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Ball v State of Queensland (Department of Justice and Attorney?General, Queensland Corrective Services)[2018] QIRC 119

Ball v State of Queensland (Department of Justice and Attorney?General, Queensland Corrective Services)[2018] QIRC 119

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Ball v State of Queensland (Department of Justice and Attorney‑General, Queensland Corrective Services) [2018] QIRC 119

PARTIES: 

Ball, Frederick

(Applicant)

v

State of Queensland (Department of Justice and Attorney‑General, Queensland Corrective Services)

(Respondent)

CASE NO:

TD/2017/10

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

14 September 2018

HEARING DATES:

27 March 2017

26 to 30 June 2017

3 to 5, 11 and 12 July 2017

15, 17 and 21 to 23 August 2017

18 to 20 September 2017

9, 10, 12 and 13 October 2017

9 November 2017

7 February 2018 (Inspections)

13 April 2018 (Applicant's Submissions)

8 June 2018 (Respondent's Submissions)

22 June 2018 (Applicant's Submissions in Reply)

9 July 2018

24 July 2018 (Respondent's Further Submissions)

9 August 2018 (Applicant's Further Submissions in Reply)

HEARD AT:

Brisbane

MEMBER:

Thompson IC

ORDER:

The Application is refused.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – Termination of employment – Dismissal – Witness evidence – Inspections – Lengthy proceedings – 25 days of hearing – Allegations – Disciplinary process – Investigation Report – Delegated decision maker – Alleged collusion, contrived, fabricated evidence – Witness credibility – Disciplinary record – Allegations relevant to conduct engaged in by Applicant were reasonably open to be substantiated by the decision maker – Disciplinary process undertaken compliant with legislative and policy procedures – Applicant afforded procedural fairness and natural justice at all times – Penalty of termination warranted in circumstances where conduct constituted significant breaches of procedures, policy and statutory obligations – Termination decision not harsh, unjust or unreasonable – Application refused.

CASES:

Industrial Relations Act 1999, s 73, s 78, s 79

Corrective Services Act 2006, s 20

Public Service Act 2008, s 187, s 188, s 189

Acts Interpretation Act 1954, s 27A, s 27B

White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 41

Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914

Nicolson v Heaven and Earth Gallery (1994) 57 IR 50

Auto Logistics Pty Ltd v Kovacs (1997) 155 QGIG 320

Liddle v Lembke (1994) 127 ALR 3422

Browne v Dunn (1893) 6 R 67

Reid v Kerr (1974) 9 SASR 367

Green v Emergency Services Telecommunication Authority [2014] VSCA 207

Oshlack v Richmond River Council [1998] HCA 11

APPEARANCES:

Ms S. Moody of Counsel, originally instructed by Hall Payne Lawyers, then directly instructed by the Applicant.

Dr M. Spry of Counsel, instructed by Crown Law, for the Respondent.

Decision

Background

  1. [1]
    On 9 February 2017 Frederick Ball (Ball) lodged with the Industrial Registrar an application for reinstatement as a consequence of his employment being terminated on 19 January 2017 by the State of Queensland (Department of Justice and Attorney‑General, Queensland Corrective Services)(Corrective Services).
  2. [2]
    The termination of Ball's employment was said to be harsh, unjust and unreasonable for reasons that included:

Harsh:  consequences of his personal economic situation;

  • penalty of dismissal was disproportionate to the gravity of the conduct in question;
  • loss of employment would cause significant hardship;
  • the age of Ball (63 years) limits his employment prospects;
  • because Ball had not been provided with training as to his obligations;

Harsh and unjust  because the penalty of dismissal was not invoked consistently for behaviour of this nature

Unjust  Ball not guilty of some or all alleged conduct and/or contravention of the Code of Conduct for the Queensland Public Service (Code of Conduct); and

Unreasonable  in the event the allegations were substantiated.

  1. [3]
    Further the termination was unfair within the meaning of s 73(1)(a) of the Industrial Relations Act 1999 for reasons including:
  • no valid reason as Ball had not acted as alleged in all circumstances complained of;
  • he had not been given a warning about the misconduct and/or breaches of the Code of Conduct prior to dismissal;
  • not given the opportunity to address the alleged behaviour; and
  • not given a fair go all round.
  1. [4]
    In correspondence (dated 5 July 2016) under the signature of Kerrith McDermott (McDermott) Deputy Commissioner, information was provided to Ball regarding an investigation report prepared by the Ethical Standards Unit (ESU) (dated 23 May 2016) in terms of the following alleged conduct:
  1. Between 18 January 2016 and 25 February 2016, you were derelict in the performance of your duties.
  1. On 29 January 2016, without authority, you inappropriately secured prisoners in their cells.
  1. On 8 February 2016, you inappropriately interfered with a police investigation.
  1. On 24 February 2016, you failed to demonstrate a high standard of workplace behaviour and personal conduct in your communications and interactions with staff.
  1. Between 18 January 2016 and 25 February 2016, you communicated and behaved in an inappropriate manner towards prisoners at Woodford Correctional Centre (WCC).
  1. [5]
    The Investigator had concluded that Allegations 1, 2 and 5 were capable of being substantiated however there was insufficient evidence to substantiate Allegations 3 and 4.  McDermott advised that no further action would be taken in relation to Allegations 3 and 4 and further that having considered the report there was insufficient evidence to substantiate incidents 2 and 6 in Allegation 1.
  2. [6]
    There was a requirement for Ball to show cause why he should not be disciplined in relation to the following reframed allegations:

Allegation 1

That between 18 January 2016 and 25 February 2016, you were derelict in the performance of duties, namely on:

  1. (a)
    the afternoon of 19 January 2016, you were asleep on two occasions whilst seated at the officer's station desk inside N3 Unit;
  1. (b)
    29 January 2016, during the officers' afternoon meal break, you were asleep in a chair the in the walkway around the Tardis, facing the Lexan window of the N3 Unit, when you should have been maintaining prisoner observations;
  1. (c)
    2 February 2016, you were asleep whilst seated at the officers' station desk inside the N3 Unit; and
  1. (d)
    24 February 2016, you were asleep on six occasions whilst seated at the officers' station desk and rostered as the P Movement Control officer.

Allegation 2

That on 29 January 2016, without authority, you inappropriately secured prisoners in their cells.

Allegation 3

That between 18 January 2016 and 25 February 2016, you communicated and behaved in an inappropriate manner towards prisoners at WCC, in particular on:

  1. (a)
    19 January 2016;
  1. (b)
    29 January 2016; and
  1. (c)
    8 February 2016.
  1. [7]
    Each of the allegations were particularised in some detail identifying in general terms the dates and locations where the conduct was alleged to have occurred and the section of the Public Service Act 2008 (PS Act) relied upon by Corrective Services in their consideration of the disciplinary action.  Those sections were identified as:
  • s 187(1)(b) of the PS Act
  • s 187(4)(a) of the PS Act

Alternatively

  • s 187(1)(a) of the PS Act
  • s 187(1)(f)(ii) of the PS Act.
  1. [8]
    Enclosed with the correspondence were the following documents which had been considered by McDermott to this point:
  • Investigation Report dated 23 May 2016 (including attachments);
  • Chapter 6 of the PS Act; and
  • Code of Conduct.
  1. [9]
    Fourteen days from the receipt of the correspondence were given to Ball to formally respond to the allegations to show cause why he should not be disciplined.
  2. [10]
    The correspondence also confirmed that the suspension of Ball on normal remuneration pursuant to s 189 of the PS Act would continue until such time as the disciplinary process on foot was completed or otherwise notified.
  3. [11]
    In correspondence (dated 31 August 2016) Ball provided a lengthy and detailed response to the allegations that had been levelled against him in which he denied Allegations 1(a), (b) and (c); Allegation 2 and Allegations 3(a), (b) and (c).  In respect of Allegation 1(d) he sought further material prior to providing a response.
  4. [12]
    On 24 October 2016 correspondence was forwarded to Ball from McDermott (of some 39 pages) in which each of his responses were addressed and having considered all of the material available including his responses that on the balance of probabilities, the following allegations were substantiated:
  • Allegations 1(a), (b), (c) and (d);
  • Allegation 2; and
  • Allegations 3(a), (b) and (c).
  1. [13]
    On the basis of the findings in relation to the allegations it had been determined that Ball was liable for disciplinary action pursuant to s 188 of the PS Act identifying a number of penalties that could be considered in the circumstances including:
  • termination of employment;
  • reduction of classification level and a consequential change of duties;
  • transfer or redeployment to other public service employment;
  • forfeiture or deferment of a remuneration increment or increase;
  • reduction of remuneration level;
  • imposition of a monetary penalty;
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments; and/or
  • a reprimand.
  1. [14]
    The penalty currently being given serious consideration was the termination of his employment.
  2. [15]
    A period of seven days from the receipt of the penalty show cause letter was given to Ball in which he was required to show cause why the penalty of termination should not be imposed.
  3. [16]
    On 14 November 2016 a response to the show cause notice on penalty was forwarded to McDermott in which Ball argued that the proposed penalty of termination was "very severe" and would have a long‑term, significant and far reaching detrimental effect on himself and immediate family.  Other issues addressed in the correspondence included:
  • seriousness of substantiated allegations;
  • financial stress and hardship;
  • degree of risk to health and safety;
  • impact of offence on ability to perform duties;
  • impact on public and client confidence in the agency;
  • overall work record; and
  • extenuating or mitigating circumstances.
  1. [17]
    In terms of an alternate penalty he proposed that a less severe penalty from the range available under s 188(1) of the Act be considered due to the impact the termination of employment would have on him and his family.
  2. [18]
    In correspondence (dated 19 January 2017) under the signature of McDermott advice was given to Ball that upon careful consideration of the submissions he had made with respect to the proposed penalty of termination that in the circumstances there was no longer trust and confidence in his ability to perform the requirements of his role as a Custodial Correctional Officer (CCO) and for him to comply with the applicable policies, procedures and statutory requirements.  Ball's conduct was inconsistent with a CCO's obligations and nothing less than the termination of his employment would adequately reflect the seriousness of his conduct.
  3. [19]
    Accordingly the penalty of termination (effective 19 January 2017) was imposed.

Evidence

  1. [20]
    In the course of the course of the proceedings evidence was provided by 16 witnesses.
  2. [21]
    The Commission, in deciding to precis the evidence of the witnesses and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.

Witness Lists

  1. [22]
    The witnesses for the Applicant were:
  • Ball;
  • Robert Hay (Hay);
  • Robert Nicolia (Nicolia);
  • Dr Antony Shea (Dr Shea); and
  • William Ash (Ash).
  1. [23]
    The witnesses for the Respondent were:
  • Adele Juffs (Juffs);
  • Alan Tilly (Tilly);
  • Mitchell Gray (Gray);
  • Jason Beaumont (Beaumont);
  • Colin Potter (Potter);
  • Timothy Harries (Harries);
  • Stuart Crichton (Crichton);
  • Peta Tyquin (Tyquin);
  • David Henderson (Henderson);
  • Brian Bracher (Bracher); and
  • McDermott.

Inspections

  1. [24]
    The parties attended the WCC on Wednesday 7 February 2018 for the purposes of inspecting certain locations within the prison that had been the subject of evidence in the proceedings.  The areas visited were:
  • vehicle entry lock;
  • N3 block ‑ Tardis and exercise yards;
  • N3 block officer's station, officer's kitchen and prisoner's common area; and
  • P Movement station.

Applicant

Ball

First Affidavit

  1. [25]
    Ball had a varied employment history prior to becoming a CCO in or around May 2006 that included an apprenticeship as a Diesel Mechanic, Soldier in the United Kingdom, Security Officer and Owner/Operator of a heavy haulage business in Queensland.
  2. [26]
    In these proceedings he tendered three affidavits:
  • Exhibit 1 ‑ 394 paragraphs plus attachments;
  • Exhibit 2 ‑ 320 paragraphs plus attachments; and
  • Exhibit 7 ‑ eight paragraphs.

WCC

  1. [27]
    WCC is a high security prison with a capacity of 988 male prisoners.  WCC is situated 100 kilometres north of Brisbane.  The structure of the prison includes a number of various high security areas known as units and blocks which are staffed by CCOs involved in the general running of the prison.  Duties include:
  • movement control;
  • letting prisoners in and out of units;
  • monitoring units;
  • organising industries moves; and
  • bin and education runs.
  1. [28]
    Immediately prior to termination Ball was employed at Level QCO1.9 and was covered by an Award, Certified Agreement and various policies and procedures including a Code of Conduct which Ball could not recall receiving training on.  At the time of termination Ball had medical conditions related to arthritis in the neck and sensitive eyes that required the wearing of tinted glasses.  The medical conditions were said to have some impact on how he performed his employment tasks.
  2. [29]
    Ball gave detailed evidence in respect of work activities in the prison that included:
  • muster;
  • cell access;
  • officers desk (N3 Unit, N Block);
  • Tardis (N Block); and
  • Tardis (P Block).
  1. [30]
    Further his evidence went to:
  • prisoner numbers;
  • noise levels;
  • Alpha Officer;
  • Bravo Officer;
  • log book;
  • cell doors;
  • noise and activity in and around Tardis;
  • exercise yard;
  • timing of duties in Tardis;
  • sitting in chair;
  • communicating with prisoners in the exercise yard;
  • lighting;
  • other sections of the Tardis;
  • position descriptions; and
  • daily routine.
  1. [31]
    On Tuesday 19 January 2016 he was rostered to work a day shift in the N3 Unit of N Block with Harries who was responsible for log book entries on that day.  In or around mid to late January he had a minor altercation with Crichton who had responded to a prisoner in an angry tone of voice, saying words to the effect "go away fuckwit not interested" to a prisoner which prompted Ball to admonish him although he did not write him up as he considered it was his job to help newer officers such as Crichton.
  2. [32]
    On 29 January 2016 and 2 February 2016 he was again rostered on with Crichton in N Block and N3 Unit where they alternated in the roles of Alpha and Bravo Officer.  In the course of 2 February 2016 he concluded Crichton was being "very lazy" and Ball had on a number of times reminded him about the performance of his duties.  According to Ball's evidence in which he provided a detailed account of all activities undertaken by Crichton and himself, the shift was uncontroversial.
  3. [33]
    On Wednesday 24 February 2016 he was rostered to work with Gray in P Block where he acted as the Movement Control Officer and Gray the Movement Support Officer.  It was likely he was absent from that location all morning as he would have been involved in training.
  4. [34]
    On 8 March 2016 Ball was advised he was being suspended pending an investigation and on 22 March 2016 he was interviewed by Terry Verrall (Verrall) Ethics Consultant, ESU and another person regarding allegations made against him by CCOs Crichton, Harries, Gray and Michael Wheeler (Wheeler).  A transcript of the interview was later provided to him which Ball argued did not accurately reflect what he had said in the interview and Verrall had repeatedly spoke over him, interrupted him to the point where he lost his train of thought.  Further complicating matters at the time was that he was being treated for severe depression arising out of his suspension which required him to take anti‑depressant medication and there were issues with the health of his wife.  Verrall had not been informed about the anti‑depressant medication as Ball was embarrassed and felt it was none of his business.
  5. [35]
    An investigation report was subsequently prepared by Verrall (dated 23 May 2016) which resulted in the Deputy Commissioner (McDermott) on 5 July 2016 issuing a show cause letter requiring a response to five allegation of misconduct.  Ball gave evidence of seeking further material from the employer and of his actions in responding firstly to the allegations and subsequently on 24 October 2016 being required to respond on the issue of penalty.  On 19 January 2017 he was advised in correspondence authored by McDermott that his employment was being terminated with immediate effect.
  6. [36]
    There were 17 pages of evidence in Ball's affidavit [Exhibit 1] that substantially recorded firstly his denial of all allegations against him and of his version of events the subject of the allegations.

Allegation 1(a) ‑ Complainant Harries

  1. [37]
    The allegations that he was asleep and that prisoners were ridiculing him were unlikely to have occurred for reasons that included:
  • majority of prisoners respected him and he had not been the object of mocking;
  • the location of the prisoners in respect to the officer's desk made it unlikely that Harries would have known what the prisoners were talking about or pointing at; and
  • the prisoners would not have been able to see his face from their location if he had bent over sitting at the Alpha station of the officer's desk.
  1. [38]
    Harries' story that he observed prisoners laughing and pointing at him was said to be false and the allegation was absolutely improbable because it was likely he was resting his chin in his left hand because of his neck arthritis and Harries from his position would have been unlikely to see his face.  Additionally his glasses would have through their tint responded to the fluorescent lighting and the sun coming in through the Lexan windows blocking his eyes from view.  Further the claim by Harries that he deliberately banged the desk to wake him was denied and the allegation for reasons unknown to Ball had been manufactured.

Allegation 1(b) ‑ Complainant Crichton

  1. [39]
    The allegation that he had been asleep had been fabricated by Crichton as it would have been impossible for him to see Ball's face or eyes from the position in which he was said to be standing let alone conclude he was asleep.  A question arose that if he was asleep (which he denied) the conduct had occurred in his break time.  The allegation that Crichton was alerted to him being asleep by prisoners in the exercise yard banging on the Lexan window, laughing and pointing at him was highly improbable because of the distance between Ball and the prisoners and the tint on his glasses that would prevent his eyes being viewed.  Ball also denied the allegation he had made a rude gesture to the prisoners and went back to sleep but if had made a gesture it would have been to draw a "B" in the air for "breach".

Allegation 1(c) ‑ Complainant Crichton

  1. [40]
    This allegation was in response to a further claim by Crichton that Ball had fallen asleep on 2 February 2016 when Ball had been rostered on as Bravo Officer and Crichton as the Alpha Officer.  The allegation was Ball on being asleep had prompted behaviour by a prisoner that indicated he was asleep and he only awoke when Crichton had acted.  This allegation was said to have been manufactured by Crichton and he further denied that the prisoner in question had been kept waiting as alleged.

Allegation 1(d) ‑ Complainant Gray

  1. [41]
    Ball denied the allegation that on six occasions on 24 February 2016 whilst rostered for duties as the Movement Control Officer in P Block for periods between 30 seconds and two minutes he was asleep on the job.  If the complainant had been sitting at his desk he could not have possibly seen Ball's face or eyes to know if he was asleep and he denied that Gray had "nudged" him on occasions to wake him up.  It would not have been possible for him to have adequately performed the role of Movement Control Officer if he had been constantly nodding off as the tasks to be performed were extremely regimented in terms of time.

Allegation 2(a) ‑ Complainant Crichton

  1. [42]
    On 29 January 2016 he was Alpha Officer at the N3 Unit and Crichton was the Bravo Officer conceding that in the course of undertaking his duties on that day he would have kept prisoners waiting during cell access however that was an everyday occurrence at WCC.  The practice adopted by him was to open cell doors one at a time and according to Ball an accepted custom and practice.  He denied having kept prisoners waiting deliberately or for any period that was excessive in the circumstances.
  2. [43]
    The allegation asserted that Crichton had asked Ball if it was his intention to breach the prisoners he had locked in their cell to which Ball had responded by swearing.  Ball denied the conversation had occurred saying it would have been apparent to Crichton that these prisoners were in their cells on a voluntary basis.  The allegation that he had trapped a prisoner's fingers in his cell door was denied and in relation to practice of "timeout" where a prisoner goes to their cell voluntarily or are given a choice of having a timeout or being breached was well accepted at WCC and he frequently had cause to offer prisoners that choice sometimes at the direction of Supervisors.

Allegation 3(a) ‑ Complainant Harries

  1. [44]
    Ball denied allegations that he had spoken to a prisoner inappropriately on 19 January 2016 using the words "resident racist" or "resident old man", and in responding to requests from the prisoners he said words to the effect "no, you're pissing me off, if you ask me again I'm going to lock you up".  On failing to grant prisoners access to their cells because of a medical condition shortly before or during muster it was his custom and practice to send the prisoner to medical later because he could not grant cell access at muster.  In terms of granting cell access it is completely at the discretion of an Officer and a situation could arise where some requests are granted and some are rejected.

Allegation 3(b) ‑ Complainant Crichton

  1. [45]
    On 29 January 2016 he recalled saying words to the effect "what are you still doing here you old bitch" to a prisoner however they were said in a good natured fashion and he sometimes engaged in banter with that prisoner.  The prisoner had told him to "fuck off" which he accepted as banter and not as an insult.  Whilst there is a strong custom and practice of permitting swearing in the workplace Ball said it was not his custom and practice to swear at people, denying allegations he had told prisoners to "fuck off".  On the other hand he said it was commonplace for Crichton to swear or behave inappropriately towards prisoners.

Complainants

  1. [46]
    The complainants Harries, Crichton and Gray were said by Ball to be work friends who frequently had coffee together outside of work and socialised away from work.  In 2015 Ball in his role as trainer/assessor had refused to sign off on Crichton's Certificate III because he had not met the requirements for certification.

Remedy

  1. [47]
    Ball sought reinstatement to his former position and compensation for loss of income.

Second Affidavit

  1. [48]
    The second affidavit of Ball was filed in response to affidavits from witnesses appearing on behalf of Corrective Services which related to incidents that had occurred prior to his dismissal.

Chronology

  1. [49]
    1 August 2013 ‑ a file note attached to Henderson's affidavit was titled "Detrimental File Note" and whilst signed by Ball he did not know what the previously mentioned words meant.  He disputed the file note was an accurate account but accepted Henderson had told him at the end of the meeting his performance would be monitored for a period of six months.  Ball provided evidence about three matters mentioned in the file note challenging the evidence on the issues of:
  • going on the floor by himself leaving the station door open;
  • electronic cell access on lock away not ensuring of prisoner's health and wellbeing; and
  • incorrect musters.
  1. [50]
    14 December 2013 ‑ a file not attached to Henderson's affidavit referred to a dispute between Ball and CCOs Prudence Cotton (Cotton) and Michael Hill (Hill) where there was a complaint he had deliberately not let the two CCOs into the officers station in a timely fashion.  Ball denied the allegation and gave evidence of not having been given a copy of the complaint.
  2. [51]
    Late December 2013/January 2014 ‑ he was required by the WCC General Manager to provide a report on the interactions with Cotton and Hill but was not asked to respond to specific allegations.
  3. [52]
    24 February 2014 ‑ correspondence was received from McDermott advising she had chosen not to initiate "formal disciplinary proceedings" but instead issue him with a "formal warning to ensure that you are clearly aware of my [her] expectations of your conduct into the future".  He was upset at being issued a formal warning without ever being given natural justice as required in the PS Act.
  4. [53]
    Early March 2014 ‑ transferred to Secure One by the General Manager as part of the disciplinary action over the Cotton matter.
  5. [54]
    24 March 2014 ‑ a file note attached to Juffs' affidavit about a meeting between Ball and Juffs which reflected the content of a discussion with Juffs which Ball evidenced he found "very threatening" at the time.  He recalled being very upset about receiving a formal warning from ESU which he knew nothing about.  He denied having said "bullshit" to Juffs as he would not swear in front of a woman.
  6. [55]
    12 April 2014 ‑ an email from Blair McLean (McLean) to Potter was challenged by Ball in respect of content which included the wording "He [Ball] appeared to take note although still blaming others for his predicament".
  7. [56]
    14 April 2014 ‑ an email from Potter to the HR Manager was challenged by Ball as not accurately reflecting their conversation.  He recalled Potter's tone and words were threatening and demeaning.
  8. [57]
    29 April 2014 ‑ a file note attached to Juffs' affidavit was challenged by Ball on the basis it did not detail all of the relevant facts about the incident which involved sending a prisoner to medical without calling first.  Another incident alleged to have occurred related to a Code Yellow which Ball had responded to however he had no recollection of having responded, yet alone responded too slowly.  He was unaware of the alleged conduct.
  9. [58]
    24 September 2014 ‑ Juffs in her affidavit referred to an alleged incident on this date where Ball had refused to let a group of prisoners out of N Block to attend industries.  Ball's evidence went in detail to the process involved in releasing prisoners as the Movement Control Officer.  On this day he observed a group of prisoners standing by the airlock waiting to be let out of the unit.  As the Trade Instructors had already gone he told them it was "too late".  About 10 minutes later McLean rang him and in an angry tone accused him of not letting the prisoners out and directed him to do so.  McLean later attended upon Movement Control and verbally yelled at Ball in front of other officers.  After being directed to attend McLean's office and being the subject of an onslaught of abuse he became distressed and decided to go home after speaking to Juffs.
  10. [59]
    8 to 10 October 2014 ‑ Ball denied allegations raised by Gray (8 October 2014 incident) and had no recall of meeting with Potter (10 October 2014) to discuss a number of incidents alleged to have occurred on 24 September 2014 and 8 October 2014 which were also denied by Ball.  On reading Potter's file note it was stated it was the first he had ever heard of some allegations.
  11. [60]
    23 October 2014 ‑ on this date there was a Code Yellow which Ball had participated in and during which he entered the N3 Unit at a time (approximately 90 seconds) when he had possession of keys that should have been outside of the unit.  This had occurred because a fellow staff member CCO Dolan "didn't know what to do" leaving Ball with a "terrible dilemma" in that he had to make the decision to enter the unit with the keys to aid in securing the immediate safety of other officers.  He was given a verbal reprimand by Juffs which included her yelling at him words to the effect of "what the fucking hell were you doing going into the unit with the keys".  Ball admitted that he was aware the procedure precluded taking keys into the unit.  He denied the allegation he had sought to blame Dolan who had panicked and failed to follow his direction and relied on the fact there had been no formal investigation into the incident.
  12. [61]
    29 October 2014 ‑ on this date Ball conducted a "removal of clothing" search of four prisoners at a time when he believed he had the authority to conduct the search pursuant to a long‑standing custom and practice at WCC however the Department had amended its "delegations of authority" (unknown to Ball) without providing any training.
  13. [62]
    21 November 2014 ‑ Ball was alleged to have used the word "crim" in relation to prisoners but had no recall of the incident.  The term "crim" was commonly used by managers and officers alike.
  14. [63]
    20 December 2014 ‑ Ball's wife had a medical condition which required him to provide a high level of care and had resulted in management at the WCC being informed he may have needed time off.
  15. [64]
    January 2015 ‑ Ball was placed on the Front Run by the WCC General Manager (Scott Collins) whilst an ESU investigation was to be conducted which Ball took to be a punishment.  He was unable to work the 5.00 am to 5.00 pm shift hours due to his wife's illness and worked 6.00 am to 6.00 pm which resulted in him not being allowed to rotate through the various posts.  According to Ball no other officer had been refused the opportunity to rotate through each and every post they were qualified to perform.  In the 11 months he was required to process between 15 and 25 vehicles on an average day which included walking beside the truck to its destination.
  16. [65]
    20 March 2015 ‑ Ball had become so stressed by this time that he emailed the ESU Investigator stating:

Just a quick line to see where the investigation is at as it has been 5 months so far, perhaps if I offered to lose a pay point for 6 months as punishment maybe that will speed things up as the stress is starting to get to me, so if you can help I would appreciate the help.

He was informed in a return email that day the investigation had been completed yet he was required to wait another three months before he was requested to respond to the allegations arising out of the report.

  1. [66]
    May 2015 ‑ Ball was directed to attend a meeting at the Deputy General Manager's Office where he was informed that a complaint had been made that he had smoked on duty and ridden on the back of the bread truck.  Ball denied the smoking allegation as it was "clearly false" but admitted he had ridden on the back of the truck which he denied was unsafe due to the design of the truck.  The reason for riding on the back of the truck was due to feeling exhausted, noting he had permanent damage to his heart muscle as a result of a previous heart attack which meant he became exhausted more easily.
  2. [67]
    7 July 2015 ‑ he was directed to respond to the following allegations:
  1. (a)
    Allegation 1 ‑ 'It is alleged that on 29 October 2014 you conducted a [ROCS] on (4) prisoners without the requisite authority whilst on duty at [WCC]';
  1. (b)
    Allegation 2 ‑ 'It is alleged that on 29 October 2014 you conducted a [ROCS] on four (4) prisoners without a second officer present';
  1. (c)
    Allegation 3 ‑ 'It is alleged that you failed to make timely records of ROC searches conducted on prisoners at [WCC] on 29 October 2014';
  1. (d)
    Allegation 4 ‑ 'It is alleged that on 3 November 2014 whilst on duty at Woodford Correctional Centre you attempted to make an inaccurate recording in relation to a ROC conducted on 4 prisoners on 29 October 2014';
  1. (e)
    Allegation 5 ‑ 'It is alleged that on the 21 November 2014 you attempted to procure CCO Ebbelink to make an inaccurate report in relation to a ROC search on four prisoners on 29 October 2014'.
  1. [68]
    In mid to late July 2015 he responded to the allegations in which he stated the following:

Allegation 1 ‑ admitted he had conducted search without supervisor's authority but had been unaware of the new direction having not seen the document relating to the changes after the incident.

Allegation 2 ‑ denied allegation.

Allegation 3 ‑ admitted he had not made a record of the ROCS due to other duties preventing him from making an immediate record and he simply forgot.

Allegation 4 ‑ denied allegation.

Allegation 5 ‑ denied allegation.

  1. [69]
    2 September 2015 ‑ advised allegations 1 to 3 and 5 substantiated with further advice received on 23 September 2015 that pursuant to s 188(1) of the PS Act he was to be docked one pay point for a period of 12 months, required to undertake refresher training and given a final warning that stated:

…should substantiated allegations arise again concerning the Removal of Clothing searches, [my] continued employment with Queensland Corrective Services may be in jeopardy.

  1. [70]
    29 October 2015 ‑ there was correspondence from McDermott regarding an incident in or around May 2015 where he had ridden on the back of a truck.  The letter explicitly stated that formal disciplinary action would not be pursued but nonetheless he was informed he would be given a formal warning not to ride on the back of the truck or any other moving vehicle and should it be substantiated he had failed to comply with the direction a formal disciplinary would be initiated.  A copy of the letter was to be placed upon his departmental employee file and "may" have been taken into consideration should there be future disciplinary proceedings.  Ball denied ever seeing this correspondence prior to these proceedings.
  2. [71]
    November 2015 ‑ Ball was advised he was to be taken off the Front Run and returned to the Blocks as the investigation into the ROCS incident was complete.  Ball requested not to be sent to N Block because he would become a target but was subsequently rostered to N Block.
  3. [72]
    November 2015 to early 2016 ‑ Ball lost 30 kilograms in weight and remembered feeling exhausted all the time.
  4. [73]
    8 March 2016 ‑ suspended from work that led to his termination and experienced severe depression as a result.

Health Matters

  1. [74]
    In February 2011 he suffered a heart attack returning to work in March 2011.  In 2013 he had a heart operation and later in August 2016 was diagnosed with Stage 3 bowel cancer requiring another operation.

Affidavit of Potter

  1. [75]
    Ball disagreed with a number of assertions contained in Potter's affidavit that included:
  • issues around timeouts ‑ custom and practice;
  • Potter at no time challenged him over timeouts;
  • never had conversations about his practices and conduct around a number of incidents; and
  • was never aware of ESU investigation around the Cotton matter and recalls no conversation on this with Potter.

Affidavit of Juffs

  1. [76]
    Ball denied a range of incidents identified by Juffs as having never occurred or incorrect.  These included:
  • sending prisoners to medical;
  • code yellow outside detention area;
  • movement control issues;
  • locking prisoners in cells without authority;
  • allegations about being asleep at work in late 2015 to early 2016;
  • Juffs having found him dozing off during shifts;
  • left staff waiting at doors for long periods;
  • slow at opening door as Movement Control Officer;
  • had not been well respected by prisoners;
  • failed to follow directions; and
  • conduct unsafe whilst working in Secure One.

Affidavit of Henderson

  1. [77]
    Ball found Henderson's allegations and comments to be extremely hurtful, challenging a multitude of Henderson's evidence which included the denial of a significant number of allegations that included:
  • making decisions above his capacity;
  • moved out of his area due to incompetence or poor decision making;
  • danger to himself and everyone around him;
  • complaints from staff around falling asleep on the job;
  • incompetent to return to WCC;
  • denying conduct even when witnessed by Henderson; and
  • timeout process.

Affidavit of McDermott

  1. [78]
    The claim by McDermott regarding Ball on possible reinstatement as not performing his duties ethically, honestly and in accordance with the obligations of a CCO was denied.  Ball committed to the Code of Conduct.

Affidavit of Harries

  1. [79]
    The allegation of Harries that he spoke inappropriately to a prisoner and having threatened to "lock up" prisoners was denied.

Affidavit of Crichton

  1. [80]
    Allegations of any improper conduct as alleged by Crichton were denied with suggestions that his position set out in his affidavit was different to Crichton's previous positions.

Reinstatement

  1. [81]
    As a result of his dismissal he had been suffering ongoing depression for which he is being medicated.  If reinstated he would like to return to N Block or as a training instructor and would do everything in his power to comply with his obligations as a CCO and would be willing to undertake Code of Conduct training.

Third Affidavit

  1. [82]
    Ball provided a third affidavit as a consequence of a visit to Dr Shea on 30 June 2017.  The consultation related to a number of ongoing health issues and the medication provided for his condition.
  2. [83]
    Ball evidenced he did not discuss anything to do with his reinstatement trial however at one point Dr Shea said words to the effect "Is this about you hitting a prisoner?" to which Ball replied "no, that's not what happened, it's about misconduct".  The conversation moved on from there to issues about his health.
  3. [84]
    In addition to the evidence contained within affidavits tendered in the proceedings Ball also gave further evidence‑in‑chief in the course of the proceedings in response to Crichton's affidavit.  In respect of that evidence, he denied:
  • smoking contrary to policy;
  • using inappropriate language towards prisoners;
  • trapping a prisoners fingers in a cell door;
  • being unaware of a prisoner making threats towards him (Crichton's evidence).  This particular prisoner seldom approached newer officers and had been known to Ball for seven years during which time he had never complained to him;
  • allegations he was asleep on the job in N Block in January/February 2016;
  • winding up prisoners (because to do so was very dangerous);
  • giving prisoners the finger; and
  • Crichton had never raised concerns about feeling unsafe working with him.
  1. [85]
    Ball gave evidence also that he was required to assess Crichton's Certificate III qualification which he said was not up to standard and he had sent it on to another assessor but doubted Crichton would have received any documentation that identified him as the trainer assessor.
  2. [86]
    In response to the affidavit of Harries he denied allegations that:
  • he would wind up prisoners;
  • that he did the "nodding dog" i.e. "nodding off" at work;
  • leaving his post unattended; and
  • denied entitlements and access to certain prisoners and not others.
  1. [87]
    Other evidence given in response to Harries went to Ball's tinted glasses, not being startled by loud noise due to his military training and a CCO making a complaint would not hinder their career.
  2. [88]
    In response to the affidavit of Gray he denied allegations that:
  • he answered the phone inappropriately in P Movement Control;
  • telling Gray that supervisors were chasing him because he had fallen asleep in the unit;
  • telling Gray he had fallen asleep at work;
  • telling Gray he did not want to be at WCC anymore;
  • leaving people purposely left in airlocks on 24 February 2016;
  • having been given written direction about responding to exit and entry;
  • he ignored calls by Gray to open doors in a timely manner; and
  • sitting at the desk with both palms on his forehead.
  1. [89]
    In response to Bracher's affidavit he denied:
  • ever having a negative attitude towards his job or the WCC;
  • sleeping in the Tardis walkway on 19 January 2016; and
  • that safety was not a priority for him whilst at work.

Cross‑examination

  1. [90]
    The cross‑examination process undertaken by Ball was extensive commencing on the afternoon of 27 June 2017 and concluding on 29 June 2017.  For the purpose of this decision all of the relevant transcript has been considered with limited content reproduced in the body of the decision.
  2. [91]
    Under cross‑examination Ball denied having previously seen a warning letter written by McDermott about an incident in May 2015 when he had ridden on the back of a truck [Transcript p. 4‑5], arguing that the reliance on this disciplinary letter by McDermott was unfair because she was relying on something he knew nothing about [Transcript p. 4‑7].  On witnesses called by Ball in these proceedings he identified Hay as his support person throughout the disciplinary process and still be concerned for his [Ball's] welfare after his termination [Transcript p. 4‑11].  In respect of Nicolia he was also a CCO who Ball last worked with around 2013/2014 [Transcript p. 4‑12].  In the interview conducted by Verrall on 22 March 2016 Ball's evidence was that the conduct of the interview was correct and he had answered questions put to him truthfully [Transcript p. 4‑13].  He told Verrall he had been sent to the Front Run because he was under investigation but always believed it was as a punishment although he withheld that from Verrall [Transcript p. 4‑15].  Ball accepted that WCC was a maximum security prison that was "always a dangerous place" where CCOs must at all times be alert which included not sleeping on the job [Transcript p. 4‑15].  Allegations of sleeping on the job were viewed as serious with Ball expecting such conduct to bring a "severe penalty" [Transcript p. 4‑16].  Correspondence (dated 14 November 2016] in the form of a show cause response where Ball submitted sleeping on duty was not of a serious nature was said by Ball to be a "typo" and he had not changed his position as suggested [Transcript p. 4‑17].  In terms of the show cause this evidence was:
  • sleeping was a serious offence;
  • swearing at a prisoner was not a serious offence; and
  • securing prisoners inappropriately never happened [Transcript p. 4‑18].
  1. [92]
    On the failure to provide any evidence to McDermott in the show cause process about his medical condition of having been diagnosed with and operated on for cancer as extenuating or mitigating circumstances the evidence was that he was a "private person…she didn't need to know" [Transcript p. 4‑21].  Ball later advanced his reasoning for not disclosing his bowel cancer in the response to McDermott because it may have been a "sympathy call" [Transcript p. 4‑27].  In the period between late December 2015 and 8 March 2016 he conceded he was tired at work but if he had been extremely tired or exhausted he would have had a "sickie" [Transcript p. 4‑33].  He evidenced he could "possibly" have been exhausted at the time in question despite saying at paragraph 244 of his affidavit that "I remember feeling exhausted all the time" [Transcript p. 4‑35].  On escorting a prisoner he accepted he had said to the prisoner "your best bet is to shut the fuck up and not say anything to anyone" [Transcript p. 4‑42].  At the time of making the comment he had instructed the prisoner on several occasions to cease talking but denied he was either exasperated or annoyed [Transcript pp. 4‑43 to 4‑45] however in response to the allegations about the same incident "Finally, exasperated, I stated to him" [Transcript p. 4‑44].  Whilst he had no rapport with the prisoner he swore at, Ball did not accept his comment was inappropriate despite having criticised Crichton for using similar words, because he had "quietly told him to shut the fuck up" [Transcript p. 4‑45].
  2. [93]
    If reinstated Ball would go back to N Block even though in November 2015 he had said he did not want to go back because he felt he would become a target because officers had been caught out lying in an investigation about him [Transcript p. 4‑47] as they did not want him back in N Block [Transcript p. 4‑50].  He would however if reinstated work anywhere in the jail [Transcript p. 4‑50].  Ball agreed that officers must have trust and confidence in each other and even though fellow officers had lied in their reports he would continue to work professionally with them [Transcript p. 4‑51].  He had been harassed in N Block when he returned from the Front Run but he was not a person who gets intimidated by threats [Transcript p. 4‑51].  Ball had some issues with Managers at WCC being too soft on prisoners and he was not a person who would "brown nose" management [Transcript p. 4‑56].  Ball relied upon the "old school" approach to manage his unit at WCC [Transcript p. 4‑57].  On his return to N Block there had been harassment from other officers who said things such as "we'll give you three weeks before you get caught" [Transcript p. 4‑59].
  3. [94]
    Ball held the view that Harries, Crichton and Gray had colluded in relation to the allegations against him on the basis that he had refused to sign off Crichton's Certificate III because he had not met the requirements [Transcript p. 4‑62].  Ball had no recollection of talking to Crichton about not having signed off on his Certificate III [Transcript p. 4‑65].  Ball accepted his allegation that Crichton had conspired and colluded with others against him was a serious allegation to make [Transcript p. 4‑70].  The suggestion that Gray had colluded and fabricated allegations was also conceded as being a serious allegation to have been made by him [Transcript p. 4‑72].  Ball was unable to provide an explanation why Gray who he hardly knew would fabricate allegations against him [Transcript p. 4‑74].  He believed Harries, Crichton and Gray had met at the academy and were friends outside of work [Transcript p. 4‑76].
  4. [95]
    Ball did not accept that as an accredited Workplace Health and Safety representative he had failed in his duty to mention his problems with arthritis in his neck that required him to wear a brace at home but did not wear it at work for fear of becoming a target by prisoners [Transcript p. 4‑86].  There was significant questioning around Ball's activities on 24 February 2016 when he was rostered as the P Movement Control officer with Ball denying allegations made by Gray that he was asleep and at times he rested his hands on his head [Transcript p. 4‑101].  Ball denied further allegations by Gray on that day regarding his telephone manner and purposely leaving prisoners in the airlocks and at doors [Transcript p. 4‑107].  Ball did not accept that on 24 February 2016 he had his head down on at least six occasions as if he was asleep or that ten or more occasions Gray had to either raise his voice or nudge him to get Ball's attention [Transcript p. 5‑7].  Ball had no recollection of visiting the doctor in late 2015 as a result of having injured his right shoulder and neck [Transcript p. 5‑9].  Ball accepted that in the period between December 2015 and 8 March 2016 he attended upon Dr Shea on numerous occasions without raising the issue of neck pain [Transcript pp. 5‑19 and 5‑20] but on 14 April 2016 had raised the issue because "he may have tripped" and jarred his neck [Transcript p. 5‑21].  Ball had no recall of attendances at a physiotherapist after 31 December 2015 for treatment of his neck condition [Transcript p. 5‑25].  Other attendances upon his medical practice in November 2015 where he reported neck and shoulder conditions were not able to be recalled by Ball [Transcript p. 5‑26].  Clinical notes indicated that between 31 December 2015 and 14 April 2016 Ball had no need to seek physiotherapy or medical treatment for his neck [Transcript p. 5‑27].
  5. [96]
    Ball acknowledged that Juffs had been one of his supervisors from March 2014 until his suspension in 2016 and during that time had raised issues with his conduct and performance [Transcript p. 5‑34].  Those issues included:
  • sending a prisoner to the medical unit without first calling the medical unit [Transcript p. 5‑37];
  • being advised (along with others) that movement control support officer was to watch officers in the unit and not sit and chat [Transcript p. 5‑38];
  • use of computer [Transcript p. 5‑39];
  • refusing to allow prisoners to attend industry [Transcript p. 5‑39]; and
  • making decisions he was not supposed to make [Transcript p. 5‑40].
  1. [97]
    Ball denied that Juffs had spoken to him in late 2015 and early 2016 about falling asleep on the job and of Juffs having found him dozing off during his shift [Transcript p. 5‑41].  Ball denied making gestures to prisoners with his fingers other than making a "B" which stood for breach as "the only word that the prisoners know in jail ‑ a B stands for breach" [Transcript p. 5‑43].  Usually he would give prisoners two "options" before breaching them [Transcript p. 5‑43].  Ball stated it was common practice to put prisoners in their cells to calm down rather than be breached [Transcript p. 5‑45].  Ball would breach prisoners for a minor infraction of the rules but would not necessarily breach them if they were offensive towards him [Transcript p. 5‑47].  Ball never said anything to Juffs about his neck hurting, arthritis in the neck or that he had a problem sitting for periods of time [Transcript p. 5‑47].  He claimed that whilst in N3 he would experience glare from the station desk that bounced off the polished concrete in the exercise yard, coming through the Lexan window onto the floor in the common room [Transcript p. 5‑48].
  2. [98]
    Ball did not accept prisoners were laughing at him but had seen something written such as "Up on Rick's whiteboard, he's got so‑and‑so" referring to prisoners having to double up in single cells [Transcript p. 5‑51] also refuting that the prisoners could have been laughing at him for being asleep because he had never been asleep [Transcript p. 5‑51].  Photographs of the N3 unit were shown to Ball in relation to allegations he had been asleep on duty on 19 January 2016 with Ball denying he was asleep, that Harries had been making noises to wake him and in being asleep left Harries, in essence, in an area with 40 or 50 prisoners by himself.  Ball's evidence was that if the roles had been reversed he would have called a code or phoned a supervisor and had Harries removed from the unit.  Ball was critical of Harries in that he had not followed the direction from the college and reported to his supervisor [Transcript pp. 5‑60 to 5‑63].  Ball was taken to a previous interview where he was asked questions about problems with Crichton at which time he stated "Look if I had an issue with an officer, I would go up and fucking tell them I had a problem" [Transcript p. 5‑64].  Further he had previously stated that to "dob" on your mates was the wrong thing to do [Transcript p. 5‑65].  Ball said he would report anyone who fell asleep on duty [Transcript p. 5‑66].  Ball further denied other allegations made by Harries in that he wound up prisoners, in one case saying "He is pissing me off, I'm going to lock him in his cell for the rest of the day" [Transcript p. 5‑67].  Ball accepted it could have been a possibility that he treated a group of four prisoners wanting to go back into their cells, differently by approving two and not the others [Transcript p. 5‑69].  Ball did not accept his actions had been completely wrong and dangerous [Transcript p. 5‑70].  Ball denied on 29 January 2016 he was asleep in a chair in the walkway around the Tardis [Transcript p. 5‑74] and even if he was asleep it could have occurred during his break time [Transcript p. 5‑75].  The only direction regarding meal breaks is that an officer must remain on the premises inside the jail [Transcript p. 5‑78].  Whilst there is no direction, there is an obligation of the returning officer to return from his meal break and relieve the next officer.  Until such time as this obligation is filled you do not wander [Transcript p. 5‑91].
  3. [99]
    Ball accepted that he had in the show cause process and these proceedings been given the full opportunity to respond to the allegations made against him [Transcript p. 6‑2].  In respect of the allegations containing some differences Ball still held the view that "in some of their evidence maybe" they had colluded [Transcript p. 6‑3].  Ball denied allegations that prisoners were banging on glass due to him being asleep and that when they ran away he would drop off to sleep again [Transcript p. 6‑3].  On the "B" signs he would make at prisoners Ball was accused of making it up as he had never raised this previously to which he accepted this was the first time it had been raised but he had not made it up [Transcript p. 6‑6].  Ball held the view that a number of persons including Harries, Beaumont, Crichton, Bracher, Gray and Juffs had fabricated evidence against him [Transcript p. 6‑8].  Ball towards the end of cross‑examination again denied the allegations that had been levelled against him that included:
  • slamming the door on a prisoner [Transcript p. 6‑9]; and
  • calling a prisoner an "old bitch" [Transcript p. 6‑10].
  1. [100]
    Ball denied that his allegation about Crichton's exchange with a prisoner had been made up to excuse his own wrong doing [Transcript p. 6‑12].  On a matter where Henderson had told Ball he had seen him enter prison units by himself, he denied it giving evidence "how did he see me do it?  He's a manager" [Transcript p. 6‑12].  Henderson was also fabricating evidence against him [Transcript p. 6‑13].  Ball was seeking reinstatement and did not accept he was guilty of any of the allegations stating that he had "been doing the job for 11 years better than most, not as good as others" [Transcript p. 6‑14].  If reinstated he gave an undertaking to read the Code of Conduct which had changed four or five times [Transcript p. 6‑14].

Re‑examination

  1. [101]
    Ball confirmed he had not been given a warning about previous misconduct and/or breaches of the Code of Conduct prior to dismissal.  On the show cause responses to the allegation and penalty he was assisted by Hay and were approved by him although due to his state of mind at the time and medication he missed a few things or would have made changes.  On the allegations he gave evidence that as they related to sleeping on duty they were serious allegations, as was securing prisoners inappropriately in their prison cells.  In terms of the practice of timeouts he did not see that as an inappropriate practice and at times Juffs had instructed prisoners be locked up for the day.  The practice was accepted and recognised within WCC.
  2. [102]
    His relocation to the Front Run was viewed by him as a punishment because of the hours worked and the inability to be rotated through various roles.  It was also unfair because he was the subject of micromanagement.  After the Front Run he was sent back to N Block against his wishes where he became a target as he had thought he would.  He ended up feeling threatened due to the actions of Juffs, Blair McLean (McLean) and by a small group of officers.  In his evidence about looking exhausted he believed it was because he had lost 30 kilograms but it did not mean he felt exhausted.  At the time he did not feel physically exhausted and had no problem doing his job.  On his role in escorting a prisoner to the detention units (DU) and having told the prisoner to "shut the fuck up" he reaffirmed his previous evidence of having not raised his voice at that time.  He had only sworn at the prisoner because he had rejected his three or four requests to not speak to prisoners.  Swearing was common speech at WCC with a lot of the new‑generation officers but not so with the older generation.  If reinstated he would be prepared to work wherever the management required him to work.  The non‑wearing of the neck brace at work had not put himself or colleagues in danger.
  3. [103]
    On the letter (dated 29 October 2015) of warning, Ball denied having prior to this matter ever seeing the letter and the signature purported to be his was not.  Ball recalled having a conversation with Juffs about his wife's illness but had never spoken to Gray about his personal life.  Ball denied all allegations about having slept whilst on duty and had Juffs found him asleep it would have gone straight to the ESU as it was a serious offence.  On the incident around the Tardis area when Crichton returned from his break Ball had expected him to return to his post and not walk to the back of the Tardis to have "a little talk to his friend".  Ball had refused to let prisoners out of a secure area because their escort had gone and he ended up at a meeting over the incident with McLean who behaved in a threatening manner which had upset him.  Ball denied having ever made racist comments to a prisoner.  In the case of prisoners who are involved in a minor infraction of the rules he would generally give them a chance rather than breach them.
  4. [104]
    On Day 10 of hearing Ball was recalled to give further evidence relating to a visit to Dr Shea on Friday 30 June 2017 at a time when he was still in the process of giving his primary evidence in the proceedings.  He evidenced that due to feeling unwell the previous day he consulted with Dr Shea regarding his ongoing depression and his medication for that condition.  In the course of the consultation he had not discussed any aspect of the trial beyond that it was taking a very long time and he was feeling "very stressed by it".  In an affidavit [Exhibit 7] tendered by Ball he stated at paragraph 6:

At one point, in the middle of our discussion, Dr Shea said to me words to the effect of, 'Is this about you hitting a prisoner?'  I can't recall Dr Shea's exact words, but I do recall he raised the topic.  I then said something to the effect of, 'no, that's not what happened, it's about misconduct'.

  1. [105]
    Ball gave further evidence regarding a meeting with Tilly in or around November 2015 regarding Ball's desire not to return to N Block however he denied that Tilly had at that meeting given him a warning letter or that he had signed receipt of such letter.
  2. [106]
    Under cross‑examination he reiterated his earlier evidence of not receiving the warning letter on 4 November 2015 or having signed that letter [Transcript p. 10‑38].  Prison logs confirmed on 4 November 2015 he was present inside the jail but he again stated he had not signed the warning letter [Transcript p. 10‑39].  Ball conceded when he visited Dr Shea on 30 June 2017 he understood he was still under cross‑examination and was aware that Dr Shea was to be a witness in these proceedings [Transcript p. 10‑43].  Dr Shea had brought up the issue and all he had done was to tell him it was misconduct [Transcript p. 10‑43].  On inconsistencies with Ball's previous evidence regarding contact with the witness Hay whilst Ball was under oath and evidence about his discussion with Dr Shea it was Ball's evidence the Commission ought to accept both versions of his evidence [Transcript p. 10‑48].  Ball denied he was being evasive in the giving of his evidence and that medication had affected his answers [Transcript p. 10‑50].
  3. [107]
    In re‑examination Ball stated he had no view whether his conversation with Dr Shea on 30 June 2017 was restricted or otherwise.

Hay

  1. [108]
    Hay along with Nicolia were said to have refused to provide evidence in the form of an affidavit and attended the proceedings having been served with Attendance Notices by the applicant.
  2. [109]
    Hay a CCO at the WCC commenced employment with the service in 1998 with his employment locations confined to WCC and the Supreme and District Courts.  He had known Ball for a period of ten years working with him as an officer and at times was his supervisor.  Ball was "not really" known to him outside of work however in relation to the disciplinary action against him and his subsequent termination he had acted as his support officer which included providing assistance in preparing the show cause response as Ball had told him "he wasn't in a good place".  In preparation of the show cause he had typed the response based on instructions from Ball who authorised the sending of the document.
  3. [110]
    On his workings with Ball he found him to be very competent and a trustworthy officer who had a view that "these are the rules, they will be obeyed".  There was very little trouble in the units Ball managed with his style described as "fairly flamboyant at times".  He also described Ball as firm, fair and consistent although "some people may say he wasn't" fair.  Ball had some issues regarding prisoner cell access but in doing so was only following managerial directions in any event.  Hay had never witnessed Ball asleep on duty but had worked with other officers who had slept on the job.  He had recently been informed by ESU in a meeting with managers and supervisors that they were "interested in officers who deliberately go to sleep".  On night shift he had himself been directed by a supervisor to "go and have a sleep".  As a supervisor h
  4. [111]
    e had found officers nodding off but he hadn't walked them out of prison.  Also, he had worked in Secure One but had not personally witnessed anyone asleep in that area.  It was his view that an officer nodding off for 20 or 30 seconds did not endanger the security in the jail.  Hay described Ball as being a safe officer to work with and as an officer who had the reputation of being a "bit gung‑ho" in that he was the first to a response situation.  For the period Ball was assigned to the Front Run it was described by Hay as a "punishment".
  5. [112]
    Swearing was commonplace within a prison and to be able to communicate with the prison population CCOs had to get down to their level.  Hay had heard supervisors make comments about prisoners such as "get this piece of scum out of my sight" and a supervisor had said to him "I'm going to effing come in there and kick your effing arse until your nose bleeds".  As a result of the conduct of the supervisor in speaking to him in that manner he had made a complaint.  The prisoner to whom Ball was said to have spoken to in an inappropriate manner was well known to Hay and was said to be a person who engaged with officers which included telling jokes and engaging in banter.  Cell access by prisoners was sometimes refused by CCOs for a range of reasons and at times when a prisoner makes a number of approaches he may be told to "fuck off".  At times prisoners will buzz up on in‑cell intercoms to have their cell doors open however there are times when they are required to stay in cells longer than they would like after having accessed their cells.  The practice of "timeouts" whereby a prisoner is placed in their cell by a CCO for "playing up and misbehaving badly" instead of being breached is widely done within WCC.  Hay had at times been directed by managers to give prisoners "timeouts".
  6. [113]
    Hay gave evidence around the movement control station duties undertaken by CCOs and of the importance of the support officer's assistance in identifying people requiring access to certain areas.  At times a person may be kept waiting for any number of reasons which Hay descried as "that's life".  In the same area prisoners in the exercise yard will sometimes climb up on the "outside grill" and have to be told to get down usually by speaking in a loud voice and pointing of a finger telling them "down".  He had seen an officer give a prisoner "the bird" but not in a derogatory manner.  Hay was shown photographs of the N3 units [Exhibit 15] and gave evidence relating to the officer station and areas where prisoners would congregate and in particular to lines of vision between the various areas including that of the officers.
  7. [114]
    Hay had observed Ball carrying out the duties of Bravo officer and of tending to rest his head in his left hand due to having arthritis in his neck and the need to take pressure of the neck.  On the issue of prisoners "doubling up" he actually had not heard prisoners laughing over it but had seen them have a bit of a giggle.  Whiteboards in the officer's station record the names of prisoners who are "doubled up".  He gave evidence about the N3 unit officer station being at times "quite bright in there" as a result of the western sun and in particular around 2.30 to 3.30 pm.  On officers who write up other officers they are "considered dogs, and you're to be very, very careful when you work with them".  Correctional staff were according to Hay "supposed to be one big brotherhood, solidarity" and when he saw an officer doing something wrong he would deal with it himself.  Hay had heard Ball being taunted over the radio and had seen him receive unfavourable treatment by supervisors.  It was a custom and practice at WCC for officers to refer to inmates as "crims" and officers were called "screws".
  8. [115]
    Under cross‑examination Hay reiterated his earlier evidence that he was not Ball's friend outside of work but had contacted Ball by telephone on the previous Monday night because he was his support officer [Transcript p. 7‑103].  He had last seen Ball give the "B" signal in early 2015 and he understood it meant the prisoner would be breached if he continued to keep doing something that was wrong [Transcript p. 7‑105].  Hay confirmed he had assisted Ball prepare the responses to the two show cause letters [Transcript p. 7‑109].  The content of the responses were read and approved by Ball prior to submitting them to the employer [Transcript p. 7‑110].  Nodding off on duty "certainly isn't a good look" [Transcript p. 7‑112].
  9. [116]
    On the second day of Hay's evidence the following question was put to Hay by the Commission:

Commissioner: Well, then it begs the question then, why did you refuse to provide a statement in these proceedings?

Hay: I didn't. Nobody asked me for a statement. I never refused anything. Nobody approached me whatsoever.

  1. [117]
    Note:  Counsel for the applicant in relation to this matter on day two of the hearing informed the Commission:

Commissioner, my instructions are Mr Hay and Mr Nicolia have both ‑ have said in oral conversation with my instructing solicitor they are not prepared to voluntarily give evidence and will only do so if subpoenaed.  No conversation has occurred at all in respect of Mr Hansen, so we ‑ again, we are attempting to provide evidence in difficult circumstances.

  1. [118]
    Upon the cross‑examination continuing Hay gave evidence that whilst under oath he had spoken to Ball during a break in the proceedings in the morning with the topic of the conversation being about horses [Transcript pp. 8‑9 and 8‑10].
  2. [119]
    Ball had approached him after his termination to accompany him to a meeting with his solicitors although Hay was unable to make the date of the meeting [Transcript p. 8‑13].  Questions were put in relation to the assistance provided in the show cause letters and of discussions that occurred at the time.  Hay had told Ball that some of his comments in the draft could not be included as the response had to be professional [Transcript p. 8‑14].  On having witnessed Ball make a "B" sign with his fingers over a ten year period his evidence was that Ball drew it backwards [Transcript p. 8‑16].  The matter of the "B" sign was not included in the response on the basis of advice from Hay [Transcript p. 8‑17].  Hay indicated whilst there was nothing in legislation to prevent a junior officer writing up a senior officer from a "general officer's perspective it was not a good look" [Transcript p. 8‑27].  Hay does not support officers writing up officers [Transcript p. 8‑28].  Hay believed that Ball had been targeted in the workplace giving evidence that Potter had approached him at a time when he had been Ball's support person and said words to the effect that he was going to get Ball one way or the other [Transcript p. 8‑29].
  3. [120]
    Hay gave evidence about the requirements of the legislation covering corrections with regards to breaching prisoners [Transcript pp. 8‑69 and 8‑70].  Hay in allowing a prisoner to access his cell would not slam the door in their face if they were coming straight out again [Transcript p. 8‑76].  On his attendance at the ESU seminar he recalled the presenter stating that ESU was not interested in CCOs who nodded off but very interested in those who deliberately went to sleep [Transcript p. 8‑76].  Hay did not recall the ESU presenter saying that falling asleep was a serious disciplinary matter because it created a safety and security risk [Transcript p. 8‑77].
  4. [121]
    In re‑examination Hay reaffirmed his evidence regarding the ESU seminar where it was said they were not interested in people that nodded off but definitely interested in people who deliberately planned to sleep.  Hay had no awareness of any rule, direction or procedure as to whether an officer or a prisoner would close the cell door at access time.  Hay had informed solicitors acting for Ball he would voluntarily give evidence on Ball's behalf but was unable to do that as he was a CCO and he would need to be subpoenaed.  In response to a question from the Commission about not providing a statement in the proceedings Hay evidenced that he "was never asked to submit a statement".  He also indicated he would not require permission to submit a statement.  Hay also reaffirmed his evidence regarding an officer making a complaint against another officer gets called a "dog" by other prison officers.  Hay confirmed that he had been truthful in giving evidence and had not perjured himself.  The chairs used by CCOs in the N3 Tardis area are placed in position by officers that allow them to establish a line of sight into the exercise yard and the unit.  Hay gave evidence regarding CCOs and prisoners engaging in banter where swear words were consensually exchanged and of such situations being unlikely to cause a risk to safety and security.

Dr Shea

  1. [122]
    Dr Shea a general practitioner had over a period of time provided treatment to Ball.  An affidavit [Exhibit 4] was tendered in the proceeding that had attached correspondence authored by him (dated 23 June 2017) regarding Ball's medical history.
  2. [123]
    The history included references to Ball having the following medical conditions:
  • bowel cancer;
  • suffered weight loss in July 2016;
  • neck pain reported on 21 February 2013;
  • neck pain treatment 2 November 2015;
  • mental health assessment completed on 8 March 2016; and
  • Coronary Artery Bypass Graft in February 2011.
  1. [124]
    Dr Shea's correspondence included the following passage:

Mr Ball reported he was placed on suspension on that day for hitting a prisoner.  Further discussion showed he was feeling stress at home and work.  I think his underlying health issues are contributing as well.  When he was assessed by the psychologist more of the work and social issues were expanded.  Your copy of her notes would explain more clearly.

  1. [125]
    It was Dr Shea's opinion that provided Ball met the medical requirements of the employment role there was no reason why he could not resume work in that position although some allowance may be required for work associated with computer use and neck pain.
  2. [126]
    There was further correspondence attached to Dr Shea's affidavit (dated 2 October 2015) that contained information from a Musculoskeletal Physiotherapist in respect of Ball's neck pain and of an exercise program given to Ball to assist with managing the condition.
  3. [127]
    Dr Shea in referencing Ball's clinical notes was able to recall that on 28 February 2017 he had prepared a letter sent to Ball's solicitors that detailed treatment provided to Ball in respect of mental health issues which included a mental health plan put in place in March 2016.
  4. [128]
    Under cross‑examination Dr Shea gave evidence that whilst treating Ball in late 2015 and through 2016 he did not notice a change in his weight that "raised alarm bells" for himself [Transcript p. 8‑56] although if it was 30 kilograms as reported that would be expected with the bowel cancer condition [Transcript p. 8‑57].  Dr Shea gave further evidence regarding Ball's arthritic condition [Transcript p. 8‑57].  From 31 December 2015 until 5 June 2017 the patient's notes made no reference of Ball requiring treatment for his neck [Transcript p. 8‑59].  In reference to Ball on 8 March 2016 having been suspended (today) for hitting a prisoner Dr Shea assumed he had got that entry wrong as Ball had informed him of that at a consultation on 30 June 2017 [Transcript p. 8‑60].
  5. [129]
    In re‑examination Dr Shea stated that persons with neck pain often undertake exercising, posture and muscle strengthening to relieve neck pain that would mean the person would not need to visit their general practitioner.
  6. [130]
    Dr Shea was recalled to give further evidence on day 16 of the hearing.  In a further affidavit tendered in the proceedings [Exhibit 16] he recalled having spoken to Ball's Solicitor and Barrister on 20 June 2017 where during the discussion he read aloud from the clinical notes in regards to an attendance with Ball on 8 March 2016 where it had been stated that Ball had been suspended for hitting a prisoner (or words to that effect).  In the discussions with the legal representatives he indicated he could not recall what Ball had told him at the time.
  7. [131]
    On Friday 30 June 2017 Ball attended for the purposes of a consultation regarding his mental health and medication he had been taking for depression.  There were discussions about the trial being very stressful for Ball due to the duration and there was a requirement to adjust the dose and time to take his medication.  At a point in time he said to Ball "Did I get it wrong about you hitting a prisoner".  The comment was not made in response to anything said by Ball and his recall of Ball's response was "Oh, yeah.  No that's not what happened".  Nothing further was discussed about the matter.
  8. [132]
    In further evidence he explained an entry on 20 June 2017 to clinical notes that record "Reason for dismissal sleeping on the job" was for the purposes of highlighting the fact that was not the case that Ball had hit a prisoner.  The clinical notes for 30 June 2017 contained no reference to the discussion about getting it wrong about Ball hitting a prisoner because it was not relevant to his case and Dr Shea was more interested in his depression.  The entry in the clinical notes of 7 July 2017 "the raising of getting details of suspension wrong" was in relation to a discussion with Counsel for Ball in respect of the preparation of his second affidavit.
  9. [133]
    Under cross‑examination Dr Shea gave evidence of requiring compulsion to attend the Commission on a second occasion because he believed what he had to say would not be "too relevant" [Transcript p. 16‑11].  On having made a previous clinical note regarding Ball having been placed on suspension for hitting a prisoner he accepted the content had been based upon what Ball had reported to him at the time [Transcript p. 16‑18].  Since making that entry he assumed he had put down the wrong words and having seen Ball after these proceedings had commenced [Transcript p. 16‑20].  Dr Shea was taken to affidavits prepared by him on 23 June 2017 and 7 July 2017 and then referred to a conversation with Ball's legal representatives on 20 June 2017 and of having made no mention of the 20 June 2017 conference in the 23 June 2017 affidavit [Transcript p. 16‑34].  On 4 July 2017 when giving evidence previously he failed to mention that Ball's legal representatives had drawn his attention to the incorrect recording of Ball having hit a prisoner [Transcript p. 16‑36].
  10. [134]
    Dr Shea on what Ball had said to him on 8 March 2016 about hitting a prisoner, he repeated his earlier evidence stating "I think I've answered that ten times now" [Transcript p. 16‑38].  Ball had subsequently told him on 30 June 2017 he had "got it wrong" [Transcript p. 16‑39].  Dr Shea evidenced that he could not change his notes of 8 March 2016 because of what had later been reported to him stating:

But I've just told you what he reported.  I can't change whether he's reporting the truths or non‑truths or anything I can't…I can only tell you what a patient says to me. [Transcript p. 16‑43].

  1. [135]
    In re‑examination Dr Shea indicated that the purpose of clinical notes was for the benefit of himself and other doctors and "not really" for a third party outside his practice.  Where in the clinical notes he had written that the reason for Ball's dismissal was "sleeping on the job" did not mean he was told that it was just his short hand notes.  At times he reported things told to him by a patient in error stating "It can happen, it happens quite a lot".  Dr Shea had no independent recollection of what Ball had told him on 8 March 2016 and he "definitely" could have written it down wrong.  The first he became aware of Ball not being suspended for hitting a prisoner was when he was informed by Ball's legal representatives on 20 June 2017.  He had not dealt with this advice in his report of 23 June 2017 because he based the report on what Ball had told him and not what the lawyers told him.

Nicolia

  1. [136]
    Nicolia had been a CCO for nineteen years all of which were spent at WCC in a range of areas that included:
  • Residential;
  • Secure One;
  • MCR 1;
  • MCR 2; and
  • Front Run.

On the issue of his attendance at these proceedings he had initially declined a request due to a number of injuries he was suffering but had been told by the solicitor acting for Ball if he was subpoenaed he would have to attend.  The solicitor had asked if he was prepared to complete an affidavit but he declined because of repercussions from WCC for giving evidence in support of someone else.

  1. [137]
    Nicolia had worked with Ball on a couple of occasions the last time being six to 12 months prior to Ball's suspension and overall had worked either directly or indirectly with him about 20 to 25 times.  There had been no "run ins" with him and he regarded him as a safe officer.  Nicolia would have no problem working with Ball in the future.
  2. [138]
    In the opening of cells to allow prisoners out there was a direction (depending on circumstances) to open between one to five cells at a time at the discretion of the CCO.  Nicolia during his entire career had never minor breached a prisoner.  The practice of "timeouts" had been occurring in the 19 years he had been at WCC and he had been directed by a manager (Henderson) to give prisoners timeouts.  He had never been directed by a manager not to engage in giving prisoners "timeouts".  In undertaking prisoner musters quite frequently the count is incorrect and around once a month the second count is also incorrect.  Cell access requests by prisoners are refused by CCOs who are able to exercise a discretion.  At the time of access it can be either the CCO or the prisoner who closes the cell door.
  3. [139]
    On the subject of banter in the workplace it included the use of nicknames and swearing none of which were precluded in the workplace by any workplace rules.  Managers would at time swear at officers in a "bantering style".  Swearing within prison occurred in a range of circumstances and in terms of prisoners he was familiar such language would not be regarded as offensive although the same thing said to a prisoner in another unit could be regarded as offensive.  Also he had heard a range of managers from a general manager down swear at prisoners in different situations as well as CCOs tell prisoners to "shut the fuck up".
  4. [140]
    Nicolia's evidence on Ball having called a prisoner an old bitch as having an effect on safety was that it would depend on the rapport he had with the prisoner and the context of the comment.  On the granting of cell access to prisoners it was a matter of the officer using their discretion that could lead to different outcomes and according to Nicolia it would not be remarkable for an officer to refuse access by telling a prisoner to "fuck off" and he had done so himself.  On the issue of Ball sending a prisoner (previously) to medical without checking that it was the right day, Nicolia said officers cannot catch everything although maybe Ball "should have checked the slip".
  5. [141]
    Nicolia gave evidence about the thickness and weight of cell doors and the noise they make when slammed.  Also if a prisoner was to have his fingers jammed in a door you would be able to hear the prisoner call out.  If a prisoner approached him and made comments to the effect an officer would get smacked if he did not settle down he would have taken actions that included warning his fellow officers and also contact the supervisor.  Prisoners were said to be neither truthful nor accurate in things they say about officers and are in jail because they cannot follow rules and regulations of society.  Nicolia was aware of the allegations that Ball had been found sleeping on the job but had no knowledge of officers sleeping on the job.  He had observed officers on night shift sitting back in chairs and closing their eyes but had never seen that occur on day shift.  If such dozing occurred in a unit on day shift he would most probably consider it a safety risk and he would make sure they were kept awake.  When officers leave their partners for brief periods to go to the toilet or make a cup of coffee it could potentially be a safety risk.  It would not be acceptable for both officers to absent themselves from a unit because their primary role was to keep an eye on the inmates.
  6. [142]
    There was evidence from Nicolia about the degree of brightness in the N3 unit at some point of the day which is assisted by the reflection that comes off a corrugated barrier.  He also gave evidence around the officer's station in the N3 unit and of the location of officers undertaking their duties.  Upon being taken to photographs [Exhibit 15] of the area he thought that prisoners sitting in the first row of tables in the common room would be lucky to be able to see the top of the Alpha officer's head.  The Bravo officer would also have only a limited view of the Alpha officer working on the computer being that of the "back of his head".  Prisoners would sometimes bang on the Lexan windows with there being times he would wave his handcuffs at them as a threat to go to the detention unit if they did not stop.  Nicolia had no recall of having observed Ball make non‑verbal signals.  The effectiveness of waving his handcuffs at prisoners was clear by their ceasing of the actions they were engaged in at the time.  Further evidence was given about the various lines of sight available to officers in the N3 unit which was limited and would not include a view of an officer's head by the other officer on some occasions.  There are times when an officer's eyes get tired due to the air‑conditioning but even if they close them he had not seen anyone go to sleep.
  7. [143]
    Nicolia had at times worked in P Block Movement control with the evidence being the duties included use of the computer to read emails.  Often the support officer is the first person to notice a person needs entry and will inform the operator.  Unless the movement control officer was undertaking other tasks there was generally a minimal delay in allowing someone access.  A 30 second to a minute was an acceptable period for someone to wait before access was granted.
  8. [144]
    Under cross‑examination Nicolia recalled informing the solicitor acting for Ball that there was no point in providing an affidavit and held that view because he had not observed the conduct Ball was alleged to have engaged in [Transcript p. 9‑69].  Also behind the refusal to provide an affidavit was the likelihood of repercussions [Transcript p. 9‑70].  Nicolia was unable to identify repercussions against him previously to support the claim other than actions of management that he saw as a threat [Transcript p. 9‑71].  Nicolia accepted that "context is everything in relation to swearing" in the workplace [Transcript p. 9‑71].  He denied that he had ever sworn at another officer but conceded he had received a warning letter for doing exactly that following an investigation [Transcript p. 9‑72].
  9. [145]
    In re‑examination Nicolia gave evidence about the distinction of swearing at an officer or around an officer.  Also on swearing there were times when the adrenaline was pumping he may tell a prisoner he was a "fuckwit".

Ash

  1. [146]
    Ash, a Solicitor, acted for Ball prior to and at the commencement of the proceedings before being disengaged by Ball on 30 June 2017.  Ash became a witness as a consequence of evidence given in the proceeding by Hay and more particularly following a line of questioning from the Commission.
  2. [147]
    In the course of Hay's cross‑examination the Commission was involved in the following exchange with him:

Commissioner: Well, then it begs the question then, why did you refuse to provide a statement in these proceedings?

Hay: I didn't. Nobody asked me for a statement. I never refused anything. Nobody approached me whatsoever.

Hay then left the courtroom and the matter was the subject of an exchange between the Commission and Counsel appearing for Ball where Counsel's attention was drawn to the transcript from day two of the proceedings where Counsel had informed the Commission:

Commissioner, my instructions are Mr Hay and Mr Nicolai have both ‑ have said in oral conversation with my instructing solicitor they are not prepared to voluntarily give evidence and will only do so if subpoenaed. No conversation has occurred at all in respect of Mr Hansen, so we ‑ again, we are attempting to provide evidence in difficult circumstances.

  1. [148]
    Counsel for the Respondent in addressing the situation at hand stated:

Well, it clearly will be – it clearly does go to Mr Hay's credit, given what he's just said.  And reluctant as I am to say this, if Mr Ash is not now called, then the clear inference will be inviting the Commission to make the clear inference that his evidence would not have assisted Mr Ball's case.  As reluctant as we would be to say that. [Transcript p. 8‑5]

  1. [149]
    There was a short adjournment and upon the resumption of proceedings Counsel for Ball informed the Commission of the following:

Commissioner, in the – I telephoned and spoke to my former instructing solicitor.  Mr – I've requested Mr Ash to swear an affidavit.  He informs me that he will do so.  As soon as that affidavit is to hand I'll provide it to the Commission and to my learned friend and, again, will make Mr Ash available for cross‑examination.  But my instructions are that – that the position I put to you was the correct one which is that the witness – can I ask – it's a very serious matter that we're dealing about and I wouldn't like there to be any confusion about the witness's perception of your question, Commissioner ‑ ‑ ‑ . [Transcript p. 8‑6]

Affidavit ‑ 5 July 217

  1. [150]
    On 28 February 2017 Ash had participated in a conference involving Counsel, Ball and Hay which was held at Counsel's chambers.  The purpose of the conference was to introduce ball to Counsel and to take instructions from him in respect of the conciliation conference that was to be held in the Commission the following day.  Ash had spoken to Ball subsequent to the termination of his services and he had agreed to waive solicitor/client privilege in relation to part of the previously mentioned conference that involved dialogue between Ash and Hay in the following terms:

Hay: I'm here as Rick's support person.  Rick's not in a good way, not good at all.  His doctor has diagnosed him as having some pretty bad depression.  Rick's having a hard time remembering things because of the medication the doctor has put him on.  I helped him with his responses so I know the background pretty well.

Ash: Would you be prepared to be a witness for Rick if the matter should go to a hearing.  You would need to provide an affidavit and be available for cross‑examination.

Hay: Oh no, I've already got a target on my back.

Ash: Well, I could subpoena you.

Hay: I'll do it if you subpoena me.  I'd need a subpoena.

  1. [151]
    Ash had a further conversation with Hay on 21 June 2017 which was the subject of reference in his affidavit as follows:

Ash: QCS have gone outside the matters relied on to dismiss Rick and say that no one wants to work with him and he is a joke.  Is it your position still that you think he performed his duties well and was respected?

Hay: Yes, I can say he was respected by the prisoners and that I had no problems working with him.

speak to about Rick?

Yes, subpoena me.  You could have a chat to Rob Nicolia, Jeffro Clem and Glenn Hanson.

Ash: Who are Clem and Hanson?

Hay: Clem is the union delegate.  He and Hanson both worked with Rick.

Ash: Alright, I will subpoena you and talk to the union about the others.

Affidavit ‑ 15 August 2017

  1. [152]
    The second affidavit in the first instance offered a number of corrections or explanations in respect of the first affidavit.
  2. [153]
    In reference to the words "speak to about Rick?" it should have instead read:

Ash: Ok, you still need to be subpoenaed?  Can you think of anyone else I should speak to about Rick?

  1. [154]
    Ash referenced other discussions in which he had participated that included Nicolai and Michael Thomas, also attaching documents that included amongst other things file notes of the said discussions.
  2. [155]
    Under cross‑examination Ash gave evidence that references to Ball in his affidavit of 5 July 2017 had been mistakenly made as he had formally ceased to act for Ball on Friday 30 June 2017 [Transcript p. 24‑9].  He acknowledged that he participated in two telephone conferences with Dr Shea and counsel for Ball on 7 July 2017 as a courtesy given that Counsel was being directly briefed at the time.  He had sought advice from the Queensland Law Society ethics area and his appearance in proceedings was not on behalf of Ball [Transcript p. 24‑10].  In another affidavit sworn by Ash on 26 June 2017 in which he stated Ball had advised him in and around March 2016 that Dr Shea was his treating general practitioner causing him to given evidence that he was wrong in regards to what he had said about the topic previously [Transcript p. 24‑24].  Ash accepted that he had given detailed evidence about a conversation with Hay without having kept a file note [Transcript pp. 24‑34 to 24‑35].  Ash's affidavit on 5 July 2017 had been prepared without having read the transcript of Hay's evidence with reliance upon a discussion with Counsel for Ball about the issues to address [Transcript p. 24‑35].  In his discussion with Counsel he was informed that Hay had given evidence that he had been prepared to give a statement but no one had asked him for one to which he had replied "Well, that's not right, I recall asking about needing to be subpoenaed" to which Hay replied that he did [Transcript p. 24‑44].  Counsel had formatted his affidavit but everything else remained his [Transcript p. 24‑45].  Ash was questioned about the content of file notes attached to his affidavit of 5 July 2017 but was unable to recall who may have made the particular comments [Transcript p. 24‑52].  Ash recalled that at the 28 February 2017 conference he specifically asked Hay whether he would give a statement or an affidavit to which Hay replied "No, I've already got a target on my back" and that he would need a subpoena to attend.  He had a further conversation with Hay who told him he would "still need a subpoena" [Transcript p. 24‑53].

Respondent

Juffs

  1. [156]
    Juffs a Correctional Supervisor at WCC gave evidence that her day‑to‑day responsibilities included:
  • management of staff and prisoners including administrative needs;
  • administration of disciplinary breach procedures; and
  • conducting audits.
  1. [157]
    Juffs had known Ball since the commencement of his employment at WCC and had at times been his supervisor.  There had been concerns with his performance and conduct that included:
  • 29 April 2014:  concerns about sending a prisoner to the medical unit without notification;
  • 29 April 2014:  Ball's slow response to a code yellow where he had finished a cigarette instead of hurrying to assist two officers who were wrestling with prisoners;
  • 24 September 2014:  Ball's refusal to allow prisoners to go to work in Industries because they were too slow in getting to the doors.  Ball had been spoken to about the incident and had said words to the effect "he was leaving the WCC before he hit someone";
  • 23 October 2014:  there was a code yellow incident where Ball had entered the N3 unit in possession of keys for that unit which was a breach of procedure for Secure One; and
  • 29 February 2016:  Ball's refusal to follow her directive to "get off the computer" and to ensure he was watching the units.  There had been a need to speak to him on three occasions that day about computer usage.
  1. [158]
    In or around 2014 Juffs had refrained from rostering Ball into the units because he had been locking prisoners in their cells and making decisions that were not his to make.  There were also difficulties in finding officers prepared to be rostered on with him to work in the units.  In or around late 2015 early 2016 she had received reports from other CCOs including Harries and Crichton that Ball had been sleeping on the job whilst working in the units which caused her to raise the issue with him.  Ball informed her that his wife had suffered a stroke and he had fallen asleep at work due to having to care for his wife at night.  Juffs herself had found Ball dozing off during shifts and had told him to wake up but had not documented those occasions.
  2. [159]
    According to Juffs other issues of concern included:
  • locking prisoners up in their cells whenever he felt like it; and
  • leaving staff waiting at doors for a long time when movement control officer.
  1. [160]
    In responding to the versions given by Ball the evidence included her recall about Ball working on the computer without him resting his chin in his left hand and she was not aware of issues relating to his sore neck.  Nor did she have any knowledge about Ball having sensitive eyes or wearing glasses that were tinted.  Juffs also disputed Ball's evidence around the sun shining directly into the N3 unit glass windows on to the officer's station desk nor had other officers complained to her about the sun being an issue.  In P Block in the Tardis the sun had caused some issues to the extent there were blinds installed to shield the area from the sun but no request for blinds in N Block.
  2. [161]
    Juffs took issue with other facets of Ball's evidence that included:
  • there were no written directions that require access to cells be done five at a time;
  • some officers may open one cell at a time due to the circumstances on the day;
  • prisoners did not usually laugh at other prisoners being doubled up as prisoners do not like this practice;
  • Ball's evidence around the role of a CCO to de‑escalate problems was inconsistent with his prisoner management style;
  • Ball frequently sent prisoners to their cells as a punishment;
  • Ball was not responsible for decision making about which prisoners were doubled up;
  • Prisoners do not continually bang on the Lexan to deliberately annoy officers;
  • Juffs had never witnessed prisoners hanging off grills or windows; and
  • Juffs had never witnessed the use of the "B" gesture as described by Ball.
  1. [162]
    In respect of other areas of Ball's evidence it was not accepted that Crichton would be lacking in his duties as he was "almost hyperactive" in the way he undertook his work.  The claim that prisoners could see the whiteboard in the officer's station from the common area was questionable.  It was Juffs' evidence that most officers were reluctant to write a report about another officer and it was the case that Harries had reported an incident to her involving Ball and it had been committed to a written complaint at her request.
  2. [163]
    Finally, based on her experience supervising Ball she had formed the view that he:
  • did not follow directions given by managers and supervisors;
  • always had to have a say how things were done; and
  • his conduct in the units whilst working in Secure One put staff and prisoners in danger and had the potential to risk both safety and security at the WCC.
  1. [164]
    Under cross‑examination Juffs gave evidence of accessing the work diaries in respect of the particular dates regarding her evidence around Ball's performance and conduct [Transcript p. 11‑3].  There was also reliance on her memory in recalling dates she had supervised Ball in the units [Transcript p. 11‑4].  Juffs had been told by Ball that his wife had suffered a stroke but was unable to recall the specific date [Transcript p. 11‑8].  Juffs gave evidence around code yellows and prisoner restraint conceding there were occasions when officers might swear at prisoners but disputed it was a common practice [Transcript pp. 11‑9 to 11‑15].  Juffs refused to accept that officers swearing at prisoners was a general concept in the workplace or that swearing was a frequent occurrence in officers' everyday language [Transcript p. 11‑17].  Juffs had no knowledge of the number of code yellows called by Ball or officers he had been paired with [Transcript p. 11‑20].  If a prisoner was disrespectful to an officer and continued to do so after being spoken to she would likely send him to the detention unit on a safety order or have them returned to their cell [Transcript p. 11‑21].  There was no general rule in relation to prisoners being put in their cells on timeouts and would depend on the circumstances at the time [Transcript p. 11‑22].  There were no written directions for officers regarding timeouts with expectations that officers expected to know if prisoners were escalating [Transcript p. 11‑23].
  2. [165]
    Juffs as a supervisor did not make decisions about officers' conduct requiring performance engagement or discipline but would report such behaviour up to management [Transcript p. 11‑24].  Concerns could be passed up either orally or in an email and she would not be advised of any outcome [Transcript p. 11‑25].  Juffs was not aware of Ball being performance managed or disciplined in respect of incidents covered in her evidence [Transcript p. 11‑25].  Juffs did not accept that when Ball had been transferred to her area that her response to the transfer was aggressive [Transcript p. 11‑30].  Juffs at the time had opened up a Word file for Ball and had done the same for other officers under her supervision but not all officers [Transcript p. 11‑31].  File notes were kept on about five out of 100 officers in her area [Transcript p. 11‑32].  Juffs had concerns with Ball making decisions about his rank when he was in Secure One but denied having a particular mindset against Ball [Transcript p. 11‑36].  On 29 April 2014 Ball had sent a prisoner to medical without first calling which had upset medical [Transcript p. 11‑37].  Ball had admitted sending the prisoner to medical without checking [Transcript p. 11‑44].
  3. [166]
    With regards to the code yellow incident Juffs accepted that if he was the unit officer on that day he did not have a duty to respond however "if you're seeing one of your fellow officers on the ground, wrestling with a prisoner, you don't light up a smoke and walk around the corner and amble around" [Transcript p. 11‑46].  It was also accepted that two responders had the prisoner restrained on the ground [Transcript p. 11‑48].  Juffs agreed Ball had not breached any protocol but had let down fellow officers [Transcript p. 11‑52].  Juffs being familiar with the Code of Conduct agreed that her evidence should be precise and impartial in recounting the facts [Transcript p. 11‑59].  On the matter of file notes relied upon to record issues involving Ball they did not all lead to a complaint or concern being raised with a manager [Transcript p. 11‑64].  Juffs had informed all officers at a commencement of shift briefing that the movement support officer was not "to sit and chat or stay on the computer" although only Ball and one other officer were in that role on the day [Transcript p. 11‑65].  On the interaction with Ball about excess computer use on the day Juffs had not checked whether the computer was being used for work or non‑work related matters but had told him to get off the computer [Transcript p. 11‑71].  Ball had not told her that he was undertaking work‑related duties at the time his computer usage was being questioned by her [Transcript p. 11‑76].  Juffs had assumed that between 10.00 am and 12.30 pm on 29 February 2016 Ball had been continuously on the computer [Transcript p. 11‑78].  Juffs conceded in making that assumption she had not been fair and impartial to say Ball had failed to comply with her direction [Transcript p. 11‑79].
  4. [167]
    Juffs acknowledged her file notes contained no mention of Ball making decisions above his rank [Transcript p. 11‑80].  On the failure of Ball to operate effectively as the movement control officer on 24 September 2014 Juffs was in a management role on that day and had no direct knowledge about the incident.  Juffs had made some enquiries but conducted no disciplinary‑sort inquiry [Transcript p. 11‑83].  Juffs had no knowledge whether there was a disciplinary action or whether Ball was performance managed over the incident [Transcript p. 11‑84].  In discussions with Ball on the day he appeared to be visibly upset [Transcript p. 11‑85].  The 23 October 2014 code yellow incident had been a breach by Ball as he had entered the N3 unit in possession of the unit keys [Transcript p. 11‑89].  His actions were against the "practice that we do" and there was an admission from him that he did it [Transcript p. 11‑90].  The code yellow was on the day a "Zulu" which automatically involves the dog squad and the prisoner in question was a known violent offender [Transcript p. 11‑92].  If the keys had got into the hands of a prisoner they would have been able to let other prisoners out [Transcript p. 11‑93].  The decision of Ball was above his rank and whilst there was no disciplinary action taken he was spoken to [Transcript p. 11‑95].  As a result of Ball not listening to her a decision was made to roster him outside the units [Transcript p. 11‑98].  Later he was allowed to return to the units [Transcript p. 11‑99].
  5. [168]
    On the return of Ball to Secure One Juffs had a conversation with "someone" about the need to monitor Ball's performance on his return.  She recalled he was being performance managed and of having to report up any issues [Transcript p. 12‑27].  Juffs later recalled that it was Potter who raised the matter with her [Transcript p. 12‑27].  Juffs confirmed receiving verbal reports from CCOs (other than Harries and Crichton) about Ball sleeping at work [Transcript p. 12‑29].  The CCOs did not want to "put it on paper" [Transcript p. 12‑30].  In an effort to help Ball she had a discussion with him about the reports she had been receiving [Transcript p. 12‑30].  On 10 February 2016 both Harries and Crichton put their complaints about Ball in writing and later that day she had the discussion with Ball who explained his tiredness being due to his wife's medical circumstances [Transcript p. 12‑33].
  6. [169]
    With regards to her evidence about Crichton's work performance "not lacking" she accepted that she had knowledge he now had a history and had been reprimanded more than once in relation to the performance of his duties [Transcript p. 12‑34].  Juffs described numerous occasions where she had found Ball "dozing off" with him being "crouched, eyes closed and leaning on the arm of the chair" [Transcript p. 12‑36].  Juffs conceded that seeing Ball slumped in his chair with his arms crossed and his head down was the highest it got [Transcript p. 12‑37].  Juffs had made no file notes about him sleeping nor had she informed Potter [Transcript p. 12‑38].  Juffs had advised both Harries and Crichton to put their complaints about Ball in writing but denied speaking to them together [Transcript p. 12‑45].  Juffs agreed that CCOs could give a prisoner a "timeout" without minor breaching them [Transcript p. 12‑50].  In the case of Ball it was "just happening a lot" on the days she was on duty with him [Transcript p. 12‑51].  It was said by Juffs that a direction by a CCO to a prisoner to return to their cell in a situation where they were not minor breached was a lawful direction pursuant to the relevant legislation [Transcript p. 12‑61].  Juffs recalled discussions with Crichton around Ball's workplace activities of which Crichton had complained but could not recall the date they occurred [Transcript p. 12‑64].
  7. [170]
    On 10 February 2016 officer Harries had complained orally about a number of issues he had with Ball which included granting of cell access, causing animosity amongst prisoners and sleeping on the job [Transcript p. 12‑68].  Juffs acknowledged it had come to her attention that some officers take fatigue time and shut their eyes [Transcript p. 12‑71].  Juffs agreed that the use of timeouts was necessary for the good order of the unit and involved the exercise of judgement by the officer [Transcript p. 12‑75].  She had received verbal complaints from officers about Ball's frequent use of timeouts and as such had spoken to him [Transcript p. 12‑76].  On being kept waiting by Ball when he was the movement control officer it was her assessment his actions were deliberate but accepted she did not know why this had occurred [Transcript p. 12‑78].  Juffs had in her time supervising Ball never observed him holding his head whilst using the computer [Transcript p. 12‑80].  Juffs did not agree with the proposition that the western sun would shine into the N3 unit in the afternoons reflecting in a manner that made the officers station glary and bright [Transcript p. 12‑87].  Her evidence around Ball's prisoner management had arisen as a result of what she had been told and not from anything she had observed first hand [Transcript p. 12‑99].  Juffs had never witnessed Ball draw a reverse "B" with his fingers [Transcript p. 12‑106].  On her evidence that Ball's conduct in the units whilst working in Secure One put staff and prisoners in danger and had the potential to risk safety and security of WCC it was based on reports she had received [Transcript p. 12‑111].
  8. [171]
    In re‑examination Juffs reaffirmed her evidence of having never seen a prisoner laugh at another prisoner being doubled up.  At different times she had asked Ball why he had given prisoners timeouts after which she told him to let the prisoner out.  Juffs had also at times reminded Ball that there had to be reasons to justify locking prisoners in their cells.

Tilly

  1. [172]
    Tilly currently employed in the position of Occupational Health, Safety and Environmental Coordinator at WCC was in the period from 5 August 2015 to 15 November 2015 the Acting HR Manager.  He had known Ball for approximately 11 years.  On 30 October 2015 he was requested by the WCC General Manager to provide Ball with a document, which was a warning letter (dated 29 October 2015) from McDermott.  Tilly was unable to complete that task at the time as Ball was absent from work on rostered days off.
  2. [173]
    Tilly participated in weekly management meetings referred to as "Code of Conduct Meetings" and on 3 November 2015 he made an entry in those minutes of the need to provide Ball with the warning letter.  The following day he met with Ball in the presence of the Operations Manager Ian Mosely (Mosely) at which time the letter was delivered to Ball who signed an acknowledgement sheet (AT‑04).  In the course of the same meeting Ball was advised he could return to the Secure One roster if he wished and within a "very short time frame" advised of his acceptance of the offer.  Tilly had no recall of Ball having raised concerns about returning to Secure One or that he would be a "target" if he had returned to Secure One.
  3. [174]
    Tilly also gave evidence regarding a CCO (Michael Wheeler) who had been identified as a witness for the Respondent in these proceedings however he had passed away as a result of injuries suffered whilst on leave.
  4. [175]
    Under cross‑examination Tilly explained his attendance at the Code of Conduct meetings in 2015 was due to his HR role or his workplace health and safety role [Transcript p. 13‑30].  Tilly was taken to a document attached to his affidavit (AT‑03) which related to matters of Ball's conduct in the workplace which he described as a:

…chronological record of any particular set of circumstances, so there are facts in the chronological record, ie 'such and such a date, this happened, such and such a date this happened etc…something was referred to ethical standards'." [Transcript p. 13‑34]. 

Upon perusal of the document it records the outcome of an investigation [Transcript p. 13‑35].  Tilly was unaware of the process adopted by McDermott in this particular case but according to his evidence the normal process would be to act under the advice of the ESU [Transcript p. 13‑40].  Tilly was referred to attachments KM‑14, KM‑15 and KM‑16 from the affidavit of McDermott which in the case of KM‑14 it was said the decision was taken by McDermott independent of a recommendation by ESU however that assessment was rejected by Tilly [Transcript p. 13‑42].  Not every complaint is forwarded to ESU for investigation as some after analysis are found to be frivolous [Transcript p. 13‑43].

  1. [176]
    Tilly was questioned around an entry applying to Ball as being a "detrimental file note" which he said had no special meaning at the WCC but in public service at large his evidence was it had a broader meaning and followed the conclusion of a disciplinary proceeding which would be formal in nature [Transcript p. 13‑50].  A formal warning was something a Deputy Commissioner gives after a process under the PS Act but sometimes it may be issued when there was not enough evidence or information to proceed further [Transcript p. 13‑59].
  2. [177]
    Note:  In the course of the cross‑examination objection was taken by Counsel for the Respondent in respect of the relevance of the witness's views on the disciplinary process.  There was a requirement for employees to familiarise themselves with the Code of Conduct although in correspondence to Ball over disciplinary matters there was no reference to Ball of the obligation to make himself aware of the Code of Conduct [Transcript p. 13‑63].
  3. [178]
    On 4 November 2015 he handed Ball the warning letter but had made no file note relating to the event as he was just the messenger.  The meeting had taken place in the HR manager's office in the C Block administration building [Transcript p. 13‑68].  Tilly was unable to recall the length of the meeting but "most of them go fairly quickly" [Transcript p. 13‑69].  Tilly's memory of the specific meeting was not precise but on going to generalisations he would have said words to the effect "you need to sign an official acknowledgement that you've accepted the letter" [Transcript p. 13‑71].  He remembered Ball was uncomfortable about being there and he had a number of matters that were still outstanding [Transcript p. 13‑72].  Tilly was taken to the WCC Vehicle Lock Vehicle Access Search Register which he accepted he perused to confirm the 4 November 2015 event [Transcript p. 13‑77].  Prior to the making of his affidavit he was aware Ball had disputed signing for the warning letter on 4 November 2015 [Transcript p. 13‑79].  Tilly had also made enquires of the manager of operations around the compound duties that were undertaken by Ball on the day of the meeting [Transcript p. 13‑80].  Tilly was aware of the vehicle log register but had not worked in the area [Transcript p. 13‑86].  On being taken to Ball's signature on the receipt letter and another document signed by Ball he gave evidence that "well, the signatures don't look the same, but I mean you look at 150,000 pieces of paper I sign everyday by signature.  None of them would look exactly the same either" [Transcript p. 13‑89].  Tilly did not accept the view of a transfer to the Front Run was a disciplinary action [Transcript p. 13‑92].
  4. [179]
    In re‑examination Tilly identified his signature on the receipt letter as being the signature against the title of receiving officer and had been signed "in front of the person".

Gray

  1. [180]
    Gray a CCO commenced employment at WCC following graduation from the Queensland Corrective Service Academy in 2012.  In the two years immediately prior to Ball's termination he had been rostered in the same area as Ball for one or two shifts per week, generally in the same block but in different units.
  2. [181]
    Gray recalled an incident on or around 7 or 8 October 2014 where Ball whilst the P Movement officer had left him for about three minutes before allowing him to exit the P3 unit.  Having raised his concerns with a manager he forwarded the following email:

As per discussion earlier:

I was in P3 doing legal mail and was leaving.  Unit officers radioed movement as per procedure. 

Gavin was not in movement (I'm guessing taking a bathroom break) rick was sitting in the movement control nowhere near the controls and looked at me.  I then waved to get his attention.  He then looked at me and shrugged his shoulder and made no attempt to open the doors for my exit of the unit.  It took roughly 3 mins and a lot of waving to get his attention before he finally relented and let me out of the unit.

It appears to me that he was refusing to use the controls in defiance or in protest of something.  As per our conversation you confirmed this belief.

On 24 February 2016 he was rostered on with Ball in the P Block Movement Control Station as the support officer to Ball.  During that shift there were a number of occasions where Ball had ignored radio communications from other officers prompting him to ask Ball if everything was "all good" to which Ball responded making the following comments:

  • had been under investigation that had prevented him working in the units until recently;
  • supervisors were chasing him because he had apparently fallen asleep in the unit; and
  • he did not care anymore as he did not want to work at the WCC.
  1. [182]
    Despite his discussion with Ball he continued to purposely leave people in the airlocks for longer than necessary during that shift and ignored requests from Gray to open doors. It was Gray's view that Ball was intentionally delaying the door opening process.  Following that shift he later had discussions with a supervisor about what had occurred and on 29 February 2016 sent the following email to the supervisor:

I was rostered to work in P Movement support on the 24/2 with Rick Ball as the movement control operator. I feel that I need to make you aware of some of the day's events.

  • Answering the phone with 'P movement, tell someone who cares' 'hi, you've reached someone who doesn't care' and other similar phone greetings.
  • Purposely leaving both prisoners and staff at doors and in airlocks and in some cases people would be waiting so long they would push the intercom button. This occurred at the front door a couple of times.
  • There was also numerous occasions when as the movement support person I would call out when staff were at doors. After a couple of calls I would turn to find him face down with his head in his hands. (I am unsure if he was asleep or just closing his eyes for a short time), however when I would call louder or even nudge him he would state 'ah they can wait' whilst keeping his head down to keep the appearance that he wasn't caught off guard.

Now the only reason I wish to bring this to your attention is because I feel it interferes with staff safety when he is in a post of overseeing staff safety from a movement control station."

  1. [183]
    Gray gave evidence in response to material contained in Ball's affidavit filed in the proceedings in which he took issue with the following issues regarding the 24 February 2016 shift:
  • Ball's claim that he had undertaken training sessions on that date were incorrect;
  • Ball had not been required to test emergency doors on the shift as Gray had completed that task;
  • Gray had noticed Ball's eyes were closed on some occasions that shift and whilst he could not tell if he was asleep he was not in the alternative paying attention;
  • Gray observed Ball with both palms on his forehead looking down at his desk whilst not writing or looking at the computer screen;
  • Ball's refusal to swap positions with him on the day; and
  • Ball had said words to the effect "No they can fucking wait" in response to Gray saying that staff were at the door.
  1. [184]
    Gray confirmed that the content of the ESU interview was true and correct and denied allegations made by Ball that he would have coffee at a Woodford café with Crichton and Harries prior to commencing work.
  2. [185]
    Under cross‑examination Gray confirmed that the first entire shift he had been rostered on with Ball was that of 24 February 2016 [Transcript p. 14‑4].  On the issue of "timeouts" they are often used to grant prisoners a chance to go to their cells to get away from overcrowding and noise in the common areas [Transcript p. 14‑5].  He recalled that "timeouts" being used for disciplinary purposes had ceased about three year's previous [Transcript p. 14‑10].  Gray denied his evidence regarding "timeouts" was knowingly false [Transcript p. 14‑11].  Gray accepted at the current time a prisoner in certain circumstances may be directed to their cell if an officer believed it was for the good order of the unit so as to allow for a safety order to be generated [Transcript p. 14‑17].
  3. [186]
    Gray gave evidence about the P Block Movement Control Station and the processes relied upon when working in that area [Transcript pp. 14‑18 to 14‑27].  Gray had raised concerns with Ball's conduct as movement control officer on 24 February 2016 which he felt was unsafe [Transcript p. 14‑29].  The supervisor had initially raised questions regarding the conduct on 24 February 2016 prior to Gray having voiced his concerns [Transcript p. 14‑34].  Prior to the commencement of the 24 February 2016 shift he was aware that someone had made a complaint against Ball, having overheard conversations in the workplace [Transcript p. 14‑42].  The four day gap in committing his concerns about Ball to writing was due to Gray having days off [Transcript p. 14‑58].  The supervisor had told him if he wanted to proceed [against Ball] with his complaint he would need to put it in writing as nothing occurs from a verbal conversation [Transcript p. 14‑60].  In the course of the shift he formed the opinion that due to Ball leaving prisoners and staff in airlocks purposely had the possibility to create a volatile situation by purposely antagonising prisoners [Transcript p. 14‑63].
  4. [187]
    On 11 March 2016 he spoke to ESU having received a letter from them as a result of his email complaint against Ball's conduct as the movement officer on 24 February 2016.  Following the interview he was not appraised or advised of any findings in relation to his allegation [Transcript p. 14‑63].  Gray acknowledged he was unsure whether Ball had been asleep whilst on duty [Transcript p. 14‑65] but he was inattentive [Transcript p. 14‑66].  On the number of calls to the movement station in the course of a shift Gray was unable to put a figure on it as that would require "guestimating" but at times could be every 10 to 15 minutes [Transcript p. 14‑75].  On the day in question he recalled that Ball on a number of occasions ignored radio calls from officers exiting units [Transcript p. 14‑77].  He did not know whether Ball was deliberately ignoring the communications [Transcript p. 14‑79].  About half the calls taken by Ball on the day were answered in an appropriate fashion with the other half answered in derogatory terms [Transcript p. 14‑80].  Gray was taken to the transcript of the interview with ESU on 11 March 2016 where he had said that 90 per cent of calls were answered by Ball in an inappropriate manner whereby he stated his evidence in the proceedings was a "guestimate" [Transcript p. 14‑81].
  5. [188]
    Gray conceded in his statement to the ESU he had mentioned Ball saying the words "what the fuck do you want" as was his evidence in the proceedings where he gave evidence swearing was involved [Transcript p. 14‑87].  Also in the email of 29 February 2016 the word "fuck" was not quoted [Transcript p. 14‑88].  Gray denied the words said to be uttered by Ball were deliberately manufactured [Transcript p. 14‑89].  He did not accept that Ball had been "bantering" when answering the phone [Transcript p. 14‑89].  The actions in leaving someone in an airlock requires them to be let in through another door in the first place and unless something happened drastically to them it was his view they had been left in purposely [Transcript p. 14‑99].  He believed Ball had intentionally left people in airlocks on the day in question [Transcript p. 14‑100].  Gray conceded his evidence regarding Ball intentionally leaving people in the airlocks was on his part an assumption [Transcript p. 14‑104].  Gray denied giving knowingly false evidence about observing Ball's eyes being closed [Transcript p. 14‑131].
  6. [189]
    Gray admitted his evidence‑in‑chief about the transcript of his ESU interview having been read before preparing his affidavit was not correct as he had read only part of the transcript [Transcript p. 15‑2].  On people being kept in the airlocks by Ball it was said to be for periods of 30 seconds or more when barring an emergency situation it should be five to 10 seconds [Transcript p. 15‑5].  In accepting that on a rare occurrence that a person could have pressed the intercom button straightaway and there was no delay culture at the WCC that you did not press those buttons for periods of less than 30 seconds unless there was a code or you were in a hurry [Transcript pp. 15‑12 and 15‑13].  Gray was unable to inform the Commission as to his [static] position in relation to Ball on all the occasions he had concerns about Ball delaying the opening of doors [Transcript p. 15‑28].  Gray reaffirmed his earlier evidence that Ball was sitting in his chair just not opening the door whilst he sought to get Ball's attention [Transcript p. 15‑32].  Gray was unable to recall whether Ball had told him he was under investigation or whether a staff member had written him up [Transcript p. 15‑39].  Ball had according to Gray told him he did not want to work at WCC and he had not been careless in the drafting of his affidavit on this issue [Transcript p. 15‑42].  Evidence given about Ball's conduct on 24 February 2016 as being potential safety concerns were said to be hypothetical [Transcript p. 15‑54].
  7. [190]
    In re‑examination there was according to Gray a culture at WCC about respecting seniority which made it difficult to raise issues with senior officers.  On his observations on Ball in the Tardis area on 24 February 2016 the maximum distance he would have been from Ball was five to six metres.

Beaumont

  1. [191]
    Beaumont a CCO commenced employment at WCC in October 2014 and could not recall when he had first met Ball but had never worked directly alongside him.  In February 2016 he was contacted by the ESU Investigator in relation to an investigation involving allegations against Ball.  He was interviewed by the Investigator on 29 February 2016 in circumstances where he had not made a report or complaint about having observed Ball falling asleep.
  2. [192]
    Evidence was given that on 29 January 2016 he was rostered with Bracher as the unit officers for N4 unit.  On that day he recalled seeing prisoners sitting on a bench seat, laughing and banging on the N3 exercise yard window.  He then looked in the direction of the N3 unit where he could see Ball sitting in the Tardis and it appeared he was asleep.  Ball appeared to "startle" as if he had just woken and appeared to fall back asleep.  Beaumont opined that sleeping on the job was not good as a CCO role is to ensure the security of the unit and the safety of staff and prisoners.  Beaumont believed that the reinstatement of Ball would be inappropriate on the basis of concerns about Ball falling asleep whilst on duty.  A series of photographs attached to Ball's affidavit were shown to Beaumont from which he identified particular locations within N block the subject of his evidence.
  3. [193]
    Under cross‑examination Beaumont acknowledged that he could not tell whether Ball was asleep [Transcript p. 15‑73].  He was also taken to a number of photographs from inside WCC with relevance to his evidence regarding what he witnessed in respect of Ball on 29 January 2016 but was unable to specifically point to where Ball was seated on the day [Transcript p. 15‑78].  Ball appeared to be in a comfortable position and the movement he observed was a sharp jolt like someone had either come around or had woken up [Transcript p. 15‑79].  He accepted Ball could have been rearranging himself in his chair and did not know if he was asleep [Transcript p. 15‑80].  Beaumont's evidence that he had observed officers communicating with prisoners by way of hand gestures but had not seen examples cited that included holding handcuffs in the air or one finger across the throat [Transcript p. 15‑81].  He had no awareness of Ball's "go to hand signal" [Transcript p. 15‑82].  The actions of prisoners banging on the Tardis window happens frequently, often enough to get someone's attention [Transcript p. 15‑84].  Prior to his interview with ESU he had no awareness of complaints made by officers against Ball and as to whether he had been party to a discussion where Crichton's written complaint was raised his answer was "absolutely not" [Transcript p. 15‑88].  He understood the practice of timeouts was to suggest to prisoners who were being a nuisance to officers or other prisoners that they go back to their cells if they are happy to do so.  Prisoners were not given an opportunity of choice between a timeout and being minor breached [Transcript p. 15‑90].  Timeouts were not a form of punishment.  Beaumont had not personally experienced an unfavourable interaction with Ball and his position of not wanting to be rostered on a shift with Ball had been based on hearsay [Transcript p. 15‑94].
  4. [194]
    In re‑examination his evidence was that for an officer to draw a finger across their throat to get a prisoner's attention that would not be acceptable as it would be too aggressive and the job of a CCO was not to lower "ourselves" to their level.  On the possibility of Ball having rearranged himself in his seat was said to be highly unlikely.

Potter

  1. [195]
    Potter is currently a Correctional Manager, Secure Two at WCC having been in the position for seven years and the Department for a period of 18 years.  The role requires the following responsibilities:
  • daily management of staff and prisoners;
  • attending to the administrative needs of both prisoners and staff;
  • administration of disciplinary breach proceedings; and
  • conducting audits.
  1. [196]
    On 16 February 2017 he forwarded an email to Woodford Secure Two officers which had been obtained by Ball although he no longer worked at WCC.  In the email he references "time outs" which he described as follows:

Access times are provided to prisoners to allow them access to their cells during the day.  There are set access times throughout the day.  During access times, prisoners are allowed access to their cells, for example to get something out of their cells (like a book), swap some of their laundry over or have a lay down.

  1. [197]
    Due to WCC being over its capacity officers have tended to allow prisoners some time in their cells to assist with managing the effects of overcrowding.  Approximately two years ago there had been a change in the practice in relation to "time outs" whereby staff had thought they could secure prisoners in their cells to suit themselves and not tell anyone about it including the levels of management.  Ball had been part of a core group of older officers whose practices were unsafe.  Potter had sought to enforce change which had been resisted by some staff members including Ball with the end result being that there is now compliance with Custodial Practice Directions.  In the case of Ball his attitude was that he could lock prisoners away when he felt like it and had failed to understand the danger.  Officers can no longer direct prisoners to go to their cells for no reason.
  2. [198]
    Potter gave evidence of a number of incidents involving Ball at the WCC that included:
  • 14 April 2014 ‑ Ball in a conversation with Potter following a recent ESU investigation appeared not to make any attempt to change his ways or practices;
  • 10 October 2014 ‑ Potter spoke to Ball about the following matters:
  • 16 September 2014 ‑ during a debrief he made the comment "staff are all cunts";
  • 24 September 2014 ‑ Ball hung up on supervisor Blair McLean telling him "fuck off Blair not talking to you now"; and
  • 7 October 2014 ‑ leaving a staff member locked in an airlock and not observing staff in the units.
  1. [199]
    A further incident occurred on 23 October 2014 where Potter and Juffs interviewed Ball about a poor decision to enter the N3 unit alone with the response keys.  Ball had conceded the rebuttal but tried to blame the responding officer.  Later on 23 October 2014 he received a report from another CCO (Richard Dolan) which prompted Potter to advise the WCC general manager that the actions of Dolan had contributed to the decision made by Ball.
  2. [200]
    On 29 October 2014 there was a further incident involving Ball conducting a removal of clothing search without the support of another officer.  Ball had not logged the search and apparently tried to conceal his conduct by falsifying his report and attempted to procure other officers to back him up.  On 1 November 2014 Potter was required to address allegations regarding Ball berating a recruit officer with another officer, intervening and discretely removing the officer from the situation as she was clearly distressed.
  3. [201]
    Potter believed if Ball was to return to WCC it would send a bad message to other staff about poor workplace conduct.
  4. [202]
    Under cross‑examination Potter gave a history of his employment with Corrective Services including a period as a relief senior advisor with ESU in investigations and integrity development [Transcript p. 16‑54].  By virtue of the positions held including his current role as a manager he was familiar with performance management and discipline at WCC [Transcript p. 16‑54].  In the course of his management role he was Ball's manager in Secure One for a period of approximately 12 months with an overarching rather than direct role responsibilities [Transcript p. 16‑55].  In the period between 2013 and 2017 there were procedures in place regarding records of conversation between management and staff which were signed off by participants.  The document was then forwarded on to the deputy general manager whether signed off by the subject officer or not [Transcript p. 16‑57].  Potter in his time at WCC had only the one involvement with the performance management of a subject officer which was back in 2012/2013 [Transcript p. 16‑60].  He was not aware of Ball being performance managed in the time he was his manager [Transcript p. 16‑63].  In regards to informal discussions with a subject officer it was up to the individual officer whether there was a record of conversation kept [Transcript p. 16‑69].
  5. [203]
    Potter recalled a discussion with Ball in April 2014 in which despite being the subject of an ESU investigation Ball appeared to be flippant [Transcript p. 16‑71].  The file note upon which Potter relied did not reference the term "flippant" [Transcript p. 16‑73].  At the time of Ball coming to Secure One he was told by Potter to do his job and stick to the basics which Potter accepted was no more or less than he would have said to any officer in Secure One [Transcript p. 16‑75].  Potter agreed he had no knowledge of whether Ball was flippant about the warning he had received [Transcript p. 16‑84].  In relation to his evidence about a number of incidents involving Ball it was the case this information was brought to him by someone else and he had not been a witness to the incidents [Transcript p. 16‑84].  The record of conversation process allowed Ball to respond to allegations but was not an investigation as such [Transcript p. 16‑85].  With regards to the incident on 24 September 2014 he had received a report that Ball had refused to allow a group of prisoners to go to industry he could not recall Ball's version of events but had received an account from the supervisor [Transcript p. 16‑91] and he knew there was a disparity in views [Transcript p. 16‑92].  He was not present when Ball entered a unit during a Code Yellow on 23 October 2014 with the response keys and it was Potter's evidence that he held the opinion whilst to a "point" there were mitigating factors it still remained that you do not go on the floor with the response keys [Transcript p. 16‑96].  On the incident of the clothing search it was his evidence that since he became involved in corrections, training had been provided at the academy on the removal of clothing searches with such searches being "our bread and butter.  It's like turning a key" [Transcript p. 16‑105].  The fact that Ball received a warning letter over the clothing search was not known to the witness but he accepted the ESU findings [Transcript p. 16‑108].  Potter had previously worked in the Front Run area giving evidence around particular duties undertaken in that area [Transcript p. 16‑111].
  6. [204]
    Evidence given regarding the lack of respect for Ball by his peers was conceded by Potter as being hearsay [Transcript p. 17‑2].  Potter had heard Ball referred to as "Cougar" and other officers called "Mini Cougar" which he saw as being negative and not flattering [Transcript p. 17‑3].  Potter had never witnessed an officer being sent to the Front Run as a punishment or form of discipline [Transcript p. 17‑12].  Evidence was given around the duties of the compound officer on the Front Run particularly as they related to vehicle movement [Transcript p. 17‑16].
  7. [205]
    In re‑examination the evidence about Ball entering a unit with response keys was that the "golden rule" is you "don't do it".

Harries

  1. [206]
    Harries a CCO at WCC since 2015 was currently acting as a trade instructor in the kitchen having previously been on the relief roster backfilling absentees on any given day.  He first met Ball on the Front Run in 2015 and next saw Ball on 19 January 2016 when he was rostered to work with him in the N3 unit.  Ball's conduct from the "unlock" that morning gave him the impression Ball was doing everything he could to wind up the prisoners including:
  • making insulting comments to prisoners;
  • threatening to lock prisoners in their cells for no good reason; and
  • allowing two prisoners cell access and refusing another two in similar circumstances.

The uneven treatment of prisoners did not help with the overall tension in the unit which can cause conflict amongst the prisoners.  During lunch Ball was required to remain in the Tardis area whilst Harries took his break and upon his return he observed that Ball had not been observing prisoners as he should have.  After the lunch break he noticed prisoners laughing and pointing at the officer's station in the direction of Ball who was resting his chin in his hands with his elbows on the desk giving the appearance he was asleep.  He could see that Ball's left eye was closed and that he was doing the "nodding dog" meaning that he was nodding his head as he started to fall asleep.  Harries had lifted and dropped a metal desk lid to try and wake Ball up discretely so as not to draw attention from the prisoners.  Later that day he recalled seeing Ball asleep again at the officer's station desk and that prisoners were again pointing at him.  He again dropped the metal desk lid for the purposes of making a loud noise getting a slight jumping movement from Ball.  Harries felt unsafe as a result of Ball's overall conduct and had a genuine fear of working with him.

  1. [207]
    On 10 February 2016 he sent an email to Juffs (supervisor) advising of his concerns with Ball's conduct on 19 January 2016.  The email stated that:

I would like to bring something to your attention re N3 and CCO Rick Ball.

I was rostered on as N3B on the 19th Jan and a few issue need to be noted.

CCO Ball used every opportunity to wind the prisoner's up and threatening to lock them all down because he had had enough.  He would let prisoner's in to their cell at random times (not access) and when others asked he refused, this was causing animosity amongst other prisoner's.

During lunch break he would walk away from observing the unit and leave no one observing.  I returned from lunch to find no one watching and CCO Ball nowhere to be seen.  I have observed this on several occasions on different days, he also entered a different unit, N4, as he sore something on CCTV suggesting drug use.  He left N3 unobserved whilst he entered N4 and called Secure 1 manager and interviewed the prisoner.  As a guess it would be about 10 minutes N3 was left unattended.

Back to the 19th after lunch break I was observing the unit from the officer station whilst CCO Ball was doing something on the computer.  I turned as one of the prisoners was pointing at CCO Ball and I noticed he appeared to be asleep at the desk.  This happened at least twice that I noticed during the shift.

Although I can't pick and choose who I work with I have very strong feelings about working with CCO Ball as I do not consider it safe to be in a unit with him at any time.

He made the decision to report Ball's behaviour because in his opinion he was putting other people's lives at risk and had received no encouragement from anyone to file the complaint nor had he discussed the specific details with any other officer.

  1. [208]
    Harries gave evidence about securing prisoners in their cells and of his understanding that a CCO cannot lock a prisoner in their cell unless it is for their own safety or the safety and security of the jail.  He provided evidence of the breach process that is to be followed if a prisoner's conduct warranted such action.  Further if a prisoner was secured in their cell for safety reasons he would immediately advise the supervisor.
  2. [209]
    Evidence was given in response to the affidavit filed by Ball in the proceedings which included:
  • Ball never complained about his health or neck pain to him;
  • did not agree with Ball's evidence about what prisoners could see from tables in the N3 unit as the closest table to the Bravo desk is only about 10 meters;
  • highly unlikely any person could read the writing on the officer station whiteboard as claimed;
  • prisoners could have seen Ball's face if he was bent over at the Alpha desk;
  • he agreed with Ball that prisoners sitting at the tables in the common area could not see his face if his head was bent towards the desk;
  • he denied his "story" was false;
  • he doubted Ball could have known where he (Harries) was at certain times when his eyes were closed;
  • he did not recall if Ball wore glasses;
  • disagreed that the common area in the unit was very noisy;
  • he denied manufacturing the allegation that Ball was asleep a second time on 19 January 2016;
  • he did not make the complaint against Ball to further his own career;
  • Harries had difficulty in recalling what were said to be inappropriate comments to a prisoner on 19 January 2016;
  • he had no issue with prisoners being allowed back in the cells after muster but allowing two out of four gave the perception of favouritism and that was a "big no"; and
  • Harries acknowledged that Crichton and Gray were work friends but had not socialised with them outside of work including alleged visits to the Woodford Café.
  1. [210]
    Harries also confirmed that the transcript of his interview with the ESU Investigator was true and correct.
  2. [211]
    Under cross‑examination Harries' evidence was that on first meeting Ball on the Front Run they had some good conversations and it had been a positive work experience [Transcript p. 17‑21].  On the allegations that Ball had spoken to a prisoner inappropriately the evidence was that he was unaware of whether Ball had a rapport with the prisoner acknowledging that rapport was an important consideration in determining what could be said to a prisoner [Transcript p. 17‑23].  He recalled that Ball had said words to the effect "This is Adolf.  He is our resident old man" but had not called him a racist or any other derogatory epithet [Transcript p. 17‑24].  Harries accepted there were some inconsistencies in his recollection of the incident regarding the prisoner exchange with Ball on 19 January 2016 in which it was alleged Ball had made inappropriate comments but Harries denied that this rendered him opportunistic in terms of his evidence and that he had a willingness to change his affidavit if it suits [Transcript p. 17‑35].  Harries accepted he had no knowledge of the relationship Ball had with the prisoner in question [Transcript p. 17‑38].
  3. [212]
    Note:  In the course of cross‑examination Harries was questioned in respect of comments made by Ball to a prisoner on 19 January 2016 with some disparity as to whether the comment was that of "resident racist" or "resident old man".  Harries had given a statement to the ESU Investigator on 3 March 2016 and attached a copy of a transcript from the recorded interview to his affidavit.  At paragraph 56 of that transcript the following was recorded:

…sort of said, oh, yeah, this is Adolf, he's our resident, said something like resident (ui) or resident old man or, you know, he was trying to be funny, being mean…

  1. [213]
    Counsel for the Respondent made application in the cross‑examination facet of Harries' evidence for the audio to be played for the purposes of clarification.  The Commission in consideration of the request granted leave to allow the audio to be played in the proceedings through a re‑opening of the evidence‑in‑chief.  In doing so the following reasoning was advanced:

The Commission as constituted holds the view that in hearing and determining matters that the issue of truth is foremost and in fairness to all parties where possible, and all reasonable steps must be taken to allow the Commission to fully inform itself in a truthful way of matters that are being dealt with in the proceedings.  In respect of the audio, for the Commission to hear the matter ‑ or the audio in question ‑ it is not as if, in my view, new evidence would be introduced by the respondent, but more to the point, it would bring clarity to the issue at question.  Whilst one's best endeavours may be at the forefront of transcribing audio of ‑ of audio of an interview to written transcript, there is always the potential for human error.

  1. [214]
    Harries identified the voice on the recording as being his with the relevant part of the audio played in the proceedings.  Upon hearing the audio he indicated it brought clarity to what he had put in his affidavit and what had been said in the interview with the ESU Investigator.

Cross‑examination continued

  1. [215]
    Harries had in the interview with the Investigator complained of Ball having employed the words "resident racist" or "resident old man" [Transcript p. 17‑60].  Prior to hearing the audio he accepted he had not had an independent recollection at this time as to what had been said [Transcript p. 17‑60].  Harries denied having fabricated his recollection of the alleged behaviour [Transcript p. 17‑62].  Ball's tone of conversation had not been aggressive by any means [Transcript p. 17‑62].  A series of questions were put to Harries regarding details of the location of Ball and himself when the exchange took place with the prisoner subject of the inappropriate comments allegation [Transcript pp. 17‑64 to 17‑69].  Harries rejected the proposition that the "entire sequence of events that you've described is simply not believable, and that it is something that you have made up on the spot" [Transcript p. 17‑70].  On his failure to raise issue with Ball at the time he gave evidence that as a very new officer at the time he felt it was not right to have said something at the time [Transcript p. 17‑72].  He acknowledged that whilst he was not the officer who opened the door to allow prisoners access to their cells before muster he was in the wrong but had not been the subject to any disciplinary action [Transcript p. 17‑74].  An email sent to Juffs on 19 January 2016 about the prisoners being let into their cells prior to muster could be read as if Ball had done that on his own when in fact he was involved by his presence [Transcript p. 17‑78].
  2. [216]
    Harries admitted that on 19 January 2016 neither Ball or himself had followed correct procedures regarding returning prisoners to their cells around muster time [Transcript p. 18‑9].  He recalled the muster on that day had been called incorrect but could not remember the reason why [Transcript p. 18‑9] and that Ball let one prisoner back in after muster and refused the same request from two others [Transcript p. 18‑11].  Harries believed that all three prisoners should have been denied access as it was out of the approved access time [Transcript p. 18‑19].  Ball had adopted a blanket positon regarding access and within half an hour he had changed his mind which could make a situation dangerous [Transcript p. 18‑25].  Harries accepted that on this issue there had been differences in his recall including inconsistencies in his evidence [Transcript p. 18‑27].  Whilst he was unable to name the prisoners in question in the course of his evidence he had forwarded names to management in February 2016 which he explained was due to the incident happening 19 months earlier and his "memory isn't as good as it was back then" [Transcript p. 18‑30].  On 3 March 2016 he was unable to identify the prisoners in his interview with the ESU Investigator [Transcript p. 18‑31].  The gap between the incident and formalising his complaint against Ball was due to concerns he had about possibly being "ostracised" by colleagues at the prison [Transcript p. 18‑34].  Harries recalled that on 10 February 2016 whilst located in the P Block Tardis Crichton had mentioned he had seen Ball asleep in the N Block Tardis and he was going to "let our supers know" [Transcript p. 18‑46] but at that time he was unaware that others had made complaints about Ball [Transcript p. 18‑47].  Harries recalled a conversation with Juffs about Ball's conduct but gave evidence he remembered the content of the discussion differently to Juffs' evidence.  He maintained his version was correct [Transcript p. 18‑53].
  3. [217]
    Ball had on 19 January 2016 threatened to lock down the entire unit by implying that was his intention by saying "I'm, going to lock them all down because I've had enough" [Transcript p. 18‑55] however Ball had taken no action to that effect [Transcript p. 18‑56].  Harries had not at the time witnessed any animosity from prisoners toward Ball or himself as a result of Ball's actions [Transcript p. 18‑68].  Harries refused a request to withdraw the allegation against Ball stating "I don't wish to withdraw any allegation against the man that put my life in danger" [Transcript p. 18‑68].  The actions of Ball in leaving his post in the Tardis and not solely observing the N3 unit was considered by Harries as a breach of duty [Transcript p. 18‑78].  In the complaint filed to Juffs about Ball having left N3 unobserved whilst he entered N4 it was his evidence in cross‑examination that he did not know if it was Ball [Transcript p. 18‑87].  Harries was also of the view that another officer involved in this incident had breached procedure but he had taken no steps to identify that officer or make a complaint as he had only done the one thing wrong whilst Ball had done "many, many things that put many people's lives in danger" [Transcript p. 18‑92].
  4. [218]
    Harries was taken through a series of photographs [Exhibit 15] depicting locations within the WCC relevant to certain allegations that had been levelled against Ball prior to further questions in cross‑examination.  Harries held the view that prisoners seated in the common room would not have visibility of an officer's eyes should that person be seated at the desk in the officer's station [Transcript p. 19‑9].  On the allegation regarding prisoners in the common area laughing and pointing towards the officer's station it was the case that from the angle at which Harries was seated it appeared to be more towards where Ball had sat [Transcript p. 19‑13].  He observed Ball sitting with his chin resting in his hands but in evidence admitted Ball's right hand side due to his location was not in sight [Transcript p. 19‑21] and he was able to see that his left eye was closed but could not see what his right eye was doing [Transcript p. 19‑24].  Harries was required to give further evidence about his observations of Ball in the officer's station including demonstrations of Ball's posture and the action described as the "nodding dog" [Transcript pp. 19‑32 to 19‑38].  Harries later the same day observed prisoners again looking in the direction of the officers station, laughing and trying to get the attention of other prisoners which he assumed was occurring because Ball was asleep.  Harries again lifted the desk lid and dropped it in an effort to get Ball's attention [Transcript pp. 19‑46 to 19‑47].  He started to think that it was not safe in the unit with Ball as he was putting lives in danger [Transcript p. 19‑48].  Harries conceded that his oral evidence was different from the version in his affidavit but denied his story was completely fabricated.  It was further suggested to Harries the inconsistency in his evidence extended to his complaint to Juffs which related to different versions in his affidavit and oral evidence about the two occasions prisoners were laughing and giggling at Ball [Transcript p. 19‑58].
  5. [219]
    Harries was questioned on the interview given to the ESU Investigator about the incident where prisoners had been laughing (not giggling) and pointing towards the officers station which was again said to be a different version of events in a number of ways that included swivelling or not swivelling in his chair and the reference to Ball nodding as opposed to doing the "nodding dog" [Transcript pp. 19‑69 to 19‑71].  Harries rejected the possibility that Ball had been glancing down at the desk stating he was asleep [Transcript p. 19‑83].  On multiple occasions Harries reiterated that he had seen Ball asleep and he refused to accept he was wrong on this issue [Transcript pp. 19‑90 to 19‑91].  Harries denied colluding with Crichton to make false allegations against Ball and giving false evidence about prisoners being able to see him asleep [Transcript p. 19‑105].  Harries disagreed he had no reasonable basis to maintain the assertion Ball was sleeping as alleged on the second occasion [Transcript p. 19‑110].
  6. [220]
    In re‑examination Harries' evidence was that he did not say anything to Ball about sleeping on the job because of Ball's short temper and not wanting to upset or annoy him.  On the reason for taking some time to make the complaint after the event he stated that:

Right back at the academy, we were told at the centre; 'Don't write people up.  It's not what you do.  You're a dog.  You're a ‑ etcetera.  You'll be ostracised.  You will not be accepted within the workplace'.

Harries had accompanied Ball into a cell with a prisoner knowing that was an incorrect practice but he had not raised objection with Ball as he believed he would have done it anyway and forced him to follow.

Crichton

  1. [221]
    Crichton a CCO at WCC assumed this position in or around March 2014 and could not remember when he had met Ball but recalled hearing about his reputation through general conversations with other officers at the facility.  Whilst he treated the information about Ball as rumours some of the stories included:
  • Ball riding on the back of trucks in the compound; and
  • smoking within the WCC compound.

Other knowledge he had related to Ball having worked on the Front Run prior to his return to the units in late 2015 or early 2016.  Crichton understood the reason for being on the Front Run was "some form of punishment".  Ball had the nickname of Cougar.

  1. [222]
    On 26 February 2016 he was interviewed by an ethics consultant from ESU and having read the transcript of that interview confirmed it was an accurate record of the interview.
  2. [223]
    On 29 January 2016 he was rostered to work with Ball in the N3 unit as the Bravo officer with Ball occupying the role of Alpha officer.  Generally the Alpha officer duties included:
  • drawing the unit keys prior to the shift commencing; and
  • computer entry work
  • case notes;
  • residential applications;
  • double up applications.

The Bravo officer was generally tasked with keeping accurate records of incomings and outgoings in the unit's red logbook.

  1. [224]
    Shortly after commencing the shift they conducted an "unlock" for the N3 unit during which Ball had an exchange with a prisoner that Crichton thought was unnecessary in that the prisoner did not appreciate being called an "old bitch".  Crichton formed the view that the prisoner was considering striking either Ball or himself as a result of the inappropriate comment.  Throughout the day Ball continued to call prisoners names for no apparent reason and use other inappropriate language in his interactions with prisoners such as "fuck off".  Ball's conduct had made him feel uncomfortable in relation to the mood it set amongst the prisoners.
  2. [225]
    Also of concern was Ball's actions in slamming cell doors behind prisoners and in particular his conduct around three or four prisoners who were locked in their cells for no apparent reason.  The securing of prisoners in their cell in the manner described was according to Crichton not in accordance with legislative requirements for securing prisoners.  One of the prisoners later complained that Ball had trapped his fingers in the cell door when slamming the door.  At some stage of the shift on that day he was approached by a prisoner who told him to "settle" Ball down which Crichton took as a warning one of them was going to get "smacked" if things did not calm down.  Of concern to him was that the prisoner was a "unit heavyweight" who was known to be able to handle himself and it was unusual for such an approach to be made by him.  He had not raised the issue with Ball as it was unlikely Ball would change his attitude.
  3. [226]
    During the 29 January 2016 shift he noticed Ball asleep in the Tardis of N Block Movement Control Station also observing prisoners banging on the N3 exercise yard window, laughing and running away with the cause of their actions being that Ball appeared to be asleep and he would wake up, give prisoners the "finger" and go back to sleep.  CCOs Beaumont and Bracher were able to observe Ball and did not seem surprised by his actions.  At the end of the shift he spoke to his supervisor (Juffs) telling her he did not want to work with Ball again with Juffs suggesting he provide a written report but at the time he did not make such a report because he did not want to "dog" on a fellow officer.
  4. [227]
    Crichton was again rostered to work with Ball in the N3 unit on 2 February 2016 but did so on the basis he was the Alpha officer with possession of keys for the unit which would prevent Ball locking prisoners in their cells for what Crichton perceived to be his amusement.  During that shift he observed a prisoner laughing (but not out loud) at Ball who was asleep at the officer's station and whilst he was in proximity to Ball he could not see if Ball's eyes were closed but noticed he had a pen in his hand and was "slumped downwards towards the logbook".  It looked like he had fallen asleep as he was writing an entry in the logbook.  He tried to discretely rouse him by suggesting he give the prisoners access to the laundry.  He made a note of the incident in his notebook on that day which stated:

2nd February 2016 Cougar asleep @ Officer Station!  WTF!

  1. [228]
    Having witnessed the incidents previously described he formed the view that Ball's conduct was a treat to security and safety of other officers and despite conversations with other CCOs at the time he was still reluctant to make a formal report.  On 5 February 2016 he sent an email to the manager (McLean) in relating to Ball's conduct which stated the following:

I am bringing to your attention the concern I have when I was posted in N3 Friday 29th January, I was posted as N3b and CCO Rick Ball as N3a.

During the shift many minor things happened that has made me make the decision to state I will not work with Rick Ball again in any unit as his practices are somewhat unsafe.

He deliberately was stirring up inmates calling them 'old bitches' and the like is most irregular and if he deems it funny I know the inmates did not take it as such, these things were not said during any heated exchange with inmates and the inmates had not been confrontational to either of us.

Locking inmates in cells at random with no breaches is against what we are told to do unless minor breaching.

During prescribed access times only opening one cell at a time taking far too long when inmates at 1245 were waiting upstairs to go to visits and work.

At one point inmate [name removed] approached me when CCO Ball had gone into the unit toilet and said 'Chief you need to settle him down he is way too full on' this I took to be a warning.

At the afternoon meal breaks between 1530 and 1630 the inmates in N3 were observed banging on the window and laughing, after a number of items that this occurred a few officers then slowly walked around the tardis area in N block and observed CCO Ball asleep on his chair.  When he fell asleep N3 inmates would bang on the window laughing and wake him up.

During the afternoon session in the unit CCO Ball was observed to have fallen asleep at the officers station while writing in the logbook and had inmate [name removed[ standing in front of him laughing at him and nodding at me.

On the Monday after I was again rostered on with CCO Ball but I made it clear to Supervisor Axelsen I would only do the post if I had the keys as the N3a, which I did on the day and despite it being a challenge it was as no way as difficult as the Friday.

During that Monday afternoon session I observed CCO Ball asleep at one point at the officers station with pen in hand and inmate [name removed] standing in front of him laughing and nodding at me indicating CCO Ball was asleep.

I understand I will be ridiculed for this email but the safety of my fellow Secure 1 officers is paramount to myself.  If I fail to send this email and one of my colleagues is assaulted I will be ridiculed for doing nothing and would regret having done nothing.

  1. [229]
    Crichton responded to the content of Ball's affidavit filed in the proceedings identifying significant areas of the evidence to which he took issue and some areas of agreement.  These included:
  • paragraphs 33 to 38 ‑ Ball never told him about arthritis in his neck or any ailment or pain;
  • paragraphs 161 to 164 ‑ recalled no minor altercation with Ball and did not know Ball was a trainer/assessor;
  • paragraphs 165 to 166 ‑ confirmed it was his handwriting in the logbook on 29 January 2016 ‑ agreed with Ball;
  • paragraphs 168 to 170 ‑ disagreed with Ball's opinion he was "very lazy";
  • paragraphs 182, 189 and 192 ‑ took issue with Ball's evidence around prisoner issues;
  • paragraph 204 ‑ events outlined by Ball in this paragraph could not have occurred;
  • paragraph 290 ‑ he did not fabricate allegations of Ball being asleep in the Tardis area;
  • paragraph 296 ‑ he agreed prisoners banging on windows is common place, agreed Ball wore smoky coloured glasses and it would have been difficult for prisoners to see his eyes;
  • paragraph 297 ‑ recalled Ball raising his middle finger at prisoners did not see him drawing a "B" in the air;
  • paragraph 299 ‑ he had corrected his statement in relation to dates with the ESU;
  • paragraph 377 ‑ he agreed with Ball there was a practice of swearing in the workplace at WCC;
  • paragraphs 389 to 391 ‑ he may have had coffee with Harries at the Woodford Café but had never seen Gray there.  He was not friends with Gray or Harries outside of work and had not attended the QCS Academy with them;
  • paragraph 330 ‑ he specifically recalled Ball close a cell door forcefully behind a prisoner; and
  • paragraph 353 ‑ he agreed that if a prisoner's fingers had been trapped in his cell door they would have likely been amputated.
  1. [230]
    When he was completing his Certificate III there had been no involvement with Ball and he had never requested Ball to sign anything in relation to his Certificate III.  It was only upon reading Ball's statement that he had any idea of Ball's claim that he had any involvement in his Certificate III qualification.
  2. [231]
    Under cross‑examination Crichton recalled a telephone conversation with a supervisor (Axelson) who was finding it difficult to get someone to work with Ball and he agreed as long as he was the Alpha officer with control of the keys so he could control Ball he would work with him [Transcript p. 20‑11].  He had previously told Juffs that he would not work with Ball as it was "too dangerous".  Juffs had told him nothing could be done unless he put it in writing [Transcript p. 20‑13].  Crichton did not accept his oral complaint to Juffs was a "formal" complaint [Transcript p. 20‑13].  He sent an email to Axelson (he assumed) on 29 January 2016 in which he stated "Today I stared into the abyss of unit anarchy" [Transcript p. 20‑15].  In a face‑to‑face conversation with Axelson between 29 January and 2 February 2016 he had mentioned the warning (threat) from a prisoner due to Ball's conduct on 29 January 2016 [Transcript p. 20‑17].  Also discussed was locking up prisoners without minor breaching them and the name calling [Transcript p. 20‑20].  The events of 29 January 2016 lead to Crichton giving evidence "that it was the scariest day in Corrections I've ever had, and I have been in some pretty tight situations" [Transcript p. 20‑21].
  3. [232]
    In the period between 5 February 2016 when he sent the email to McLean and being interviewed by ESU on 26 February 2016 there had been no contact with him about the email from any manager or supervisor [Transcript p. 20‑23].  He had sent the email on 10 February 2016 because other officers were complaining about Ball and he did not want to have the guilt of an officer being belted in the unit because of Ball's actions [Transcript p. 20‑24].  He only confirmed he had "written up" Ball to other CCOs after people in the workplace started to say he was a "dog" [Transcript p. 20‑27].  He accepted that he had a conversation with Juffs prior to sending the email to McLean and his interpretation of the phone call was that Juffs had reported Ball previously for misconduct and if she did it again it would be classed as bullying [Transcript p. 20‑32].  Crichton was unable to "shine any light" on Harries sending an email to Juffs at 9.37 am on 10 February 2016 and his email sent to Juffs at 9.48 am with both emails complaining about Ball's conduct [Transcript p. 20‑36].
  4. [233]
    Crichton confirmed a discussion with Juffs regarding putting his complaint in writing about Ball's conduct which he felt was because she wanted it to be from a party, different to herself [Transcript p. 20‑42].  Juffs had not told him she wanted to take action against Ball [Transcript p. 20‑43].  He described Juffs as a person who was clear‑cut, down the line, did not show favouritism and was quite fair [Transcript p. 20‑44].  Crichton refused to accept the proposition there were differences in his affidavit and other evidence because he wished to paint Ball in the worst possible light by manufacturing evidence [Transcript p. 20‑51].  His assessment of WCC rumours was that half of them were false [Transcript p. 20‑51].  Crichton denied he had sought to paint Ball as a person with a bad reputation as he had previously had coffee with Ball prior to commencing work [Transcript p. 20‑55].  The group who would have coffee did not include Harries, Beaumont or Gray [Transcript p. 20‑56].  On the evidence that Ball had been on the Front Run as some form of punishment it was what generally occurred and he was on the Front Run at present [Transcript p. 20‑57] due to his request and not for discipline reasons [Transcript p. 20‑60].
  5. [234]
    On the securing of prisoners in their cells for poor behaviour CCOs were told to minor breach them although he had put a prisoner in his cell due to escalated behaviour without breaching him and was the subject of complaint.  He had observed other CCOs at WCC employ the same method in controlling prisoners [Transcript p. 20‑62].  He accepted there was nothing the Commission should draw from his references to Ball's nickname of Cougar [Transcript p. 20‑63].  Crichton had no knowledge of the relationship or rapport Ball may have had with the prisoner he called an "old bitch" but during the exchange had seen no rapport [Transcript p. 20‑64].  Crichton gave further evidence regarding the incident on 29 January 2016 which involved Ball making inappropriate comments to a prisoner [Transcript pp. 20‑69 to 20‑84] where it was evidenced that the prisoner did not respond, did not appear to find the comments amusing, and looked angry.  His observation was that Ball was attempting to "wind up" the prisoner.  Crichton did not accept the version he gave to the ESU Investigator was different from his evidence in the proceedings and denied exaggeration of the situation to once again cast Ball in the worst possible light [Transcript p. 20‑85].
  6. [235]
    Swearing at prisoners and swearing from prisoners often happens during codes and accepted he had on occasions done so [Transcript p. 20‑86] giving an example where you may say "Fucking everyone out now".  The word "fuck" is routinely used at WCC, like on a construction site [Transcript p. 20‑87].  Crichton did not recall the prisoner on 29 January 2016 telling Ball to "fuck off" [Transcript p. 20‑88].  At the time of Ball's return to the units they were being run by rules laid down by the manager, by the book and it had been brought into line [Transcript p. 20‑90].
  7. [236]
    A second incident on 29 January 2016 related to Ball deliberately opening cell doors slowly to "piss prisoners off" by making them late for visits and industries [Transcript p. 20‑96].  Cell doors were usually opened in a timely manner [Transcript p. 20‑98].  A prisoner had gone to his cell and informed the CCOs that he was coming straight out but Ball had slammed the cell door prompting the prisoner to shout out his fingers were in the door [Transcript p. 20‑108].  Crichton was said to have provided a different version on this matter to ESU Investigator than his evidence in the proceeding where it was suggested he had lied about the incident and manufactured the story.  Crichton responded by giving evidence "this is all the truth" [Transcript p. 20‑113].  He accepted his evidence‑in‑chief may have been wrong in respect of the clothing the prisoner had been wearing at the time [Transcript p. 20‑114].  Crichton accepted that the prisoner's allegation about his fingers being in the door was a "BS allegation".  Crichton denied he had sought to give the ESU Investigator the false impression that Ball had slammed the cell door on a prisoner's fingers [Transcript p. 20‑126].
  8. [237]
    Crichton was taken to a series of photographs [Exhibit 15] which depicted the N3 unit identifying areas that included the Tardis, Lexan windows and exercise yard [Transcript pp. 21‑2 to 21‑5].  He did not agree the Lexan windows muffled the sound to the extent that a person speaking normally could not be heard on the other side of the Lexan [Transcript p. 21‑7] and disagreed that officers would use hand signals to communicate with prisoners in the exercise yard for the same reason [Transcript p. 21‑8].  Crichton gave evidence around the level of sight in the N3 and N4 units particularly taking into account structures within that area [Transcript pp. 21‑10 to 21‑14].  On 29 January 2016 he had taken the second meal break having altered his evidence that he initially took the first break [Transcript p. 21‑14].  He returned to the unit after lunch still having a good five to eight minutes left of his break time [Transcript p. 21‑19] and decided to have a chat with Beaumont and Bracher in the area they were situated at which time he heard banging on the window of the exercise yard.  Prisoners well also laughing, banging and looking at N3 officer (Ball) who appeared to be asleep [Transcript pp. 21‑21 to 21‑26].  Crichton's evidence about this incident included references to the photographs of the area showing the location of those involved [Transcript p. 21‑27].  He observed Ball sitting in his chair and whilst unable to give evidence of the distance between them he refused to accept the proposition he was at least 10 metres from Ball (based on being trade qualified in an engineering trade and not bad on judgement of distance) [Transcript p. 21‑29].  Ball was observed sitting with his legs outstretched, arms folded across his chest with his head dipped but was unable to see his eyes.  He believed Ball was asleep [Transcript p. 21‑36] and would not concede the possibility that Ball was simply sitting in a relaxed position stating "I mean, we're correctional officers.  You know, we observe body language.  The body language was he was asleep".  He went on further to state:

His body language indicated to me he was asleep.  I'm not skilled or trained in body language fields or anything.  But when you're in a unit, you can generally tell when people are angry, sick, whatever, from body language.  And the body language was indicating he was asleep to me.  [Transcript p. 21‑37].

He witnessed Ball "flip the bird" on at least two occasions and after doing so would return to his original position which Crichton thought was asleep [Transcript p. 21‑37.  On the proposition that Ball could have been sitting in a restful position and still observing the units Crichton disputed the suggestion by saying he would have to have been "looking through his forehead" [Transcript p. 21‑39].  He did not accept the prisoners were banging on the window seeking to annoy Ball but were about waking him up [Transcript p. 21‑41].  Crichton informed Beaumont and Bracher by saying words to the effect "Have a look at this" [Transcript p. 21‑43].  At the time of his discussion with Beaumont and Bracher he said one was sitting and the other standing which was at odds with his interview with the ESU Investigator where he said they were both sitting [Transcript p. 21‑44].  Crichton accepted there were a number of differences in what he had told the ESU Investigator and his version in the proceedings [Transcript p. 21‑47] however the end result was that Ball was asleep in the chair [Transcript p. 21‑48].  Crichton had not informed the supervisor that he had seen Ball asleep [Transcript p. 21‑57].  He denied his evidence was deliberately false regarding the prisoners laughing at Ball [Transcript p. 21‑59].

  1. [238]
    Crichton's qualifications as a Saw Doctor had not given him any special ability to quantify distances [Transcript p. 21‑63].  His evidence about Ball's chair being against the wall was said to be different to what he had told the ESU Investigator but this was not accepted by Crichton [Transcript p. 21‑66].  The email complaint to McLean had identified the time of the incident involving prisoners banging on the window as the "afternoon meal breaks between 15.30 and 16.30" and not the 11.00 am lunch break.  In the interview with the ESU Investigator he had said "I can't remember if it was the afternoon lunch break or the noon lunch break".  In his affidavit he had also said the incident occurred in the afternoon break.  Crichton acknowledged he was "unsure" but was "pretty certain it was the afternoon break" [Transcript pp. 21‑66 to 21‑67].  Entries in Crichton's notebook were the subject of questioning for matters that included:
  • prisoner "looked surprised" when Ball had made inappropriate comments with no mention of the fear of being physically attacked;
  • Ball taking too long to do his cell accesses;
  • no mention of prisoners yelling;
  • no entry about Ball sleeping on 29 January 2016;
  • no mention of incident slamming cell door on prisoner's fingers; and
  • no entry about prisoner giving him the "heads up" about Ball's conduct [Transcript pp. 21‑91 to 21‑97].
  1. [239]
    Crichton was unable to recall how many prisoners had sought cell access on 29 January 2016 [Transcript p. 21‑99].  In the notebook entry of 2 February 2016 he had recorded "Cougar asleep at officer station.  WTF" and this had been noted because he thought it was more dangerous than the 29 January 2016 incident as it was in the unit [Transcript p. 21‑100].  The sleeping incident on 29 January 2016 was less serious because "it didn't put me in direct threat" [Transcript p. 21‑100].  The notebook entries were said to be bullet points to remind him about the incidences that had happened [Transcript p. 21‑101].  On 2 February 2016 it was noted an incident about a prisoner's finger in the door but that was in relation to the incident on 29 January 2016 and added to jog his memory [Transcript p. 21‑101].  The status of the notebook was that it was generally used for noting incidences and stuff [Transcript p. 21‑102]. The decision to make the complaint about Ball in an email was made because it was not a report and he did not feel as bad about writing an officer up if it was not in a report [Transcript p. 21‑104].
  2. [240]
    Crichton was again directed to photographs of the N3 unit including the officer's station, two rows of tables where prisoners sit and the different stations where Alpha and Bravo officers are located which lead to questions regarding the allegations that on 2 February 2016 that Ball was asleep in the unit.  Crichton confirmed his previously given evidence about a prisoner observed laughing at Ball being asleep [Transcript pp. 21‑105 to 21‑112].  He recalled that Ball was either meditating or asleep [Transcript p. 21‑113] and he had said "let's go to the laundry, Chief" after which he noticed Ball write an entry in the log book.  Ball's reaction was said to be slow [Transcript p. 21‑115].  He did not accept the proposition that Ball had not noticed the prisoner standing at the officer's station because he was engrossed in a task saying "he must have been asleep" [Transcript p. 21‑121].
  3. [241]
    Crichton refused to accept the proposition that a substantial portion of a unit officer's duties was clerical type work [Transcript p. 22‑9].  According to Crichton it was generally the Bravo officer who kept record of incomings and outgoings but was not a task set by QCS [Transcript p. 22‑13].  Logbooks were supposed to be an accurate record of what occurs on a shift although there will be some discrepancies at times and when it was extremely busy in the unit things will get missed in the logbook [Transcript p. 22‑15].  In terms of the handover book it can be filled in by the Bravo or Alpha officer and at times is filled in at the very end of a shift [Transcript p. 22‑16].  At the commencement of the shift the Alpha officer would do "all the ticks and flicks", fill in logbooks and log on the computer [Transcript p. 22‑17].  Crichton responded to a range of questions around the administration work undertaken by Alpha and Bravo officers in the units which included often signing forms without having read them, an example of which was that a prisoner requested a swimming pool be put in the units and another prisoner requested a fishing trip with both requests having been signed off by an officer [Transcript pp. 22‑23 to 22‑27].
  4. [242]
    Crichton was again questioned around the circumstances where he alleged Ball had been asleep in the officer's station and denied that he had made the story up as he had observed Ball motionless for 20 to 25 seconds [Transcript p. 22‑33].  His previous evidence had suggested that Ball had been asleep for 10 to 15 seconds [Transcript p. 22‑34].  Crichton denied that he did not like Ball and he had not chipped him about sleeping because he was one of those "fuckers" Ball had referred to previously [Transcript pp. 22‑36 to 22‑37].  In his interview with the ESU Investigator he recalled Ball had said to an inmate "Now, I'm old school.  I'm not like these other fuckers" referring to the rest of the other officers [Transcript p. 22‑37].  He had held concerns that Ball's behaviour was jeopardising his personal safety but was reluctant to do anything about it as he "didn't want to go on the dog against another officer regardless of what he did" [Transcript p. 22‑39].  Nineteen months later he was still "on the dog" because he wrote up another officer [Transcript p. 22‑39].  He denied that his dislike of Ball stemmed from being admonished by him for telling a prisoner "Go away fuckwit.  Not interested" [Transcript p. 22‑41].  He had informed the ESU Investigator that in the past he had been guilty of riling prisoners up [Transcript p. 22‑43].  Crichton accepted that he had not provided exact examples and names of prisoners that Ball was alleged to have called names [Transcript p. 22‑44].  Crichton acknowledged he had been told in the past not to swear and yell at prisoners [Transcript p. 22‑46] also he had informed the ESU investor of "a couple of little heated exchanges" with the prisoner Ball was alleged to have called an "old bitch" [Transcript p. 22‑46].
  5. [243]
    On the perceived threat he received from a prisoner due to Ball's conduct he did feel bound to mention it to Ball because he "feared what he might do next" [Transcript p. 22‑50] and whilst he had not reported the conversation on the day, he did in the end [Transcript p. 22‑51].  There was only one allegation particularised regarding Ball shutting prisoners in their cells which according to Crichton was "one's enough" and it was the biggest breach [Transcript p. 22‑52].  Crichton had never been expressly asked by a supervisor or manager at the WCC to provide a report on a colleague [Transcript p. 22‑55].  The evidence around Ball allegedly sleeping in the officer's station was the subject of lengthy questioning in which Crichton refused to concede Ball had not been asleep [Transcript pp. 22‑60 to 22‑64].  The proposition that Ball had refused to "sign off" in his role as trainer/assessor, on Crichton's Certificate III was said to be "absolutely farcical" and he had never asked him to sign off on anything [Transcript p. 22‑66].  Crichton had passed his Certificate III the first time around [Transcript p. 22‑74] and the material had never left his hands [Transcript pp. 22‑74 to 22‑75].  He reaffirmed his evidence that Ball had put prisoners in their cells for no reason and refused to breach those prisoners [Transcript p. 22‑80].

Tyquin

  1. [244]
    Tyquin an Acting Senior Lawyer at Crown Law tendered an affidavit in the proceedings and was not required for the purposes of cross‑examination.  In the affidavit Tyquin gave evidence in respect of a search undertaken as a result of a request by Counsel acting for Ball to disclose an email said to have been forwarded to Zane Axelson (Axelson) a [then] Acting Supervisor in which Crichton (the sender) had referenced having "stared down into the abyss of a unit anarchy".
  2. [245]
    Tyquin in the course of the search had undertaken the following steps:
  • contacted Neil Boyd (Boyd) Executive Director, ESU, Department of Justice and Attorney‑General on 17 August 2017 asking that enquiries be undertaken in relation to any email sent by Crichton to Axelson in or around January or February 2016;
  • Boyd had advised on 17 August 2017 that Crichton's departmental email account had been searched without success in relation to the relevant time period;
  • had a telephone conversation with Lou Cessford (Cessford) Occupational Health, Safety and Environment Co‑ordinator, WCC requesting she make enquiries in relation to Axelson's mailbox or on file that were received from Crichton in or around January and February 2016;
  • Cessford advised on 23 August 2017 that Axelson had searched his email account and had not been able to identify any email in the relevant period;
  • had sent an email to Crichton on 22 September 2017 requesting he provide a copy of the said email upon which she received an email from Crichton later that day in which he advised he was unable to recall the email but recalled a face‑to‑face conversation with Axelson;
  • Crichton subsequently provided a follow‑up email on 22 September 2017 in which he advised of remembering having sent an email to Axelson about "staring down the abyss" and would undertake a search for a copy; and
  • on 5 October 2017 Crichton advised on having searched his inbox and saved emails he had been unable to locate the email in question.

Henderson

  1. [246]
    Henderson was currently employed as the Deputy General Manager Operations at WCC having been in the employ of the Department for a period of 23 years.  The responsibilities of the role includes:
  • daily management of staff and prisoners;
  • attending to the administrative needs of both staff and prisoners;
  • administration of disciplinary breach procedures; and
  • conducting audits.
  1. [247]
    Prior to assuming his present role he was the Manager of Secure Two at the WCC up until February 2017.  He had been Ball's Supervisor and Manager for a period of approximately three years between 2007 and 2010 giving the following description of Ball's conduct during that time:

The best way I could describe Mr Ball, is to say that he made decisions above his capacity.  For instance, he would make decisions to enter into prison units by himself when he should not have, and then when I asked him about it, he denied what he had done even though I had seen it myself.

On another occasion he was advised that Ball had left an office door in a unit open and entered a cell to talk to a prisoner by himself (all of which was not permitted) without his support officer present.  He had raised the matter with Ball and even with CCTV footage of the incident available he denied this incident had occurred.

  1. [248]
    In August 2013 he had a meeting with Ball and the Human Resources Manager (Carlea Walker) for the purposes of discussing concerns about aspects of Ball's performance in relation to ensuring safety and security at the WCC.  The concerns included:
  • incorrect  musters;
  • going on to the floor by himself;
  • leaving the station door open; and
  • conducting electronic cell access on lockaway which had health and wellbeing issues.

During the meeting Ball was informed of what was expected in relation to musters, lockaways and not being separated from his support officer.

  1. [249]
    A further meeting was held on 30 September 2013 involving Ball, Tilly and Henderson in regards to issues with Ball's performance and conduct at which time he was advised he was to be supervised and provided with feedback in relation to his performance.  Ball had at the time applied to renew his First Aid Instructor qualification however due to concerns about his performance, approval was not given to renew the qualification until the six month performance review had been concluded.
  2. [250]
    On 19 December 2013 the Acting Correctional Supervisor for Secure Two (McLean) forwarded an email to Henderson in relation to Ball having been alleged to have acted inappropriately toward CCO Cotton and unreasonably refused to let CCO Cotton and a fellow CCO (Hill) into the unit office for the N8 and N9 units.  CCO Cotton had stated Ball's conduct was intimidating and dangerous.
  3. [251]
    In November 2014 Henderson had raised concerns with the General Manager of WCC (Collins) who in turn requested that Ball's Manager (Mosely) speak to him about referring to prisoners as "crims".  On 21 November 2014 Mosely forwarded an email to Collins and Henderson that stated:

I have spoken directly to CCO Ball on this matter in the company of Supervisor Wenham.  I confirmed he had used the appellation 'crims' on the Repeater channel.  I advised him he is not to use the word to describe prisoners within the Correctional System.  I further stated to him his behaviour was unprofessional and I expected better outcomes from an officer placed in Centre Services.  CCO Ball apologised for his behaviour and advised me it would not happen again.

  1. [252]
    Henderson recalled that sometime later Ball was moved out of his area due to his incompetence or poor decision making.  He considered Ball to be a danger to himself and everyone around him.  In the time Ball was working in Secure Two there had been reports of him falling asleep on the job which required him to raise the matter with Ball who said he was struggling a bit but fine to continue at work.
  2. [253]
    Henderson did not support the reinstatement of Ball to the WCC because he was incompetent and made dangerous decisions without any basic understanding of the fundamentals of a CCO's job which had a significant impact on the safety of staff and himself.  Henderson had spoken to Ball at times about securing prisoners in their cells before he had a minor breach completed and heard which was a requirement before privileges could be withdrawn.  Ball had been locking up prisoners in their cells instead of pursing formal disciplinary action.
  3. [254]
    In further evidence‑in‑chief lead in the proceedings he gave evidence of his attendance at an ESU seminar where a question was put by Hay or perhaps another CCO about falling asleep on the job and of having responded to the question in a way that going back some period of time there was tendency by some senior officers to accept a CCO may nod off or get a bit of a nap on night shift but with the Code of Conduct and responsibilities this was no longer acceptable and if caught sleeping on post there is a possibility of losing your job.
  4. [255]
    Under cross‑examination he gave evidence of an ESU seminar he attended and where he had commented on the issue of sleeping on the job with this seminar occurring after Ball had been suspended from work.  The tolerance by officers of sleeping on the job was from 10 to 15 years ago where had been an accepted practice by the senior officers [Transcript p. 23‑7].  He was not aware of such behaviour occurring at the present time and if it did occur a senior officer should submit a report so appropriate action could be taken [Transcript p. 23‑8].  He had not been Ball's manager or supervisor for approximately seven years and had based his comments on his performance firstly on his direct knowledge as his manager and on information provided by other managers of continuous performance issues [Transcript p. 23‑8].  He accepted the information relied upon from other managers was hearsay [Transcript p. 23‑9].  In August 2013 he had created a document titled Detrimental File Note of a meeting with Ball but that was not regarded as a record of conversation [Transcript p. 23‑10] and he recalled there had been an issue with the file note [Transcript p. 23‑11].  It was conceded that in relation to Ball going to a unit floor, leaving the station door open it was not particularised in the file note [Transcript p. 23‑13].  There were written directions against what Ball had done however it was common practice and it is still in place today [Transcript p. 23‑14].  In regards to another issue about going onto the floor to open the laundry door, Ball had admitted the conduct but not before initially denying the incident [Transcript p. 23‑14].  Ball also indicated he had conducted a health and wellbeing check however the video evidence showed that he had not [Transcript p. 23‑16].  In terms of all three issues because he had no reports he took no formal action [Transcript p. 23‑16].
  5. [256]
    Whilst the performance of Ball had been monitored for a six month period he had not been put on a performance improvement plan [Transcript p. 23‑18].  In 2013 he had difficulty in getting a senior officer to sign off on Ball's reaccreditation for his Certificate III as at least two officers he approached were not prepared to sign him off [Transcript p. 23‑20].  Further on in cross‑examination he stated "I stand to be corrected" on whether he was mistaken in his earlier evidence of whether an officer was required to sign off on Ball's reaccreditation [Transcript p. 23‑24].  Henderson had not been present when the incident involving Cotton and Hill had occurred and he acknowledged he had relied upon officer's reports and a "couple of comments" made to him by prisoners at the time [Transcript p. 23‑27].  The use of the term "crim" was not tolerated by the WCC management as it can incite, disrupt security and the good order of the jail [Transcript p. 23‑28].  Henderson stood by his statement that Ball had been moved out of his area due to incompetence or poor decision making and the move had not been classed as a transfer [Transcript p. 23‑28].  The movement of Ball had been as a result of his recommendation to the General Manager because he was putting himself and others in danger [Transcript p. 23‑29].
  6. [257]
    Henderson had spoken to Ball regarding his performance, capacity and conduct without there being a formal report generated [Transcript p. 23‑30].  He had made no file notes regarding the issue of Ball falling asleep in the Secure Two area [Transcript p. 23‑30].  There was currently another officer at the WCC who was being monitored following reports of him sleeping on the job although his conduct had not been the subject of a formal complaint [Transcript p. 23‑32].  In this case there had been a verbal report from an officer, a single and a couple of comments made by prisoners [Transcript p. 23‑41].  Henderson believed that the allegations levelled against Ball were accurate denying that his opinion had been formed or influenced by rumours [Transcript p. 23‑43].  Henderson accepted that some of the information relied upon by him about Ball's conduct had come to him by way of comments made to him [Transcript p. 23‑44].  He did not accept that Ball had always appropriately owned up to issues when he was at fault [Transcript p. 23‑47].  On the evidence of Ball that Henderson had never spoken to him about putting prisoners in cells with minor breaching them it was said that Ball's evidence was a blatant lie [Transcript p. 23‑48].  Henderson had no issues with a situation where a prisoner elects to go back to their cell without disciplinary action being taken but if privileges were removed that was a different issue [Transcript p. 23‑49].  He refused to accept the proposition that the broadest and most general of the allegations he made about the conduct of Ball were unaccompanied by particulars of any sort [Transcript p. 23‑50].
  7. [258]
    In re‑examination he gave evidence about having sought to have Ball's reaccreditation signed off by supervisors who were not willing to assist in the process.  Placing a prisoner in a cell without breaching them was not considered by Henderson as a removal of a privilege because privilege was "like a television or a visit".  Henderson recalled the meeting at which the ESU had a presence and that the ESU representative (Homan) had made no comment about sleeping on the job.

Bracher

  1. [259]
    Bracher a CCO at the WCC had been employed in that capacity for 3.5 years and had known Ball for some three years having worked on shift with him including directly alongside him on two or three occasions.  He had found it difficult to work with Ball because of his attitude towards the job and a very negative attitude towards the WCC generally which included negative feedback about the people and processes in place at the WCC.
  2. [260]
    On 17 February 2016 he was contacted by the Executive Director, ESU in relation to an investigation involving allegations against Ball which was the first time he knew that Ball was under investigation or that a complaint had been made about the incident he had witnessed.  Prior to the interview with the ESU he had not spoken to anyone about the incident on 19 January 2016 nor had he made a complaint or report about what he had observed on that day.  Bracher confirmed the interview transcript as an accurate record of the ESU interview and that he had read the transcript prior to the making of his affidavit.
  3. [261]
    The events on 19 January 2016 related to a shift where he observed during the lunch break prisoners banging on the N3 unit Lexan window and Ball sitting in a chair being unresponsive to the banging that was occurring.  He was not certain as to whether Ball was asleep at the time but it seemed odd to him that he had not responded to the banging on a window only a short distance from him.
  4. [262]
    Bracher had some reservations about working with Ball in the future because he would not feel safe or comfortable in a situation where safety was not a priority.
  5. [263]
    Under cross‑examination Bracher confirmed that the first he knew of a complaint having been made about Ball sleeping was in and around February 2016 and prior to being contacted by human resources about being required to attend a meeting with ESU.  At the time he had not heard any rumours or gossip in the workplace about any allegation nor had he been a party to any conversation with Crichton which had discussed this issue [Transcript p. 23‑58].  In the interview with the ESU Investigator he was said to have just zeroed in on that [the 19 January 2016 incident] without any difficulty and seemed not to be equivocal about the date yet in the said interview he had said he did not know when it had occurred [Transcript p. 23‑60].  Bracher when asked why he had stated in three places in his affidavit that the incident happened on 19 January 2016 he replied "I can't answer that one" [Transcript p. 23‑60].  He indicated the correct date of the incident could possibly have been 29 January 2016 [Transcript p. 23‑60].  He accepted it was "fair to say" that he did not know if Ball was asleep [Transcript p. 23‑61].  Bracher was questioned about the N3 and N4 units with reference to photographs of the areas involving the location of Ball and himself [Transcript pp. 23‑62 to 23‑65].  On being in the company of Crichton and Beaumont at the time he was unsure but agreed it was possible they were there [Transcript p. 23‑66].  He had only worked with Ball on the one occasion and based on that experience he continued to have reservations on working with Ball again [Transcript p. 23‑68].  On Ball's alleged negativity about the workplace he accepted it was possible that each of them could remember the same event differently [Transcript p. 23‑69].  Bracher gave evidence of officers using different sorts of hand gestures in giving directions to prisoners [Transcript p. 23‑70].  If he had been 100 per cent confident that Ball had been asleep on the day he would have felt compelled to tell a manager or supervisor because it was a serious allegation to make against a person [Transcript p. 23‑71].

McDermott

  1. [264]
    McDermott the current Deputy Commissioner of QCS had the responsibility for the management and operation of all correctional centres, probation and parole of QCS being also on the Board of Management of the QCS.  At all relevant times in respect of this matter she had been in the role of Deputy Commissioner.  In the course of her 33 years as a public servant she had held a range of senior roles including General Manager of WCC on three occasions between 1999 and 2004.
  2. [265]
    McDermott was the authorised delegate of the Director‑General to make decisions under the PS Act to approve formal disciplinary action to be taken against an employee of the QCS including the termination of employment.
  3. [266]
    In February and March 2016 the ESU received allegations against Ball which had the consequences of the [then] Acting Deputy Commissioner (Peter Shaddock) suspending Ball from duty on normal remuneration pursuant to s 189(1) of the PS Act.  Correspondence to that effect was provided to Ball on 8 March 2016.
  4. [267]
    On 25 May 2016 she was briefed in relation to the ESU investigation into the allegations against Ball and provided with a copy of the ESU Investigation Report (dated 23 May 2016).  On 5 July 2016 in correspondence generated by McDermott, Ball was asked to show cause as to why a disciplinary finding should not be made against him under s 187 of the PS Act in relation to a number of allegations.
  5. [268]
    Note:  The allegations are documented at pages three and four of this decision.
  6. [269]
    McDermott became aware that on or around 7 July 2016 Ball had contacted the Manager of Industrial Relations at QCS advising that certain documentation referred to in the Investigation Report had not been provided to him which resulted in a hard copy of the Report and it's attachments being provided to him on 13 July 2016.  At the same time an extension of time beyond the original 14 days was granted to Ball for the purposes of providing a response.
  7. [270]
    On or around 9 August 2016 McDermott received a response from Ball to the first show cause notice in which he noted that the transcript of interview for Gray had been omitted and requested that a copy be provided to him.  McDermott caused a copy of Gray's interview be provided on 23 August 2016 and granted Ball a further seven days to respond to the relevant allegation.  An email was forwarded to her from Hay on 16 September 2016 attaching Ball's further response.
  8. [271]
    On consideration of the explanations outlined in Ball's responses she noted claims that:
  • alleged collusion between a number of CCOs in contriving the allegations against him; and
  • alleged the conduct of the ESU Investigator was inappropriate in that he had led the evidence of various witnesses during their interviews.

McDermott was unable to find evidence to support any motive the CCOs may have had to conspire against Ball nor had he suggested any motive and in the circumstances did not accept those submissions.  Further in terms of the conduct of the Investigator she undertook a review of the transcript of interviews and considered that the technique relied upon in questioning the witnesses was not uncommon nor did it have a detrimental impact on his findings.

  1. [272]
    McDermott then decided, having considered the Investigation Report and Ball's responses, that:
  • Allegation 1(a) ‑ more likely than not Ball was asleep on two occasions during the afternoon of 19 January 2016 whilst seated at the officer's station desk in the N3 unit;
  • Allegation 1(b) ‑ more likely than not Ball was asleep in a chair in the walkway around the Tardis facing the Lexan window of the N3 unit during the officer's meal break on 29 January 2016;
  • Allegation 1(c) ‑ more likely than not Ball was asleep during his shift on 2 February 2016 whilst seated in the officer's station inside the N3 unit;
  • Allegation 1(d) ‑ more likely than not Ball was asleep on at least six occasions during his shift on 24 February 2016;
  • Allegation 2 ‑ Ball inappropriately secured prisoners in their cells on 29 January 2016; and
  • Allegation 3 ‑ Ball communicated and behaved in an inappropriate manner towards prisoners at the WCC on 19 January 2016 and 8 February 2016.
  1. [273]
    On 24 October 2016 a letter was forwarded by McDermott informing Ball that on the balance of probabilities it had been determined that the allegations had been substantiated, specifically:

In respect of Allegations 1 and 2, pursuant to s 187(1)(b) of the PS Act, Mr Ball was guilty of misconduct that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act; and

In respect to Allegation 3, pursuant to s 187(1)(f)(ii) of the PS Act, MR Ball contravened without reasonable excuse a standard of conduct applying to him under an approved code of conduct under the Public Sector Ethics Act, namely clause 1.5 of the Code of Conduct for the Queensland Public Service.

On the basis of the findings he was informed serious consideration was being given to the termination of his employment and was afforded the opportunity to respond within seven days why such disciplinary action should not be imposed.

  1. [274]
    On 27 October 2016 an email was received from Ball requesting an extension of time to respond to the second show cause letter which was acceded to.
  2. [275]
    On the receipt of the second show cause response (dated 14 November 2016) McDermott was unconvinced that an alternate penalty (as suggested) would be just and reasonable and remained of the view that Ball's employment should be terminated.  Accordingly on 9 January 2017 she corresponded with David Mackie, Director‑General of the Department informing him of her decision to terminate Ball's employment and subsequently caused correspondence (dated 19 January 2017) to be sent to Ball informing him of the decision to terminate his employment.
  3. [276]
    The decision to terminate Ball's employment had been made taking into account all the material before McDermott including the responses to the show cause letters.  The full reasons for the decision to terminate the employment were set out in full in the penalty letter for reasons that were stated at paragraph 31 of her affidavit:

Mr Ball's role as a CCO included responding to potential risks and emergency situations that may arise in the correctional environment.  Allegation 1, being that Mr Ball was derelict in the performance of his duties in that he was asleep whilst on duty, was substantiated.  Mr Ball's actions in falling asleep whilst on duty meant that he failed to appropriately supervise prisoners in his care and his ability to respond to any potential security risk or emergency situation was significantly reduced.  Mr Ball's failure to ensure that he was alert and in a position to respond to a potential security risk or emergency situation posed a serious risk to safety at the WCC.  Further, Mr Ball's conduct in appropriately securing prisoners in their cells and using inappropriate language towards prisoners could have resulted in prisoner retaliation against Mr Ball or another CCO and/or could have cause conflict within the respect units of the centre.

  1. [277]
    Throughout the investigation and disciplinary process Ball had focussed on denying the evidence of the other CCOs in respect of their physical ability to see that he was asleep and that his actions and communication style was consistent with those of other officers.  Ball had demonstrated a reluctance to take full responsibility for his actions and repeatedly refused to accept the seriousness of his conduct nor demonstrate any remorse.  Further she had concerns that Ball lacked insight into his conduct and that his actions were inconsistent with his obligations as a CCO.
  2. [278]
    Also considered was Ball's length of service and training as a Trainer/Workplace Assessor which should have assisted in knowing the potential risks of falling asleep whilst on duty and he should have taken steps to avoid this from happening with particular concern that a Trainer/Assessor would not understand or appreciate the seriousness of the alleged conduct.
  3. [279]
    A number of matters relating to Ball's previous work history taken into account included:
  • February 2014 ‑ Ball issued with a formal warning in relation to his conduct on 14 December 2014 for unreasonably denying officers entry into the N8/9 officer's station;
  • September 2015 ‑ Ball was issued with a reprimand, a reduction of one pay point and a final warning regarding substantiated allegations of inappropriate, unauthorised removal of clothing search; and
  • October 2015 ‑ Ball was issued with a formal warning in respect of an allegation he had been observed riding on the back of a truck whilst on duty.
  1. [280]
    In light of Ball's continual failure to acknowledge the seriousness of his conduct and his previous work history it was McDermott's view he would likely engage in similar conduct into the future and as he had engaged in a pattern of behaviour that did not meet the standard required by the QCS the reputation of the Department would likely be adversely affected if his employment continued in the circumstances.  Other considerations given to Ball's circumstances included:
  • financial impact termination of employment would have on him;
  • future employment prospects due to his age; and
  • personal circumstances regarding his wife's health.

Consideration was given to other types of disciplinary action rather than just termination of employment but when all factors were taken into account including the loss of trust and confidence in Ball's ability to perform the requirements of his role, termination of employment was the appropriate penalty.

  1. [281]
    McDermott in responding to an affidavit tendered by Ball in the proceedings that took issue with a number of allegations that included:
  • Ball's concerns regarding the ESU Investigator's conduct in the interview process with both himself and other CCOs.  Ball's concerns had been expressly addressed in correspondence from McDermott (dated 24 October 2016) where she stated:

After carefully considering the transcripts for the interviews of CCOs Harries, Crichton, Beaumont and Bracher, I do not consider Mr Verrall has acted inappropriately in the interviewing of these witnesses.  I do not consider Mr Verrall's reframing of the witnesses testimony to be misleading or otherwise have any negative impact on the findings set out in the Investigation Report.  In fact, I am aware that reframing the responses given by witnesses is a common technique used by investigators.

  • Ball claimed that he was suffering with severe depression and feeling extremely unwell during the interview with the ESU Investigator yet at no stage during the show cause process had he suggested his condition had impacted upon his ability to respond to the allegations against him.
  • Ball made various allegations about CCOs friendships outside of the workplace and of the allegation of Crichton having fabricated an allegation but had not explained how the alleged friendships were relevant to her findings or his application.
  1. [282]
    McDermott had reviewed the transcript of Ball's interview with the ESU Investigator of 22 March 2016 and noted that during the interview Ball had admitted that he was not aware of any reason for Harries, Crichton, Beaumont and Bracher to contrive the allegations against him and no further assertion was provided by him.
  2. [283]
    It was essential to have trust and confidence in CCOs employed by the Department to ensure the integrity of the system and as a consequence of the extremely serious allegations against Ball, the failure to show any remorse or demonstrate any genuine insight into his conduct and understanding as to the seriousness of the allegations there was no longer trust and confidence in him to allow for his reinstatement as a CCO.
  3. [284]
    Under cross‑examination McDermott was questioned about a disciplinary proceeding with the Public Service including employee performance management procedures that applied to QCS at the time of the alleged events in February and March 2016, confirming their applicability at that time [Transcript p. 24‑57].  On formal written warnings placed on an employee's employment file McDermott was unable to answer the question definitively whether it was a form of discipline pursuant to s 188 of the PS Act [Transcript p. 24‑61].  The warning letter given to Ball on 23 September 2015 had been relied upon in the determination of the penalty of termination and the action in September 2015 had been recorded on a separate confidential disciplinary file [Transcript p. 24‑62] with a two file system applied throughout the Department with the discipline file held separately from a person's workplace file [Transcript p. 24‑62].  McDermott was unaware how long a formal warning would stay on an employee's file [Transcript p. 24‑63].  She was unable to recollect whether the incident that occurred on 14 December 2013 had been investigated by the ESU but would have known at the time [Transcript p. 24‑65].  McDermott now understood that the giving of a written warning letter was a form of discipline under the PS Act [Transcript p. 24‑65].  The witness was unable to address the proposition that she could not having initiated a formal disciplinary process under the PS Act [Transcript p. 24‑66].  The letters of warning previously issued to Ball by McDermott had been authored by Employee Relations and signed by her [Transcript p. 24‑67].  The third warning letter had given Ball the opportunity to respond in writing pursuant to the Public Service Regulation 2008 whereas the previous two letters did not which was unable to be explained by McDermott [Transcript p. 24‑69].
  4. [285]
    In the course of her employment at WCC she could not recollect any recent allegations about officers on night shift deliberately seeking to sleep however in respect of the rest of the State such allegations had been put to her [Transcript p. 24‑72].  Those allegations had been investigated and decisions to discipline those concerned had occurred although the outcome in every case was not termination of employment [Transcript p. 24‑72].  McDermott confirmed that of the six allegations against Ball she had declined to make adverse findings for two of the six subsets [Transcript p. 24‑74].  Prior to issuing the letter advising of the substantiation of the allegations a draft was provided by Crown Law and she arranged for a meeting with them and the ESU to discuss the issues raised by Ball [Transcript p. 24‑75].  McDermott had no knowledge of a document [Exhibit 10] relating to matters detrimental to him prior to these proceedings [Transcript p. 24‑76].  At no stage had McDermott been involved in discussions with the ESU Investigator who was the author of the report [Transcript p. 24‑86] although she had met with Boyd (from ESU) about questions she had about the investigation [Transcript p. 24‑86].  It was conceded by McDermott she had relied heavily upon the investigation report in forming her opinions [Transcript p. 24‑87].  When asked why she did not go to the WCC to look at where these allegations were said to have taken place she indicated she was very familiar with the centre and as Deputy Commissioner visits every correctional centre regularly [Transcript p. 24‑87].  McDermott did not consider Ball had advanced credible arguments about a line of sight prisoners would have had of him allegedly sleeping [Transcript p. 24‑88.  McDermott indicated in 2017 she had probably been to the WCC on two occasions this year and not a couple of years ago as suggested [Transcript p. 24‑89].  The penalty letter (dated 19 January 2017) had been drafted by Crown Law and at that point she had not met with anyone to discuss the penalty [Transcript p. 24‑92].

Submissions

Applicant

  1. [286]
    The applicant provided extensive written submissions (322 pages and 2,201 paragraphs) that were filed with the Industrial Registrar on 13 April 2018.  The voluminous nature of the submission prohibits the content being recorded in the decision in any significant detail but nonetheless was the subject of consideration by the Commission.
  2. [287]
    The table of contents contained a number of major headings that formed the basis of the submission content.  These included:
  • The Applicant;
  • Witnesses;
  • General Matters;
  • Disciplinary Process at Woodford;
  • The Show Cause Letter;
  • The Decision to make disciplinary findings;
  • The Decision to Dismiss;
  • Harsh, Unjust and unreasonable;
  • Remedies;
  • Other Allegations; and
  • Costs.
  1. [288]
    A number of annexures (A to H inclusive) were attached to the submission which addresses aspects of the evidence provided in the proceedings by witnesses for the Respondent:  Crichton, Harries, Bracher, Beaumont, Gray, Henderson, Juffs and Potter.

The Applicant

  1. [289]
    There was criticism of evidence from the Respondent's witnesses around Ball's medical conditions that included: heart attack, neck injury, bowel cancer, mental health and exhaustion.  In respect of the exhaustion condition Ball had not relied upon that as a reason to explain or excuse sleeping at work as he flatly denied such allegations.

Witnesses

  1. [290]
    The submission identified either their working relationships with Ball or the role the witnesses played in the process that led to the termination of his employment.

McDermott ‑  at the time of the determination to dismiss Ball, McDermott was the Deputy Commissioner QCS and the decision maker;

Hay ‑   had known Ball for 10 years, worked with him (last in 2015) and also supervised him. Acted was his support person in the disciplinary process and found Ball to be a "very competent and trustworthy officer", considered Ball's style "unique" and "flamboyant at times";

Nicolai ‑   had last worked with Ball in 2015 and had no negative or positive experiences with him. Thought he was a safe officer and had witnessed no inappropriate interactions with prisoners;

Henderson ‑  had been the manager of Secure Two between 2007 and 2010 when Ball worked in that section but after 2010 had no line responsibility for Ball;

Juffs ‑   had been Ball's supervisor for two periods for a total of 13 months;

Potter ‑   had managed Ball in 2014 but not as a direct manager and nothing to do with him since then;

Tilly ‑   currently employed as an Occupational Health, Safety and Environment Coordinator at WCC;

Crichton ‑   CCO since March 2014. Made complaints about Ball's conduct on 29 January 2016 and 12 February 2016 when they worked together in N3;

Bracher ‑  CCO since March 2014. Only worked with Ball once in mid‑2014;

Beaumont ‑  CCO since October 2014. Never worked with Ball;

Gray ‑   CCO since 2012. Complained about Ball during a shift together on 24 February 2016 having previously never worked together; and

Harries ‑   CCO since early 2015. Had worked a handful of shifts with Ball prior to having made a complaint about his conduct on a shift worked on 19 January 2016.

General Matters

  1. [291]
    The submission on general matters occupied pages 18 through to 52 of the submission and examined evidence in respect of matters that included the front run, nicknames, sleeping on duty, cell access (discretionary ‑ no right of access on demand), closing of door behind prisoners, swearing, timeouts, officers not there to be liked and gossip about Ball being asleep.

Disciplinary Process at Woodford

  1. [292]
    There was evidence from Potter that managers were encouraged as were supervisors to undertake informal processes before proceeding to a more formal process such as record of conversation (ROC) or performance management plan (PMP).  Evidence had been given in the proceedings about other aspects of the disciplinary process that included mentoring and training, detrimental file note and code of conduct meetings/minutes.

Reasons for Dismissal

  1. [293]
    The submission dealt specifically with each of the allegations said to have been proved against Ball.

Allegation No. 1

  1. (a)
    19 January 2016 ‑ asleep on two occasions at officers' station desk N3 unit;
  1. (b)
    29 January 2016 ‑ asleep on officers' afternoon meal break in and around the Tardis at N3 unit;
  1. (c)
    2 February 2016 ‑ asleep whilst seated at officers' station desk N3 unit; and
  1. (d)
    24 February 2016 ‑ asleep on six occasions whilst rostered on as the P Movement Control officer.

Allegation No. 2

29 January 2016 ‑ inappropriately secured prisoners in cells without authority.

Allegation No. 3

Between 18 January 2016 and 25 February 2016 Ball communicated and behaved in an inappropriate matter towards prisoners at WCC, in particular on:

  1. (a)
    19 January 2016;
  1. (b)
    29 January 2016; and
  1. (c)
    8 February 2016.
  1. [294]
    In respect of Allegation No. 1(a), the submission focussed on the evidence of Harries and in particular the cross‑examination of the witness where it was submitted he was inconsistent, his account of the incident unravelled and fell apart.  Harries was said to have given conflicting evidence and even if the Commission were to find him a truthful and reliable witness it was not open to find that Ball was asleep.  Harries evidence on Ball doing the "nodding dog" was the subject of scrutiny with the overall position of Ball being that Harries had lied, fabricated the allegations and Allegations No. 1(a) ought to be rejected.
  2. [295]
    The submission in respect of Allegation No. 1(b) again dealt with the evidence of the Respondent witnesses (Crichton, Bracher and Beaumont) with the focus on the cross‑examination component of their evidence where it was argued that Crichton's recall of the situation with Beaumont saying "it appeared that he [Ball] was asleep" but did not actually know if he was asleep or otherwise.  Beaumont gave no evidence of having Ball given the prisoners the "finger" as alleged nor could he tell if Ball had been observing the units because he had no idea where his eyes were at that time.
  3. [296]
    Bracher in his interview with ESU had never described Ball as being asleep and he agreed in his evidence that he did not know if Ball had been asleep nor had he made a complaint that he was asleep.
  4. [297]
    Ball's evidence had been that he denied giving the prisoners the "finger" or that he was asleep.  The evidence points to Ball being the only officer present that was carrying out any observational duties as Crichton, Bracher and Beaumont were apparently ignoring the prisoners completely, talking amongst themselves.  Crichton's entire story was a fabrication in that Ball had been asleep and it ought to be found that Crichton's evidence was deliberately false.
  5. [298]
    In respect of Allegation No. 1(c), Ball denied that he was asleep on this occasion nor did he recall the circumstances of what would have been an unusual or unreasonable occurrence.  It was submitted that Crichton had provided different accounts to the ESU and Commission and that his evidence in the proceedings had been false to deliberately bolster his other false evidence about Ball's conduct on 29 January 2016.  Questions were raised about the distance between the parties and of Crichton's observations with suggestions that Crichton deliberately exaggerated his evidence to advance a false narrative.
  6. [299]
    Throughout the cross‑examination phase Crichton often inserted unnecessary gratuitous comments, lobbying actively and intensely for a singular view that Ball had been asleep when his own evidence did not support such a proposition.  Crichton had been untruthful with regards to his evidence about the red book kept as was his evidence about other aspects of this allegations.
  7. [300]
    The facts do not support a finding that Crichton was a witness of truth rather his evidence contained many errors, improbabilities and inconsistencies which support a finding that Crichton had deliberately made up the allegation.
  8. [301]
    Allegation No. 1(d) had been made by Gray who had never complained about Ball being asleep yet the show cause letter had stated:

On around six occasions during your shift on 24 February 2016 you were observed by CCO Gray to be asleep for periods of between 30 seconds and two minutes.

  1. [302]
    Gray in the course of cross‑examination had been "caught out in a lie" about his view of Ball's eyes and had to admit he could not have seen Ball's eyes.  At its highest, Gray's evidence was that he saw Ball's eyes closed on some occasions when Ball was clearly not asleep.  Gray had given false evidence about having nudged Ball and overall Gray was not a witness of credit as he had been deliberately untruthful.
  2. [303]
    Allegation No. 2 relied upon the evidence of Crichton with the Respondent failing to adduce any evidence that Ball had slammed the cell door on a prisoners fingers or that the prisoner suffered an injury.  Crichton had lied to the ESU Investigator about the prisoner having had his hands trapped in the door and like the previous allegations made by Crichton this had also been a fabrication.  In respect of Crichton's evidence about the entirety of this allegation it was submitted that it had been manufactured and the allegations were unproven.
  3. [304]
    Allegation No. 3(a) relied upon the evidence of Harries with no reliance upon evidence from the prisoners said to have been denied access to their cells by Ball and the Commission should infer that their evidence would not have assisted the Respondent.  Harries was shown to have been an exceedingly unreliable witness who had made false allegations against Ball and had in fact fabricated the allegation.
  4. [305]
    Allegation No. 3(b) relied upon the evidence of Crichton as having witnessed the alleged conduct by Ball relating to his engagement with a prisoner.  The allegation had changed over time and it was submitted that Crichton had fabricated his evidence and there was no evidence to support that Ball had been trying to wind up the prisoner.
  5. [306]
    Allegation No. 3(c) related to Ball having sworn at a prisoner as he was escorting him from the residential gymnasium to J block where he said words to the effect "you're best bet is to shut the fuck up and not say anything to anybody".  Ball admitted saying the words as alleged but did not believe it amounted to misconduct on his part that would warrant his dismissal given the profound culture of swearing at the WCC and management's tactic if not explicit condonation of that conduct.

The ESU Investigation

  1. [307]
    The submission was critical of the investigation describing it as inadequate, lacking rigor and the degree of objective analysis necessary when considering whether an employee's employment should be terminated.  If the Investigator had conducted a full and extensive investigation he would have found that all of the sleeping allegations and most of the other allegations were either incapable of being substantiated or were made by a complainant falsely.
  2. [308]
    The failure of the Investigator and McDermott to actually visit the areas where the allegations were alleged to have occurred did not allow for the allegations to be investigated properly and had the effect of rejecting out of hand the case for Ball and denied him natural justice.

The Show Cause Letter

  1. [309]
    It was argued that there were numerous deficiencies in the show cause letter which included a fundamental difficulty that it made allegations of fact which were not supported by evidence at all or were made in circumstances where there was no other contradictory evidence.
  2. [310]
    The submission dealt with alleged deficiencies in respect of Allegation Nos. 1(a) to (d), 2, 3(a) and (b).

The Decision to Make Disciplinary Findings

  1. [311]
    The findings made by the decision maker (McDermott) were not formed on reasonable grounds with some of the allegations so improbable that a person acting reasonably ought never have found those allegations proven, in particular the sleeping allegations made by Harries, Crichton, Beaumont, Bracher and Gray.  The decision maker had simply rejected Ball's submissions in defence of the show cause notice out of hand and without any reasonable basis.

The Decision to Dismiss

  1. [312]
    The submission raised issue with the authorisation of McDermott at the time of Ball's dismissal claiming that she could have only dismissed him if she had the delegated authority from the Director General.  There had been no formal instrument attached to her affidavit nor was there any evidence which addressed the key question of whether she had the delegated authority as at 17 January 2017.
  2. [313]
    There was improper reliance on three warning letters (previously issued to Ball) by McDermott as documented in the letter of termination said to have been issued to Ball on:
  • 24 February 2014 ‑ a "formal warning";
  • 23 September 2015 ‑ a "formal warning"; and
  • 29 October 2015 ‑ a "formal warning".
  1. [314]
    The submission questioned the legitimacy of the warning being a "disciplinary action" in respect of the first warning and that it was clearly not an action taken in an exercise of power under the PS Act.  In relying upon the second warning the respondent had erred because clearly on its face was to operate as a warning letter only in relation to a limited matter being the removal of clothing searches.  The third warning letter had never been received by Ball and in any event the allegations subject to the letter were not issues relied upon to effect the termination of Ball's employment.
  2. [315]
    The incidents subject of the warning letters had occurred on 14 December 2013, 20 October 2014 and May 2015.  In the circumstances they must be considered against January 2016 when the incidents subject to the application had been alleged to have occurred and were therefore "extremely old letters".

Harsh, Unjust and Unreasonable

  1. [316]
    In addressing this issue the submission raised questions regarding:
  • whether Ball was notified of the reason for dismissal;
  • whether Ball had been warned about the conduct, capacity or performance;
  • whether Ball was given the opportunity to respond;
  • deficiencies in the investigation;
  • deficiencies in the show cause process;
  • no valid reason for dismissal;
  • Ball was not guilty of misconduct; and
  • deficiencies in the decision to dismiss.
  1. [317]
    This was not a case where the employer had conducted a full and proper investigation, given the employee a reasonable opportunity to respond and made an honest decision formed on reasonable grounds that the misconduct warranted the termination of employment.
  2. [318]
    The evidence before McDermott was of such a kind that the standard of "reasonable satisfaction" could not be reached.

Remedies

  1. [319]
    The appropriate remedy was reinstatement to Ball's previous position with no loss of service and an order that compensation be paid for the loss of remuneration between the time of dismissal and reinstatement.

Other Allegations

  1. [320]
    In the course of the proceedings the Respondent sought to rely on affidavits containing numerous other allegations about Ball's performance, capacity and conduct which in the circumstances was highly inappropriate particularly as many of them were nothing more than rumour or hearsay.  None of the allegations had relevance and had the effect of unnecessarily prolongating the hearing.
  2. [321]
    The opinion of Respondent witnesses expressed in a negative way regarding the dismissal allegations or other allegations ought to be regarded as not reasonably held for the purposes of reinstatement.

Costs

  1. [322]
    The position on costs was reserved.

Annexures

  1. [323]
    The annexures related to evidence given in the proceedings by the following witnesses for the Respondent:  Crichton, Harries, Bracher, Beaumont, Gray, Henderson, Juffs and Potter.
  2. [324]
    The evidence was the subject of extensive scrutiny which challenged aspects of the evidence on the basis of having been hearsay, biased, scandalous, fabricated, deliberately false, untruthful, unreliable, unparticularised and inappropriate.  The Commission was encouraged to disregard the evidence that fitted within the categories aforementioned.

Submissions

Respondent

  1. [325]
    The dismissal of Ball was not harsh, unjust or unreasonable because he had been derelict in the performance of his duties in that he had:
  • been asleep on multiple occasions when he should have been performing his duties as a CCO;
  • inappropriately secured prisoners in their cells; and
  • communicated and behaved in an inappropriate manner towards prisoners at the WCC.
  1. [326]
    The dismissal had been effected following an investigation in which Ball had participated and he had been given the opportunity to respond to the allegations against him and also respond to the proposed penalty before any decision had been made in relation to the allegations or penalty.
  2. [327]
    In the event the Commission was to decide Ball's dismissal was unfair it was submitted that reinstatement was impracticable.  Ball had agreed in cross‑examination that WCC was "always a dangerous place" and in order to do his job, officers must have trust and confidence in each other yet he alleged that his work colleagues had fabricated evidence and colluded against him.  Ball had also submitted the employer had taken "retaliatory action" against him in respect of duties undertaken by him as a Compound Double despite the fact the employer had accommodated his needs to care for his wife.
  3. [328]
    The employer had lost trust and confidence in Ball with the breakdown in the employment relationship being irretrievable and at the same time Ball had lost trust and confidence in his work colleagues, managers and ultimately his employer.  In the event the Commission was to decide that Ball be reinstated the Respondent would wish to be heard further in relation to any consequential orders being made pursuant to s 78(4) of the Act and whilst Ball had not sought compensation pursuant to s 79 of the Act the Respondent would also wish to be heard if such an order was to be considered.

Ball's Submissions

  1. [329]
    These submissions were lengthy and had unnecessarily contributed to the costs of the proceedings.  The content was at times irrelevant and not of assistance to the Commission in determining the questions that must be decided with the Commission encouraged to exercise caution when considering the submission.  An attachment to the submissions (Attachment A) identified some 27 examples where the submissions of Ball were said to be unreliable.
  2. [330]
    The evidence in the proceedings from Ball, Hay and Nicolia was addressed in some detail and where that evidence differed from the evidence of the witnesses for the Respondent the Commission was urged to prefer the evidence of the Respondent witnesses.
  3. [331]
    In terms of Ball's evidence overall it was submitted that he was not a reliable witness as he had been evasive, unresponsive and untruthful.  The submission particularised areas of his testimony that included his employment post termination, denied receiving correspondence from McDermott despite signing for the letter; denied having seen correspondence from Dr Shea which according to the doctor was prepared in his presence; incidents of sleeping on the job and Hay's assistance in the disciplinary process.  All these identified issues were said to have demonstrated that he was an unreliable witness who would say anything to assist his case.
  4. [332]
    Another negative example of Ball's evidence covered in the submissions went to his evidence regarding WCC always being a dangerous place and that sleeping on duty was a serious allegation for which he would expect a serious penalty yet in a response to McDermott (dated 14 November 2016) Ball had stated "By themselves I would submit that these allegations are not of a serious nature" which was said to demonstrate his untruthfulness and that he would craft his evidence to suit his case.
  5. [333]
    In respect of Hay's evidence it was said to be in conflict with evidence given by Ball's former solicitor Ash in terms of Hay not providing an affidavit in the proceeding and it is not possible for the evidence of Hay and Ash to stand together.  Ball had called Ash to give the evidence which contradicted the evidence given by Hay which had the effect of impugn the credit of one of his own witnesses.  Should the Commission accept the evidence of Ash it is the case that Hay cannot be believed in relation to anything.
  6. [334]
    Further in any event, Hay's evidence was irrelevant to the issues the Commission must decide as both he and Nicolia were not present to observe any of the conduct relating to Ball's dismissal.  It was submitted that Hay should never have been called to give evidence in this case.
  7. [335]
    Nicolia was not a witness of credit and the reliance on argument that he would be the subject of reprisal action for giving evidence in the circumstances told strongly against his credibility.

Ball's dismissal was not harsh, unjust or unreasonable

  1. [336]
    Ball had been given the opportunity to respond to both show cause notices regarding the allegations and proposed penalty and in doing so clearly understood the allegations against him and was aware consideration was being given to terminating his employment.  He had the opportunity to seek advice from his Union as well as legal advice prior to making his response to allegations that had been fully particularised.
  2. [337]
    McDermott was at all times relevant the authorised delegate and she had applied her own independent decision making in her considerations.

Ball's misconduct warranted dismissal

  1. [338]
    The ESU had carried out a full investigation into the allegations against Ball which included an interview with him and he had access to support from the Union and a support person (Hay) during the process.  Ball had not placed before the Commission any evidence that called into question the findings made by McDermott nor had it been established that McDermott did not make an honest decision.  In respect of McDermott's findings it was submitted they should not be disturbed.  There was reliance upon the matter of White v State of Queensland (Central Queensland Hospital and Health Service)[1] where O'Connor DP had cited, Stark v P&O Resorts (Heron Island)[2]:

An employer who undertakes a full and extensive investigation; gives the employee a reasonable opportunity to respond to allegations; and makes an honest decision that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, be immune from interference by the Commission.

  1. [339]
    McDermott in finding that the allegations had been substantiated had done so honestly and on reasonable grounds and also given proper consideration to the serious consequences that termination would have on Ball.
  2. [340]
    In terms of the reliance on three previous warning letters it was noted that they were issued on 14 December 2013, 29 October 2014 and May 2015 and were not "extremely old" as claimed by Ball because he had been suspended from work in March 2016 which was the relevant date to consider and not January 2017 when Ball's employment was terminated.

Allegations

  1. [341]
    The submissions dealt with each of the allegations in specific detail referencing the evidence of Ball and the Respondent witnesses to present argument for the Commission to find that each of the allegations had been substantiated based upon acceptable evidence from the witnesses for the Respondent and that no evidence had been placed before the Commission that would warrant the displacement of McDermott's findings.
  2. [342]
    Further it was submitted that Ball had been an unreliable witness and his evidence in the course of cross‑examination had further highlighted the correctness of McDermott's decision.

Reinstatement is impracticable

  1. [343]
    There had been no submissions by Ball as to why reinstatement would not be impracticable, presumably because he was well aware that he could not expect to accuse his fellow workers of colluding against him, fabricating evidence against him and yet maintain that reinstatement would not be impracticable.
  2. [344]
    The relationship between Ball and the Respondent had irretrievably broken down with both parties having lost trust and confidence in each other.
  3. [345]
    McDermott expressed the following view in evidence that was not the subject of challenge during the cross‑examination:

I am of the view that Mr Ball is likely to engage in similar conduct in future and I would have no confidence that if Mr Ball were to be reinstated that he would perform his role as CCO ethically, honestly and in accordance with his obligations as a CCO and public service employee.

Orders Sought

  1. [346]
    The application should be dismissed.

Costs

  1. [347]
    The Respondent would seek to be heard on the question of costs.

Submissions

Applicant in Reply

Reinstatement

  1. [348]
    The position of the Respondent that the reinstatement of Ball was impracticable was challenged with argument said to support a proposition that the breakdown in the relationship between the parties was not irretrievable.

Impracticable

  1. [349]
    There was no evidence before the Commission to support a conclusion that it would be impracticable to reinstate Ball in the sense that such an order would impose "unacceptable problems or embarrassment or seriously affect productivity or harmony".  In Nicolson v Heaven and Earth Gallery[3] Wilcox J said:

The word "impracticable" requires and permits the Court to take into account all of the circumstance of the case, relating to both the employer and the employee, and to evaluate the practicability of a reinstatement order in a common sense way. If a reinstatement order is likely to impose unacceptable problems or embarrassment or seriously affect productivity, or harmony within the employer's business, it may be "impracticable" to order reinstatement; notwithstanding that the job remains available.

  1. [350]
    In Auto Logistics Pty Ltd v Kovacs[4], De Jersey J said (in citing Liddle v Lembke[5]):

That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practicably impossible.

  1. [351]
    It is well settled that "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".  The submission cited Perkins v Grace Worldwide (Aust) Pty Ltd[6] as an authority on trust and confidence.  The evidence before the Commission does not support a conclusion that it is impracticable to reinstate Ball.

Alleged loss of trust and confidence

  1. [352]
    The Respondent alleged that because Ball had made allegations against some WCC employees that had made false and untrue allegations against him there had been a loss of trust and confidence.  It was abundantly clear that during the trial Ball had evidenced that most of the allegations were false and some of them deliberately so and if the Commission should agree that some individuals provided incorrect and in some cases false evidence against Ball it would beggar belief that this finding should prevent his reinstatement as the primary remedy.

Front Run

  1. [353]
    It was said to be unclear why the Respondent would rely on Ball's employment on the Front Run and Compound Duties as a ground for loss of trust and confidence.  Ball gave evidence that management's decision to roster him on compound‑only duties had caused him immense stress and upset but he had never made a formal complaint about the issue prior to his dismissal.  He only raised the matter in the proceeding to defend against irrelevant and unfair evidence sought to be relied upon by the Respondent.
  2. [354]
    The submission dealt with other allegations regarding the loss of trust and confidence that included:
  • complaint of management taking retaliatory action against Ball;
  • allegation of no evidence that Ball's reputation was actually "diminished" ‑ Huntley Storey email;
  • allegation that Ball had lost trust in his work colleagues, managers and ultimately his employer; and
  • allegation of Respondent having lost trust and confidence in Ball.

The allegations were denied for a range of reasons that in some cases went to failure to cite reasons to support the submissions.

Allegation Ball bears the onus of showing reinstatement was not practicable

  1. [355]
    The Respondent complained that Ball had not addressed why reinstatement was "not" impracticable without any authority cited and why that ought to have been done with the proper course being for the Respondent to assert impracticability for reinstatement and then for Ball to respond.

Witness Credit

  1. [356]
    Assertions were made that Ball had not been a credible witness because he was "evasive, unresponsive and untruthful" with it submitted on behalf of Ball that those submissions had relied upon extremely trivial matters and even if proven either individually or collectively they would not be sufficient for a finding that Ball was not a witness of credit.
  2. [357]
    There was an allegation that Ball had been "evasive, unresponsive or untruthful" regarding his evidence about post dismissal work although it was not expressly submitted that he had lied.  To submit that Ball had lied about these matters would have been contrary to the rule in Browne v Dunn[7] (Browne v Dunn) as the allegation had not been put to Ball during cross‑examination.  Similarly in Reid v Kerr[8] and Green v Emergency Services Telecommunication Authority[9] where Counsel failed to put an allegation related to credit fairly and squarely to a witness and then infer in the final submissions that the witness lacks credit on an issue, had been roundly discredited as unfair.
  3. [358]
    Further in respect of Ball's credit as a witness the submission addressed evidence given on issues that included:
  • whether or not he had been "exasperated" with a prisoner when telling him to "shut the fuck up and don't say anything to anybody" after having previously told the prisoner to be quiet.  The Commission ought not to draw adverse inference to the credit of Ball in respect of this matter;
  • Ball rejects the submission that he received the warning letter (dated 29 October 2015) from McDermott or that he gave untruthful evidence about that matter;
  • the Respondent was not able to submit (inferentially or otherwise) that the evidence of Ball was untruthful about a letter found on Dr Shea's file (dated 28 February 2017) with reliance by Ball on the rule in Browne v Dunn.  The Commission based on the evidence would not be entitled to find that Ball was lying because of the existence of numerous innocent explanations which were inherently more likely than Ball lied about such a trivial matter;
  • belated evidence regarding Ball's neck arthritis was said to reflect poorly on his credit which was refuted again with reliance on the rule in Browne v Dunn;
  • alleged "demonstrably false" evidence about the involvement of Hay in Ball's case had never been put to Ball despite the requirement in Browne v Dunn;
  • allegations around inconsistent evidence about Ball feeling tired or exhausted in late 2015 and early 2016 with Ball "evasive, contradictory and not a truthful witness".  The evidence was unremarkable given Ball's subsequent diagnosis of bowel cancer in mid‑2016;
  • allegations by the Respondent of inconsistencies about having kept a prisoner waiting were addressed on Ball's behalf with reliance on the rule in Browne v Dunn.  Also it was the case the affidavit of Ball had been sworn a year and a‑half after the alleged incident and very properly he had not positively asserted a position one way or the other;
  • certain submissions were made about Ball having lied about giving the "B" sign although the Respondent had not expressly submitted that the Commission make such a finding.  Ball relied upon his primary submissions in the matter;
  • there was no inconsistency in Ball's evidence about sleeping on duty being dangerous and in any event it was irrelevant to any material fact in issue; and
  • Ball disputes the allegation he lied about being asleep whilst on duty.

Hay

  1. [359]
    The Respondent asserted that Hay was not a credible witness based upon "apparently contradictory evidence" of Hay and Ash as to whether Ash had asked Hay to provide a statement.  This issue was not needed to be decided by the Commission as it related only to a collateral question of credit however if the Commission took the view that it must resolve the controversy of whose evidence is to be believed, the evidence of Ash should be preferred because he had a clear and concise recollection of his conversation with Hay.
  2. [360]
    The Respondent made submissions that the Commission should disregard the whole of Hay's testimony merely because he was wrong about the statement issue.  Hay gave his evidence honestly and was not deliberately untruthful with his evidence on the statement merely factually incorrect.  Hay's evidence did not relate to having witnessed any of the allegations against Ball but he was fully versed with the case by way of attending meetings and having helped Ball draft relevant correspondence in relation to the investigation and allegations.
  3. [361]
    The Respondent's only issue with Hay's evidence was the issue of the statement and nothing beyond.  A proper analysis of his evidence shows that his evidence was properly responsive evidence to the Respondent's witnesses and directly relevant to either the allegations to dismiss or to discredit Ball.
  4. [362]
    The Commission ought to reject the Respondent's submission and find that Hay presented as an unbiased and truthful witness.

Dr Shea

  1. [363]
    The submission of the Respondent that Dr Shea's evidence was irrelevant was said to be wrong in that he gave relevant evidence on matters that included:
  • fact and nature of Ball's neck arthritis;
  • likelihood of Ball's exhaustion in late 2015 early 2016 due to undiagnosed bowel cancer;
  • date of Ball's heart attack; and
  • fact and nature of Ball's depression which necessitated Hay's assistance in formulating his show cause reply.

Nicolai

  1. [364]
    The Respondent submitted the evidence of Nicolia was irrelevant and that he should never have been called to which exception was taken on the basis that he gave valuable and credible evidence about matters relating to the irrelevant allegations made by the Respondent.  Nicolai's evidence about refusing to provide an affidavit due to fearing reprisals should be accepted as the Respondent had failed to comply with the rule in Browne v Dunn.

Harsh, Unjust or Unreasonable

  1. [365]
    The Respondent made no submissions that Ball acted in breach or excess of his duties as a CCO under s 20 of the Corrective Services Act 2006 and further submitted that Ball was not dismissed for serious misconduct because he was given notice and that the onus consequently does not shift to the Respondent.  That position was challenged on behalf of Ball on the basis that he was clearly dismissed for misconduct under the PS Act and therefore the nature of the allegations were of such seriousness that the burden of proof is higher and shifts to the Respondent.

Lack of Proof of Delegated Authority of McDermott

  1. [366]
    There was no evidence before the Commission about the position held by McDermott at the time of Ball's dismissal nor proof that McDermott had the authority to "exercise the delegation".  The Acts Interpretation Act 1954 (AIA) at s 27A states:

27A Delegation of functions or powers

  1. (1)
    If an Act authorises a person or body to delegate a function or power, the person or body may, in accordance with the Act and any other applicable law, delegate the function or power to ‑
  1. (a)
    a person or body by name; or
  1. (b)
    a specified officer, or the holder of a specified office, by reference to the title of the office concerned.
  1. (2)
    The delegation may be -
  1. (a)
    general or limited; and
  1. (b)
    made from time to time; and
  1. (c)
    revoked, wholly or partly, by the delegator.
  1. (3)
    The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.
  1. [367]
    To prove delegated authority McDermott needed to attach a copy of the written instrument of delegation signed by the chief executive pursuant to s 27B of the AIA in order for the delegation to be lawful.

Irrelevant Allegations

  1. [368]
    In Ball's submissions Annexures A to H reference was made to a voluminous body of allegations which the Respondent had made to discredit him.  The Respondent in submissions had not sought to rely on any of the irrelevant allegations and made no responses at all to the matters in the Annexures A to H of Ball's submissions.

Costs

  1. [369]
    The Commission irrespective of the decision it makes on remedy ought to make an order for costs which punishes the Respondent for its conduct with a request for Ball to be heard on the question of costs.

Further Submissions

  1. [370]
    On 26 June 2018 contact was made with the Commission by the Respondent seeking leave to address the Commission as a consequence of matters said to have arisen from the Applicant's Reply Submissions.  The matter was brought on for Mention on 9 July 2018 at which time the Commission issued Further Directions requiring the parties to provide additional written submissions as follows:
  • Respondent ‑ supply to the Applicant and file in the Industrial Registry further submissions by 4.00 pm on 24 July 2018; and
  • Applicant ‑ supply to the Respondent and file in the Industrial Registry further submissions in reply by 4.00 pm on 7 August 2018.

Respondent ‑ Further Submissions

Reinstatement

  1. [371]
    The Respondent addressed the matters pertaining to reinstatement in the reply submissions generally agreeing with law as stated at paragraphs 4, 5, 7, 8, 9 and 10 although noting that not all of the quotations were accurately cited.
  2. [372]
    The evidence of Ball was the subject of commentary regarding the lack of contrition, no admission of wrongdoing, denial of the conduct alleged and argument that some of his colleagues and supervisors had fabricated allegations and colluded with each other against him.  In such circumstances, reinstatement, would be impracticable, and self‑evidently so.
  3. [373]
    The reply submission at paragraph 15 stated that the "Applicant's case is that most of the allegations against him are false, and some deliberately so" which appears to be an attempt to downplay or ignore his allegations of collusion.  In Ball's response to the first show cause notice he stated that he believed that Crichton and Gray had colluded and conspired in making the allegations and in his application for reinstatement that Allegation 1(a) appeared to be "based on collusion with others in this allegation".  Despite the allegations and his evidence Ball had been unable to put forward a shred of evidence to support that position.  Reinstatement in such circumstances was impracticable.
  4. [374]
    In the proceedings there had been a failure to put allegations of collusion to Crichton and Gray which means the Commission cannot make serious findings against Crichton or Gray.  Again the circumstances are that reinstatement was impracticable.
  5. [375]
    On the evidence before the proceedings it was not open to the Commission to find that witnesses for the Respondent including Juffs, Henderson, Harries, Beaumont, Crichton, Bracher and Gray had fabricated evidence against Ball and again for this reason reinstatement was impracticable.
  6. [376]
    The evidence of Potter supported the conclusion that reinstatement for Ball was impracticable giving examples of conduct that had created a potential critical situation.  Also there was evidence from Henderson that he had witnessed Ball put himself and others in danger.  In Perkins v Grace Worldwide (Aust) Pty Ltd[10] it was stated:

…the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability.

In such circumstances where there had been evidence that the health and safety of Ball, his colleagues and prisoners, depended on Ball's reliability, at the very least there is a reasonable doubt about that reliability.

  1. [377]
    There was evidence from Henderson and Juffs about Ball denying conduct or behaviour when they had witnessed it first hand and the Commission was able to observe, it was submitted, him behave the same way in the witness box.
  2. [378]
    The employment relationship had irretrievably broken down and reinstatement was impracticable.

Witness Credit

  1. [379]
    The reply submission dealt with Ball's performance in the witness box which was the subject of challenge by the Respondent in their further submissions in areas that included:
  • no breach of the rule in Browne v Dunn;
  • evidence of Ash and a limited waive of privilege;
  • evidence about Ball's alleged "strong accent";
  • Ball's evidence in relation to Dr Shea's letter was untruthful;
  • evidence regarding sitting or not sitting for periods of time;
  • issue of wearing or not wearing a neck brace at work;
  • further misconceiving the rule in Browne v Dunn; and
  • evidence about Ball making the "B" sign.

Ball, it was submitted, was not a truthful witness.

McDermott

  1. [380]
    The reply submission had questioned the status of McDermott's delegated authority which according to the Respondent was wrong and had not been the subject of challenge in the application for reinstatement.  At no time was it suggested to McDermott that she lacked the relevant authority.
  2. [381]
    The Commission should find that at all relevant times, including the time of Ball's dismissal that McDermott had occupied the position of Deputy Commissioner of QCS and held the requisite authority to terminate Ball's employment.

Costs

  1. [382]
    All evidence called by the Respondent was said to be relevant and relied upon by the Respondent.  The length of trial cannot be attributed to the Respondent as submitted in the reply submissions.
  2. [383]
    On the reply submissions of the Applicant calling for the Commission to "make an order for costs which punishes the Respondent for its conduct" it was submitted that it was well established that costs are not awarded to punish a party.  See Oshlack v Richmond River Council[11].
  3. [384]
    The Respondent makes no further submissions about costs at this stage but wishes to be heard on costs at a later date.

Applicant - Further Reply Submissions

Reinstatement

  1. [385]
    The relevant principles to reinstalment had been set out in the Applicant's First Reply Submission and were agreed to by the Respondent.  This submission addressed a range of issues pertaining to reinstatement that included:
  • irretrievable breakdown in employment relationship;
  • was the employment relationship "fragile";
  • impracticability, a question to be determined on the evidence;
  • Respondent's arguments about impracticability;
  • what evidence the Respondent adduced about the practicability of reinstatement;
  • determining whether a loss of trust and confidence to make reinstatement impracticable and whose views were relevant; and
  • are the irrelevant allegations relevant to the question of whether reinstatement is impracticable?
  1. [386]
    The only evidence from the Respondent about reinstatement came from McDermott in which she stated she had lost trust and confidence in Ball because of:
  • the seriousness of the dismissal allegations;
  • the fact he had recently engaged in conduct for which he was disciplined;
  • failure to show remorse and insight into his actions;
  • concerns about engaging in similar conduct in the future; and
  • if reinstated would not perform his duties in an ethical and honest manner in accordance with CCO and public service requirements.
  1. [387]
    The views expressed by McDermott were said not to be supported by reasoning that demonstrated a reasonable basis for a view that trust and confidence between the parties had been destroyed.
  2. [388]
    It was the Respondent who bears the onus of showing that reinstatement was impracticable and in this instance they had failed to do so.  The only appropriate order in light of Ball's length of service, employment record (discounting the unlawful warning letters), age and employment status was that of reinstatement.

Reply to specific matters in the Respondent's Second Reply Submissions

  1. [389]
    The evidence before the Commission labelled as "irrelevant allegations" by Ball was said by the Respondent to overwhelmingly support that reinstatement was impracticable which was likely to cause difficulties for the Commission if it adopts the Respondent's approach for reasons that include:
  • numerous instances where the Respondent's witnesses stated something in an affidavit and recanted it in cross-examination;
  • irrelevant allegations based on nothing more than hearsay;
  • Respondent witnesses gave contradictory versions of the same event; and
  • multiple examples where the Respondent's witnesses performed egregiously poorly in cross-examination whereby a conclusion could be drawn that the whole of their evidence was based on a deliberate fabrication.
  1. [390]
    On the failure of Ball to demonstrate no contrition, admit no wrongdoing and to deny all allegations (according to the Respondent) it was the case that Ball denied particular allegations on the basis they had been made up by witnesses knowing them to be false and in other cases the witnesses were merely wrong.
  2. [391]
    If the Commission was to find the dismissal to be false then clearly it cannot sound against Ball on the question of reinstatement that he admitted no wrongdoing and showed no contrition.  To the contrary Ball will have been completely vindicated and the victim of a substantial injustice.
  3. [392]
    The Respondent challenged the opinion of Ball that some of his colleagues and supervisors had colluded with each other against him, claiming the allegations had been made without a "shred of evidence".  Ball had certainly expressed views about his colleagues but not so about supervisors.  Ball had not sought to have the Commission make a finding that any witness colluded or conspired against him because he does not need to prove conspiracy or collusion in order for his application to succeed.
  4. [393]
    There was ample evidence before the Commission that a number of the Respondent's witnesses had talked to each other before making their complaints and had gossiped inappropriately about Ball before and after making their complaints.  If the Commission should find that the dismissal allegations were wholly or mostly false and that some of the evidence had been deliberately fabricated then Ball would be vindicated as a victim of substantial injustice and reinstatement should follow.
  5. [394]
    On the evidence before the Commission it was submitted by the Respondent that it was not open to find that the Respondent's witnesses had simply made a mistake, or, more over that Juffs, Henderson, Harries, Beaumont, Crichton, Bracher and Gray had fabricated evidence as alleged by Ball.  Such submission was not supported by any reference to the evidence.
  6. [395]
    On complaints made by Ball of retaliatory action in connection with being sent to the Front Run it was the case that Ball and many of the Respondent's witnesses held the view that being sent to the Front Run in 2015 was as a punishment.  Ball was entitled to hold private views about aspects of his employment and in particular views about why he was placed on compound only duties with those views both well-founded and reasonable.
  7. [396]
    The submission of the Respondent calling on the Commission to accept Harries' view of Ball's alleged conduct of sleeping on the job and putting other people's lives at risk was rejected by Ball who denied being asleep and aspects of Harries' evidence were challenged on the basis of being a lie and completely false.  Also, contrary to Harries' evidence about making the complaint without speaking to anyone was evidence from Juffs in cross-examination confirming he had discussed the issue before putting in his complaint.
  8. [397]
    The submission of the Respondent with regards to the evidence of Potter concerning Ball entering a unit with response keys and Henderson's evidence about why Ball wall was not being considered for reinstatement ought not be accepted on the basis of being mostly hearsay and nothing more.  The evidence of Potter and Henderson was not relevant to any of the dismissal allegations and instead dealt with old and irrelevant matters that were largely hearsay.
  9. [398]
    In the case of the allegations referred to by Henderson they were not investigated at the time and having elected not to take any disciplinary action against Ball the Respondent must be taken to have waived the right to rely on those matters for any disciplinary purpose.
  10. [399]
    The Respondent submitted that the evidence of Juffs about an incident in 2014 involving Ball should be accepted by the Commission despite Ball having denied the allegation and having absolutely no recollection of the incident.  To now rely on this incident to argue that reinstatement was impracticable in 2018 was not acceptable and ought to be rejected.
  11. [400]
    The submission that Ball had wrongly denied receiving the third warning letter had been refuted in the previous submission and if the Commission was to conclude Ball had received the letter then it should also conclude that Ball's belief was innocent and not deliberately false.
  12. [401]
    The Respondent referred to several denials made by Ball over a four year period (none of which were relevant for his dismissal) as reasons for not being reinstated.  The Respondent submitted that there was a pattern of conduct engaged in by Ball that had led to the loss of trust and confidence however there was no evidence to support how anyone from the Respondent felt about these allegations relating to trust and confidence.

Witness Credit

  1. [402]
    There were objections to the content of the Respondent's second reply submissions on the basis that leave had not been given at large to make submissions on any matter and that leave did not include general submissions about witness credit.
  2. [403]
    The Respondent submitted that Ball had been untruthful with regards to denying he had received a letter from Dr Shea which the doctor evidenced had been written in the presence of Ball.  There was no evidence that Ball had been deliberately untruthful and at most the Commission should conclude that he had honestly forgotten about receiving the letter.  Such a finding should have no bearing on the overall credit of Ball.
  3. [404]
    Further on the issue of credit the Respondent addressed Ball's evidence about his post‑dismissal employment which was the subject of challenge by Ball on the basis of having truthfully answered every question about this issue including that he had done some casual taxi driving both before and after having his employment terminated.  Attacks on Ball's credit over this issue should be thoroughly rejected.
  4. [405]
    The Respondent submitted that Ball gave inconsistent evidence about whether he was exasperated about his dealings with a certain prisoner that should sound against his credit in general and in every case where Ball had contradicted himself in evidence it was in respect of a matter of trivial importance or because his views had been expressed with a degree of hyperbole.  Other areas of Ball's evidence being brought into question related to:
  • problems sitting;
  • neck condition; and
  • discussions and involvement of Hay.

McDermott

  1. [406]
    The delegated authority to McDermott giving her the authority to dismiss Ball had not been established as was submitted previously by Ball.

Conclusion

Background

  1. [407]
    On 19 January 2017 McDermott forwarded correspondence to Ball in which he was advised that his employment was to be terminated effective from the date of receipt of the correspondence.  The letter of some seven pages in length provided detailed reasoning around the substantiation of the following allegations:
  1. Between 18 January 2016 and 25 February 2016, you were derelict in the performance of your duties.
  1. On 29 January 2016, without authority, you inappropriately secured prisoners in their cells.
  1. Between 18 January 2016 and 25 February 2016, you communicated and behaved in an inappropriate manner towards prisoners at Woodford Correctional Centre.

On the basis of my findings in relation to the allegations, I determined that:

  • In respect to Allegations 1 and 2, pursuant to s 187(1)(b) of the Public Service Act 2008 (the Act), you are guilty of misconduct; and
  • In respect to Allegation 3, pursuant to s 187(1)(f)(ii) of the Act, you contravened without reasonable excuse a standard of conduct applying to you under an approved code of conduct under the Public Sector Ethics Act 1994.
  1. [408]
    The correspondence also made reference to the considerations given by McDermott to the evidence available in relation to the allegations and the reasoning behind the decision to impose the penalty of termination of employment.  Such matters relied upon included:
  • expectations that he would not carry out his duties in a professional manner at all times and comply with the relevant policies, procedures and statutory obligations.  He had failed to act in accordance with that standard of conduct;
  • he had been derelict in the performance of his duties in that he was asleep whilst on duty which resulted in failing to appropriately supervise prisoners and to be in a position to respond to potential security risks or emergency situations;
  • inappropriate communication and behaviour towards prisoners at the WCC, failing to treat prisoners with courtesy and respect;
  • use of inappropriate language in the workplace was unprofessional;
  • inappropriately securing prisoners in their cell;
  • demonstrated a reluctance to take full responsibility for his actions and repeatedly refused to accept the seriousness of his conduct;
  • despite submissions about a positive overall work record there was a clear disciplinary history:
  • February 2014 ‑ formal warning in relation to conduct on 14 December 2013 in respect of unreasonably delaying officers entry;
  • September 2015 ‑ issued a reprimand, a reduction of one pay point, a final warning and undertake refresher training regarding inappropriate unauthorised removal of clothing searches; and
  • October 2015 ‑ issued a formal warning for riding on the back of a truck whilst on duty.
  1. [409]
    Other considerations were recorded in the correspondence at pages 6 and 7 and included:
    • In light of your continued failure to acknowledge the seriousness of your conduct, and your recent disciplinary history, I am of the view that you are likely to engage in similar conduct in the future.  Further, I am concerned that you have engaged in a pattern of behaviour that does not meet the standard of conduct required by QCS.  I have therefore lost trust and confidence in your ability to carry out your role as a CCO and, in particular to act appropriately towards other prisoners.
  • I note your submission that you are unaware of any impact to public confidence in the agency due to the allegations.  However, given your pattern of behaviour and your lack of insight, I am of the view that the reputation of the Department would likely be adversely affected were your employment to be continued in the circumstances.
  • …I confirm that I have given careful consideration to the appropriateness of the penalty I am imposing having regard to all of the material before me in relation to the allegations against you, including your response.  I have also taken into account your continued denial of the allegations, your failure to recognise the serious nature of the allegations and your previous disciplinary history.
  • After having considered all of the material, I remain of the view that your behaviour was unacceptable, inappropriate and extremely serious.  Therefore, I am not persuaded that a penalty of anything less than termination of employment is reasonable or just in the circumstances.
  • In all the circumstances, I no longer have trust and confidence in your ability to perform the requirements of your role as a CCO and comply with the applicable policies, procedures and statutory requirements.

Proceedings

  1. [410]
    There can be no question that these proceedings, spread over 25 days of hearing, were lengthy beyond the usual period of time allocated for applications of this nature.  In all there were a total of 16 witnesses called with it being the case that several witnesses spent in excess of one full day giving their evidence.
  2. [411]
    In addition, inspections were undertaken at the WCC and there were issues that arose out of submissions that resulted in the Commission agreeing to allow the parties to provide further written submissions in July/August 2018 which meant the time period from when the matter was subject to a Mention on 27 March 2017 and the Applicant's Further Submissions in Reply received by the Commission on 9 August 2018 was some 17 months.
  3. [412]
    As a consequence of a plethora of evidence and material placed before the Commission the overall written decision of the Commission is significantly expansive in comparison to decisions generally released by the Commission.

Disciplinary Process

  1. [413]
    The evidence confirmed that Ball had been the subject of an investigation in relation to alleged conduct in the workplace resulting in a report being prepared by the ESU (dated 23 May 2016) which in effect concluded that Allegations 1, 2 and 5 were capable of being substantiated with there being insufficient evidence to substantiate two other allegations.
  2. [414]
    Ball was required to show cause pursuant to the PS Act as to why he should not be the subject of disciplinary action in respect of the allegations said to be capable of substantiation.  The correspondence (dated 5 July 2016) under the signature of McDermott provided to Ball full details of each of the allegations to which he was required to respond as well as the particulars relevant to each of the allegations.  Additionally the correspondence confirmed that Ball's employment would remain suspended on his normal remuneration.
  3. [415]
    Upon examination of the correspondence it is evident that each of the allegations were particularised to the extent where they identified:
  • the dates, time of day (generally) and locations where the incidents were alleged to have occurred;
  • names of persons making the allegations; and
  • details of the incidents.
  1. [416]
    In respect of the allegations the correspondence stated:

Allegation 1

  • 19 January 2016 - in the afternoon asleep on two occasions whilst seated at the officers station desk - N3 Unit - rostered as Alpha officer; asleep whilst responsible for supervision of prisoners and the officer in possession of unit door keys;
  • 29 January 2016 - 3.30 pm observed asleep in the walkway around the Tardis facing the Lexan windows; and
  • 2 February 2016 - asleep whilst seated at the officer's station desk as the P Movement Control officer.

Allegation 2

  • 29 January 2016 - without authority inappropriately secured prisoners in their cells.

Allegation 3

  • 19 January 2016, 29 January 23016 and 8 February 2016 - communicated and behaved in an inappropriate manner towards prisoners at the WCC.
  1. [417]
    The allegations were particularised in significant detail in the show cause letter (dated 5 July 2016) under the signature of McDermott and included documentation relied upon in her considerations that included:
  • Investigation Report (dated 23 May 2016) plus attachments;
  • Chapter 6 of the PS Act; and
  • Code of Conduct for the Queensland Public Service.
  1. [418]
    Additionally the correspondence made reference to allegations whereby it was alleged that Ball had on:
  • 8 February 2016 inappropriately interfered with a police investigation; and
  • 24 February 2016 failed to demonstrate a high standard of workplace behaviour and personal conduct in his communications and interactions with staff.
  1. [419]
    In consideration of the Investigation Report in relation to the incidents of 8 and 24 February 2016 McDermott accepted the findings of the Investigator that there was insufficient evidence to substantiate those allegations and no further action would be taken in respect of these allegations.
  2. [420]
    Upon examination, it is evident that the show cause letter (dated 5 July 2016) properly identified:
  • the allegations levelled against Ball;
  • particulars relating to each incident; and
  • the relevant sections of the PS Act and the Code of Conduct under which the show cause process was being conducted.
  1. [421]
    On 7 July 2016 Ball contacted Lloyd Casey (Casey) Manager, Industrial and Employee Relations, Department of Justice and Attorney-General in relation to requiring additional information relevant to the allegations that had been levelled against him.  Further in that correspondence he stated:

You have given me 14 days to reply to this it will not be sufficient time for myself and or my legal team to analyze your report and conclude a valid response, i will need a minimum of 30 days if you require me to go through Freedom of information then this will take even long as it has taken you 5 month to prepare this report.

  1. [422]
    The evidence reflects that Ball was given an extension of time in which to respond to the allegations contained in the show cause letter and subsequently provided two responses dated 31 August 2016 (received on 9 August 2016) and 13 September 2016.
  2. [423]
    In the responses Ball raised no issue regarding the standing of McDermott in relation to her delegation to progress the show cause process.  Ball denied all of the allegations that had been made against him, addressing in significant detail each individual allegation and in some cases quoting from the transcript of interviews where complainants had been interviewed by the ESU Investigator.
  3. [424]
    McDermott next corresponded with Ball on 24 October 2016 in which she addressed a range of concerns put forward by Ball that included:
  • allegations that Harries, Crichton, Beaumont, Bracher and Gray may have colluded in making the allegations against him or that the allegations were contrived;
  • possible reprisal against him as a consequence of a previous ESU investigation;
  • leading of evidence from complainants by the ESU Investigator; and
  • reframing of evidence given by the complainants at the hands of the ESU Investigator.
  1. [425]
    The 39 page document contained reasoning as to why Ball's responses had been rejected and confirmed that in respect of each of the allegations they had been in effect substantiated and that pursuant to s 188 of the PS Act that the decision maker was giving serious consideration to terminating Ball's employment.  Forming part of that consideration would be the following:
  • the seriousness of the offence;
  • the overall work record, including previous disciplinary actions (if any);
  • the explanation given by Ball;
  • any extenuating circumstances which may have had a bearing on Ball's actions;
  • the impact the offence has on Ball's ability to perform the duties of his position; and
  • the impact the offence has on public and client confidence in the Department.
  1. [426]
    Ball was given seven days from the receipt of the correspondence to show cause why the penalty should not be imposed.
  2. [427]
    Correspondence (dated 27 October 2016) was forwarded to McDermott in which Ball requested a 14 day period in which to respond to the penalty show cause letter, resulting in an extension of time being granted to 19 November 2016.
  3. [428]
    On 14 November 2016 Ball provided a response to the proposed penalty of terminating his employment whereby he stated:

The penalty proposed is very severe and will have long term, significant and far reaching detrimental effect on myself and my immediate family.  I believe the penalty proposed is harsh and unreasonable and I propose an alternate penalty be considered.

  1. [429]
    Further submissions were made in terms of the following factors:
  • seriousness of substantiated allegations;
  • financial stress and hardship;
  • degree of risk to health and safety;
  • impact of offence on ability to perform duties;
  • impact on public and client confidence in the Department;
  • overall work record;
  • extenuating or mitigating circumstances; and
  • alternate penalty.
  1. [430]
    The decision maker's outcome with regards to the imposition of penalty is recorded at paragraph [406] of this decision.
  2. [431]
    The disciplinary process itself, on the face, would seem to have met the requirements of the relevant legislation, in that it provided Ball the opportunity to respond to the allegations levelled against him, having had the opportunity to access all the material upon which the decision maker had relied in concluding the issue of the show cause letter had been warranted.  Where there had been requests for extensions of time to respond the Respondent had granted such extensions fairly and in a timely manner.
  3. [432]
    There can be little question that the disciplinary process afforded Ball procedural fairness by the adoption of proper procedures in the decision making process and it is unlikely that a finding could be made to challenge successfully the integrity of the disciplinary process.

Investigation Report

  1. [433]
    An investigation of a complaint (in which Ball was the subject officer) was undertaken by the ESU with an Investigation Report (dated 23 May 2016) entered into the proceedings as an attachment to the affidavit of evidence of McDermott.  Additionally transcripts of interviews conducted by the Ethics Consultant in the course of the investigation were also entered into the proceedings as attachments to the affidavit of evidence.  These included transcripts from:
  • Crichton;
  • Beaumont;
  • Bracher;
  • Harries; and
  • Ball.

The Ethics Consultant had not been called as a witness in the proceedings.

  1. [434]
    The Investigation Report had been fundamental in the decision of McDermott to commence the disciplinary process in respect of the allegations against Ball and upon being briefed about the investigation and provided with a copy of the Report she issued the show cause notice on 5 July 2016.
  2. [435]
    The report itself was some 47 pages plus 24 attachments and can readily be described as a comprehensive document in which references were made to the:
  • complaint;
  • allegations;
  • legislation and policy;
  • investigation
  • methodology
  • relevant evidence - allegations 1 to 5 (inclusive).

In the case of each allegation the Investigator had after having considered the legislation, policy, as well as the evidence, provided a separate analysis and conclusion for each of the allegations, some of which were said to be capable of substantiation and others that were not capable of such substantiation.

  1. [436]
    The Report documented that eight prisoners were approached in the course of the investigation for the purposes of being interviewed in regards to the allegations levelled against Ball with all but one declining to be interviewed in relation to the matters.  The one prisoner agreeing to be interviewed was unable to recall the name of the officer who had escorted him to the Detention Unit or any conversation that may have occurred during that escort and in any event the allegation pertinent to the prisoner interview was to be considered not capable of being substantiated.
  2. [437]
    In evidence before the proceedings Ball had raised a number of concerns regarding the conduct of the interviews with the ESU Investigator, various allegations about CCO friendships outside of work, allegations about fabrication and that he was suffering severe depression, feeling unwell during the interview.
  3. [438]
    McDermott in response to these concerns gave evidence firstly that the concerns regarding the conduct of the interview process had been expressly addressed in correspondence to Ball (dated 24 October 2016) where she had stated:

After carefully considering the transcripts for the interviews of CCOs Harries, Crichton, Beaumont and Bracher, I do not consider Mr Verrall has acted inappropriately in the interviewing of these witnesses.  I do not consider Mr Verrall's reframing of the witnesses testimony to be misleading or otherwise have any negative impact on the findings set out in the Investigation Report.  In fact, I am aware that reframing the responses given by witnesses is a common technique used by investigators.

  1. [439]
    In further responses McDermott evidenced that:
    • at no time in the show cause process had Ball suggested his health condition had impacted on his ability to respond to the allegations against him; and
  • in the interview process involving the ESU Investigator where Ball had alleged friendships outside of the workplace and fabrication of allegations were in play he had failed to explain how matters were relevant to his application for reinstatement or her findings.
  1. [440]
    The interview between Ball and the Investigator occurred by electronic means on 22 March 2016 commencing at 10.29 am and concluding at 1.27 pm.  In the course of the interview Ball confirmed:
  • he accepted he had been contacted the previous week about the interview;
  • he had received correspondence regarding the interview;
  • had a support person present from the Union;
  • he was on medication but on whether that would affect his ability on what was happening stated "Not that I know of".  Ball understood the questions being asked but noted his "anxiety" may affect his ability to answer the questions;
  • he had not been "threatened or promised anything or offered any inducement to answer any questions"; and
  • when asked if he was satisfied with the conduct of the interview stated "Well, do I have a choice".
  1. [441]
    In the case of the complainant CCOs, their transcript of the interviews with the Investigator revealed that:
  • Crichton 
  • date - 26 February 2016
  • length of interview - 1.05 hours
  • not threatened or offered any inducement to answer questions
  • very satisfied with the conduct of the interview;
  • Beaumont 
  • date - 29 February 2016
  • length of interview - 17 minutes
  • not threatened or offered any inducement to answer questions
  • satisfied with the conduct of the interview;
  • Bracher 
  • date - 29 February 2016
  • length of interview - 18 minutes
  • not threatened or offered any inducement to answer questions
  • satisfied with the conduct of the interview; and
  • Harries 
  • date - 3 March 2016
  • length of interview - 53 minutes
  • not threatened or offered any inducement to answer questions
  • satisfied with the conduct of the interview.
  1. [442]
    Upon examination of the transcripts of interview undertaken by the Investigator there are in my view sound reasons as to why that interview process ought to be considered as having been a fact finding exercise carried out in a reasonable manner.  The interviewees were encouraged to provide information and responses in respect of the complaints free from inducement or duress and appear not to have had any restrictions placed upon them.  In the case of Ball his interview period was beyond that of three hours and whilst it may be open to question the willingness of his participation in the process it is difficult to make an argument that all of the issues which formed the allegation material had not been put to him and that he had not been afforded the opportunity to respond on his terms to the allegations.
  2. [443]
    The applicant raised further issues regarding the failure of the Investigator and McDermott to have actually visited the various locations at the WCC where the incidents had occurred and which had resulted in the allegations not being fully investigated.  However in respect of McDermott, that falls down on the basis of not only does she visit the facility regularly in her capacity as Deputy Commissioner but in the period between 1999 and 2004 had been the General Manager on three occasions at the WCC and had a firsthand awareness of the locations.
  3. [444]
    On the failure of the ESU Investigator to give evidence in the proceedings, it would seem a little late to raise concerns in that regard as his report and relevant attachments were accepted into evidence without objection and it was always open to the Applicant to make arrangement for his inclusion in the proceedings as a witness at any time with the issue of an attendance notice.
  4. [445]
    A review of the Investigator's methodology reveals a process whereby the Investigator was:
  • properly authorised to conduct the investigation;
  • understood the allegations;
  • familiarised himself with the relevant legislation and policies;
  • interviewed the complainants and the subject officer;
  • considered violation/breaches of legislation and policies; and
  • provided a written report which contained an analysis and conclusion regarding all allegations considered.
  1. [446]
    The Investigation Report was not in any way a document that could be cast as "flawed" as a consequence of a failure of process engaged in by the Investigator and was a reasonable tool for McDermott to have utilised in proceeding with and determining the disciplinary process.

McDermott's role as the delegated decision maker

  1. [447]
    McDermott at the time of the commencement of the disciplinary process was the Deputy Commissioner of the QCS and in her affidavit of evidence at paragraph 5 stated:

I am also the authorised delegate of the Director-General of the Department to make decisions under the Public Service Act 2008 (PS Act) to approve formal disciplinary action to be taken against an employee of QCS, including termination of employment.  A copy of the relevant pages of the Department's Human Resources Management Delegations Manual are attached and marked "KM-01".

  1. [448]
    A excerpt from KM-01 as it applied to the QCS recorded:

Queensland Corrective Services (QCS)

HR Delegation Level

Level 1

Level 2

Level 3

Director-General

Commissioner

  • Deputy Commissioner
  • Executive Director
  • Chief Inspector
  • General Manager, Capability and Development
  • General Manager, Strategy and Governance

PERFORMANCE

 

Activity

QCS

Conditions

21

Discipline / Suspension / Dismissal / Investigations

21.1

Issue warning / direction

Levels 1 to 6

*QCS - The Deputy Commissioner can also exercise this delegation.

 

Delegates may sub-delegate to a suitably experience SES level officer the authority to conduct disciplinary proceedings in a particular instance (e.g. conflict of interest) or suspension.

 

Level 1 to 3 positions may exercise their discipline delegation in another Division at the request of the division delegate.

 

Disciplinary actions that involve demotion or termination of employment should be exercised in consultation with the DG.

 

Post separation discipline does not require consultation with the Director-General.

21.2

Approve suspension with or without pay

Levels 1 to 2*

21.3

Approve formal disciplinary action to be taken against an employee (excluding demotion or termination of employment).

Level 1 to 2*

21.4

Approve formal disciplinary action to be taken against an employee - demotion or termination of employment.

Level 1 to 2*

21.5

Approve post-separation disciplinary action to be taken against a former employee.

Levels 1 to 2*

21.6

Authorise the engagement of a suitably qualified investigator to undertake an investigation (other than for an allegation(s) of misconduct or corrupt conduct).

Level 1 to 4

 

21.7

Authorise the engagement of a suitably qualified investigator to undertake an investigation into an allegation(s) of misconduct or corrupt conduct.

Level 1 to 4

The ED Ethical Standards will exercise the authority of that office in engaging investigators.

  1. [449]
    The applicant in submissions in reply took issue with McDermott's capacity in regards to proof of delegated authority at the time of Ball's termination of employment claiming that pursuant to the AIA at s 27A McDermott would have to attach a copy of the written instrument of delegation signed by the Chief Executive pursuant to s 27B of the AIA for the delegation to have been lawful.

27A Delegation of functions or powers

  1. (1)
    If an Act authorises a person or body to delegate a function or power, the person or body may, in accordance with the Act and any other applicable law, delegate the function or power to ‑
  1. (a)
    a person or body by name; or
  1. (b)
    a specified officer, or the holder of a specified office, by reference to the title of the office concerned.
  1. (2)
    The delegation may be -
  1. (a)
    general or limited; and
  1. (b)
    made from time to time; and
  1. (c)
    revoked, wholly or partly, by the delegator.

…

27B Content of statement of reasons for decision

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression 'reasons', 'grounds' or another expression is used), the instrument giving the reasons must also -

  1. (a)
    set out the findings on material questions of fact; and
  1. (b)
    refer to the evidence or other material on which those findings were based.
  1. [450]
    The Commission whilst noting the argument advanced by the applicant is satisfied that pursuant to the Department's Human Resources Management Delegation Manual, McDermott by way of right held the delegation to undertake the disciplinary process including the decision to terminate Ball's employment, in her capacity as Deputy Commissioner.

Collusion, contrived, fabricated evidence

  1. [451]
    In the prosecution of the application for reinstatement it had been alleged by Ball that Harries, Crichton and Gray had met at the QCS Academy, were friends outside of work who frequently had coffee together and socialised away from the work environment.  He had also given evidence that the same three officers had either collectively or singularly in the course of their evidence:
  • lied under oath;
  • fabricated allegations;
  • exaggerated incidents;
  • were exceedingly unreliable; and
  • were not witnesses of truth.

Ball further alleged (by innuendo) that the likely reason for such conduct was his failure as an assessor to approve Crichton's Certificate III qualification although later evidencing it was unlikely Crichton would have known of his refusal to sign off on the qualification.

  1. [452]
    In the evidence of Gray it was affirmed that he graduated from the QCS Academy in 2012 and that the transcript of the interview with ESU was true and correct.  Gray denied that he would have pre-work coffee at a Woodford café with Crichton or Harries.
  2. [453]
    Harries commenced employment at the WCC in 2015 and whilst having met Ball that year on the Front Run had not come across him again until 19 January 2016 when they were rostered together in the N3 unit.  Ball's conduct on that day had left him feeling unsafe and with a genuine fear of working with Ball.  Harries had conceded some of his oral evidence differed from the version contained in his affidavit but denied his story had been "completely fabricated".
  3. [454]
    Crichton who commenced employment at the WCC in 2014 could not recall when he had met Ball but recalled hearing stories that went to his reputation at the WCC.  He confirmed the transcript of interview between the ESU and himself as an accurate record of that interview.  Crichton evidenced that he had not fabricated the allegations against Ball, was not friends with Harries and Gray outside of work or that he had attended the QCS Academy with either of those officers.  He did concede he may have had a coffee with Harries at a Woodford café but never with Gray.  The proposition advanced by Ball regarding the refusal to sign off on his Certificate III qualification was described as "absolutely farcical".
  4. [455]
    With regards to the allegations that Harries, Crichton and Gray had colluded or contrived together to make allegations against Ball they are in my view nothing short themselves of a level of fabrication without any corroborative evidence to support such claims.  Further was the non-existence of evidence regarding any acceptable reason/s as to why they had engaged in such conduct with evidence from Crichton that as a result of having made his complaint he was now regarded as a "dog" by a number of CCOs at the WCC.
  5. [456]
    On my observation the only evidence around a proposition of "contrived" evidence in respect of this matter is likely related to Ball's attendance upon Dr Shea on 30 June 2017 (at a time that Ball was still under oath in the Commission) where he discussed with him an entry in Dr Shea's clinical notes that Ball said was incorrect.  The discussion had occurred in circumstances where Ball was aware that Dr Shea was to give evidence at a future date in support of Ball's application for reinstatement.
  6. [457]
    Later in the proceedings Ball and Dr Shea gave further evidence regarding the exchange on 30 June 2017 which was in all likelihood a less than honest recount of what had occurred on the day.

Witness Credibility

  1. [458]
    In the determination of this application the issue of witness credibility is paramount for reasons relating to the polarising evidence before the proceedings around matters of fact.
  2. [459]
    In respect of Ball, throughout the course of the trial, he had stringently denied all allegations levelled against him, reasoning that they had been fabricated and/or as a consequence of collusion engaged in by the complainants and in any event were simply not true.  There was a consistency with Ball's position in that he had adopted a similar approach in the interview with the ESU on 23 March 2016 and also in the written responses to the show cause letter of 5 July 2016.  Further in the course of a second interview with the ESU on 17 May 2016 the consultant had prepared a precis following that interview where Ball was said to have stated:
  • could not remember being asleep as outlined by Harries on 19 January 2016;
  • could not recall a prisoner giggling at him;
  • raised questions about how he could be asleep holding a pen;
  • denied being asleep as claimed by Crichton on two occasions;
  • could not recall being asleep as described by Gray; and
  • denied being asleep on six occasions for periods between 30 seconds and two minutes.
  1. [460]
    The complainants and those witnesses who supported the allegations had clearly identified a range of conduct engaged in by Ball that had included:
  • sleeping on the job;
  • inappropriately securing prisoners in their cells without proper authorisation; and
  • behaved inappropriately towards certain prisoners in the course of his communications with them.

The evidence, in particular that of Harries and Crichton, went to "fears" they held regarding the impact of Ball's conduct and the possibility of prisoners reacting violently towards them as a result of that conduct.

  1. [461]
    As mentioned earlier in the decision a number of prisoners had declined to be interviewed by the ESU in relation to the alleged conduct of Ball and subsequently were not called to give evidence in the proceedings.  This had the effect of leaving the evidence of Ball in denying the allegations and the complainants pursuing the allegations without any "independent" corroboration, leading to findings on credibility of the witness evidence being of the upmost importance around those incidents.
  2. [462]
    The body of this decision contains all the relevant evidence regarding the complainant's allegations and the denials of Ball which makes it unnecessary to again record the precise detail, save to say the most credible witness evidence will be preferred to that of those who were less credible.

Ball

  1. [463]
    His substantive evidence-in-chief was contained in three affidavits tendered in the proceedings with those affidavits having been prepared with the assistance of a solicitor and subsequently filed with the Industrial Registrar prior to the commencement of the hearing.  The difficulty in accessing evidence where an affidavit is tendered and becomes the evidence of the witness is that there is not opportunity to observe that witness in respect of the giving of their direct evidence.  In terms of Ball, leave was granted by the Commission to allow Counsel to adduce further oral evidence-in-chief which afforded the Commission the opportunity to access amongst other things his demeanour when giving his evidence-in-chief and also during the lengthy cross‑examination component of his evidence.
  2. [464]
    In written submissions the Respondent addressed the overall evidence of Ball and submitted that he could not be accepted as a reliable witness for reasons that included he was:
  • evasive;
  • unresponsive; and
  • untruthful.
  1. [465]
    The Commission in assessing the demeanour of Ball in the course of his evidence took into consideration he was the subject of a lengthy cross-examination process that in itself would likely have the effect of being at times stressful.  Nevertheless it was observed at times that Ball gave the impression of being not fully cooperative or truthful in the cross‑examination phase of his evidence, an example of which was when he refused to accept as an accredited Workplace Health and Safety representative he had failed in his duty of care to advise the employer of a neck condition that required him to wear a brace at home but he did not wear it at work for fear of being targeted by prisoners [Transcript p. 4-86].  Another area of conflict regarded his evidence in cross-examination was about it being wrong to "dob" on your mates [Transcript p. 5-65] yet he gave evidence he would report anyone who fell asleep on duty [Transcript p. 5-66].
  2. [466]
    Of itself it is not unusual for an employee contesting the termination of their employment to deny the allegations that had been causative of the dismissal and in this case Ball had relied upon a "blanket denial" that all was fabricated, false or the subject of collusion.  An examination of Henderson's evidence revealed two previous incidents where matters had been raised with Ball regarding his conduct which were denied outright by Ball.  These were captured at paragraph [246] of this decision:

Prior to assuming his present role he was the Manager of Secure Two at the WCC up until February 2017.  He had been Ball's Supervisor and Manager for a period of approximately three years between 2007 and 2010 giving the following description of Ball's conduct during that time:

The best way I could describe Mr Ball, is to say that he made decisions above his capacity.  For instance, he would make decisions to enter into prison units by himself when he should not have, and then when I asked him about it, he denied what he had done even though I had seen it myself.

On another occasion he was advised that Ball had left an office door in a unit open and entered a cell to talk to a prisoner by himself (all of which was not permitted) without his support officer present.  He had raised the matter with Ball and even with CCTV footage of the incident available he denied this incident had occurred.

  1. [467]
    In the course of cross-examination Henderson recalled a further incident where Ball had gone onto the floor to open a laundry door where Ball had admitted the conduct but not before initially denying the incident [Transcript p. 23-14].  Henderson refused to accept that Ball had always appropriately owned up to issues when he was at fault [Transcript p. 23-44].
  2. [468]
    The evidence of Henderson was not collateral to the allegations relating to Ball's termination and remained undisturbed during the cross-examination process leaving it open to consider that Ball had previously when confronted with conduct issues relied upon denial as a defence.  At the same time Ball had acknowledged previous complaints regarding a removal of clothing search and an incident when he was alleged to have ridden on the back of a truck (whilst allegedly smoking) without fully conceding he was at fault.
  3. [469]
    Previous mention had been made regarding the 30 June 2017 discussions with Dr Shea and Ball and of the Commission's view that their evidence on what occurred was less than an honest account.  This certainly reflects negatively on the issue of Ball's credibility.

Harries, Crichton and Gray

  1. [470]
    Of the witnesses for the Respondent it is these three witnesses whose evidence is most crucial in terms of the Respondent's case as they were the complainants of the alleged conduct.

Harries

  1. [471]
    The evidence-in-chief was in the form of an affidavit not requiring at first any oral evidence-in-chief.  Under cross-examination an issue arose regards the audio of the interview between Harries and the ESU which resulted in the Commission agreeing to reopen the evidence-in-chief for a limited issue.
  2. [472]
    In the course of cross-examination which occupied two and a-half days, Harries made certain admissions about his recall of events including some inconsistencies in his evidence and that his oral evidence differed from his affidavit, however he maintained his evidence that Ball had been asleep on the job.  In the course of re-examination he had evidenced that he had not raised the issue of sleeping on the job with Ball because of concerns about his short temper and not wanting to upset him.  He also gave the reason for not making a timely complaint as being:

Right back at the academy, we were told at the centre; 'Don't write people up.  It's not what you do.  You're a dog.  You're a ‑ etcetera.  You'll be ostracised.  You will not be accepted within the workplace'.

  1. [473]
    Harries had in cross-examination acknowledged actions that were breaches of policy and presented as a witness who maintained the integrity of his complaint against Ball but also being a person willing to accept that at times his conduct was less than proper.  There were times when in response to robust cross-examination he displayed some unrest.

Crichton

  1. [474]
    Crichton's evidence-in-chief was that contained in his affidavit of evidence except for a period of less than five minutes when with the leave of the Commission he gave oral evidence in respect of an email.  The cross-examination process as was the case with Harries was extremely robust with Crichton at times appearing to be both frustrated and angry but at the same time he conceded he had breached policy with respect to securing prisoners in their cells without formally breaching them and had subsequently been the subject of a complaint.  He also in the course of lengthy cross-examination accepted that parts of his evidence-in-chief had been wrong including that relating to the clothing a prisoner was wearing at the time and the allegation about a prisoner's fingers having been jammed in the door by Ball, however he maintained that he was telling the truth and in the case of the sleeping allegations refused to accept that Ball was not asleep.

Gray

  1. [475]
    The evidence-in-chief was that contained within his affidavit with his oral evidence confined to cross-examination.  Gray's period of cross-examination was less than that of Harries and Crichton with him also maintaining the integrity of his complaint but also acknowledging at times some deficiencies in his evidence but denied giving false evidence.

Harries, Crichton and Gray

  1. [476]
    Overall the three witnesses appeared to give their evidence in an honest and forthright manner although at times having some difficulty with precise recall of events most likely due to the period of time that had elapsed between the incidents in question and the giving of their evidence, which was in excess of eighteen months.
  2. [477]
    In assessing the demeanour of the three witnesses pursuant to the same criteria utilised in respect of Ball's evidence it would be my view they presented as superior witnesses of credit when measured against Ball and more likely than not their evidence was evidence upon which the Commission could reasonably rely.

Beaumont and Bracher

  1. [478]
    Beaumont gave his evidence-in-chief by way of affidavit and in the course of cross‑examination agreed with propositions put to him that he may not have been sure about having observed Ball asleep however indicating it was highly unlikely that as suggested Ball had been rearranging himself in his seat.

Bracher

  1. [479]
    Bracher's evidence-in-chief was through his affidavit and in the course of cross-examination he was unsure of the date when he was said to have witnessed Ball asleep and of not being 100 per cent confident of Ball having been asleep.

Beaumont and Bracher

  1. [480]
    Their evidence when considered overall was neither helpful in corroborating the evidence of a complainant or assisting Ball with regards to the denial of the allegations.

Other Witnesses

Applicant's Witnesses

  1. [481]
    Other witness evidence on behalf of Ball was given by:
  • Hay;
  • Nicolia;
  • Dr Shea; and
  • Ash.

Hay

  1. [482]
    There was a degree of controversy around the evidence-in-chief of Hay as it related to the failure to provide an affidavit that led to his evidence-in-chief being given orally.  There was a "cloud" over the version offered by Hay on why an affidavit had not been provided however for the purposes of the record the Commission is prepared to accept that the failure for affidavits to be tendered by both Hay and Nicolia was as a result of a misunderstanding between the witnesses and the solicitors acting for Ball.
  2. [483]
    Hay's evidence focused on the assistance he gave to Ball during the show cause process including examples of where he had influenced some of Ball's responses.  He also gave an amount of opinion evidence about some of the allegations levelled against Ball without having any direct involvement in any of the incidents.  Hay endorsed the competency and professional conduct of Ball in the undertaking of his CCO duties, having worked with and having supervised Ball.

Nicolia

  1. [484]
    His evidence went to the general manner in which CCOs undertook their duties at WCC.  In the course of cross-examination he denied having ever sworn at another officer but then conceded he had received a warning letter for that exact offence.

Dr Shea

  1. [485]
    Dr Shea gave evidence about medical treatments provided to Ball prior to and after the termination of his employment.  Also evidence was given about an exchange with Ball on 30 June 2017 and with solicitors acting for Ball in June and July 2017.

Ash

  1. [486]
    Ash had been the solicitor acting for Ball prior to the commencement of the proceedings and ceased to act in that capacity shortly after the commencement of the proceedings.  His evidence generally went to his conduct as a solicitor and engaging with Ball and witnesses for the Applicant.

Applicant's Witnesses

  1. [487]
    The Commission had no major concerns regarding the evidence of Hay, Nicolia and Ash as it pertained to credibility with much of their evidence going to the periphery of the application.  In the case of Dr Shea there were no concerns regarding the medical evidence however as mentioned earlier in the decision there was in the view of the Commission a level of concern about his evidence of the 30 June 2017 discussion with Ball.

Respondent's Witnesses

  1. [488]
    Other witness evidence on behalf of the Respondent was given by:
  • Juffs;
  • Tilly;
  • Potter;
  • Henderson;
  • McDermott; and
  • Tyquin.

None of these witnesses provided evidence that related directly to the incidents that led to the allegations being levelled against Ball.

Juffs

  1. [489]
    Evidence from Juffs in the main dealt with issues regarding concerns with Ball in respect of performance and conduct that had arisen whilst he had worked under her control.  Additionally issue was taken with a number of assertions made by Ball regarding both his conduct and operations at the WCC.  In the course of cross-examination Juffs had admitted that on one occasion she had made an assumption regarding the failure of Ball to comply with a direction that had not been made in a fair and impartial way. 
  2. [490]
    Juffs had also received complaints from CCOs about the conduct of Ball in relation to his work activities and based on those reports believed there were potential risks to safety and security.
  3. [491]
    Overall the evidence of Juffs in the course of cross-examination remained undisturbed with her presentation and demeanour not of a nature to raise any flags.

Tilly

  1. [492]
    Tilly gave evidence regarding some matters of discipline relating to Ball and in particular that he had handed Ball a warning letter on 4 November 2015.  Tilly's memory of this meeting was not precise and he was aware of Ball disputing that he had signed for the letter on the day.
  2. [493]
    Tilly's evidence was not unimportant with regards to a collateral issue in this case, regarding the warning letter, however on his own admission his recall was less than precise.

Potter

  1. [494]
    Potter's evidence related to practices and procedures in place at WCC which went to "time outs" and of Ball's resistance to the implementation of change in this area.  He also evidenced that Ball had been involved in a number of incidents between 14 April 2014 and 7 October 2014 in respect of questionable conduct and of another incident on 29 October 2014 regarding a removal of clothing search.  Potter accepted that some of his evidence regarding a lack of respect for Ball by his peers had been based on hearsay.
  2. [495]
    The Commission did not form the impression that Potter was an untruthful witness or that he was not a witness of credit.

Henderson

  1. [496]
    The Commission had earlier accepted that evidence from Henderson regarding Ball's practice of denying all allegations was reasonable and as such it was safe for the Commission to rely upon that evidence when assessing the credibility aspect of Ball's evidence in these proceedings.

McDermott

  1. [497]
    McDermott as the decision maker was a key witness for the Respondent in the proceedings and in providing an affidavit of evidence attached the material that had been part of her considerations in the substantiation of the allegations and imposing of a penalty in the form of termination of Ball's employment.
  2. [498]
    McDermott presented as a reliable witness who in the course of cross-examination conceded that she had relied heavily upon the investigation report in forming her position on substantiating the allegations against Ball but at the same time did not consider Ball had advanced credible arguments in respect of certain responses.

Tyquin

  1. [499]
    Tyquin, an Acting Senior Lawyer with Crown Law, gave limited evidence in terms of an unsuccessful search for an email not disclosed in the proceedings.

Respondent's Witnesses

  1. [500]
    In respect of these witnesses giving evidence on behalf of the Respondent there were no major concerns regarding their presentation as witnesses, truthfulness of their evidence or the manner they approached the cross-examination facet of their evidence.

Overall Credibility

  1. [501]
    Having assessed the evidence of each of the witnesses in the proceedings, taking into account both the written and oral aspects of such evidence, I find that of the substantive witnesses it was only Ball whose credibility was of question and in such circumstances the Commission would overwhelmingly prefer the evidence of the other witnesses to that of Ball in areas where there was a conflict in the evidence.

Disciplinary Record

  1. [502]
    In the course of the proceedings there was evidence from witnesses for the Respondent that related to alleged conduct engaged in by Ball that had been dealt with in the workplace by both formal and informal means, insinuating that there was a pattern of behaviour causative of concern to the employer.
  2. [503]
    More to the point however was the response to the show cause notice on penalty (dated 14 November 2016) by Ball in which he requested the decision maker to take into account the following, in respect of his overall work record when deciding what penalty to impose.

My overall work record, up until recent events has generally been a positive one.  I have committed myself to performing my duties in a positive manner, I underwent training to become a Trainer and Workplace Assessor and was accepted as such by the management of this centre.  I was an active member of the Woodford Fire Team and was a member of this team that competed successfully for several years in the annual Queensland Fire and Emergency Services Games, where the Woodford Team won several awards which attracted positive media comment.

  1. [504]
    In the letter of termination (dated 19 January 2017) the decision maker recorded the following with regards to Ball's disciplinary history with the employer:
  • I note your submission that your overall work record has generally been a positive one.  While I note that you have over 10 years of service with Queensland Corrective Services, you do not have a clear disciplinary history.  I not the following previous disciplinary matters:
  • In February 2014, you were issued with a formal warning in relation to your conduct on 14 December 2013 in respect to unreasonably delaying officers' entry into the N8/9 Officer's Station.
  • In September 2015, you were issued with a reprimand, a reduction of one pay point (from CO1-9 to CO1-8) and a final warning, as well as being directed to undertake relevant refresher training, as a result of substantiated allegations against you regarding inappropriate, unauthorised removal of clothing searches.
  • In October 2015, you were issued with a formal warning in respect to an allegation that you had been observed riding on the back of a truck whilst on duty.
  • In light of your continued failure to acknowledge the seriousness of your conduct, and your recent disciplinary history, I am of the view that you are likely to engage in similar conduct in the future.  Further, I am concerned that you have engaged in a pattern of behaviour that does not meet the standard of conduct required by QCS.  I have therefore lost trust and confidence in your ability to carry out your role as a CCO and, in particular to act approximately towards other prisoners.
  1. [505]
    Clearly the position advanced by Ball was that his overall work record was a positive one yet in the preceding two years there had been three matters that resulted in the issuing of some form of disciplinary action albeit not taken necessarily pursuant to the PS Act which poses questions with respect to the truthfulness of argument advanced by Ball across a range of matters.

Note:  The Commission acknowledges the disputation between the parties regarding the receipt or otherwise of the formal warning letter relating to the October 2015 incident however is satisfied on the evidence before the proceedings that Ball had been observed riding on the back of a truck whilst on duty that was contrary to policy and procedures.

Findings

  1. [506]
    On consideration of the evidence, material and submissions before the proceedings pursuant to the requisite standard of proof the Commission finds that:
  • the allegations relevant to the conduct engaged in by Ball (as outlined in Allegations 1, 2 and 3) were reasonably open to be substantiated by the decision maker;
  • the disciplinary process undertaken by the decision maker was at all times compliant with the legislative and policy procedures with Ball being afforded procedural fairness and natural justice at all times;
  • the penalty of the termination of Ball's employment was warranted in circumstances where his conduct constituted significant breaches of procedures, policy, and statutory obligations that relate to a CCO undertaking their required duties of work; and
  • the decision to terminate Ball's employment effective from 19 January 2017 was not harsh, unjust or unreasonable.
  1. [507]
    The application for reinstatement is refused.

Costs

  1. [508]
    I make no order as to costs.
  2. [509]
    I order accordingly.

Footnotes

[1] White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 41

[2] Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914

[3] Nicolson v Heaven and Earth Gallery (1994) 57 IR 50

[4] Auto Logistics Pty Ltd v Kovacs (1997) 155 QGIG 320

[5] Liddle v Lembke (1994) 127 ALR 3422

[6] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

[7] Browne v Dunn (1893) 6 R 67

[8] Reid v Kerr (1974) 9 SASR 367

[9] Green v Emergency Services Telecommunication Authority [2014] VSCA 207

[10] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

[11] Oshlack v Richmond River Council [1998] HCA 11

Close

Editorial Notes

  • Published Case Name:

    Frederick Ball v State of Queensland (Department of Justice and Attorney‑General, Queensland Corrective Services)

  • Shortened Case Name:

    Ball v State of Queensland (Department of Justice and Attorney?General, Queensland Corrective Services)

  • MNC:

    [2018] QIRC 119

  • Court:

    QIRC

  • Judge(s):

    Member Thompson IC

  • Date:

    14 Sep 2018

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
Auto Logistics and Auctions Pty Ltd trading as Pacific Auto Auctions v Kovacs (1997) 155 QGIG 320
2 citations
Jump To
Cite 1 - (1997) 155 QGIG 320
Cite 2 - (1997) 155 QGIG 320
Browne v Dunn (1893) 6 R 67
2 citations
Jump To
Cite 1 - (1893) 6 R 67
Cite 2 - (1893) 6 R 67
Green v Emergency Services Telecommunication Authority [2014] VSCA 207
2 citations
Jump To
Cite 1 - [2014] VSCA 207
Cite 2 - [2014] VSCA 207
Liddle v Lembke (1994) 127 ALR 3422
2 citations
Jump To
Cite 1 - (1994) 127 ALR 3422
Cite 2 - (1994) 127 ALR 3422
Nicolson v Heaven and Earth Gallery (1994) 57 IR 50
2 citations
Jump To
Cite 1 - (1994) 57 IR 50
Cite 2 - (1994) 57 IR 50
Oshlack v Richmond River Council (1998) HCA 11
2 citations
Jump To
Cite 1 - (1998) HCA 11
Cite 2 - (1998) HCA 11
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
2 citations
Jump To
Cite 1 - (1997) 72 IR 186
Cite 2 - (1997) 72 IR 186
Reid v Kerr (1974) 9 SASR 367
2 citations
Jump To
Cite 1 - (1974) 9 SASR 367
Cite 2 - (1974) 9 SASR 367
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
2 citations
Jump To
Cite 1 - (1993) 144 QGIG 914
Cite 2 - (1993) 144 QGIG 914
White v Queensland [2017] QIRC 41
2 citations
Jump To
Cite 1 - [2017] QIRC 41
Cite 2 - [2017] QIRC 41

Cases Citing

Case NameFull CitationFrequency
Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 236 citations
1

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