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Pathan v State of Queensland (Queensland Corrective Services)[2021] QIRC 312

Pathan v State of Queensland (Queensland Corrective Services)[2021] QIRC 312

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pathan v State of Queensland (Queensland Corrective Services) [2021] QIRC 312

PARTIES: 

Pathan, Vasim

Appellant

v

State of Queensland (Queensland Corrective Services)

Respondent

CASE NO:

PSA/2021/207

PROCEEDING:

Public Service Appeal – disciplinary decision

DELIVERED ON:

9 September 2021

HEARING DATE:

10 August 2021

MEMBER:

HEARD AT:

Hartigan IC

Brisbane  

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against be confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 8 June 2021 be revoked.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appeal against disciplinary decision – disciplinary decision  made pursuant to s 187 of the Public Service Act 2008 (Qld) – where allegations substantiated – consideration of penalty – whether penalty was proportionate to substantiated conduct – penalty imposed was fair and reasonable – decision appealed against confirmed – stay of decision revoked

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562B(2), s 562B(3),  s 562C, s 566

Public Service Act 2008 (Qld) s 187, s 188, s 194, s 197, s 201,

Directive 14/20: Discipline, cl 8

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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)

APPEARANCES:

Mr Vasim Pathan for the Appellant

Ms L. Bugeja for the Respondent

Reasons for Decision

Introduction

  1. [1]
    Mr Vasim Pathan ("Mr Pathan") is employed by the State of Queensland (Queensland Corrective Services) ("QCS") as a Custodial Correctional Officer ("CCO").  Mr Pathan appeals a disciplinary decision pursuant to s 194(1)(b)(i) of the Public Service Act 2008 (Qld) ("PS Act").
  1. [2]
    Mr Pathan commenced employment with the QCS on 9 February 2015 as a CCO at the Brisbane Correctional Centre. 
  1. [3]
    On 8 May 2020, Mr Pathan was rostered on a day shift (0600hrs – 1800hrs) at the Princess Alexandra Hospital Secure Unit ("PAHSU") to undertake observations every 15 minutes of Prisoner "P" following a serious self-harm incident.
  1. [4]
    At some time during the shift, Mr Pathan left the assigned post without approval.  It was alleged that he failed to undertake observations, falsified records in the self-harm logbook by noting observations he did not undertake, failed to conduct an appropriate handover with a relieving officer and left his assigned QCS radio unattended and unsecured.
  1. [5]
    An investigation into the allegations was commenced which was subsequently followed by the commencement of a show cause process.  Mr Pathan was asked to show cause with respect to six (6) allegations.  On 9 March 2021, Mr Pathan was advised that four (4) out of the six (6) allegations had been substantiated or partially substantiated.
  1. [6]
    By letter dated 14 May 2021, the decision-maker determined to impose disciplinary action on Mr Pathan including a reduction in classification level for a period of 12 months and paypoint progression at the completion of the period and a reprimand pursuant to
    s 188(1) of the PS Act.
  1. [7]
    On 7 June 2021, Mr Pathan appealed against the decision substantiating the allegations and the decision imposing disciplinary action pursuant to s 194(1)(b)(i) of the PS Act.  The grounds of the appeal include:
  1. (a)
    'some allegations were not capable of being substantiated; and
  1. (b)
    the decision-maker failed to take into account significant mitigating factors when determining the appropriate penalty.'
  1. [8]
    On 8 June 2021, this Commission ordered that the decision subject of the appeal be stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ("IR Act").  On 10 August 2021, the appeal was heard, during which the parties made submissions supplementing the written submissions already filed.
  1. [9]
    The appeal is made pursuant to s 197  of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [10]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1]  Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.  Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [11]
    I must decide the appeal by reviewing the decision appealed against.  The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2]  An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [12]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [13]
    In the decision that is the subject of this appeal, the decision-maker ultimately determined that the following allegations against Mr Pathan were substantiated or partially substantiated: 

'Allegation 1: On 8 May 2020 at PAHSU, you were absent from duty on two occasions while rostered to manage and observe the Prisoner Michael Pershouse (C87907) every 15 minutes following a serious self-harm incident.

Allegation 2: On 8 May 2020 at PAHSU, you failed to undertake observations of Prisoner Pershouse every 15 minutes following a serious self-harm incident as per the requirements of the Self-Harm Management – Logbook and Handover Register.

Allegation 3: On 8 May 2020 at PAHSU, you falsified official records in the Observation Log – At Risk Prisoner – Form 57 by attesting to observations at 0945 hrs and 1745 hrs, which you did not undertake.

Allegation 6: On 8 May 2020 at PAHSU, you failed to ensure the safe control and storage of the QCS portable radio assigned to you in accordance with the COPD – Management of Safety and Security Equipment'

  1. [14]
    On 14 May 2021, the decision-maker imposed a disciplinary penalty pursuant to s 188(1) of the PS Act on Mr Pathan of:
  • 'a reduction in classification level from GS 2.2 to GS 1.9 for a period of 12 months and paypoint progression at the completion of the period in accordance with the Correctional Employees Award – State 2015; and
  • a reprimand.'
  1. [15]
    In reaching the decision on penalty, the decision-maker had regard, in summary, to the following matters:
  1. (a)
    Mr Pathan has been employed as a CCO for more than five (5) years and should have been aware of his obligations pursuant to the Code of Conduct  and associated policies and procedures at the time of the conduct the subject of the allegations.
  1. (b)
    The subject matter of the allegations are serious and Mr Pathan's conduct fell below the standard expected of him as a CCO.
  1. (c)
    With respect to allegation one (1), it has been found that Mr Pathan was absent from duty between 0935hrs and 1000hrs on 8 May 2020, when rostered to manage and observe a prisoner every 15 minutes following a self-harm incident.
  1. (d)
    With respect to allegation two (2), it was found that Mr Pathan failed to undertake observations of Prisoner P at 0945hrs on 8 May 2020, as per the requirements of the Self-Harm Management – Logbook and Handover Register.
  1. (e)
    On the material before the decision-maker, it was determined that Mr Pathan was absent from duty between 0935hrs and 1000hrs and failed to undertake an observation of Prisoner P at 0945hrs.  It was determined that the conduct was inappropriate and a serious breach of Mr Pathan's responsibilities and the standard expected of him as a CCO, particularly in circumstances where Prisoner P was identified as a prisoner at risk of self-harm.
  1. (f)
    Mr Pathan's explanation for leaving the PAHSU and reasons for failing to observe Prisoner P was not considered to be a persuasive "reasonable excuse" for Mr Pathan's absence.  It was noted that Mr Pathan acknowledged in his response that he could have sought approval from his supervisor to exit the unit, engaged another officer to relieve him from his post, or advised a nearby colleague that he was leaving his post to make a call.
  1. (g)
    It was acknowledged that Mr Pathan accepted that he failed to complete the required observation and failed to conduct the requirements of his role.
  1. (h)
    Further, Mr Pathan's submissions were accepted that he admitted the conduct at the earliest opportunity, however, it was also noted that Mr Pathan only disclosed the failure to perform the observation after his supervisor asked who had completed the 0945hrs check while Mr Pathan was outside the PAHSU.
  1. (i)
    With respect to allegation three (3), the decision-maker found that Mr Pathan falsified official records by attesting to observations at 0945hrs and 1745hrs in circumstances in which those observations were not made by Mr Pathan.
  1. (j)
    In finding that Mr Pathan's falsification of observations was not merely a mistake, the decision-maker considered the fact that Mr Pathan had made two (2) errors in the observation log on the same day, which indicated the entries were not mistaken and were intentional.
  1. (k)
    The decision-maker did not accept Mr Pathan's submissions that there was no intention to mislead in terms of the falsification of the document.
  1. (l)
    The decision-maker had regard to the fact that as a CCO, Mr Pathan is placed in a position of considerable trust and is required to make sound decisions and behave appropriately in a correctional environment, including in some difficult and challenging circumstances.  The decision-maker determined that it is essential that CCO's perform their duties in accordance with QCS policies and procedures, and in this case, only attest to observations actually performed.
  1. (m)
    With respect to allegation six (6), the decision-maker found that Mr Pathan failed to ensure the safe control and storage of his QCS portable radio between 0935hrs and 1000hrs in accordance with the COPD – Management of Safety and Security Equipment.
  1. (n)
    In finding that Mr Pathan had failed to ensure the safe control and storage of his radio, the decision-maker referred to the CCTV footage which captures various nurses and Queensland Health staff walking through the hallway where the radio was left unattended.  Non-QCS personnel clearly had access to the table where Mr Pathan left the QCS radio.
  1. (o)
    It was noted by the decision-maker that Mr Pathan did not accept the finding and that Mr Pathan submitted that his radio was left in a secure area where all prisoners and visitors are escorted and it was "simply untenable" that the radio was in an unsecured environment given other CCO's, including
    Mr Pathan's supervisor, observed the radio but did not confiscate it or secure it.
  1. (p)
    The decision-maker determined that he did not accept that Mr Pathan's radio was not in an unsecured environment and further, even if CCO's and Mr Pathan's supervisor did not confiscate the radio when they observed it, this is not evidence that the radio was secured.
  1. (q)
    It was concerning to the decision-maker that Mr Pathan failed to recognise the inappropriateness of his conduct with respect to allegation six (6), and that he did not accept that his QCS issued radio was left in an area accessible by non-QCS personnel. 
  1. (r)
    The decision-maker had regard to Mr Pathan's length of service with QCS and the fact that he had no documented disciplinary findings made against him in that period, and also had regard to Mr Pathan's submissions regarding the financial and personal hardship he would face if his employment was terminated.  Further, the decision-maker had regard to the submissions made by Mr Pathan about the impact that the proposed disciplinary action has had, (and will have) on his ability to obtain a home loan and that it would be extremely difficult to secure alternative employment in the current climate. 
  1. (s)
    The decision-maker indicated that while he empathised with Mr Pathan's personal circumstances, he did not consider that these factors outweighed the seriousness of the conduct and determined to impose the proposed disciplinary action.

Relevant legislation and Directive

  1. [16]
    Section 187 of the PS Act provides for the grounds for discipline as follows:

187  Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  2. (b)
    been guilty of misconduct; or
  3. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  4. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  5. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  6. (ea)
    contravened, without reasonable excuse, a requirement of the chief executive under

section 179A (1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

  1. (i)
    failing to disclose a serious disciplinary action; or
  2. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.
  2. (3)
    Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)
  1. (a)
    a public service employee under section 187A; or
  2. (b)
    a former public service employee under section 188A .
  1. (4)
    In this section—

misconduct means—

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  2. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct—

victimising another public service employee in the course of the other employee’s employment in the public service

relevant standard of conduct, for a public service employee, means—

  1. (a)
    a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  2. (b)
    a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.

  1. [17]
    Section 188 of the PS Act identifies the disciplinary action that may be taken against a public service employee as follows:

188  Disciplinary action that may be taken against a public service employee

  1. (1)
    In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

 Examples of disciplinary action—

  • 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
  • a reprimand
  1. (2)
    If the disciplinary action is taken following an agreement under section 187A (4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
  2. (3)
    However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
  3. (4)
    Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
  1. (a)
    must not be more than half of the amount payable to or for the employee in relation to the payment; and
  2. (b)
    must not reduce the amount of salary payable to the employee in relation to the period to less than—
  1. (i)
    if the employee has a dependant—the guaranteed minimum wage for each week of the period; or
  1. (ii)
    otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
  1. (5)
    In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
  2. (6)
    An order under subsection (1) is binding on anyone affected by it.
  1. [18]
    Section 194 of the PS Act relevantly identifies the decisions against which appeals may be made as follows:

194  Decisions against which appeals may be made

  1. (7)
    An appeal may be made against the following decisions—

  1. (b)
    a decision under a disciplinary law to discipline—
  1. (i)
    a person (other than by termination of employment), including the action taken in disciplining the person; or

  1. [19]
    Directive 14/20: Discipline ("Discipline Directive") came into effect on 25 September 2020. The purpose of the Discipline Directive, amongst other things, is to outline the process for managing disciplinary action under the PS Act.
  1. [20]
    Clause 8.5 (d) of the Discipline Directive sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:
  1. (i)
    the seriousness of the disciplinary finding
  2. (ii)
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  3. (iii)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  4. (iv)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  5. (v)
    the employee’s explanation (if any)
  6. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  7. (vii)
    the impact on the employee’s ability to perform the duties of their position
  8. (viii)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  9. (ix)
    the impact a financial penalty may have on the employee
  10. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  11. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

 Whether the decision was fair and reasonable

  1. [21]
    I will now consider whether some of the allegations were incapable of substantiation and if the disciplinary action imposed on Mr Pathan was proportionate to the substantiated conduct, to determine whether the decision/s were fair and reasonable.
  1. [22]
    The relevant principles in considering whether a decision is "unreasonable" were outlined by Ryan J in Gilmour v Waddell & Ors:[4] 

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.[5]

Ground 1: Some of the allegations were not capable of substantiation

  1. [23]
    Mr Pathan contends that while he accepts allegations one (1) and two (2) as being substantiated by his conduct, he refutes that he falsified official records or failed to ensure the safe control and storage of the QCS issued radio in accordance with the COPD- Management of Safety and Security Equipment.
  1. [24]
    With respect to allegation three (3), which is the allegation that Mr Pathan falsified official records, Mr Pathan accepts that he incorrectly initialled the time period 0945hrs.
  1. [25]
    However, Mr Pathan submits, that to falsify a document connotes an intention to mislead and that such an intention was not present in his matter.  Mr Pathan submits that he was not attempting to conceal his failure to perform his observations of Prisoner P, and that this was demonstrated by the fact that Mr Pathan had made clear concessions regarding his failure to make the observations at the time he spoke to his supervisor.  Mr Pathan says that in the moments immediately preceding the initialling of the form 57 at 1000hrs, Mr Pathan spoke to his supervisor about his failure to perform the observations at 0945hrs.
  1. [26]
    Mr Pathan's submission is that whilst such conduct does not excuse Mr Pathan's failure to pay due care to the relevant time entries he was completing, he submits that it logically follows that this conduct could not be seen and characterised for anything other than being an inadvertent error.  Mr Pathan submits the error is one that was careless and the result of inattention but does not amount to a purposeful intention to mislead. 
  1. [27]
    As noted by the QCS, it is not in dispute that Mr Pathan failed to record any observations of Prisoner P at 0945hrs and 1745hrs.  Further, it submits that it was inaccurate of
    Mr Pathan to record that he made those observations whilst he was not in attendance and consequently unable to observe Prisoner P. 
  1. [28]
    The decision-maker found that it was implausible that Mr Pathan would have mistakenly initialled the 0945hrs entry at the same time as he completed the 1000hrs entry when
    Mr Pathan intended to only initial the 1000hrs entry.  It was concluded that the reason for this is that it would represent two (2) separate acts, requiring two (2) separate initials, which is suggestive of a deliberate act rather than a mistaken act.
  1. [29]
    With respect to the 1745hrs observation, the decision-maker determined that it was not in contention that Mr Pathan had not performed the 1745hrs observation as he had by that time already left the PAHSU.
  1. [30]
    The decision-maker referred to Mr Pathan's submission that he initialled the 1745hrs observation by mistake because he was "stressed and wanted to see his wife".  The decision-maker did not accept this submission as a valid explanation for the incorrect entry on the basis that the decision-maker determined that it was illogical to say that
    Mr Pathan initiated an entry in the observation log for an observation that he had not conducted, merely because he was stressed and wanted to see his wife.  The reality of the situation was that Mr Pathan had already left the unit before the 1745hrs observation was required to be completed.
  1. [31]
    The decision-maker had regard to both instances which occurred on the same day.  The decision-maker considered that the two (2) errors, having been made in the same day, suggests to the decision-maker that the entries were not mistaken and were in fact intentional.
  1. [32]
    The decision-maker had regard to the explanation provided by Mr Pathan as well as having regard to the contextual background in which Mr Pathan erroneously initialled having observed Prisoner P at 0945hrs and at 1745hrs.  I consider that it was open on the evidence for the decision-maker to conclude that allegation three (3) was substantiated and that allegation three (3) was capable of substantiation.
  1. [33]
    With respect to allegation six (6), that Mr Pathan failed to ensure the safe control and storage of his QCS radio, Mr Pathan disputes the finding on the basis that whilst the radio was left unattended, he had left it in a secure area. 
  1. [34]
    The decision-maker had regard to the Custodial Operations Practice Direction – Management of Safety and Security Equipment which relevantly states that CCO's must ensure the safe and appropriate use and storage of equipment and implement risk mitigation practices as appropriate.  It further states that CCO's are required to store all portable safety and security equipment in a secure area that will prevent access by unauthorised persons and ensure equipment is signed for on collection and returned in an appropriate register or logbook, such as the PAHSU Security Equipment Register.
  1. [35]
    This allegation arises factually, out of the earlier allegation with respect to when
    Mr Pathan left his observation post and exited the PAHSU.  At that time, he did not take his QCS issued radio with him and he was unable to be contacted on his QCS radio after it was noticed that he had left his post. 
  1. [36]
    Mr Pathan had left his QCS radio at the observation post inside the PAHSU. 
  1. [37]
    The particulars of the allegation is that Mr Pathan had left his QCS radio unattended between 0935hrs and 1000hrs, a period of 25 minutes.
  1. [38]
    The decision-maker had regard to Mr Pathan's submissions that only authorised personnel were allowed into the PAHSU and only QCS staff can access the table outside the relevant room.
  1. [39]
    The decision-maker had regard to the evidence of other witnesses, including their evidence that a number of other individuals can access the hallway outside of the relevant room including, QCS staff, Queensland Health staff, doctors, nurses, cleaning staff and contractors. 
  1. [40]
    In addition, the decision-maker reviewed CCTV footage between 0931hrs and 1010hrs, which captures the hallway outside of the relevant room, and observed various nurses and Queensland Health staff walking through the hallway. 
  1. [41]
    It was on the basis of this evidence that the decision-maker determined that Mr Pathan failed to ensure the safe control and storage of his QCS radio assigned to him between 0935hrs and 1000hrs.  I consider on the evidence that was before the decision-maker,  including the submissions made by Mr Pathan, that it was open for the decision-maker to conclude that allegation six (6) was able to be substantiated.
  1. [42]
    I do not consider that the decision was not fair or reasonable on the basis of the matters raised by Mr Pathan with respect to ground one (1) of his appeal.

Ground 2: The decision-maker failed to take into account significant mitigating factors when determining the appropriate penalty

  1. [43]
    Mr Pathan also contests the proposed penalty of a reduction in classification level from GS 2.2 to GS 1.9 for a period of 12 months and paypoint progression at the completion of the period in accordance with the Correctional Employees Award – State 2015 ("the Award").   Mr Pathan contends that the decision to impose a reduction of remuneration level was not fair or reasonable, taking into account the relevant mitigating factors in his matter. 
  1. [44]
    Mr Pathan seeks that the Commission set the decision aside and substitute it with another decision which does not impose the financial penalty the QCS proposes to impose on
    Mr Pathan.
  1. [45]
    The mitigating factors relied on by Mr Pathan include the following:
  1. (a)
    the relevant circumstances of the offending conduct;
  1. (b)
    the financial impact;
  1. (c)
    the impact of suspension;
  1. (d)
    Mr Pathan's exemplary work record; and
  1. (e)
    Mr Pathan's honesty and candour throughout the investigation process.
  1. [46]
    Relevantly, Mr Pathan provides an explanation for his conduct that includes that he initially left his post to make a call to his wife with the intention that the call only be very brief.  Mr Pathan submits however, that due to significant personal circumstances, the call developed into a more serious conversation and Mr Pathan was away from his post for a substantially longer period of time than he had initially intended.
  1. [47]
    Mr Pathan submits that in the factual circumstances of the offending conduct it is unjust and unfair to impose a financial penalty.
  1. [48]
    With respect to the financial impact of the penalty, Mr Pathan submits that a reduction in his classification level will have far reaching consequences for his family.  Mr Pathan  submits that his wife is pregnant, and she is unable to earn an income for a period of time.  In addition to this, he submits that his wife is ineligible for Centrelink assistance due to her visa status, which would exacerbate the financial predicament Mr Pathan submitted his family would be in, should the pay point reduction be imposed as disciplinary action.
  1. [49]
    Further, Mr Pathan submits that his family in India rely on him for financial support, including his parents and his brother, whose university fees are paid for by Mr Pathan.  Mr Pathan submits that if he is to progress back to his original classification level, then he will need to do so in accordance with the provisions of the Award and that may take a period of time longer than 12 months.  Mr Pathan also submits that the impact of the suspension during the show cause process resulted in him being rejected to secure a home loan to purchase a property for his family.  Mr Pathan submits that the rejection of his financing for the purchase of the property was due to the precarious nature of his employment whilst he was suspended and has had a devastating impact on himself and his wife.
  1. [50]
    Mr Pathan also relies on his exemplary work record and that he has never previously received any warning, reprimands or been involved in any other disciplinary matters, to submit that the decision is unfair and unreasonable in the circumstances.
  1. [51]
    Finally, Mr Pathan submits that his honesty and candour during the investigation process is a significant mitigating factor which should have been taken into account.  Mr Pathan submits that he did not attempt to minimise or excuse his conduct and understands the failure to be on his post for the relevant observation period posed a safety risk to Prisoner P.  Mr Pathan submits that he is deeply apologetic and remorseful for his conduct and understands that his actions posed a risk to the health and safety of the prisoner in his care. 
  1. [52]
    The QCS refutes Mr Pathan's submissions and submits that the decision-maker had regard to the various mitigating factors when imposing the penalty.  Relevantly, the QCS submits, the decision-maker specifically listed and considered each of the factors raised by Mr Pathan in his submissions, including his family circumstances, his work history with QCS, and the full and frank concessions he made during the investigation process.
  1. [53]
    In this regard, it should be noted that on 22 March 2021, the QCS identified that the decision-maker was giving serious consideration to imposing the penalty of terminating Mr Pathan's employment with the QCS.  It is clear, following receipt of Mr Pathan's submissions, that the decision-maker had regard to the submissions made by Mr Pathan with respect to the financial and personal hardship he would face if his employment with the QCS was terminated.  Relevantly, the decision-maker was persuaded by Mr Pathan's submissions and determined not to terminate his employment.  This consideration is set out in the decision as follows:

'I have considered your comments regarding the financial and personal hardship you would face if your employment with QCS is terminated, in circumstances where you are the sole source of income for your family and that your wife is unable to work. I have also taken into account the impact that the proposed disciplinary action has had, (and will have) on your ability to obtain a home loan, and that it would be extremely difficult to secure alternative employment in the current climate.'

  1. [54]
    The decision-maker determined not to terminate Mr Pathan's employment, but rather, to impose the disciplinary action proposed in the disciplinary action decision.
  1. [55]
    Accordingly, I have determined that the decision-maker did have regard to the mitigating factors identified by Mr Pathan in the circumstances of his matter.  I have also considered whether proper weight was placed on those mitigating factors and have determined that in the circumstances of this matter, appropriate weight was placed on those mitigating factors when determining the disciplinary action to be proposed. 
  1. [56]
    Relevantly, the substantiated allegations contained evidence of serious breaches of the Code of Conduct.  Mr Pathan's absence from duties when he was required to guard and undertake observations of Prisoner P in accordance with the requirements of the Self-Harm Management – Logbook and Handover Register, was inappropriate and a serious breach of Mr Pathan's responsibilities and the standards expected of him as a CCO.
  1. [57]
    Of particular concern in the circumstances of this matter, was that Prisoner P was identified as a prisoner at risk of self-harm and that a number of other strategies could have been engaged by Mr Pathan if he had needed to leave his post, including for instance, by seeking the approval of his supervisor to exit the unit, by engaging another officer to relieve him from his post, or by advising a nearby colleague that he was leaving the post to make a call in order for Prisoner P to remain being observed, as was required to be done.
  1. [58]
    The failure by Mr Pathan to maintain his attendance at his post, posed a serious safety and health risk to Prisoner P and potentially others.  Further, the failure to accurately record the observations in Prisoner P's logbook may have had far reaching consequences, including if there was a necessity for those logs to be reviewed in the future as part of Prisoner P's care.
  1. [59]
    Accordingly, I consider the substantiated conduct to be serious, and that in all of the circumstances of the matter, including the mitigating factors relied on by Mr Pathan, that the proposed disciplinary action to be fair and reasonable.

Orders

  1. [60]
    For the foregoing reasons, I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against be confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 8 June 2021 be revoked.

Footnotes

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[4] [2019] QSC 170, [207] – [209].

[5] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Pathan v State of Queensland (Queensland Corrective Services)

  • Shortened Case Name:

    Pathan v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2021] QIRC 312

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    09 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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