Borkowski v State of Queensland (Queensland Corrective Services)
[2021] QIRC 330
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- Borkowski v State of Queensland (Queensland Corrective Services)[2021] QIRC 330
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Borkowski v State of Queensland (Queensland Corrective Services)[2021] QIRC 330
Borkowski v State of Queensland (Queensland Corrective Services)[2021] QIRC 330
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330 |
PARTIES: | Borkowski, Peter (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent) |
CASE NO.: | PSA/2021/228 |
PROCEEDING: | Public Service Appeal - Appeal against discipline decision |
DELIVERED ON: | 24 September 2021 |
MEMBER: | Merrell DP |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appellant employed as a Custodial Correctional Officer – finding that appellant failed to report, and to report accurately, the use of force by a Custodial Supervisor against a prisoner – disciplinary action taken against appellant pursuant to s 188 of the Public Service Act 2008 – appeal by appellant against disciplinary findings and disciplinary action taken – whether disciplinary findings fair and reasonable – whether disciplinary action was fair and reasonable – disciplinary findings and disciplinary action taken fair and reasonable – decisions appealed against confirmed |
LEGISLATION: | Industrial Relations Act 2016, s 562B, s 562C and s 566 Public Service Act 2008, s 187, s 188, s 197 and s 201 |
CASES: | Aldrich v Ross [2000] QCA 501; (2001) 2 Qd R 23 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Nesbit v Metro North Hospital and Health Service [2021] ICQ 005 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 |
Reasons for Decision
Introduction
- [1]Mr Peter Borkowski is employed as a Custodial Correctional Officer ('CCO') within Queensland Corrective Services ('QCS').
- [2]By letter dated 27 May 2021, Mr Gary McCahon, Deputy Commissioner, Custodial Operations, QCS, informed Mr Borkowski that, having regard to two earlier disciplinary findings in respect of which Mr McCahon had found Mr Borkowski, pursuant to s 187(1)(b) of the Public Service Act 2008 ('the PS Act'), was guilty of misconduct ('the discipline findings decision'), he (Mr McCahon) had determined to impose upon Mr Borkowski the disciplinary action of:
- a reduction in remuneration level from GS1-9 to GS1-7 for a period of 12 months;
- a direction to attend training regarding the Code of Conduct ('the Code') and the Custodial Operations Practice Directive: Use of Force ('COPD'); and
- a reprimand ('the discipline penalty decision').
- [3]By appeal filed on 18 June 2021, Mr Borkowski appeals against the discipline findings decision and against the discipline penalty decision.
- [4]By directions order dated 20 July 2021, I stayed the discipline penalty decision until the determination of Mr Borkowski's appeal or further order of the Commission. I also directed the parties to file and serve written submissions in relation to the appeal. Both parties have filed and served written submissions and neither party has requested leave to make oral submissions or further written submissions. As a consequence, I will determine Mr Borkowski's appeal on the papers.
- [5]Section 197 of the PS Act provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the Industrial Relations Act 2016 ('the IR Act') by the Queensland Industrial Relations Commission. The principles applicable under the former s 201 of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions in s 562B(2) and s 562B(3) of the IR Act.[1]
- [6]I must decide the appeal 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. An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing, but involves a review of the decision arrived at and the decision‑making process associated therewith.[3] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for my determination is whether the decisions appealed against were fair and reasonable.[5]
- [7]For the reasons that follow, I confirm the discipline findings decision and the discipline penalty decision.
Background
- [8]By letter dated 27 August 2020, Mr McCahon informed Mr Borkowski that:
- he was in receipt of an investigation report prepared by the Ethical Standards Group ('ESG') regarding an alleged incident on 7 October 2018 involving Mr Borkowski and several other officers that took place at the Princess Alexandra Hospital Secure Unit ('the Secure Unit');
- 15 allegations were investigated by the ESG;
- Allegations 12 and 13 of the investigation report concerned him (Mr Borkowski); and
- he (Mr McCahon) was of the view that in relation to those two allegations, Mr Borkowski may be liable for disciplinary findings pursuant to s 187 of the PS Act and that Mr Borkowski was required to show cause as to why a disciplinary finding should not be made against him.
- [9]The two allegations against Mr Borkowski were set out in this correspondence. In addition, significant particulars of each allegation were provided to Mr Borkowski in that correspondence.
Allegation 1
- [10]The first allegation was that on 7 October 2018, at the Secure Unit, Mr Borkowski failed to report suspected wrongdoing, namely, a use of force by a Correctional Supervisor ('CS') on a prisoner that was not reasonably necessary in the circumstances ('Allegation 1').
- [11]Mr McCahon informed Mr Borkowski that having considered the investigation material before him in respect of Allegation 1, he considered that Mr Borkowski may be liable to disciplinary action on the basis that:
- pursuant to s 187(1)(b) of the PS Act, Mr Borkowski was guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act; or in the alternative
- pursuant to s 187(1)(f)(ii) of the PS Act, Mr Borkowski had contravened, without reasonable excuse, a standard of conduct applying to him under an approved code of conduct under the Public Sector Ethics Act 1994, namely, the Code, specifically:
1.1 Commit to the highest ethical standards
As public service employees we are required to ensure that our conduct meets the highest ethical standards when we are fulfilling our responsibilities.
We will:
…
b. ensure our decision making is ethical
…
d. meet our obligations to report suspected wrongdoing, including conduct not consistent with this Code.
…
3.1 Commit to our roles in public service
Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.
We will:
…
e. adhere to the policies, organisational values and organisational documents of our employing agency.
Custodial Operations Practice Directive: Use of Force
Report Use of Force
Every officer that is directly involved in an incident where there has been a use of force must before proceeding off duty provide a written report to the General Manager detailing the nature of the force used in the reasons for the use of such force.; or in the alternative
- pursuant to s 187(1)(a) of the PS Act, Mr Borkowski had performed his duties carelessly, incompetently or inefficiently.
Allegation 2
- [12]The second allegation was that on 7 October 2018, Mr Borkowski prepared an inaccurate officer's report regarding an incident at the Secure Unit, involving a prisoner ('Allegation 2').
- [13]Mr McCahon informed Mr Borkowski that having considered the investigation material before him in respect of Allegation 2, he considered that Mr Borkowski may be liable to disciplinary action on the same basis as referred to in paragraph [11] of these reasons, except that there was no allegation of a contravention of cl 1.1 of the Code.
- [14]Mr Borkowski was provided with a redacted version of the investigation report dated 25 July 2019 including attachments, ch 6 of the PS Act, the Code, the Department of Justice and Attorney-General Workplace Policy and the COPD.
- [15]Mr McCahon afforded Mr Borkowski the opportunity to respond, within 14 days of receipt of Mr McCahon's letter, to show cause why disciplinary findings should not be made against him in relation to Allegations 1 and 2.
- [16]By letter dated 14 September 2020, Mr Jack McDonald, Solicitor of Sibley Lawyers, responded on Mr Borkowski's behalf ('Mr Borkowski's first response').
- [17]By letter dated 21 January 2021, Mr McCahon informed Mr Borkowski that having considered Mr Borkowski's first response, he determined that in relation to Allegation 1 and 2, both allegations were substantiated and that pursuant to s 187(1)(b) of the PS Act, Mr Borkowski had engaged in misconduct, namely, inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act. Mr McCahon informed Mr Borkowski that in relation to the taking of disciplinary action he was currently giving serious consideration to:
- a reduction of remuneration level from GS1-9 to GS1-7 for a period of 12 months and that the pay-point progression at the completion of that period would be in accordance with the Correctional Employees Award - State 2015;
- a direction to attend training regarding the Code and the COPD; and
- a reprimand ('the proposed disciplinary action').
- [18]Mr McCahon afforded Mr Borkowski a period of seven days to show cause why the proposed disciplinary action should not be taken.
- [19]By letter dated 5 February 2021 from Mr McDonald, on behalf of Mr Borkowski, submissions were made that the proposed disciplinary action should not be taken against Mr Borkowski ('Mr Borkowski's second response').
- [20]Then, by letter dated 27 May 2021, Mr McCahon informed Mr Borkowski that, after considering Mr Borkowski's second response, the proposed disciplinary action would be taken against him.
Mr Borkowski's grounds of appeal
- [21]In his appeal notice, Mr Borkowski contends:
I am appealing the decision by my employer to substantiate Allegation 1 and also the disciplinary action imposed with respect to both Allegation 1 and Allegation 2 of the attached decision. I have attached a copy of the disciplinary decision.
The basis for the appeal is that my employer's decision to substantiate Allegation 1 that I failed to report suspected wrongdoing of another officer was not a fair or reasonable decision given the circumstances of the incident. This includes the speed at which the incident occurred and the inability to view the footage of the incident prior to completing my officer's report, to properly assess if I believed there was wrongdoing that should have been reported. The fact that the officer concerned [name of CS deleted] has subsequently been cleared of any criminal wrongdoing lends weight to my decision at the time not to report his conduct.
In relation to the disciplinary action imposed, namely a reduction in paypoint, I believe this penalty to be disproportionate to the conduct alleged. This is the case given I have 34 years of service, during which time I have never been subject to any disciplinary action. My impeccable work history has not been properly considered by the Department in determining an appropriate punishment.
I also submit that the penalty imposed is disproportionate having regard to the penalty imposed on other officers' involved in the incident. I understand that the penalty imposed on other officer's involved in the incident was a lesser penalty than what was imposed on me.
I also believe that the penalty fails consider the fact that whilst my officer's report was not detailed in the nature of the force used, it was completed in circumstances where the incident unfolded extremely quickly and I did not have the opportunity to view footage of the incident before completing my officer report. Had I been able to do so, I would have been in a position to detail what occurred with much more specificity.
The punishment imposed will result in severe financial consequences for me, with the financial impact being approximately $15,000.
In all the circumstances, the punishment is unfair and unreasonable.
Mr Borkowski's submissions
Allegation 1
- [22]In his submissions, Mr Borkowski submitted:
Allegation 1:
- Under the Code of Conduct, public service employees are required to report suspected wrongdoing. This is accepted by the Applicant, and he is aware of these obligations.
- However, it is submitted that it was neither fair nor reasonable for the Respondent to conclude that the Applicant had failed to report [name of CS deleted] for suspected wrongdoing.
- In the footage of the incident, it can be determined that [name of CS deleted] use of force was not reasonably necessary. This was accepted by the Applicant when interviewed by investigators in relation to the incident on 11 April 2019. Importantly, the interview that occurred on 11 April was the first time Mr Borkowski was able to view the footage of the incident.
- It is common experience that human accounts of high adrenaline incidents such as use of force will, by nature, often include discrepancies and anomalies. The frailties of human recall in these circumstances are not unusual. The Applicant's failure to recall the incident with specificity should not derogate from the view that he is an honest, credible, and reliable officer.
- The following factors are pertinent to the consideration of why the Applicant did not immediately report [name of CS deleted] for suspected wrongdoing:
I. The Prisoner was an extremely volatile and unpredictable prisoner. The Applicant was therefore on high alert of the imminent risk to his safety. As such it was a high adrenalin incident, and the Applicant experienced a degree of what is described as "tunnel vision".
II. He recalled [name of CS deleted] physically engaging with the Prisoner, as outlined in his Officer Report, however, was in no position to assess any wrongdoing by [name of CS deleted] without the benefit of viewing the footage - it is axiomatic that in the environment he faced, he could not observe each and every detail, in particular the details that are recorded by CCTV from a different vantage point to his.
III. When provided with the benefit of CCTV footage, and with the benefit of hindsight, and ability to view the footage in an environment when he can properly analyse the incident (as opposed to at the time when events unfold rapidly) it became clear that use of force was not reasonable. The Applicant made this concession during the investigation process.
- The Applicant exercised caution in reporting any suspected wrongdoing, given the speed with which the incident unfolded, his inhibited recall of the incident, and the potential that the Applicant did not witness events or threats which [name of CS deleted] had observed, and which justified
![Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330](/judgmentview/image?name=350589.001.jpg&id=350589)
[name of CS deleted] engaging with the prisoner. It was reasonable for the Applicant, in these circumstances, to report that [name of CS deleted] had used force, which automatically triggered an independent review of the incident under the COPD, where an independent party could review the incident using CCTV and all the reports gathered from the incident to determine any wrongdoing on the part of [name of CS deleted] (which is what occurred).
- Had the Applicant had an opportunity to view the footage of the incident, it would have been clear to him that the force was not necessary or reasonable. Importantly, the Applicant has been informed that other officers were provided with the opportunity to view the footage before submitting supplementary officer's reports.
Allegation 2 and the discipline penalty
- [23]Mr Borkowski further submitted:
Allegation 2:
- The allegation that the Applicant was guilty of misconduct by providing an inaccurate officer's report, implicitly required the Respondent to establish that the Applicant had intentionally completed an inaccurate officer's report to mislead or conceal the actual events that occurred.
- Respectfully, this was not a conclusion open to the Respondent.
- It is accepted that the COPD: Use of Force requires all officer's that are directly involved in an incident where there is a use of force to provide a written report detailing the nature of the use of force and the reasons for the use of such force.
- Contained within the Officer's Report was the following:
...[Name of CS deleted] arrived and confronted the prisoner of the threats made to staff, then [name of prisoner deleted] spat in [name of CS deleted] face and at Supervisor [name of Supervisor deleted]. [name of CS deleted] pushed away the prisoner's head and engaged in the use of force. [Name of prisoner deleted] then yelled "I've got hep C and HIV" [name of CS deleted] left the room to wash his face…"
- For the reasons outlined above, the Applicant had difficulty recalling the exact force used by [name of CS deleted]. It is reasonable to conclude that had the Applicant nevertheless tried to particularise the force used, and wrongly described the use of force employed by [name of CS deleted], he would have faced a similar allegation of providing an inaccurate officer's report.
- It is submitted that expecting an officer to recall the specifics of an incident in granular detail is difficult when an event or incident unfolds quickly. Importantly, the Applicant did not intend to mislead the Respondent. The Applicant was aware that any use of force would be thoroughly investigated by the Respondent, who would have the benefit of the CCTV footage to assess the reasonableness of a use of force incident.
Fair and reasonable
- Notwithstanding the submission that the decision to substantiate the allegation was unsound, the Applicant also submits that if it is determined the decision to substantiate the allegation was justifiable, the following is relevant to whether the disciplinary action was fair and reasonable in the circumstances.
Financial impact
- Whilst the paypoint reduction is for a period of 12 months, it should also be noted that the Applicant's progression back to his original classification level will be in accordance with the award. It will therefore take the Applicant at least two years to progress back to his original classification level, if at all, and he will suffer significant financial impacts as a result.
- The financial impact is estimated to be more than $15,000 in year one alone, and approximately $2,874 in year two. The Applicant is currently 65 years of age and had intended to retire in this time, and due to the Defined Benefit under his Superannuation policy, he will suffer substantially more than this if he retires in the next two years, as intended. This is due to the Superannuation Defined Benefit being based on this annual income at the time of retirement.
- The impact of the proposed penalty is therefore far more severe that [sic] what was likely intended by the Respondent when determining an appropriate punishment.
Impacts of suspension
- The Applicant has already suffered significant mental and emotional anguish arising out [sic] being under investigation and subject to a show cause process since April 2019. This is a period of more than two years which the Applicant has been required to deal with the precarious position of not knowing the outcome of the current investigation and associated disciplinary process. This has had a profound effect on the Applicant's mental wellbeing. This is not a matter which was considered by the Respondent when determining appropriate punishment.
Exemplary work record
- The Applicant has been a CCO for more than 35 years. During this time, he has received no warnings, reprimands or been involved in any other disciplinary matters. When this was submitted to the Respondent during the show cause process, the Respondent concluded that it was 'extremely concerning that, although disciplinary findings of misconduct with respect to your conduct have been made against you, you continue to describe your work record as 'impeccable '". The Respondent erred in reaching this conclusion. The Respondent had been made aware that the Applicant intended to appeal the disciplinary finding of misconduct. The Respondent should have determined that more than three decades of exemplary service weighed against such serious disciplinary action. This is particularly the case given other officers involved in the incident received less severe punishments to the Applicant, presumably without the level of service and work history of the Applicant.
- The penalty imposed amounts to serious disciplinary action as defined within the Public Service Act, and this will have everlasting effects on the Applicant's employment with QCS and any future employment she [sic] seeks with the Queensland Public Service.
- [24]By way of conclusion, Mr Borkowski submitted that:
- having regard to the circumstances he had outlined, the proposed financial penalty was not fair or reasonable; and
- he was 65 years of age with more than three decades of exemplary service with QCS, and QCS failed to provide adequate weight to that fact, as well as the severe financial impact and the extra punishment already suffered by him, particularly given that the penalty imposed on him was identical, and in some cases, more severe than other officers involved in the incident.
Queensland Corrective Services' submissions
- [25]QCS submitted that the incident on 7 October 2018 at the Secure Unit was captured on CCTV which, in summary, showed:
- a CS directing the handcuffed prisoner to sit on a mattress, and then using force on the prisoner by stepping on the prisoner's handcuffs, grabbing the prisoner by the neck, and punching the prisoner in the face until other officers intervened; and
- the prisoner then spitting at the CS while he (the prisoner) was being restrained by other officers.
- [26]QCS then submitted that:
- Mr Borkowski produced an officer report of the incident that was significantly inconsistent with the CCTV footage, in that it described the CS's use of force on the prisoner as follows:
[The CS] arrived and confronted the prisoner of the threats made to the staff, then [the prisoner] spat in [the CS's] face and at [another officer]. [The CS] pushed away the prisoners [sic] head and engaged in the use of force. [The prisoner] then Yelled [sic] "I've got hep C and HIV"…; and
- subsequently, the two allegations (referred to above) were made against Mr Borkowski.
- [27]In terms of the disciplinary finding made by Mr McCahon about Allegation 1, QCS submitted that the matters Mr McCahon considered included that:
- the CCTV footage clearly shows Mr Borkowski was in the room and had a clear and unobstructed view of the CS using force on the prisoner during the incident;
- given Mr Borkowski's direct and close involvement in the incident, his submissions that he could not recall the events that occurred during the incident were less than frank;
- Mr Borkowski's submissions that he was not able to assess any wrongdoing without viewing the CCTV footage was inconsistent with his 34 years of experience as a CCO, in that punching prisoners in the face and placing them in choke holds are not approved restraint techniques and any reasonable person would conclude that the force the CS used on the prisoner was sufficient to raise a suspicion of wrongdoing that required immediate reporting;
- the CCTV footage showed the prisoner was handcuffed during the incident and entirely unable to protect himself and it was therefore clear the prisoner did not pose a threat to the CS or any other officer during the incident and that if Mr Borkowski had experienced 'tunnel vision' and was 'watching the prisoner' as he submits, he would have immediately recognised that the force the CS used on the prisoner amounted to wrongdoing and that he was required to report; and
- any occasion in which force is used on a prisoner is extremely serious, and must be promptly reported to the General Manager so that incidents can be properly reviewed and investigated (if appropriate).
- [28]In terms of the disciplinary finding made by Mr McCahon about Allegation 2, QCS submitted that the matters Mr McCahon considered included that:
- Mr Borkowski's report contained significant inaccuracies and misrepresented the nature of the force used by the CS on the prisoner;
- the use of force on the prisoner was extremely serious and should only be used in exceptional circumstances where it can be properly justified, and therefore any reports regarding the use of force must be as detailed and accurate as possible and while CCTV footage was available in this instance, it is not always the case;
- given the inaccuracies and omissions in Mr Borkowski's officer report, which was prepared on the same day as the incident, his submission that his report was accurate reflected poorly on his credit;
- the ability to respond to and manage intense or stressful situations involving prisoners, and the ability to accurately record those situations is an inherent requirement of the CCO role and it is quite reasonable for CCOs to be required to provide a contemporaneous report of an incident without having reviewed the relevant CCTV footage; and, at any rate, Mr Borkowski had an unobstructed view of at least parts of the interaction between the CS and the prisoner; and
- given the significant inaccuracies and omissions in the report, and Mr Borkowski's 34 years of experience as a CCO, it was likely Mr Borkowski intentionally submitted an inaccurate report to create a record which minimised the amount of force the CS used against the prisoner.
- [29]QCS submitted that:
- Mr McCahon considered each of the matters Mr Borkowski raised in his submissions during the disciplinary process as to whether the two allegations were substantiated and amounted to misconduct; and
- Mr McCahon's decision that Allegations 1 and 2 were substantiated were fair and reasonable and reasonably open on the available evidence.
- [30]In terms of Mr McCahon's decision to impose the penalty he imposed, QCS submitted:
- The Penalty took into account the Appellant's submissions, and reflected the seriousness of the Allegations, It is critical that officer reports of all incidents, but particularly those involving a use of force, are accurate. The Corrective Services Act 2006 allows corrective services officers to use force on prisoners only if certain criteria are met, Therefore, situations where force is used must be able to be scrutinised. While CCTV footage was available in this instance, in some instances, it is not. If CCTV footage of the Incident was not available, the Appellant's officer report would not have been a reliable record for any consideration of the force used in the Incident.
- When deciding to impose the Penalty, the Decision Maker considered various factors, including each of the factors contained in the Appellant's submissions.
- While the Decision Maker considered the impact of the Penalty on the Appellant's financial circumstances, the Appellant did not raise his retirement plans or the effect the Penalty would have on his superannuation (New Information) during the disciplinary process. In the Respondent's submission:
- the New Information is evidence that was not available to the Decision Maker when the decision was made. It is not appropriate for the New Information to be considered where it was within the Appellant's knowledge during the disciplinary process, but he did not make that submission; and
- further or in the alternative, the New Information does not alter whether the Penalty is fair and reasonable. The Appellant still has not stated the precise effect the Penalty will have on his superannuation policy. The Decision Maker accepted that the Penalty may result in financial repercussions for the Appellant, but this did not outweigh the seriousness of the Appellant's conduct.
- In the Respondent's submission, disciplinary action less than the Penalty would not adequately reflect the seriousness of the Appellant's conduct.
The disciplinary findings decision was fair and reasonable
Allegation 1
- [31]QCS attached to its submissions the investigation report, conducted by the ESG, of the incident that occurred on 7 October 2018 in the Secure Unit. An attachment to that investigation report was the CCTV footage of the incident.
- [32]I have viewed the CCTV footage of the incident. The CCTV footage of the incident is in real time. There is no audio recorded.
- [33]On the CCTV footage, from 04:03 up to 04:34, on the time counter on the CCTV footage, during which time the CS clearly used force on the prisoner on a number of occasions, the prisoner was either seated on, or standing at, the foot of a mattress located on the floor of the room. During the entirety of that time, Mr Borkowski was standing at the other end of the mattress and, in my view, had a clear view of the interaction between the CS and the prisoner, including each occasion the CS used force on the prisoner.
- [34]It is clear to me, on viewing the CCTV footage, that the prisoner was, as Mr Borkowski describes in his submissions, '… extremely volatile and unpredictable'. Mr Borkowski submitted that, for that reason, he was on high alert of the imminent risk to his safety, it was a high adrenaline incident and he experienced a degree of what he described as 'tunnel vision'.
- [35]Despite making that submission, Mr Borkowski states that while he recalled the CS '… physically engaging with the Prisoner', he was in '… no position to assess any wrongdoing' by the CS without the benefit of viewing the CCTV footage; and that it was axiomatic, in the environment he faced, that he could not observe each and every detail, in particular, the details that were recorded by the CCTV from a different vantage point to his.
- [36]Mr Borkowski also submitted that when provided with the benefit of the CCTV footage, and with the benefit of hindsight, and the ability to view the footage in an environment where he could '… properly analyse the incident (as opposed to at the time when events unfold rapidly)', it became clear that use of force was not reasonable. Mr Borkowski then submitted that had he had the opportunity to view the CCTV footage of the incident it would have been clear to him that the force was not necessary or reasonable.
- [37]The CCTV footage relevantly reveals the following:
- between 03:00 and 03:46, the prisoner is handcuffed by another CCO, being an action directly observed by Mr Borkowski;
- between 03:47 and 03:57, the prisoner walks towards and sits on the mattress at the foot of the mattress, with his back to the wall of the room;
- at about 03:58, there is a discussion between the CS and the prisoner during which time the CS points at the prisoner;
- between 04:03 and 04:08, the CS, using his left foot, stands on the prisoner's handcuffs while the prisoner is still seated;
- between 04:10 and 04:15, the prisoner stands up, the CS places his left hand on the prisoner's throat and forces the prisoner's head against the wall of the room and then punches the prisoner on the left side of the prisoner's face with his (the CS's) right fist;
- between 04:17 and 04:25, the CS stands behind the prisoner and places his arms around the prisoner's neck and shoulder area, and then throws the prisoner onto the mattress; and
- at 04:33, after the prisoner stands up, the CS slaps the prisoner on the left side of the prisoner's face with the open palm of his (the CS's) right hand.
- [38]I cannot accept any of Mr Borkowski's submissions. As referred to earlier, Mr Borkowski was approximately the length of a mattress away from the use of force by the CS on the prisoner. Not only was Mr Borkowski that distance away from the force being used by the CS on the prisoner, from my viewing of the CCTV footage, he had an unimpeded view of each time the CS used force on the prisoner. Indeed, on my observation of the CCTV footage between 04:03 and 04:34, during which time the CS used force on the prisoner, Mr Borkowski was directly and attentively observing the conduct of the CS.
- [39]There is no doubt Mr Borkowski is an experienced CCO, having 35 years of experience as a CCO.
- [40]Having regard to the terms of Allegation 1, the question is would a person in Mr Borkowski's position, namely, a CCO with his experience, viewing the force used by the CS on the prisoner, suspect that the force used was not reasonably necessary in the circumstances. Clearly, on what Mr Borkowski was able to view and did view, such a person would form a suspicion that the force engaged in by the CS was not reasonably necessary in the circumstances. This is because, during the time force was used, the prisoner was restrained by handcuffs and was surrounded by six other CCOs, including Mr Borkowski and excluding the CS.
- [41]Mr Borkowski does not dispute that he was required to report suspected wrongdoing and that he was aware of that obligation.
- [42]It was open to Mr McCahon to find that Allegation 1 was substantiated and that Mr Borkowski was guilty of misconduct within the meaning of s 187(1)(b) of the PS Act in that he failed to report suspected wrongdoing, namely, the use of force by the CS on the prisoner that was not reasonably necessary in the circumstances.
- [43]For these reasons, in my view, Mr McCahon's disciplinary finding decision, in respect of Allegation 1, was fair and reasonable.
Allegation 2
- [44]The material part of Mr Borkowski's report made on 7 October 2018, with the name of the CS redacted, is set out in paragraph 22 of his submissions which is referred to above in paragraph [23] of these reasons.
- [45]The COPD, in respect of reporting the use of force, provides:
Every officer that is directly involved in an incident where there has been a use of force must before proceeding off duty provide a written report to the Chief Superintendent, General Manager detailing the nature of the force used and the reasons for the use of such force.
- [46]Mr Borkowski submits that it was not open to Mr McCahon to conclude that he had intentionally completed an inaccurate report to mislead or conceal the actual events that occurred. Mr Borkowski submits that he had difficulty recalling the exact force used by the CS and that it was reasonable to conclude that he nevertheless tried to particularise the force used and wrongly described the force employed by the CS. Mr Borkowski also submitted that expecting an officer to recall the specifics of an incident in granular detail is difficult when an event or incident unfolds quickly and that he did not intend to mislead QCS.
- [47]I cannot accept any of these submissions.
- [48]Having regard to what was, in my view, Mr Borkowski's close and unimpeded view of the force used by the CS on the prisoner, I accept QCS's submissions that Mr Borkowski's officer report '… contains significant inaccuracies and misrepresented the nature of the force' used by the CS on the prisoner.
- [49]The use of force by the CS happened approximately 7 feet from where Mr Borkowski was standing and in circumstances where Mr Borkowski had an unimpeded view of the force used. I accept that the events occurred quickly, and that it may have been difficult for Mr Borkowski to give a minute description of each aspect of the force used. But the events of the CS standing on the prisoner's restrained hands, punching the prisoner in the face and throwing the prisoner onto the mattress were clear and distinct events. The whole time these events were occurring, Mr Borkowski was observing them. Nowhere in Mr Borkowski's report does he describe in any way these clear and distinct uses of force. Mr Borkowski merely stated that the CS '… pushed away the prisoner's head and engaged in the use of force.'
- [50]It was open to Mr McCahon to find that Allegation 2 was substantiated and that Mr Borkowski had engaged in misconduct within the meaning of s 187(1)(b) of the PS Act in that he prepared an inaccurate report regarding the incident.
- [51]For these reasons, in my view, Mr McCahon's disciplinary finding decision, in respect of Allegation 2, was fair and reasonable.
The discipline penalty decision was fair and reasonable
- [52]The aim of disciplinary proceedings is for the protection of the public[6] and the maintenance of public confidence.[7] It has been held, in respect of Queensland Police Service disciplinary proceedings, that the primary purpose of such disciplinary proceedings is the maintenance of public confidence in the Service and the maintenance of integrity in the performance of the duties of police officers.[8] In my opinion, these principles are equally applicable to the QCS and to CCOs because they provide an essential public service and the public must have confidence QCS and CCOs will act according to the law and with integrity.
- [53]Mr Borkowski submits that the disciplinary action taken against him, namely, a reduction in remuneration from GS1-9 to GS1-7 for a period of 12 months, and the resultant financial impact on him, is severe because:
- it will take him two years to progress back to his original pay point level;
- the financial impact on him, he estimates, will be $15,000 in the first year and then approximately $2,874 in the second year; and
- if he retires in the next two years, given he is currently 65 years of age, he will suffer more substantially given that he is a member of a Defined Benefit superannuation scheme.
- [54]Mr Borkowski also submits that QCS, in determining the discipline penalty, did not take into account the mental and emotional anguish from which he had suffered by being under investigation and subject to a show cause process since April 2019 and that it did not take into account his exemplary work record of over 35 years.
- [55]I accept that there will be an immediate impact on Mr Borkowski's remuneration by virtue of the first aspect of the discipline decision. However, in my opinion, a reduction in two pay‑points for a period of 12 months, having regard to the substantiated conduct against Mr Borkowski, is not disproportionate and is fair and reasonable. There are four reasons for my view.
- [56]First, it is obvious, having regard to the requirements of the COPD referred to earlier in these reasons, that QCS relies upon its CCOs to report their suspicions where force is used against a prisoner which may not be reasonably necessary. As QCS submits, if CCTV footage of the use of force observed by Mr Borkowski was not available, his report of the use of force by the CS would not have been a reliable record of what occurred. It is clear, having regard to the COPD, that such an obligation on a CCO is important to the proper and just administration of any facility for which QCS has operational responsibility. Mr Borkowski clearly failed in complying with that obligation. For this reason, Mr Borkowski's misconduct was serious.
- [57]Secondly, the reduction in pay‑point disciplinary action, which will have the reasonable effect of deterring Mr Borkowski from engaging in such conduct in the future, is fair and reasonable. A reduction in two pay‑points for a period of 12 months is a fair and reasonable way to ensure Mr Borkowski complies with his obligations into the future because of its financial impact on him.
- [58]Thirdly, such a sanction will maintain public confidence in QCS and its CCOs.
- [59]Fourthly, while Mr Borkowski states in his submissions that other officers involved received less severe punishment, he does not state the precise nature of their conduct or the disciplinary action imposed. As such, I cannot make a comparison of whether the disciplinary action imposed on Mr Borkowski is commensurate with that imposed on other CCOs.
- [60]There are other matters about which I will make comment.
- [61]The fact that Mr Borkowski may retire when being paid at a pay‑point below GS1-9, on QCS's submissions, was not something taken into account by Mr McCahon because Mr Borkowski did not raise it as part of the disciplinary process. For that reason, the failure of Mr McCahon to take that issue into account does not render the discipline penalty decision not fair and reasonable.
- [62]Pursuant to s 562B(4)(b) of the IR Act, for this type of appeal, I may allow other evidence to be taken into account if I consider it appropriate. However, no evidence was put before me that tended to prove that Mr Borkowski had made definite plans to retire within that two year period. Mr Borkowski's submissions about his retirement were equivocal. It was submitted that Mr Borkowski '... had intended to retire' in the two years it would take him to progress back to GS1-9 and that he would suffer more substantially, from a financial perspective, '… if he retires in the next two years, as intended.' The fact that Mr Borkowski may retire before another two years is not a sufficient basis to set aside the financial aspect of the discipline penalty decision.
- [63]The fact that Mr Borkowski has been a long-term employee of QCS and has a good record is not, on its own, a sufficient reason, having regard to the seriousness of his misconduct, to conclude that a reduction in his remuneration from GS1-9 to GS1-7 for a period of 12 months is disproportionate to his misconduct.
- [64]Mr Borkowski does not seem to take issue with the direction that he attend training regarding the Code and the COPD and that he be reprimanded. Even if I am wrong about that, those additional aspects of the disciplinary penalty decision, given the seriousness of his misconduct, are fair and reasonable in all the circumstances.
- [65]Finally, I accept that the disciplinary process may have had an effect on Mr Borkowski's mental state. However, all such processes are stressful for employees. That fact, on its own, is not a sufficient reason to conclude that the discipline penalty decision was not fair and reasonable given his serious misconduct.
- [66]For these reasons, Mr McCahon's discipline penalty decision was fair and reasonable.
Conclusion
- [67]The question in this case was whether the discipline findings decision and the discipline penalty decision were fair and reasonable.
- [68]For the reasons I have given, the discipline findings decision and the discipline penalty decision were both fair and reasonable.
- [69]The discipline findings decision and the discipline penalty decision are confirmed.
- [70]For the avoidance of doubt, I will revoke the stay I issued on 20 July 2021.
Orders
- [71]I make the following orders:
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decisions appealed against are confirmed.
- Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the discipline penalty decision appealed against, made on 20 July 2021, is revoked.
Footnotes
[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 ('Morison'), [4]‑[5] (Deputy President Merrell).
[2] Industrial Relations Act 2016 s 562B(2).
[3] Morison (n 1) [6].
[4] Industrial Relations Act 2016 s 562B(3).
[5] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.
[6] Nesbit v Metro North Hospital and Health Service [2021] ICQ 005, [99] (Davis J, President).
[7] Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397, 412 (Brennan J).
[8] Aldrich v Ross [2000] QCA 501; (2001) 2 Qd R 235, [42] (Thomas J A, Pincus JA at [1] and Muir J at [53] agreeing).