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Timmins v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services)[2018] QIRC 29

Timmins v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services)[2018] QIRC 29

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Timmins v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) [2018] QIRC 029

PARTIES:

Timmins, Gregory Joseph

(Applicant)

v

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

(Respondent)

CASE NO:

TD/2017/41

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

13 March 2018

HEARING DATES:

12 October 2017 (Mention)

23, 24, 25 and 26 October 2017 (Hearing)

18 December 2017 (Respondent Submissions)

8 February 2018 (Applicant Submissions)

2 March 2018 (Respondent Submissions in Reply)

HEARD AT:

Brisbane

MEMBER:

Deputy President Swan

ORDERS

  1. [1]
    The Application for Reinstatement is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Acknowledgment of Applicant that he had refused directions to perform usual duties - No credible excuse for refusing directions - Prior disciplinary warnings - Process adopted by Respondent was fair, reasonable and transparent - Application dismissed.

LEGISLATION:

Industrial Relations Act 1999

Public Service Act 2008

CASES:

King v Darling Island Stevedoring and Lighterage Company Limited (1938) 60 CLR 601

Jeff Parkes v Fat Prophets Pty Ltd [2017] FWC 6121

Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 41 IR 452

APPEARANCES:

Mr Gregory Joseph Timmins, the Applicant.

Mr M. Healy of Counsel, instructed by Crown Law, for the State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services), the Respondent.

Suppression Order

  1. [1]
    On 17 October 2017, the Commission made a Suppression Order in the following terms:

"This Commission, after hearing the parties in the above matter in Brisbane on 12 October 2017 does, pursuant to s 580 of the Industrial Relations Act 2016, Orders that:

  1. Except for the Parties, all documents in relation to this matter including:  Affidavit material and annexures, witness statements, written submissions; correspondence and transcripts of proceedings, be withheld from release or search absolutely on conditions ordered by the Commission.
  1. This Order shall take effect from 17 October 2017."
  1. [2]
    The Respondent's submission is that the Suppression Order ought to remain in place without any alteration to its terms.
  1. [3]
    The Respondent continues to rely upon the grounds set out in its application for the Order, the essence of which is that pursuant to the Corrective Services Act 2006 the identification of prisoners and parts of custodial facilities are proscribed by that legislation.
  1. [4]
    There is also a further compelling reason to continue the Suppression Order and that is the Applicant's determination to use the material from this case for collateral purposes to damage the witnesses called for the Respondent, or at least attempt to do so.  In my view the Suppression Order should remain in place.

Decision

  1. [5]
    Mr Gregory Joseph Timmins (the Applicant) commenced employment with the State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services (QCS) (the Respondent) on 3 September 2007.  The position held was that of a Custodial Correctional Officer (CCO) at the Woodford Correctional Centre (the Centre).  The Respondent terminated the employment of the Applicant effective on 24 April 2017.
  1. [6]
    The Applicant's Application was lodged on 15 May 2017 and seeks the remedy of reinstatement.  He says that his dismissal was harsh, unjust and unreasonable within the meaning of s 316 of the Industrial Relations Act 2016.  If a finding was made that reinstatement was not to be ordered because it would be impracticable, then the Applicant seeks primarily compensation and other incidental orders.
  1. [7]
    The Respondent's stated reason for the Applicant's dismissal was the Applicant's failure to comply with the lawful and reasonable directions issued to him on 6 August 2016 by two separate senior officers (CS Moor and CS McLean).

OVERVIEW

  1. [8]
    The Applicant was directed to pack up a cell in a unit of the Centre by Custodial Correctional Supervisor CS Moor and CS McLean on several occasions on 6 August 2016.  It is not disputed that the Applicant was given these instructions and that his refusal to perform those duties continued on each occasions.
  1. [9]
    The reasons given by the Applicant for his non-compliance were that the work should have been performed by other staff and CCO Officers should have inspected the cell before the Applicant was required to comply with the direction.

LEGISLATION

  1. [10]
    Pertinent to this Application, the following sections of the Industrial Relations Act 2016 (the IR Act) provides as follows:

"316When is a dismissal unfair

A dismissal is unfair if it is harsh, unjust or unreasonable."

…

"320Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  1. (b)
    whether the dismissal related to-

 (i)  the operational requirements of the employer's undertaking, establishment or service; or

 (ii) the employee's conduct, capacity or performance; and

  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance-

 (i) whether the employee had been warned about the conduct, capacity or performance; or

 (ii) whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and

  1. (d)
    any other matters the commission considers relevant."
  1. [11]
    The Public Service Act 2008 (PS Act), provides at ss 187 Grounds for Discipline; 188 Disciplinary action that may be taken against a public service employee; 189 Suspension of public service employee liable to discipline; 190 Procedure for disciplinary action; and 192 Additional procedures for suspension or termination.

WITNESSES

  1. [12]
    The following witnesses were called to give evidence in the Hearing of this matter:

Applicant:

  • Mr Gregory Joseph Timmins, the Applicant.

 Respondent:

  • Ms Kerrith McDermott, Deputy Commissioner (Acting Commissioner at the time of giving evidence);
  • Mr Mark Matthew McGregor; Custodial Correctional Officer (CCO);
  • Ms Amber Simone Moor, Correctional Supervisor (CS);
  • Mr Blair Alistair McClean, Correctional Supervisor (CS) (now Correctional Manager);
  • Mr Scott Andrew Collins, General Manager (GM);
  • Mr Ian Garry Mosley, Manager Operations/Centre Services (MO);
  • Mr Alan William Tilly, Human Resources, QCS; and
  • Mr David John Henderson, Correctional Manager Accommodation (CMA) (now Deputy General Manager, Operations).

APPLICANT'S SUBMISSIONS

  1. [13]
    The Applicant's submissions listed a range of concerns about his former employer and many of its employees as it related to his dismissal.  As I understand those submissions, these are provided as a background to the environment in which he says he worked.
  1. [14]
    These are:
  • "that QCS encourages a workplace of punishment by performance … and QCS had not completed a personal performance review in over six years".
  • The Applicant had often complained of "the mishandling, damage, destruction and theft from and of prisoner property …. [which] has long been held as a secondary level of punishment over perceived problem prisoners".
  • The Applicant had often sought assistance from QCS concerning these issues but was ignored.
  • Damage had often occurred to his own vehicle (when parked at the workplace) as a consequence of him expressing his concerns.
  • The loss of his employment is related to the "failure of the staff on preceding days to complete their duties".
  • The Applicant, during the course of the events surrounding his dismissal, had not been afforded natural justice; had been victimised; and had been dealt with in a pre-determined manner with a known preferred outcome before the mater had been investigated.
  • At the time of the event in question, the Applicant had sought guidance from a "higher authority" via email and his requests were not answered.
  • On 6 August 2016, the Applicant had sought interaction with a supervisor to discuss and observe the state of the cells left unsecured and not packed.
  • The Applicant said that at no time had he refused to clean the cells, but rather that he was seeking guidance from his superiors to discuss the broader issues of why the cells had been left in the state in which he had found them and why those charged with those duties on the previous day had not completed their work.
  • The Applicant said that he held a genuine concern about the security of prisoners' property within cells.  It was expected that cells, which were being vacated by a prisoner, were securely packed and an inventory of the prisoner's property was recorded.  This had not occurred.
  • The Applicant admitted that he was told by CS McLean that he was giving him a lawful direction to pack the cell, but the Applicant's response was that while it might be a lawful direction, it would have to be reasonable.
  • The Applicant believed that some CCO's had acted in a manner which would ingratiate them with management; that some had committed official misconduct; that one who had given evidence in this hearing was "universally despised within the Centre"; that some had misused their position and power to "seek to produce harm to a fellow staff member" and that some, at the most senior level, should be referred to the Crime and Corruption Commission for investigation.
  1. [15]
    The Relief sought by the Applicant in this matter is, in condensed form, as follows:
  • Reinstatement to his previously held position together with all the usual Award conditions reinstated.
  • That various directions and instructions be given to those with whom he had previously worked to ensure that he not be subjected to any further bullying or harassment.  He wished to be treated the same as other CCO's.
  • That the Centre stop conducting further investigations  into "trivial and frivolous matters alleged against me in the period up to and including his suspension from the workplace".
  • That the Commission should refer to the Crime and Corruption Commission for investigation most of the senior management officers at the Centre on the basis of Official Misconduct.  Also sought was the dismissal of another CCO.
  1. [16]
    The final commentary may best detail the level of the Applicant's concerns:

"For the foregoing reasons, and to ensure the probity of the workplace relationship of staff and management within QCS, the Applicant must immediately be returned to his workplace.  QCS management involved in this matter must be reported to the CCC for investigation in relation to various issues not the least of which is Official Misconduct.  QCS must not be permitted to continue the abuse of position and power and acquiescent conduct on behalf of Supervisory, Managerial and Senior Executive staff.  QCS must be held to task and in accord with workplace policy, procedure and the Industrial Relations Act in that the termination of the Applicant was unfair, overly harsh and the utmost unreasonable outcome of a workplace matter where other staff, supervisors and managers external to the issue of import, failed to complete their duties and did produce an outcome where the Applicant was terminated to these inactions."

RESPONDENT'S SUBMISSIONS

Overview of the Claim

  1. [17]
    It is not disputed that the Applicant was given instructions to pack up a cell by CS Moor and CS McLean and that his refusal to perform those duties continued on each occasions.
  1. [18]
    The Applicant accepts that the directions given to him were lawful and that the type of work in question had been performed by him and others on other occasions.  The work involved was a normal part of his duties.
  1. [19]
    The Applicant agreed that his refusal to perform the required duties could result in disorder in the prison with serious consequences.
  1. [20]
    The Applicant also agreed that he understood and had been trained in the Code of Conduct and that he had a duty to comply with those lawful directions whether or not he agreed with them. 
  2. [21]
    The Code of Conduct for the Queensland Public Service at Principle 4.1 Ensure diligence in public administration provides:

"We have an obligation to seek to achieve high standards of public administration and perform our duties to the best of our abilities:

 We will:

 d. Comply with all reasonable and lawful instructions, whether or not we personally agree with a given policy direction."

  1. [22]
    The Applicant accepted that there was nothing which prevented him from packing up the cell when requested.
  2. [23]
    In the performance of the required duties, the Applicant accepted that he would not have been exposed to any personal risk.
  1. [24]
    The truncated reasons given by the Applicant for his non-compliance were as follows:
  • The work should have been performed by other staff rather than leaving the work for him to do the following day.  That he was not paid an allowance to perform extra work.
  • That CS Moor and CS McLean should have inspected the cell before he was required to comply with the direction to pack up the cell.  The Applicant believed that he was entitled to make such a claim.
  1. [25]
    In King v Darling Island Stevedoring and Lighterage Company Limited[1], Dixon J stated:

"If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.  In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable….. but what is reasonable is not to be determined, so to speak, in vacuo, the nature of the employment, the established usages affecting it, the common practices which in the general provision of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.  When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service."   [Emphasis added, Respondent's Submission] 

  1. [26]
    That principle was most recently cited with approval and applied in Jeff Parkes v Fat Prophets Pty Ltd[2] in which a member of the Fair Work Commission stated:

"It is well established that an employee has an obligation, implied by law, to comply with the lawful and reasonable directions of his/her employer.  To the extent any authority is necessary for this proposition, I refer to the comments of Dixon J in R v Darling Island Stevedoring and Lighterage Company Limited."

  1. [27]
    As General Manager of the Centre, GM Collins' evidence was that:

"The packing of prisoner cells is an ongoing operational requirement across all prisoner accommodation areas in Woodford.  This is considered a normal task of a Custodial Correctional Officer and is performed on a regular basis, as required and as directed by their respective Correctional Supervisor".  [Exhibit 9]

  1. [28]
    This evidence was unchallenged by the Applicant.

 The Applicant's Disciplinary History

  1. [29]
    In the previous six years, the Applicant's disciplinary record included references to counselling, admonishment, allegations which resulted in an internal transfer, a reprimand accompanied by the loss of a pay point and in mid-2016 a final warning and a loss of a pay point.  The latest of these penalties was imposed just prior to the issues relevant to this hearing.
  1. [30]
    Relative to the chronology of events, the Respondent outlined the following:
  • The Applicant's final warning penalty letter was dated 28 July 2016 and received by him a couple of days later, either in late July or early August 2016.
  • The Applicant did not work between Saturday 30 July and 5 August 2016.
  • The incident to which this matter relates commenced at 7:44 a.m. on 6 August 2016.
  1. [31]
    The Respondent referred to ss 187 and 188 of the PS Act which empowers the Chief Executive to discipline an employee if the Chief Executive is reasonably satisfied that the employee has contravened, without reasonable excuse, a direction given to the employee as a public service employee, by a responsible person. 
  1. [32]
    It is at the time when the act or omission on the employee's part occurs that the disciplinary ground arises.  For the act of failing to comply with a lawful and reasonable direction, the employee faces a disciplinary outcome which includes the termination of employment.
  1. [33]
    The chronology of events which occurred at the Centre on 6 August 2016 are identified as follows:
  • On 6 August 2016, the Applicant was rostered as the CCO in charge of a unit located in a wing of the Centre.  His reporting Officer on that day was CS Moor.
  • At the commencement of each shift, a briefing is held by the Correctional Supervisor.  The Applicant, at that time, was advised by CS Moor that there were a number of empty cells in the unit and that he was required to undertake an inventory of the cells and pack them.  The packing and inventory of a prisoner's property which has been left in the cell is a normal part of work to be undertaken by CCO's at the Centre.
  • At 7:44 a.m. on the same day, the Applicant sent an email to CS Moor and CM Henderson complaining about the state of the three empty cells in the unit. The Applicant complained that he was not able to secure the property in the three cells.  He also complained about CCO Nicolia's failure to perform this work on the previous day.  He advised CM Henderson that he would only pack and secure one cell but he would not deal with the other two cells because of questions of "disarray" in one of those cells.
  • At 9:00 a.m. the Applicant phoned CS Moor and in referencing his prior email to her, said he would only be packing one of the cells.  The Applicant was again directed by CS Moor to complete the duties allocated to him.  CS Moor says in the course of that call she had told the Applicant that he was to complete "all" of his allocated duties.
  • CCO Truscott, on that day, advised the Applicant that CS Moor had telephoned advising that the Applicant was to complete all of his duties.
  • By this time, the Applicant accepted that he had been advised by CS Moor on four occasions to complete these duties.  The Applicant retained his intention not to complete all of his allocated duties.
  • On a fifth occasion, at around 3:00 p.m. CS Moor again directed the Applicant to perform all of his duties and he again refused to do so.
  • On the same day, CS McLean attended the unit Officer's Station and told the Applicant that he wished to speak to him in an informal manner.  The Applicant said he would only have a discussion with CS McLean as his supervisor and not in an informal manner.
  • The Applicant was asked by CS McLean if he wanted a support person with him and the Applicant's response was that he believed that any discussion should be held in the presence of other officers in the Officer's Station.
  • CS McLean then advised the Applicant that he was being given a lawful direction for him to complete all of his duties.  The Applicant again refused to comply with that direction.
  • The Applicant was then directed by CS McLean to return his equipment and to proceed to another area in the Centre for further duties.
  • The Applicant said he could not comply with that request as he had been involved in a staff incident involving another officer who was working in that area.
  • Upon being then directed to attend that area, the Applicant complied.  His duties in that area were performed.
  • On the same day, CS McLean told the Applicant that he was to report to that same area on the following day, 7 August 2016.  The Applicant complained he was being isolated from the officers with whom he usually worked and began to feel ill. 
  • On or around 9 August 2016, the Applicant was suspended on full pay.
  • The Ethical Standards Unit investigated the matter between 9 August 2016 and 18 October 2016.

RESPONDENT WITNESS EVIDENCE

 CS Moor's Evidence

  1. [34]
    CS Moor recalled 6 August 2016 being a busy shift, as there had been an investigation of a prisoner on-prisoner assault which occurred at the unit on the previous day.
  1. [35]
    She recalled receiving a telephone call from the Applicant at around 9:00 a.m. on 6 August 2016.   Apparently, the Applicant had sent her an email that morning but at the time of the call she had not read his email.
  1. [36]
    The Applicant advised her that he would not pack two cells.  To that, CS Moor stated that she required the cells to be packed.  The Applicant phoned her again regarding the cells at around 3:00p.m. and she recalled that he had been unhappy and aggressive at the time.  She attempted calling him back but he did not answer the call and she contacted CCO Jackson and asked him to advise the Applicant to return her call.  This did not happen.
  1. [37]
    CS Moor again tried to call the Applicant but the Applicant was still in an agitated way accusing CS Moor of setting him up.
  1. [38]
    CS Moor reported the incidents to the assigned Duty Manager on that day, MO Mosley (Manger Operations/Centre Services).
  1. [39]
    The Respondent submits that none of CS Moor's evidence was objectively challenged by the Applicant in Cross-Examination.

CS McLean and MO Mosely's Evidence

  1. [40]
    On 6 August 2016, CS McLean spoke to MO Mosley where he asked him to support CS Moor and attempt to get the Applicant to follow her work directions.  CS McLean had noticed, when speaking to CS Moor that she was visibly upset.  He advised MO Mosley that he would speak to the Applicant.
  1. [41]
    MO Mosley spoke to the Applicant and gave him another opportunity to respond to the directions previously given.  This did not occur and MO Mosley had advised the Applicant that in the event he held to his view, then he would be reassigned to another work area.
  1. [42]
    When MO Mosley attended the Officers Station, he again spoke to the Applicant but the Applicant had become aggressive and continued to refuse to comply with directions.
  1. [43]
    MO Mosley reassigned the Applicant to another area where the Applicant complied with all relevant directions given during that day.

The Applicant's concern that two witnesses were not interviewed during the Investigation.

  1. [44]
    The Applicant believed that both CCO McGregor and Mr David *Sahic were not interviewed by the Investigator.  The Applicant said that both persons could attest to the fact that the cells in question were messy and disgusting on 6 August 2016.  [*Mr Sahic was not called to give evidence in these proceedings.]
  1. [45]
    The Respondent says however, that the matters for the Investigator to consider did not relate to the state of the cells (i.e. health and safety matters), but rather to questions of law.
  1. [46]
    The Respondent said that it was open to the Investigator as to whether he determined to speak to those two persons.  The fact that he chose not to is unsurprising in the circumstances.

 GM Collins' Evidence

  1. [47]
    GM Collins is the General Manager of the Centre.  He recalled being advised on 6 August 2016 that the Applicant was refusing to clean and pack up cells in the unit.  He said he had been concerned by the information which had been provided to him.  He stated:

"The concerns around the failure to comply with a lawful direction can be - are wide ranging.  Those concerns include obvious concerns in terms of breakdown between supervisor and a staff member to comply with that direction and then it branches out from there in terms of what I observe, or what I can observe in terms of staff members being distracted in their duty, and response to not responding to a direction by a supervisor a breakdown occurs, and options - sorry, a range of issues can flow on from that namely prisoners in the unit can observe this breakdown, prisoners can observe the distraction, prisoners can sense it, and prisoners can be opportunistic in regards to that breakdown in authority occurring.  And when prisoners have those opportunities, criminality can occur.  The level of criminality is something we can't predict.  However, one has to always consider that the level of criminality can be a worst case scenario, including loss of control of a unit; that is what's referred to as losing control and affecting the good order of the Centre".  [T5-6]

  1. [48]
    The Applicant had complained that he had been denied "natural justice" in the manner in which the Respondent, through GM Collins, had conducted itself over this incident by not speaking to him at the time of the incident.
  1. [49]
    GM Collins' response was that:

"I think given the seriousness of the matter, and my role is to immediately refer it to the appropriate authority to investigate, and to apply those natural justice processes where you have a fair hearing, and an opportunity to put your case forward."

  1. [50]
    In a question from the Applicant to GM Collins as to whether he thought the Applicant was a good custodial officer GM Collins responded "no".  He added that the Applicant's method of communication, amongst other things, left much to be desired and that this had been an issue of concern to the Centre for some time when prior disciplinary matters had been discussed with the Applicant.

 Acting Commissioner McDermott's Evidence

  1. [51]
    At the relevant material time, (in her capacity as Deputy Commissioner as she then was) Acting Commissioner McDermott was the delegated decision maker with regard to considering whether disciplinary action should be taken against the Applicant and if so, what type of action.
  1. [52]
    In making her decision, Acting Commissioner McDermott considered:
  • The two allegations found to be substantiated by the Ethical Standards Unit;
  • Consideration of a recommendation made by Mr Neil Boyd that disciplinary action should be initiated against the Applicant;
  • In the course of her consideration, Acting Commissioner McDermott had taken into account all relevant material, including the Investigation Report and the contents of the Applicant's First, Second and Third Response.
  1. [53]
    In formulating the reasons proffered by Acting Commissioner McDermott for making her decision that termination of employment was the appropriate decision to make in the circumstance, she had also taken into account:

  "● That the directions in question were clear, unequivocal and reasonable;

  • The Applicant was given numerous opportunities to comply;
  • It was fundamental to his duties that the Applicant could work effectively both with explicit chain of command and without instructions where necessary;
  • The Applicant did not appear to take any responsibility for his actions and did not appear to fully understand the serious nature of his conduct;
  • That the Applicant had an extensive disciplinary history prior to this event, including a final warning on 28 July 2016, some nine days prior to 6 August 2016];
  • Acting Commissioner McDermott no longer held trust and confidence that the Applicant would comply with directions given to him, nor was he capable of performing his role and maintaining his conduct to the requisite standard."  [Respondent submissions - point 56]

The Ethical Standards Investigation

  1. [54]
    The Investigator substantiated the allegations against the Applicant on the balance of probabilities.
  1. [55]
    These were that the Applicant had disobeyed the directions of both CS Moor and CS McLean.
  1. [56]
    The process undertaken by the Ethical Standards Unit was as follows:
  • On 8 December 2016, the Respondent issued a first Show Cause Notice to the Applicant.  The Applicant was asked to Show Cause why disciplinary action should not be taken against him concerning the issues of 6 August 2016.
  • The Applicant provided his response to the First Show Cause on 12 December 2016.
  • On 17 March 2017, the Respondent issued a second Show Cause notice to the Applicant, advising that the allegations in relation to the above incidents had been substantiated and invited a response from the Applicant to the proposed penalty i.e. termination of employment.
  • On 24 and 30 March 2017, the Applicant provided two responses to the second Show Cause.
  • On 21 April 2017, the Respondent issued its decision to terminate the Applicant's employment effective from 24 April 2017.
  1. [57]
    In determining to terminate the Applicant's employment, the Applicant was notified of the reasons for his dismissal and that his dismissal related to his conduct on 6 August 2016.

CONSIDERATION OF EVIDENCE

  1. [58]
    In Bostik (Australia) Pty Ltd v Gorgevski (No. 1)[3] a Full Bench of the Federal Court of Australia, in considering the expression "Harsh, unjust or unreasonable"  held that:

"These are ordinary non-technical words which are intended to apply to an infinite               variety of situations where employment is terminated.  We do not think any               redefinition or paraphrase of the expression is desirable.  We agree with the               learned trial judge's view that a court must decide whether the decision of the               employer to dismiss was, viewed objectively, harsh, unjust or unreasonable.                Relevant to this are the circumstances which led to the decision to dismiss and               also the effect of that decision on the employer.  Any harsh effect on the individual               employee is clearly relevant but of course not conclusive.  Other matters have to               be considered such as the gravity of the employee's misconduct."

  1. [59]
    This is not a case where the Applicant has denied that he engaged in the conduct so described.  The only contentious issue relates to whether, pursuant to s 187(1)(d) of the PS Act, the Applicant had a reasonable excuse for his refusal to comply with the directions given.  On the evidence there is no reasonable excuse given by the Applicant for refusing repeated directions to perform his duties.
  1. [60]
    It is understood that an officer may query a direction given which may seem to be unreasonable or unlawful in the circumstances (see JAG Workplace Policy at 19 Lawful and Unlawful official instructions/decisions; and 20 Procedure for challenging an official instruction/decision) However, it cannot be said that the directions given to the Applicant on 6 August 2016 to perform normal duties, could be classified as unlawful or unreasonable.  Completing others' duties in an environment such as a correctional centre (the environment being one of significant critical immediacy and urgency) is not what is contemplated in the JAG Workplace Policy.  In this case, there has been nothing to suggest that the Applicant believed the instruction was obviously unlawful or unreasonable or could endanger his health or safety.  The Policy states that:

"If you are waiting for a higher authority to consider your objections, you should generally carry out the instruction unless you believe the instruction is obviously unlawful or unreasonable or could endanger a person's health or safety."

  1. [61]
    Section 320 of the IR Act details the matters to be considered in deciding whether a dismissal was harsh, unjust or unreasonable.  These are as follows:

 Whether the employee was notified for the reason for dismissal

  1. [62]
    The evidence shows that the Applicant was provided with the reasons for his dismissal which were contained in a letter to him from then Deputy               Commissioner McDermott dated 21 April 2017.

 Whether the dismissal related to the employee's conduct, capacity or performance

  1. [63]
    The evidence is clear that the Applicant failed to follow lawful directions of CS Moor on at least five occasions and that he had failed to follow a reasonable and lawful direction from CS McLean on at least two occasions.
  1. [64]
    The Investigator, viz., Mr Verrall and then Deputy Commissioner McDermott (the decision maker) were satisfied that the Applicant had engaged in the alleged conduct.

 If the dismissal relates to the employee's conduct, capacity or performance, whether the employee had been warned about the conduct, capacity or performance

  1. [65]
    The evidence details the occasions upon which the Applicant had been warned concerning the ramifications of his conduct by CS McLean on 6 August 2016 and in the course of an extensive prior disciplinary history.
  1. [66]
    As well, the Applicant had been warned about his unsatisfactory behavior.  In a Warning letter, dated 2 December 2013, the Respondent stated:

"I am giving you a final opportunity to show that this behavior will not be repeated, and can advise that any future deviations from the obligations under the Code of Conduct or Departmental policies or procedures may result in your termination."

  1. [67]
    On 28 July 2016, the Respondent issued a Final Warning to the Applicant together with a reduction in remuneration for a period of 12 months and the Applicant was advised that any future inappropriate behavior in the workplace may result in formal disciplinary action including termination of employment.  It is noted that this Final Warning was issued some nine days prior to the events subject to this Application.

 Whether the Applicant was given an opportunity to respond to the allegations before his dismissal

  1. [68]
    It is accepted by the Commission that the Applicant was given a number of opportunities to respond to the allegations made against him concerning his conduct.
  1. [69]
    He was also provided with the opportunity to respond to the proposed penalty of dismissal.  The Applicant responded to these matters.
  1. [70]
    There is nothing in the process adopted by the QCS that suggests that the procedure adopted was unfair or unreasonable.  All appropriate steps were taken to ensure that the Applicant was given the appropriate opportunities to respond to any of the matters raised by the QCS.
  1. [71]
    Under the heading of "Other relevant matters", the QCS addressed further issues that were of concern to them.  These included:
  • The Applicant worked in a high risk environment at the Centre.
  • There was a significant degree of trust and confidence required in an environment of that type, thereby demanding those factors assumed an even greater importance than they might otherwise carry.
  • The Respondent had taken into account the period of time that the Applicant had worked for the Centre.
  • Also taken into account was the effect that a dismissal would have on the Applicant.
  • However, in considering those factors, the Respondent had to take into account the deliberate nature of the Applicant's conduct and the potential safety risks associated with insubordination of that nature in the type of environment in which he worked.
  • The Respondent also considered the fact that the Applicant did not have an unblemished record of employment with QCS and this has been referenced in the disciplinary action taken by the Respondent against the Applicant over time.
  1. [72]
    The Respondent summarised its position as follows:
  • Given the nature of the Applicant's role, in particular his responsibility for the safety and security of prisoners, the Respondent can no longer hold trust and confidence in his ability to perform the role of CCO and considers that the appropriate discharge of its duty of care to the public, the Respondent's officers and to the prisoners in its care outweighs the personal impact upon the Applicant.
  • The Applicant had no reasonable excuse for the behavior that he engaged in when asked to perform his duties on 6 August 2016  Those duties are those which he would normally be required to complete in the course of his work.
  • The Code of Conduct states that even if officers do not agree with a request made of them or a direction to perform a particular duty, the officer has an obligation to perform those duties.  The directions given to the Applicant on 6 August 2016 were lawful and there was no reasonable excuse proffered by the Applicant to mitigate his determination to disregard those directions.

 CONCLUSION

  1. [73]
    The evidence before the Commission is relatively clear in this matter.
  1. [74]
    The Applicant was well aware of his obligation to respond to directions given to him in the course of his work.  The duties required of him on 6 August 2016 were no different from what was required of him in the course of his normal duties.
  1. [75]
    The Applicant does not dispute that he was given directions to perform those duties.  His reason for not doing so related to his flawed belief that he could refuse to do the work as others should have finalised that work on the night prior to his commencement at the unit on 6 August 2016.
  1. [76]
    The reasons proffered by the Applicant are not credible.  I believe that the real reason was that the Applicant was agitated at the prospect of having to perform another’s work.
  1. [77]
    As has been put to the Commission, for the Centre to operate appropriately within its own discrete circumstances, employees must comply with directions and orders.  There was no compelling reason why the Applicant could not do the work required of him on that day.  There was no evidence of what King[4] (op. cit) describes as a "substantial danger outside the contemplation of the contract of service", in existence sufficient to enable the Applicant to continually refuse to perform his normal duties.  
  1. [78]
    The facts are that the Applicant refused on five or more occasions to positively respond to directions to perform his normal duties.  His failure to do so caused his termination of employment.  The decision to terminate his services were made against a background of warnings and a final warning issued to the Applicant just over a week prior to the events of 6 August 2016.
  1. [79]
    The Applicant was afforded natural justice throughout the process.  There is nothing in the processes adopted by the Respondent that could point to the Applicant being unable to present his case fairly and openly.
  1. [80]
    The Applicant's dismissal was not harsh, unjust or unreasonable.
  1. [81]
    The Application for Reinstatement is dismissed.

Order accordingly.

Footnotes

[1] King v Darling Island Stevedoring and Lighterage Company Limited (1938) 60 CLR 601, pp 621-622

[2] Jeff Parkes v Fat Prophets Pty Ltd [2017] FWC 6121 at [91]

[3] Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 41 IR 452 at 459

[4] King v Darling Island Stevedoring and Lighterage Company Limited (1938) 60 CLR 601

Close

Editorial Notes

  • Published Case Name:

    Timmins v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services)

  • Shortened Case Name:

    Timmins v State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services)

  • MNC:

    [2018] QIRC 29

  • Court:

    QIRC

  • Judge(s):

    Member Deputy President Swan

  • Date:

    13 Mar 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
Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 41 IR 452
2 citations
Jump To
Cite 1 - (1992) 41 IR 452
Cite 2 - (1992) 41 IR 452
Jeff Parkes v Fat Prophets Pty Ltd [2017] FWC 6121
2 citations
Jump To
Cite 1 - [2017] FWC 6121
Cite 2 - [2017] FWC 6121
R v Darling Island Steverdoring and Lighterage Co Ltd ex parte Halliday and Sullivan (1938) 60 CLR 601
3 citations
Jump To
Cite 1 - (1938) 60 CLR 601
Cite 2 - (1938) 60 CLR 601
Cite 3 - (1938) 60 CLR 601

Cases Citing

Case NameFull CitationFrequency
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
State of Queensland, Department of Justice and Attorney-General (Queensland Corrective Services) v Timmins (No. 2) [2018] QIRC 1173 citations
1

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