Newman v State of Queensland (Queensland Police Service)
[2021] QIRC 159
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- Unreported Judgment
- Newman v State of Queensland (Queensland Police Service)[2021] QIRC 159
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Newman v State of Queensland (Queensland Police Service)[2021] QIRC 159
Newman v State of Queensland (Queensland Police Service)[2021] QIRC 159
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Newman v State of Queensland (Queensland Police Service) [2021] QIRC 159 |
PARTIES: | Newman, Ben (Appellant) v State of Queensland (Queensland Police Service) (Respondent) |
CASE NO: | PSA/2021/71 |
PROCEEDING: | Public Service Appeal – Disciplinary Decision |
DELIVERED ON: | 13 May 2021 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
OUTCOME: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. |
CATCHWORDS: | INDUSTRIAL LAW – Public Service Appeal – appeal against a disciplinary finding – allegations substantiated – consideration of penalty – penalty imposed fair and reasonable. |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B, 562C and 564 Public Service Act 2008 (Qld), ss 187, 188, 194 and 201 Directive 14/20 Discipline, cl 8 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Briginshaw v Briginshaw (1938) 60 CLR 336 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
- [1]Mr Ben Newman (the Appellant) is currently employed as an AO4, Property Officer, Darling Downs District, Southern Region for the State of Queensland (Queensland Police Service) (QPS, the Respondent) at the Toowoomba property office (the Property Office) since January 2007.
- [2]By letter dated 21 January 2021, the Respondent informed the Appellant of the decision to impose a reprimand and redeployment to other public service employment, specifically, to Toowoomba Police complex, performing duties as directed by the District Officer, including Client Service and Administrative roles,[1] pursuant to s 188(1) of the Public Service Act 2008 (Qld) (the PS Act).
- [3]By appeal notice filed on 12 February 2021, the Appellant appealed against the disciplinary penalty decision, pursuant to s 194(1)(b)(i) of the PS Act.
Appeal principles
- [4]Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
- [5]The appeal must be decided by reviewing the decision appealed against.[2] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision making process associated therewith.
- [6]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[5] The issue for determination is whether the decision to impose the disciplinary penalty of reprimand and redeployment to other public service employment was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
What decisions can the Industrial Commissioner make?
- [7]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- (a)confirm the decision appealed against; or
- (b)set the decision aside and substitute another decision; or
- (c)set the decision aside and return the issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.
Background – substantiation of allegations
- [8]The key dates of the disciplinary process in this matter are as follows:
- on 4 November 2019, a complaint was made against the Appellant regarding missing property and audit irregularities that had been undertaken of the Property Office;
- on 7 November 2019, the Appellant was placed on a Management Action Plan (MAP);
- an investigation was undertaken by Senior Sergeant Smithard in February 2020 as a result of the complaint made on 4 November 2019, which included interviews with the Appellant and 14 employees of the Respondent;[6]
- on 10 July 2020, a Notice to Show Cause (NTSC) was issued by Acting Assistant Commissioner Glenn Horton to the Appellant with respect to two allegations:
…
Allegation ONE:
That between 1 January 2019 and 10 June 2020 at Toowoomba your conduct was improper in that you:
- (a)failed to effectively manage the operation of the Property Officer through inappropriate handling of property resulting in the loss, mishandling and erroneous destruction of property;
- (b)failed to appropriately manage your property point resulting in excessive costs being incurred by the Queensland Police Service (QPS); and
- (c)failed to keep the Property Office premises and surrounds in a condition suitable for safe workplace operations.
…
Allegation TWO:
That between 7 November 2019 and 17 March 2020 at Toowoomba your conduct was improper in that you:
- (a)failed to comply with a Management Action Plan (MAP) dated 7 November 2019, by creating a spreadsheet to hide Q-Prime tasks from your personal task list and failed to maintain the organisational unit tasks, as required.
…
- on 24 August 2020, the Appellant provided a response to the NTSC dated 10 July 2020;
- on 4 December 2020, Chief Superintendent Glenn Horton APM (CS Horton) issued a notice of disciplinary finding and proposed action (Disciplinary Notice) to the Appellant;
- on 8 January 2021, the Appellant provided a response to the Disciplinary Notice; and
- on 21 January 2021, CS Horton issued his disciplinary finding to the Appellant of the decision to impose a disciplinary penalty.
- [9]The decision of 21 January 2021 stated the following reasons:
The reasons for my decision are:
…
Your actions with respect to the management of the property office (including the management of property and exhibits) and your failure to comply with instructions have created an unacceptable risk for the Service with respect to: efficient management; public confidence, the ability for QPS to fulfil statutory obligations and the reputation of the Service.
As you have identified in your response, dated 8 January 2021, 'the disciplinary process is designed to manage risk to the department and to develop staff, not purely as a punitive tool'.
You submit that I should keep in mind the detriment you would suffer as a result of the penalty proposed. Further, that you believe the discipline action of '…redeployment to be harsh, unjust and unreasonable'. However, I note that you did not outline or explain how or why the proposed sanction would cause a detriment to you, nor detail how it was harsh, unjust or unreasonable.
You submitted, under the heading of extenuating or mitigating circumstances, the lengthy period that you have worked in the Toowoomba Property Office and that you enjoy the role. I infer from that submission statement that the detriment you would suffer from redeployment would be a loss of this enjoyment.
The imposed discipline actions are designed to minimise risk to the Service and not to punish, cause financial hardship or impact negatively on you in relation to your remuneration, work location or travel. There is no direct financial cost or inconvenience caused by a change of work unit at the same work location. I do not consider the loss of enjoyment by you from working within the Property Office at the same location to be sufficient reason to alter my proposed disciplinary action.
I note in your submission you continue to defend your performance failures, which I have already considered in my decision on liability.
Further you continue to show a lack of insight or self-awareness as to how these performance failures have created risks for the Service.
You proposed a 'reprimand' only as alternative disciplinary action. However, based on your proven failure to comply with policy, procedure and instruction, coupled with your lack of insight, I consider this would be ineffective in reducing the risks to the Service by allowing you to continue working within a critical area. It would leave you in the workplace where your performance has been shown to be sub-standard and continue to expose the Service to unacceptable risk.
Grounds of appeal
- [10]In the appeal notice, the Appellant outlined the following grounds of appeal. In summary, the Appellant contends that:
- the disciplinary penalty is disproportionate to the verifiable facts and circumstances of the matter; and
- the decision maker did not consider the submissions made by the Appellant as required by clauses 8.4(a) and 8.6(a) of Directive 14/20 Discipline (the Directive).
- [11]The Appellant further provided the following reasons:
I implemented many initiatives, including the Drug Delegation Authority in June 19 which is during period of alleged misconduct. This system greatly enhanced the disposal of drug exhibits.
I moved weapon destructions to Shoesmith Firearms when CEF van ceased, moved drug incineration from Police Station furnaces to Ace Waste Facility and Sharepoint which is a job logging system for Police Officers.
Prior to first MAP in November 2019, I had worked in the Property Office for 13 years with no performance or discipline issues.
My last performance review was conducted in August 2019 where performance was deemed Satisfactory. I remained in the Property Office throughout full investigation until I was removed on February 9, 2021 and assigned to perform duties in the Toowoomba Police Complex.
In early 2020 there were improvements occurring in the office, the newly created QPS Notifications implemented and purchase of a Bixolon Printer, both greatly improved processes for the office.
I provided clear responses in the allegation file and I don’t believe written responses were acknowledged by my employer. I wish to appeal Discipline Findings and penalty decision.
In accordance with section 562C of the Industrial Relations Act 2016, I am seeking for the Industrial Commissioner to uphold this appeal by setting the decision aside and a fresh decision substituted.
Submissions
- [12]The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.
Respondent's submissions
- [13]The Respondent, in accordance with the Directions Order, filed submissions in response to the Appellant's appeal notice. In summary, the Respondent submits that:
- the audit undertaken at the Property Office found that property was unaccounted for and that there was a lack of coordination and organisation within the Property Office as required under s 4.9 of the QPS Operational Procedure Manual Issue 76 (the QPS Operational Procedure Manual). The property items, namely drugs, which could not be located was of serious concern for the Respondent;
- a number of interviewees during the investigation conducted in February 2020 highlighted the irresponsible and uncoordinated conduct of the Appellant:
a. Sergeant Dimond who worked in the property office during September through to December 2019 stated…:
i. Property was not handled in an efficient safe and accountable manner
ii. Numerous times spoke with property officer Newman in relation to systems in place but he was reluctant to make changes…
b. Mitchell Watson who had worked in the property office from August 2019 to January 2020 provided…:
i. …when he [Watson] first arrived in the property office the biggest deficiencies was that property was coming into the office and then becoming stagnant with no methods in place of going through property on hand to dispose of items that could go.
ii. …however on multiple occasions these tasks were not being managed and when I left the office these were over 300 meaning that the property was again becoming stagnant.
c. Senior Constable Katie O'Brien who had worked in the property office for 6 months in 2019 provided…:
i. Newman was never interested in streamlining processes or working with us to get the job done.
ii. Was clear that no one had been doing the organisational unit tasks
iii. The firearms were in such a mess and Newman had told me that they were all in order and processed, just needed to be destroyed. This was far from the truth.
- initial audits were undertaken during the investigation and a litany of matters that have not been dealt with appropriately, if at all, by the Appellant during his tenure as the Property Officer for 14 years were identified;
- the findings of the investigation found that:
- (a)there was a failure of duty of the Appellant to comply with QPS Operational Procedure Manual regarding correct handling of property; and
- (b)this led to property being incorrectly destroyed or misplaced;
- during the interview of the Appellant in the investigation, the Appellant was afforded the opportunity to present his concerns regarding the work and the issues arising from the audit and the complaint lodged that instigated the investigation;
- in accordance with the principles of natural justice, the Appellant was given the opportunity to respond to findings of the investigation when issued the NTSC;
- the Disciplinary Notice issued by CS Horton comprehensively identifies what the allegations against the Appellant were, the evidence behind the findings and the reply produced by the Appellant in response to the show cause. CS Horton further identifies the need to be impartial and to consider the principles and standard of proof, quoting Briginshaw v Briginshaw,[7] and advising that the proposed discipline penalty was to be a reprimand and deployment from the position of Property Officer;
- in the decision of 21 January 2021 to impose the disciplinary penalty, CS Horton identified that the Appellant had provided his opinion and response as to the proposed penalty that had been identified in the Disciplinary Notice;
- while the Directive came into operation in September 2020, the QPS has employed the principles associated with the Directive as well as the principles of natural justice in determining that the Appellant is liable to discipline and that the discipline penalty should be in the lower end of proposed penalties.[8] The seriousness of the Appellant's conduct was considered under cl 5.2 of the Directive as there has been repeated instances of inappropriate conduct from the employee in respect of the Appellant's responsibilities as Property Officer;
- the Appellant has demonstrated that the MAP that was imposed on him in November 2019, for similar matters associated with the Property Officer role did not address or resolve the conduct of the Appellant;
- the Appellant has at his interview in the investigation admitted that there were instances, that he regrets, in respect of mistakes that had occurred whilst undertaking the role of the Property Officer. This role is an extremely important position that is responsible for property that is the subject of criminal charges and must be kept for court cases or destroyed on the authority of the senior officers in the District. The misplacing, losing and destruction of property that is necessary and essential for cases is of serious concern; and
- the Appellant was aware of the need to ensure that the procedures and practices enshrined in the QPS Operational Procedures Manual were complied with to ensure that the property was tagged and entered into the computer systems for recording. The Investigation Report identified, through witness information, that these compliance requirements were not being met by the Appellant but rather he, irrespective of his 14 years in the role, had failed to ensure the correct procedures and data capture were in place.
Appellant's submissions in reply
- [14]The Appellant, in accordance with the Directions Order, filed submissions in reply to the Respondent's submissions. In summary, the Appellant submits that:
- it is not in dispute that his core duties align with the proactive management of the Property Office, including the management of property and exhibits; that there were a number of shortcomings evident with the Property Office and accepts responsibility for his part in those shortcomings;
- sufficient weight was not attributed by the decision maker in that it is an erroneous mis-categorisation to place sole responsibility for the shortcomings on the Appellant and to rely on this singular responsibility to justify the decision on disciplinary penalty renders the decision harsh in the circumstances;
- if the decision maker had provided meaningful consideration of the material submitted and of the steps the Appellant took to better the processes for the efficient running and management of the Property Office, the disciplinary decision would not be as harsh;
- the responses provided were not properly considered or was weighted incorrectly;
- being placed on a MAP in November 2019 involving 14 audit issues from over 8,000 exhibits was the first performance matter in nearly 13 years;
- the discrepancies of the May 2019 to July 2019 audit may be attributed to two events, being:
- (a)the running of a busy Property Office; and
- (b)the officer in charge not taking the Appellant's advice;
- the three interviewees were highly critical, having no knowledge of the work done by the Appellant, what the Appellant's role involved and the Appellant's future plans, which sets an unfair precedent in the workplace about an employee's work performance;
- the last performance review conducted was in August 2019 and the Appellant's performance was deemed satisfactory. No performance review was conducted during 'mid cycle' of April 2020 and 'end cycle' of August 2020, with the NTSC issued in July 2020;
- he was instructed to reduce his personal task list from 348 to 30 while the Appellant was placed on MAP in November 2019. The Appellant reduced the number of tasks to approximately 70 and prioritised work by transferring to a spreadsheet for completion. The Appellant submits that he would have created diary reminders if this action was going to be considered deceptive;
- concerns with respect to work, health and safety issues about the Property Office listed in the Discipline Notice was reported by the Appellant two months earlier than the commencement of the alleged period of misconduct;
- the decision maker did not acknowledge the Appellant's excellent work history over a long period of time and that there would be 10 staff that worked in the Property Office from January 2019 to June 2020 that would support the Appellant's work ethic and performance as a Property Officer;
- he reported to the officer in charge on 10 occasions from 13 December 2019 to 12 June 2020 while on the MAP and there was no indication that the Appellant's performance was not at an acceptable standard;
- it is not fair or reasonable that the mistakes made by a Senior Constable to be listed as the Appellant's misconduct. Additionally, it is unreasonable to suggest that the Appellant could supervise two police officers with confrontational demeanours, of which the Respondent is aware based on the service history;
- the common theme in the Disciplinary Notice with respect to the status of the Property Officer as a result of the Appellant's ceasing the use of diary dates was not the case. The use of diary dates was replaced by Administrator Tasks and the Respondent had acknowledged that the use of diary dates was a 'broken system' in 2018;
- minimising staff mistakes during the period of alleged misconduct was difficult given that there were 16 employees from January 2019 to June 2020 in the Property Office, which is a high number for a secure environment; and
- there were many inefficiencies of the Property Office and the inadequacies reported to the officer in charge remain issues when the Appellant was temporarily removed from his duties and the Property Office in February 2021.
- [15]In relation to the observations made by the officer in charge in the Investigation Report and the Discipline Notice, the Appellant further submits:
a. OIC lists first concerning conversation is in relation to a firearm destroyed belonging to Mr Gillespie, also goes on to say that the Property Office destroyed the firearm by accident. OIC then submitted a 464b for not providing good client service. The Toowoomba Property Office did not destroy Mr Gillespie's gun as stated by Inspector Shaw or weapon components as the Discipline Findings suggest. Mr Gillespie's enquiry was with CEF, CEF were never able to locate part or advise the Toowoomba Property Office of Occurrence involving the trigger mechanism. A Ministerial submitted on the file where another employee and another section is referenced. My only involvement was taking enquiry via the District counter and assisting Mr Gillespie by forwarding enquiry to CEF. I provided further attachments in allegation response.
b. OIC goes on to say that he initiated an audit of the Property Office (29/05/19) and this indicated a number of anomalies in relation to drugs, monies and firearms in particular. There were no issues with monies or firearms. We had many discrepancies with drugs as the 3400 drugs I advised would have to be disposed prior to audit were not disposed and the audit had to be re-done.
c. OIC took a complaint about bicycles in July 2019. Discipline Finding's list no mention that I reported issue of bikes to a Senior Officer. In allegation response I state issue of bikes reported to Inspector Shaw (my OIC) in March 2019, attempted a solution in May 2019 however complaint taken by my OIC in July 2019. Due to quantity and legislative requirements made the management of bikes difficult, there was a 61% increase of bikes from 2018-2019. Property struggled managing bikes from March 2019-June 2020.
d. OIC states my comment to S/Sgt Smithard is disingenuous. I was stating a fact. The 81 ESC audit issues had been reduced to 35.
e. I am accused of causing excessive costs to the QPS involving storage of a Ford Tourer, previous long-term holds were stored at a Police Holding Yard in Highfields, this was sold in November 2018. The I/O, OIC and I believed costs of Tourer would be covered by the DPP. In October 2019, my OIC in a Property meeting said there was nothing more I could have done in relation to the fees. Discipline Findings suggests I should have moved vehicle to Wilsons. This solution occurred months after the Tourer was released as I stated in allegation's response. I provided further attachments in allegation response.
Consideration
- [16]Consideration of an appeal of this kind requires a review of the decision to make findings and the decision to impose disciplinary action to determine if the decision was fair and reasonable in the circumstances.
- [17]Following inquiries relating to items missing with the Property Office, an audit was undertaken by the QPS wherein it was found that property was unaccounted for and there was a lack of coordination and organisation within the Property Office. I accept the Respondent's submission that the fact that property items, namely drugs, could not be located was of serious concern for the District.
- [18]An investigation was undertaken by Senior Sergeant Smithard following a complaint and audit irregularities. This investigation was undertaken in February 2020 and included interviews with 14 employees of the QPS. The interviewees included the Appellant along with sworn officers who had assisted in the Property Office between 2017 and 2020. This investigation made the following findings:
a. There was a failure of duty of the Appellant to comply with QPS Operating Procedures regarding correct handling of property.
b. This led to property being incorrectly destroyed or misplaced
- [19]Following the investigation, two allegations were presented to the Appellant in a NTSC. After receipt of the Appellant's response, the Respondent issued a Decision on Disciplinary Notice confirming that the allegations had been substantiated and proposing a disciplinary penalty. Following receipt of the Appellant's response, the Respondent issued a Decision on Disciplinary Action. Natural justice was afforded to the Appellant throughout this process, with the allegations made known to him and opportunities provided for his response.
- [20]The Appellant states in the appeal notice that the decision maker did not consider the submissions made by the Appellant as required by clauses 8.4(a) and 8.6(a) of the Directive. Clause 8.4(a) relates to the decision on grounds (disciplinary finding) and clause 8.6(a) relates to the decision on disciplinary action. Both clauses provide that the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken.
- [21]I have considered the Appellant's submissions with respect to the Respondent's decisions on findings and disciplinary penalty. I am satisfied that the decision maker clearly identified the allegations and demonstrated consideration of the Appellant's responses. With respect to allegation one, the decision maker has outlined a clear explanation of the allegation and included a detailed outline of the particulars upon which the allegation is based. The Respondent detailed the evidence upon which he relied to substantiate the allegations, particularly the relevant extracts from witness interviews and the Investigation Report.
- [22]The Appellant submitted that the decision maker erred in placing sole responsibility for the shortcomings of the Property Office on him as the Property Officer. The role of the Property Officer is as follows:
- The management of property in possession of the (QPS) at the property point, including handling systems that maintain accountability and preserve the integrity and security of property storage areas.
- On the discovery of any discrepancies or signs of tampering with lodged property immediately advice the OIC
- Have authority to destroy property when authorised.
- [23]It was incumbent upon the Appellant to ensure that he complied with the requirements of his role as outlined above. The placing of blame elsewhere does not assist the Appellant given that the efficient and competent management of the property was a core part of his role.
- [24]The Appellant made submissions regarding the issue involving Mr Gillespie's firearm. The Respondent noted in the decision that this issue was not considered as it fell outside of the relevant dates.
- [25]I acknowledge the Appellant's submissions with respect to particular issues that he believes were incorrectly characterised, such as responsibility for storage of a Ford Tourer. In the context of the extensive list of confirmed particulars within allegation one, a potential mis-characterisation of this nature (which is not necessarily accepted) does not attract sufficient weight to displace the findings.
- [26]With respect to allegation two, the decision maker found that the Appellant completed tasks assigned to him or the Toowoomba Property Point Organisational Unit, for the management or disposal of property, without the property being properly dealt with and instead made a record of the property in an excel document. This spreadsheet was then hidden on the Appellant's personal One Drive and no action was taken to action the tasks removed from Q-Prime, having placed them in a location which was hidden from auditing processes.
- [27]I acknowledge the Appellant's submissions that his creation of a separate spreadsheet was not intended to be an act of deception. Even if this action was not intended to hide Q-Prime tasks, it was not in accordance with the QPS procedures for recording, handling and disposing of property. It was reasonable for the Respondent to substantiate this allegation and determine that the Appellant has contravened s 187(1) of the PS Act.
- [28]Following the substantiation of allegations after a show cause process, the Respondent issued a Disciplinary Notice to the Appellant. After consideration of the Appellant's response, the Respondent issued a disciplinary finding to the Appellant of the decision to impose a disciplinary penalty of a reprimand and redeployment.
- [29]The Appellant raised a number of issues in his response to the Disciplinary Notice which were then considered in the Respondent's reasons for the decision. These submissions related primarily to extenuating or mitigating circumstances that include the lengthy period in which the Appellant has worked in the Property Office. The Respondent reasonably considered that, although the Appellant submitted that redeployment was harsh, unjust and unreasonable, no explanation was provided as to how the proposed sanction would cause detriment to the Appellant beyond a loss of enjoyment from the role.
- [30]The Respondent noted that the Appellant continued to defend performance failures which indicates a lack of insight or self-awareness as to the risks for the QPS associated with these performance failures.
- [31]The decision demonstrates that the Respondent considered the Appellant's proposal of a 'reprimand only', however, determined that this would not be effective in reducing the risks to the QPS by allowing him to continue to work within a critical area where his performance has been shown to be sub-standard.
- [32]I am satisfied that the Respondent considered the Appellant's responses in making the determination regarding the imposition of a penalty.
- [33]As part of the Appellant's reasons for appeal, he submitted that the penalty was unreasonable on the basis that he had worked in the Property Office for 13 years with no performance issues and that his last performance review in August 2019 was satisfactory. A lack of disciplinary history does not preclude the Respondent from imposing a disciplinary penalty where it is warranted in the circumstances. It is also arguable that the Appellant's lengthy experience should have ensured that he was aware of the appropriate procedures necessary to manage the operation of the Property Office. Although the Appellant's employment history may be satisfactory, the allegations that were substantiated were sufficiently serious to warrant a penalty of the type imposed.
- [34]The Appellant outlined in the reasons for appeal circumstances which included him feeling helpless with increasing workload, auditing requirements and feeling overwhelmed with workload and struggling with efficiency. This insight into his own response to pressures of the role reflects well on the Appellant and indicates that he was not flippant or indifferent to the circumstances that led to the disciplinary action. Although the Appellant has struggled with the requirements of the role and associated workload, this does not mean that the disciplinary penalty is harsh or unreasonable. In these circumstances, the penalty of removing the Appellant from the role that has been the source of this stress without financial penalty is appropriate.
- [35]The Appellant made submissions relaying his positive initiatives including the Drug Delegation Authority, changes to weapons destructions and drug incineration and the use of SharePoint may well be admirable achievements. The difficulty for the Appellant is that this process is not a performance review of his role, rather it is a disciplinary process with respect to a number of specific allegations which have been substantiated. Positive initiatives such as those mentioned do not 'offset' other shortcomings of an employee's performance in which grounds for discipline exist pursuant to s 187 of the PS Act.
- [36]The MAP that was imposed on the Appellant in November 2019 for similar matters associated with the Property Officer role did not resolve the conduct of the Appellant. I note that the MAP was not in place over a lengthy period of time, however, the failure to demonstrate the ability to comply with the appropriate procedures indicates that it was not tenable to have the Appellant remain in the role.
- [37]The role of Property Officer has significant responsibilities in that it is responsible for property that is the subject of criminal charges and must be kept for court cases or destroyed in accordance with lawful direction. I accept the Respondent's submission that the misplacing, losing and destruction of property that is necessary for cases is of serious concern. The Appellant was required to comply with the procedures outlined in the QPS Operational Procedures Manual to ensure property was tagged and recorded in the computer systems. Failure to ensure these procedures were in place carried significant risk and continued employment of the Appellant in the role carried further risk to the QPS.
- [38]I note that the disciplinary penalty imposed by the Respondent is at the lower end of proposed penalties. This is despite the Appellant's conduct including repeated instances of inappropriate conduct in his role as Property Officer. The Respondent considered that the imposed discipline was designed to minimise risk to the QPS and not to punish, cause financial hardship or impact negatively on the Appellant in relation to his remuneration, work location or travel. A penalty of this nature is, in my view, fair and reasonable in the circumstances.
- [39]The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[9]
The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.
The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.
A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[10]
- [40]Applying the principles outlined above, I do not consider that the decision to impose a reprimand and redeployment to other public service employment lacks justification in the circumstances. The penalty is, in my view, proportionate to the substantiated conduct.
- [41]Based on the information before me, I am satisfied that the decision to impose a disciplinary penalty of a reprimand and redeployment to other public service employment is fair and reasonable in the circumstances.
Order
- [42]I make the following order:
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
Footnotes
[1] With the Appellant retaining his AO4 classification.
[2] IR Act s 562B(2).
[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.
[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.
[5] IR Act s 562B(3).
[6] The employees included sworn officers who had assisted in the Property Office between 2017 and 2020.
[7] (1938) 60 CLR 336, 361-363.
[8] PS Act s 188(1).
[9] [2019] QSC 170.
[10] Ibid [207]-[209].