some concern that you - about telling the truth?---Yes. I thought I was going to get in trouble, sir.
All right. Okay. And what was the - and why was that a problem?---Because I knew you're not supposed to.[28]
Was the dismissal unfair because of dissimilar treatment?
- [38]The applicant further argued the dismissal was unfair as there had been dissimilar treatment of the other staff who were also found sleeping and whose employment was not terminated.
- [39]In Cherti v Queensland Rail[29] the Commission, in relation to the approach to be taken in assessing differential treatment of employees in respect of termination of employment, wrote:
"In dealing with the issue of differential treatment of employees in respect of termination of employment, Senior Deputy President O'Callaghan was influence by the approach adopted in Sexton v Pacific National (ACT) Pty Ltd[30] and Daly v Bendigo Health Care Group."[31]
In Sexton, Vice President Lawler said:
"[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made."
In Daly, Senior Deputy President Kaufman (as his Honour then was) said:
"I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable."
Vice President Lawler and Senior Deputy President Kaufman acknowledged that, whilst differential treatment of comparable cases can be a relevant matter, a degree of caution needs to be exercised to ensure that the case examples are truly comparable and that sufficient evidence is placed before the tribunal hearing the matter in order for it to make a proper assessment."
- [40]The evidence of Ms McDermott, which I accept, was as follows:[32]
"84.1 the other two officers involved in the incident of 25 February 2014 were also show caused with respect to sleeping on duty and for their inappropriate conduct towards their superior officer. However, the allegation relating to sleeping on duty was not substantiated against the other two officers. In any event, the two officers were issued with a disciplinary penalty (other than termination of their employment) with respect to their inappropriate conduct; and
84.2 Mr Alfred's conduct was more serious and could be distinguished from the conduct of the other two officers on the basis that:
84.2.1 unlike the two officers, Mr Alfred was found to be asleep on duty;
84.2.2 prior to the incident on 25 February 2014, Mr Alfred was subject to a different disciplinary process in relation to inappropriate workplace behavior …, in which he assured me that 'this inappropriate and unprofessional behavior will not occur in the future' …;
84.2.3 despite this assurance, and within three months of the conclusion of the prior disciplinary process, Mr Alfred engaged in an inappropriate workplace behavior on 25 February 2014, being that he was caught sleeping on duty by his superior officer and that he had acted inappropriately towards his superior officer when questioned about sleeping on duty; and
84.2.4 in addition, Mr Alfred was involved in a further incident on the following shift, being 26 February 2014, when he abused two staff members at the Officers' Mess because of the lights and the volume of the television."
- [41]The applicant's evidence demonstrates he knew it was contrary to policy to sleep on duty but nevertheless in his written response to Ms McDermott dated 1 June 2014 deliberately lied to her by stating: "At no point in time on the above date did I ever lay on the floor for a night shift as I know that it is against policy to sleep on duty."[33]
- [42]The applicant's evidence was as follows:[34]
Now, you indicated to my learned friend that what you told Ms McDermott in that document, in relation to allegation 1 about sleeping, wasn’t true; do you recall that? Yes, sir.
Why did you tell her that? Why did I tell her that I wasn’t sleeping?
Yes. Why did you tell her an untruth? Are you talking about specifically where I was, sir, line in
Yes. No, no. No. You said:
At no point in time on the date did I ever lay on the floor for a night shift as I know it was against policy.
And later on, you say in relation to allegation 2:
And I informed him that I was not asleep.
Now, firstly, did you inform him that you were asleep? The supervisor, sir?
Yes? No, sir.
Did you inform him that you were not asleep? I – I didn’t tell him I was – I was asleep, yes.
All right. And in relation to saying to Ms McDermott in that report that you:
At no point in time on the date above did I every lay on the floor for a night shift.
Why did you tell her that? I’m not sure, sir.
All right. Why didn’t you just tell Ms McDermott that you were asleep? Because I knew you’re not supposed to be asleep, sir.
But why didn’t you tell her, even though you knew, why didn’t you tell her?
HIS HONOUR: I think he answered the question, didn’t he?
MR HONCHIN: Well, is there – all right. Thank you, Deputy President. You knew that it wasn’t true; that’s what you told my learned friend? Sorry, sir, I’m confused.
You told my learned friend that you knew that it wasn’t true? It wasn’t true that?
That you weren’t – you hadn’t been sleeping?
HIS HONOUR: You knew what you told Ms McDermott was not true; you had been sleeping, correct? Yes, sir.
And you knew what you told her wasn’t true in that note to her? Yes, sir.[35]
- [43]It was open to the applicant to argue his conduct in sleeping whilst on duty may not alone be sufficient to constitute a valid reason for termination. However, it must borne in mind the applicant was the CERT team leader on the shift, and was in a position of responsibility. He was obliged to stay alert to ensure he could adequately respond to any emergency call out. It is not sufficient for the applicant to submit that:
"(h) whilst response to emergency call outs (Codes) is a real issue, the reality is the 400 meters from the Officers Mess to the nearest prisoner housing means in the context of calling out staff and having them dash the 400 plus meters waking from a rest will be unlikely to make a great deal of difference in response times;
(i) there was no endangerment or security lapse actually resulting from the Applicant's actions as opposed to any potential;"
- [44]The evidence of Mr Shaddock was that on 24 February 2014, 46 additional mainstream prisoners were in temporary bunks; 16 additional mainstream prisoners were on mattresses/trundle beds; eight additional mainstream prison Buddy cells were in use; and four additional protection prisoner Buddy cells were in use. In all, 74 additional prisoners were being accommodated at the TCC which was 116% over the built capacity of the facility.[36] In such circumstances, it seems logical there would be an increased potential for emergency call outs and thus a requirement for increased vigilance on behalf of the applicant as CERT team leader.
- [45]The compounding feature of the applicant’s conduct during the night shift was his abuse of CCO Neville and CCO Manson which was not only a breach of the Code of Conduct but his actions were designed to ensure that he was not disturbed and was able to sleep whilst on duty.
- [46]The evidence of CCO Manson was the applicant insisted the television be turned down in the officers' mess. The applicant took the remote control and adjusted the television volume down. When CCO Manson took the remote control back and adjusted the volume up, the applicant became angry and ripped the power cord out of the electrical socket with such force that the power cord prongs were bent out of shape.[37]
- [47]CCO Manson recalled the applicant said to CCO Neville she should go outside "with the mosquitoes on the walkway to read, the lights would not be turned back on and that he was the one to decide the issue, that he was not to be argued with".[38]
- [48]It is of concern to me that the applicant exhibited a lack of awareness of the seriousness of his conduct. His outburst to CSO Gough "I will sleep when I fucking like" demonstrates, in my view, not only a lack of respect for a superior officer but also a lack of recognition of the seriousness of his conduct. The applicant accepted in cross-examination there had been serious assaults at the Townsville Correctional Centre in the past and more importantly, accepted that "… in those sorts of emergency situations when a prisoner is assaulting an officer, seconds count? Yes, sir. Seconds can mean the difference between life and death? That’s correct, sir."[39]
- [49]The applicant, in evidence, said:
MR HONCHIN: Certainly, Deputy President. If the gate needs to contact you in relation to whether it’s a code or a prisoner transfer, or anything like that, how do they get in touch with the staff? Not on the radio, through the phone, sir.
Well, which phone? The phone in the mess.
So there’s a phone in the mess as well, is there? Yes, there is, sir.
All right. And in terms of your responding to the radio, do they call you specifically? Sometimes they do. But if not, they just call for any secure staff, yes.
All right. And then all the secure staff respond to that, do they? Yes, sir.
All right. And if you were asleep when called, what do you expect would happen, if you were called?
MR MERRELL: Well, I don’t know how he can answer that question.
HIS HONOUR: Well
MR HONCHIN: Well, but
HIS HONOUR: probably wake up.
MR HONCHIN: Well, it’s – that’s what I? That’s why I turn the radio up, sir.
HIS HONOUR: And that wakes you up? It does, sir.
All right? Out of the six of us it’ll wake – it’ll wake someone, sir.
- [50]In Barclay v Nylex Corporation Pty Ltd,[40] Mr Barclay was dismissed as a night shift supervisor with Nylex in Melbourne after it was found Mr Barclay slept at work at least twice a week in the year before a meeting with management in March 2002, after which he undertook not to sleep on duty. But he was caught sleeping several times in April and July, and was sacked.
- [51]Ross VP found that the circumstances dictated whether sleeping on the job was a valid reason for dismissal, including the frequency and duration of naps, the nature of work and the employee's responsibilities. His Honour wrote:
"In reply the respondent relied on a number of authorities in support of its contention that sleeping at work constitutes a valid reason for termination, and made reference to the introductory words in chapter 6 of The Law of Employment, namely:
"Unless an employee has a job as a mattress tester or a similar occupation, sleeping on duty is neglect of duty."
In my view the question of whether sleeping at work constitutes a valid reason for termination depends on the circumstances. The relevant factual matrix must be considered. Issues such as the frequency and duration of sleeping, the nature of the work being performed and the responsibilities of the employee concerned, will all be relevant. In certain circumstances a single instance of sleeping has been found to be sufficient to constitute a valid reason for termination. For example, where the applicant was a security officer on duty at Kirribilli House or an emergency services officer at a mine site who was required to 'maintain a state of alertness on duty and conduct themselves in a manner which ensures their ability to respond to emergencies for the full twelve hours of their shift'."[41]
- [52]The applicant's contention that his dismissal was harsh, unjust or unreasonable cannot, in my view, be sustained on the evidence before the Commission. The evidence of Ms McDermott in relation to the distinction between the applicant's conduct and the conduct of CCO Camiller and CCO Davidson for which they were disciplined, was not challenged.
- [53]I am not satisfied sufficient evidence has been led to form the view the penalty imposed on the applicant was inconsistent with similar breaches or disproportionate to the nature of the breaches. I therefore accept the submission of the respondent that in order for a submission about inconsistent treatment to have any force, the conduct of the employees being compared needs to be the same or very similar. There is simply insufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.
The dishonesty of the applicant during the disciplinary process and the employment relationship
- [54]It was submitted by the applicant that: "The telling of lies by the Appellant will be a valid reason to dismiss if the failure to answer honestly destroys the relationship of trust and confidence between the employer and employee." I agree.
- [55]However, it was also the contention of the applicant the circumstances in which the lies occurred, in this case it was argued because of a fear of losing his job with five children in his care and no permanent accommodation, demonstrated the lying was uncharacteristic.
- [56]In the applicant's written response[42] dated 1 June 2014 in relation to Allegation 1 in the show cause process, he said as follows:
"At approximately 0300 hrs I was inside the Officers Mess sitting on one of the cushion chairs on the left hand side in the corner. I have never in any rostered night shift duties used a plastic chair because I find them too uncomfortable to sit in all night let alone utilizing one as a pillow. At no point in time on the above date did I ever lay on the floor for a night shift as I know that it is against policy to sleep on duty.
Shortly after 0300hrs Supervisor Glen Gough entered the Officers Mess and turned on the sets of lights. To my knowledge the lights were turned off due to myself and some of the other Officers getting irritated and sore eyes from the brightness."
- [57]As the following exchange during cross-examination demonstrates,[43] the response to the allegation was false:
Okay. Now, you indicated to my learned friend that you were aware that there was a policy that staff shouldn’t sleep on night shift? Yes, sir.
Was that written down somewhere? I – I don’t recall.
So there’s no published procedures from the Department of Corrections saying
MR MERRELL: Well, that’s probably putting words in his mouth, your Honour.
HIS HONOUR: He said he couldn’t recall.
WITNESS: I don’t
MR HONCHIN: Fair enough. Thank you, to my learned
HIS HONOUR: But he knew there was some policies but he didn’t recall where he saw
MR HONCHIN: Yes.
WITNESS: I – yes, I don’t remember reading anything.
HIS HONOUR: But somebody told you and you became aware of ? I – I know you’re not allowed to.
the policy though that you don’t sleep? No. No, sir. I – I know you’re not allowed to but I don’t recall actually reading it, sir.
But somebody told you that you’re not allowed to? I – I guess, if I knew that.
Yes? Yes, sir.
All right.
MR HONCHIN: But you indicated, in your evidence to Mr Merrell, that there was a common practice? Yes, sir.
Why do you say there was a common practice? Ever since the day I started working there, sir. And it was always at the second last head count. The lights
would get dimmed and the TV would get turned down low and more than half the officers would rest their eyes, so to say.
Well, how would you know that if you were asleep? Well, I only started resting my eyes after about six months of doing night shift, sir, because I was having micro-naps on the way home. So for the first few months or so I never used to sleep on night shift. So I would see other officers having a sleep and being new I never said anything.
All right. You said that you were having micro-sleeps? Yes, sir.
when was that? When I was staying awake for the first few months, driving home, just my eyelids closing. Putting the windows down didn’t work, turning the volume up on the radio didn’t work. So one night I decided to rest with the other officers.
- [58]
"It may be the case that many, if not most, lies told to an investigation into employee misconduct will indeed destroy any relationship of trust and confidence that may have existed. In each case, however, such a determination must be made in light of all the circumstances, in the manner provided for by law."
- [59]
"It may be conceded that trust and confidence is a necessary ingredient of any employment relationship. It follows that ‘… a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based: Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 at 191."
- [60]I accept the evidence of Ms McDermott the respondent has lost confidence and trust in the applicant.
- [61]The Respondent referred the Commission to the decision of Scott Challinger v JBS Australia Pty Ltd[46] in which Hampton C set out:
"In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter the Full Bench conveniently summarised the approach required as follows:
'[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
● Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
● Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
● An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
● The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.'
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party."
- [62]Whilst it is accepted that the applicant was not dismissed for telling lies during the investigation into his conduct, the telling of lies in an investigative process will destroy the relationship of trust and confidence between an employee and his employer. The evidence before the Commission in this matter supports such a conclusion.
Matters to be considered in deciding an application
- [63]Section 77 of the Act provides that the Commission must consider certain matters in deciding an application such as this:
"77 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider-
- (a)whether the employee was notified of the reason for dismissal; and
- (b)whether the dismissal related to-
- (i)the operational requirements of the employer's undertaking, establishment or service; or
- (ii)the employee's conduct, capacity or performance; and
- (c)if the dismissal relates to the employee's conduct, capacity or performance-
- (i)whether the employee had been warned about the conduct, capacity or performance; or
- (ii)whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
- (d)any other matters the commission considers relevant."
- (a)Was the applicant notified of the reason for his dismissal?
- [64]I am satisfied the letter of termination dated 10 November 2014 clearly set out the reasons for the applicant's dismissal.
- [65]The evidence before the Commission is that the applicant's dismissal was based on a finding by the decision-maker the three allegations identified in the show cause letters had been substantiated, as well as the applicant's prior disciplinary history, in particular, the fact that on 6 December 2013 he was reprimanded for wilfully damaging the monitor of a work computer by punching it with his fist.
- [66]Accordingly, the answer to the question "Was the applicant notified of the reason for his dismissal?" must be "Yes."
(b) Did the dismissal relate to operational requirements or the applicant's conduct, capacity or performance?
- [67]It is not in dispute the dismissal did not relate to operational requirements of the respondent but rather to the applicant's conduct, capacity or performance. The evidence is the applicant's conduct was inconsistent with the obligations of a CCO under the Code of Conduct that applied to him as an officer of the Queensland Public Service.
- [68]In light of the above conclusion, I must therefore consider the matter identified in s 77(c) of the Act.
(c) Had the applicant been warned about the conduct, capacity or performance; or was he given an opportunity to respond to the allegation about the conduct, capacity or performance?
- [69]The dismissal was based on the events of 25 and 26 February 2014 as particularised in the show cause letters of 2 May 2014 and 21 May 2014.
- [70]In light of the facts outlined above, the Commission is satisfied in accordance with s 77(c)(ii) that, in considering the evidence before it, the applicant has been given an opportunity to respond to the allegations against him.
(d) any other matters the commission considers relevant.
- [71]For the reasons expressed above, and having regard to the nature and circumstances of the breach, it would seem to me that the penalty applied to applicant, namely, his termination of employment, was not disproportionate to the nature of the disciplinary matter.
- [72]As was observed in Daly v Bendigo Health Care Group,[47] whilst differential treatment of comparable cases can be a relevant matter, a degree of caution needs to be exercised to ensure the case examples are truly comparable and sufficient evidence is placed before the tribunal hearing the matter in order for it to make a proper assessment.
- [73]No evidence has been led by the applicant before the Commission to form a view as to whether or not the penalty imposed on him was inconsistent with similar breaches and disproportionate to the nature of the breach.
Conclusion and Orders
- [74]Having carefully weighed all the evidence and considered the matters that the Commission is required to consider under s 77 of the Act, I conclude that the applicant's dismissal was not harsh, unjust or unreasonable. The dismissal was therefore not "unfair" within the meaning of s 73 of the Act.
- [75]The application is dismissed.
Footnotes
[1] (1995) 185 CLR 410 (at 465-468).
[2] Ibid 467.
[3] [2000] AIRC 779.
[4] Gold Coast District Health Service v Walker (2001) 168 QGIG 186, 259 (Hall P).
[5] (1938) 60 CLR 336, 362.
[6] (1988) 166 CLR 69, 76 - 77.
[7] Exhibit 10, KM-5 and KM-6.
[8] Submission of the Applicant [3].
[9] Exhibit 10, KM-10.
[10] T2-23 Ll.29-42.
[11] T2-40 Ll.44-47, T2-41 L1.1-25.
[12] Exhibit 10, KM-10.
[13] Exhibit 10, KM-11.
[14] Exhibit 10 [58].
[15] [2003] HCA 6.
[16] Exhibit 10 [61]-[76].
[17] Exhibit 10, KM-14.
[18] T1-23 Ll 26-44.
[19] T1-64 Ll 1-32.
[20] T1-80 Ll 17-29.
[21] Exhibit 8 [12]-[13], [15].
[22] Exhibit 8 [16].
[23] Exhibit 1 [4] - [5].
[24] T1-23 Ll 46-47, T1-24 Ll 1-26.
[25] Exhibit 1.
[26] Exhibit 10, KM-14.
[27] Exhibit 10, KM-13.
[28] T1-47 Ll.13-40.
[29] [2014] QIRC 220 [24] - [31].
[30] [2003] AIRC 506.
[31] [2006] AIRC 414.
[32] Exhibit 10 [84].
[33] Exhibit 10, KM-8.
[34] T1-46 Ll 28-46, T1-47 Ll 1-31.
[35] T1-47 Ll.13-31.
[36] Exhibit 8 [8].
[37] Exhibit 7 [21].
[38] Exhibit 7 [25].
[39] T1-24 Ll.19-23.
[40] [2003] AIRC 593.
[41] Ibid.
[42] Exhibit 10, KM-8.
[43] T1-43 Ll. 8-46, T1-44 Ll. 1-15.
[44] [2014] ICQ 013 [25].
[45] (2000) 165 QGIG 767, 769.
[46] [2014] FWC 7963 [44].
[47] [2006] AIRC 414.