Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Weaver v State of Queensland (Queensland Corrective Services) - [2021] QIRC 413

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Weaver v State of Queensland (Queensland Corrective Services)[2021] QIRC 413

Weaver v State of Queensland (Queensland Corrective Services)[2021] QIRC 413

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Weaver v State of Queensland (Queensland Corrective Services) [2021] QIRC 413

PARTIES: 

Weaver, Paul

(Applicant)

v

State of Queensland (Queensland Corrective Services)

(Respondent)

CASE NO:

TD/2020/81

PROCEEDING:

Application for reinstatement

DELIVERED ON:

6 December 2021

HEARING DATES:

23-25 June 2021 inclusive

18 and 19 August 2021

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

  1. Pursuant to s 321(2) of the Industrial Relations Act 2016 (Qld), Mr Weaver is to be reinstated to his former position on conditions at least as favourable as the conditions on which he was employed immediately before dismissal.  
  1. Pursuant to s 321(4)(a) of the Industrial Relations Act 2016 (Qld), Mr Weaver’s continuity of employment shall be maintained between the date his dismissal took effect on 5 August 2020 and the date of reinstatement (the relevant period).
  1.  
  1. Pursuant to s 321(4)(b), (c) of the Industrial Relations Act 2016 (Qld), the Respondent shall pay to Mr Weaver:
  1. the remuneration lost, or likely to have been lost, by Mr Weaver because of the dismissal in the relevant period;

Less:

  1. the monies earnt by Mr Weaver in the relevant period; and
  1. the monies paid by the Respondent to Mr Weaver, by way of notice upon the termination of his employment; and
  1. any monies paid by the Respondent to Mr Weaver for any accrued entitlements upon the termination of his employment (provided those accrued entitlements are now to be reinstated).
  1. The gross amount shall be taxed according to Australian Law.
  1. Should the parties, within 21 days of date of reinstatement, be unable to agree on the amount of remuneration lost, either party has liberty to notify the Registrar and I will list the matter for further Directions to determine the amount of remuneration lost.
  1. Mr Weaver is to be reinstated within 22 days of the release of the date of this Order.

CATCHWORDS:

INDUSTRIAL LAW – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – unfair dismissal – where the applicant was asleep on duty – whether the applicant engaged in the conduct subject of the allegations – whether conduct gave rise to fair and reasonable disciplinary finding – whether the applicant's behaviour amounts to dereliction of duty – whether the applicant's behaviour amounts to misconduct – consideration of procedural fairness – whether the termination of employment was harsh, unjust or unreasonable – whether there was a loss of trust and confidence – order for reinstatement

LEGISLATION:

Evidence Act 1977 (Qld) s 7

Industrial Relations Act 2016 (Qld) s 316,

s 317, s 319, s 320, s 321, s 322, s 531

Public Service Act 2008 (Qld) s 187, s 188

CASES:

Antony Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226

Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116

Barclay v Nylex Corporation Pty Ltd [2003] AIRC 593

Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20

Briginshaw v Briginshaw (1938) 60 CLR 336

Byrne & Frew v Australian Airlines Ltd [1995] 185 CLR 410

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Gilmour v Waddell & Ors [2019] QSC 170

Gold Coast District Health Service v Walker (2001) 168 QGIG 258

Guymer v Workers' Compensation Regulator [2018] ICQ 009

Hargreaves and Local Government Standards Panel [2008] WASAT 300

Jones v Dunkel (1959) 101 CLR 298

Kioa v West (1985) 159 CLR 550

Laegal v Scenic Rim Regional Council [2018] QIRC 136

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 123

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

Power v Torres Strait Island Regional Council [2011] ICQ 7

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1

RHG Mortgage Ltd v Ianni [2015] NSWCA 56

Shane Joseph Farrell AND Q-COMP [2013] QIRC 19

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

The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067

White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041

APPEARANCES:

Mr J Sibley, solicitor, Sibley Lawyers with Mr J McDonald, solicitor, Sibley Lawyers for the Applicant.

Dr M J Brooks of counsel instructed by Ms N Smith, Crown Law for the Respondent.

Reasons for Decision

Background

  1. [1]
    Mr Paul Weaver (the Applicant) is a 57 year old[1] gentleman, married to wife Michelle and caring for three teenage stepdaughters.[2] 
  1. [2]
    Proud of his family's history working within law enforcement and correctional services,[3] Mr Weaver too commenced employment with the State of Queensland (Respondent) as a Custodial Correctional Officer (CCO), Queensland Corrective Services (QCS) on 31 March 2014.[4] 
  1. [3]
    Initially stationed at Woodford Correctional Centre (WCC) for two years, Mr Weaver subsequently served at Borallon Training and Correctional Centre (BTCC).[5] 
  1. [4]
    After only a few months at BTCC, Mr Weaver progressed to the role of Acting Correctional Supervisor (ACS).  He performed that supervisory function when required to do so throughout the following two years; otherwise continuing work in a CCO capacity.[6] 
  1. [5]
    Mr Weaver found his role rewarding,[7] sometimes also accepting overtime shifts working as a CCO at other locations, including at the Princess Alexandra Hospital Secure Unit (PAHSU).[8]
  1. [6]
    Mr Weaver had made diligent endeavours to advance in his career with QCS.  He outlined those efforts at the Hearing:

Mr Weaver: At that stage[9] I'd done my cert 3, I'd done my cert 4.  I think I may have also done the trainer and assessor assessment by then. I was on the roster committee at Borallon.  I was on the workplace health and safety committee.  I think around this time also I may have attended the academy[10] for a couple of days for a leadership-type training session that they'd run for a couple of days.[11]

Mr Weaver further contributed as a Violence Prevention Committee Representative[12] and was a point of reference for colleagues on policy and procedure matters, prisoner management issues and the like.[13]

  1. [7]
    Mr Weaver sometimes carried a copy of the Corrective Services Act 2006 (Qld) in his work bag, explaining that:

Mr Weaver: I just have an interest in reading the part of the legislation as part of the acting supervisor's role.  It was always handy to know some of the technical parts of stuff.  I would have it in my work bag to read with me, depending on where I was.[14]

  1. [8]
    Having performed the role of ACS for some time, Mr Weaver aspired to be ultimately appointed to the substantive position of Correctional Supervisor.[15]
  1. [9]
    However, allegations that Mr Weaver was sleeping on duty torpedoed his career trajectory.  Those allegations pertained to incidents at the PAHSU on 10 October 2018 and 15 October 2018, and again at BTCC on 28 January 2019.[16] 
  1. [10]
    An Ethical Standards Group (ESG) investigation was launched and found three 'unfit for duty' allegations to be substantiated. 
  1. [11]
    More than a year had elapsed after the third alleged incident when Mr Weaver was put on paid suspension.  A show cause process then ensued. 
  1. [12]
    Mr Weaver advised both the ESG investigator[17] and QCS[18] about the nature of the undiagnosed and untreated medical condition he suffered from at the time of the three incidents, the steps he had taken to remedy its impact on his ability to perform his role and emphasised the unintentional nature of the alleged 'misconduct'.[19]
  1. [13]
    Nonetheless, that show cause process finally culminated in the termination of Mr Weaver's employment on 5 August 2020.
  1. [14]
    Mr Weaver challenges that decision, on the grounds that the termination of his employment was harsh, unjust and unreasonable.  He filed his application for reinstatement on 21 August 2020.
  1. [15]
    The primary remedy Mr Weaver seeks is reinstatement, so he can continue to serve the community through his work with QCS.[20]

Questions to be decided

  1. [16]
    The matters to be considered in determining Mr Weaver's application are:
  • whether Mr Weaver engaged in the conduct subject of Allegation 1;
  • whether Mr Weaver engaged in the conduct subject of Allegation 2;
  • whether Mr Weaver engaged in the conduct subject of Allegation 3;
  • whether the conduct gave rise to a disciplinary finding that was fair and reasonable;
  • whether the alleged conduct constitutes 'misconduct' within the meaning of s 187(1)(b) of the Public Service Act 2008 (Qld) (PS Act);
  • whether Mr Weaver was afforded procedural fairness as per the considerations mandated by s 320 of the Industrial Relations Act 2016 (Qld) (IR Act);
  • consideration of other relevant matters mandated by s 320 of the IR Act;
  • whether the termination was harsh, unjust or unreasonable; and
  • whether reinstatement is impracticable or otherwise inappropriate.

Legislative scheme and legal framework

Harsh, unjust or unreasonable

  1. [17]
    Section 316 of the IR Act says that a dismissal is unfair if it is harsh, unjust or unreasonable.  The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.[21]
  1. [18]
    In Byrne & Frew v Australian Airlines Ltd, McHugh and Gummow JJ explained that (emphasis added):

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust.  In many cases the concepts will overlap.  Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[22]

  1. [19]
    Section 320 of the IR Act sets out the matters to be considered by the Commission in hearing an application under s 317 (emphasis added):

320  Matters to be considered in deciding an application

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

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  2. (b)
    whether the dismissal related to –
  1. (i)
    the operational requirements of the employer's undertaking, establishment or service; or
  1. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance –
  1. (i)
    whether the employee had been warned about the conduct, capacity or performance; or
  2. (ii)
    whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant.
  1. [20]
    In Laegal v Scenic Rim Regional Council,[23] O'Connor DP (as the Vice President then was) cited with approval the following extract from Chief Commissioner Hall's (as his Honour then was) decision from Stark v P&O Resorts (Heron Island) (emphasis added):

Where…an application…is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess where it should intervene to protect the application against a decision which is fundamentally one for the employer to make.  Ordinarily intervention will be justified only where the employer has abused the right to dismiss.  Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, be held immune from interference by the Commission….[24]

Misconduct

  1. [21]
    Section 187 of the PS Act relevantly provides (emphasis added):

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-

…

(b) been guilty of misconduct; or

…

  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.

…

  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.

  1. [22]
    The consideration of "misconduct" under s 187(4)(a) of the PS Act is central to this matter.
  1. [23]
    In the recent case of Ball v State of Queensland (Queensland Corrective Services) ('Ball'), O'Connor VP relevantly explained (emphasis added, citations omitted):[25]

[79] Apart from the definition of misconduct in s 187(4), the PS Act does not provide guidance as to what is meant by 'inappropriate' or 'improper' conduct.

[80] In Mathieu v Higgins & Anor, Daubney J was called upon to determine whether the conduct of a Paramedic in the performance of his duties constituted misconduct as defined in s 10(a) of the Queensland Ambulance Service ('QAS') Policy.  The term 'misconduct' is defined as 'disgraceful or improper conduct in an official capacity'.

…

[83] Daubney J, in considering s10(a) of the QAS Policy, was of the view that it is not appropriate to rigidly separate the definition into its component parts; the words 'disgraceful' and 'improper' are included in the definition as alternatives, but nonetheless should not be regarded as wholly independent.  Rather, each term should be read as giving colour to the other.   His Honour held that:

'[M]isconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct.  As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.

[84] Daubney J cited, with approval, the reasoning of Kirby P (as his Honour then was) in Pillai v Messiter (No.2) which addressed the meaning of the expression, 'misconduct in a professional respect' in the Medical Practitioners Act 1938 (NSW).  Kirby P said:

But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession.  Something more is required.  It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

  1. [24]
    In Ball,[26] O'Connor VP went on to cite with approval Merrell DP's considerations of 'misconduct' in Coleman v State of Queensland (Department of Education)[27] in these terms (emphasis added):

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[28]

  1. [25]
    Merrell DP adopted the same approach in The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service, in which he also held that (emphasis added):

In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies.[29]

  1. [26]
    Whether or not the Commission can be satisfied that 'misconduct' occurred is a separate question to whether or not the dismissal was harsh, unjust or unreasonable and thence whether Mr Weaver is entitled to a remedy under the IR Act.[30] 

When disciplinary action is authorised

  1. [27]
    If a disciplinary ground is established, disciplinary action may be taken under s 188(1) of the PS Act (emphasis added):

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. [28]
    One of the examples of disciplinary action listed in s 188(1) is termination of employment.  However, should it be found that Mr Weaver's dismissal was not authorised by the PS Act, a conclusion that the dismissal was unjust within the meaning of the IR Act may follow.[31]

Onus of proof

  1. [29]
    The onus is on Mr Weaver to demonstrate that his dismissal was unfair.[32] 
  1. [30]
    However, it is for the Respondent to establish that the disciplinary allegations against the Applicant are capable of being substantiated on the balance of probabilities, and that if substantiated, that the Applicant's actions satisfy the definition of misconduct.[33]

Standard of proof

  1. [31]
    In Ball,[34] O'Connor VP observed that:

In Stark v P & O Resorts (Heron Island), Chief Commissioner Hall (as his Honour then was) considered the appropriate standard of proof to be applied in an unfair dismissal case.  He wrote:

For myself, I would add, though it is not a proposition which is necessary to the decision in this matter, that whomsoever it is who the ultimate onus of proof in an unfair dismissal case, on a grave allegation of criminal misconduct the onus must inevitably shift to the proponent of the allegation and, equally inevitably, the higher onus described in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and M v M (1988) 166 CLR 69 at 76 to 77 must be applied, compare Byrne and Another v Australian Airlines Ltd. (1992) 192 per Hill J.[35]

Whilst it is correct that the standard of proof to be applied is on the balance of probabilities, it is not, in my view, correct for the Applicant to submit that the nature of the allegations is such that this is a case which requires a reversal of the onus.

Witnesses

  1. [32]
    The following witnesses were called by the Applicant:
  • Mr Paul Weaver, the Applicant himself;
  • Dr Lee, Consultant Physician in Respiratory and Sleep Medicine;
  • Dr Kumar, General Practitioner; and
  • Mr Raymond Perry, Custodial Correctional Officer, Borallon Training and Correctional Centre.
  1. [33]
    The following witnesses were called by the Respondent:
  • Mr Albert Singh, Custodial Correctional Officer, Escort and Security Branch;
  • Ms Marilyn Cook, Custodial Correctional Supervisor, Brisbane Women's Correctional Centre;
  • Mr Scott Krueger, Custodial Correctional Supervisor, Escort and Security Branch;
  • Ms Samantha Sheahan, Custodial Correctional Officer, Borallon Training and Correctional Centre;
  • Ms Jennifer Watts, Custodial Correctional Supervisor, Borallon Training and Correctional Centre;
  • Mr Peter Henderson, General Manager, Brisbane Correctional Centre, Queensland Corrective Services;
  • Mr Alan Houchin, Deputy General Manager Superintendent, Arthur Gorrie Correctional Centre;
  • Mr Kim Papalia, Assistant Commissioner, Professional Standards and Governance, Queensland Corrective Services; and
  • Mr Peter Shaddock, Assistant Commissioner, Central Northern Region Command, Queensland Corrective Services.

What is the relevance of Jones v Dunkel[36] to this matter?

  1. [34]
    The Respondent proposed that the Commission should draw a Jones v Dunkel inference, with respect to the Applicant's failure to call Mrs Michelle Weaver and Mr Michael Speck to give evidence at the Hearing.[37] 

Mrs Michelle Weaver

  1. [35]
    The Respondent submitted that:

…there is evidence which supports a finding that the applicant was aware of his tendency to fall asleep. Thus the applicant accepted in cross-examination that his wife told CCO Singh that he 'tends to doze off.'  The Commission will recall the applicant's wife was on the list of witnesses to be called by the applicant, but ultimately did not give evidence.  It follows the Commission should draw a Jones v Dunkel inference and conclude the applicant's wife would have confirmed that comment had she been called.[38]

  1. [36]
    It is true that Mrs Weaver was to be called as a witness for the Applicant's case.  Mrs Weaver appeared on the Applicant's List of Witnesses filed on 15 January 2021; however I note that she was not on the initial Applicant's List of Witnesses that was filed on 8 December 2020.  Her name also appeared on the draft Trial Plan prepared by the parties' representatives and filed on 11 June 2021. 
  1. [37]
    On Day 1 of the Hearing, Mr Sibley advised that Mrs Weaver would not now be called to give evidence.  No explanation for that change was offered by Mr Sibley though neither did I ask him for an explanation.
  1. [38]
    Dr Brooks indicated that change was also news to the Respondent.  She said:

Dr Brooks: I think we might want to cross-examine Ms Weaver – Mrs Weaver.  So we expected her to appear…[39]

…

Dr Brooks: …So we certainly weren't alerted to the fact that she would no longer be giving evidence.  Yeah, I'll take some instructions in the break and see how we feel about that.[40]

  1. [39]
    The Respondent then gave consideration to the matter of Mrs Weaver over an adjournment break. 
  1. [40]
    I was advised upon resumption of the Hearing that neither party required Mrs Weaver's evidence.  The matter seemed to have been settled between the representatives to both their satisfaction, in these terms:

Mr Sibley: Commissioner, returning to the discussions before the break –

Commissioner: Mrs Weaver and her –

Mr Sibley: We're not calling Mrs Weaver.  I understand there's no issue with that.

Dr Brooks: We don't need to cross-examine, Ms Weaver.

Commissioner: Okay.

Dr Brooks: Apologies.  I had low blood sugar, I think, pre lunch.

Commissioner: No, that's all right.  Okay.  So Mrs Weaver, don't worry about that.

Mr Sibley: Ms Weaver is to the side.

Commissioner: Yes.[41]

  1. [41]
    I consider that the Respondent waived their opportunity to question Mrs Weaver in the exchange reproduced above. 
  1. [42]
    Though the rules of evidence do not strictly apply,[42] it has been said that:

The Evidence Act 1977 deals with the competency and compellability of spouses in criminal and civil proceedings.  Section 7(2) of the Act applies in civil proceedings and provides that a husband or wife of a person who is a party to a proceeding, or on whose behalf a proceeding is brought or defended, is both competent and compellable to give evidence for any of the parties to the proceeding.[43]

  1. [43]
    At [35] above, I outlined that the Respondent submitted that "…the applicant accepted in cross-examination that his wife told CCO Singh that he 'tends to doze off'" and that Mrs Weaver's evidence would be relevant to whether "the applicant was aware of his tendency to fall asleep".  However, my review of the transcript does not reveal that Mr Weaver accepted his wife made that comment to CCO Singh,[44] the exchange instead was:

Dr Brooks: And I suggest to you that at that point she says "Can you keep an eye on him because he tends to doze off", or words along those lines.  Do you accept that it's possible she said that to him?

Mr Weaver: It's possible.  I don't recall it being said.[45]

  1. [44]
    The Applicant's closing submissions did not address me as to the relevance of Jones v Dunkel to this matter, with respect to any potential witness not called to give evidence.  However, the Respondent's closing submissions did so, with respect to both Mrs Weaver and Mr Speck, in the terms I have reproduced in this section of my Decision.
  1. [45]
    I have considered that an adverse inference should not be drawn against Mr Weaver in circumstances where he did not call Mrs Weaver as a witness, in accordance with the rule in Jones v Dunkel.[46]  This rule operates where there is an unexplained failure by a party to give evidence.  In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party.  However, unless the appropriate circumstances are present, the Commission will not be bound to draw the adverse inference.  Moreover, where the inference is drawn, the rule cannot be used to fill gaps in the evidence or to connect conjecture into suspicion.[47]  Importantly, such an inference "cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure".[48]  The question of whether any such inference should be drawn in the circumstances is best answered after considering all the other evidence in the matter.
  1. [46]
    This Commission is empowered to depart from rigid application of the rules of evidence by s 531 of the IR Act, though only in particular circumstances such as to allow the recall of witnesses where the rule in Browne v Dunn is concerned.[49]  In this instance, where both parties were represented, I see no reason for a departure from the rule in Jones v Dunkel on the basis of s 531.
  1. [47]
    Deputy President O'Connor, as he then was, summarised the relevant principles in Shane Joseph Farrell AND Q-COMP, as follows (citations omitted):[50]

The principle in Jones v Dunkel at its most fundamental is usually understood as an inference that can arise against a party who elects not to adduce evidence on a matter in issue.

Windeyer J, at 320 to 321, embraced the notion of "fear of exposure" on the part of the party who fails to call the witness, quoting Wigmore on Evidence:

"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party."

In Manly Council v Byrne & Anor, Campbell J cited the joint judgment of Gibbs A-CJ, Stephen, Mason and Aickin JJ in the High Court's decision in Brandi v Mingot to support the proposition that:

"Insofar as the passage from Wigmore approved the drawing of an inference that a witness if called would have exposed facts unfavourable to the party who failed to call that witness, it is not the law in Australia. . . [L]ater cases confirm that the fullest extent of the inference which can be drawn is that the evidence which was not called would not have helped the party who failed to call the witness" and at paragraph 51:

"Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn."

  1. [48]
    The principles in applying the rule in Jones v Dunkel were succinctly reiterated in RHG Mortgage Ltd v Ianni.[51]  In that case, the New South Wales Court of Appeal held that the circumstances for drawing a Jones v Dunkel inference are found where an uncalled witness is a person presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to that party.  The three conditions to be applied are: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained.  In that case, the Court of Appeal found that an adverse inference was open, as the witness would have been expected to be called and his evidence would have elucidated the matter, and his absence from the proceeding was unexplained.[52]
  1. [49]
    Mr Sibley gave no explanation to me as to why Mrs Weaver was no longer to be called – however there was clearly a conversation between he and Dr Brooks about the matter in the adjournment, the agreed outcome of which was reported to me upon resumption of the Hearing. 
  1. [50]
    The Applicant made no submission that a Jones v Dunkel adverse inference should not be drawn, or indeed is not open to be drawn either at the Hearing or in the subsequent closing submissions.
  1. [51]
    Mrs Weaver is the Applicant's wife and as such is considered to be in Mr Weaver's camp.  There has been no suggestion that the couple are not on good terms.
  1. [52]
    However, Mrs Weaver is also currently employed by QCS.  In that capacity, she was party to an alleged exchange with CCO Singh in which she was said to refer to Mr Weaver's propensity to doze off.  CCO Singh's recount of that conversation alone was later relied upon, in part, to terminate Mr Weaver's employment. 
  1. [53]
    In my view, it was open to either party to have called Mrs Weaver as a witness; although the Applicant's witness list indicated that he was to do so. 
  1. [54]
    I note that the Respondent did express that they may have wished to cross-examine her, and considered their position in the Hearing adjournment.  However, I also note that QCS did not interview Mrs Weaver or require her to submit an Officer's Report regarding the 10 October 2018 incident.  Instead they chose to solely rely on CCO Singh's account of what was said. 
  1. [55]
    Given Mr Weaver's current employment situation, he had indicated that Mrs Weaver "is still working so she was able to – she – she was still to do what she needed to do…" with respect to the care and support of their three daughters.[53]  In my view the combination of undertaking work as a CCO that is itself inherently risky, financial pressure and the strain of supporting her husband through a Hearing with very high-stakes for her family's future may have weighed too heavily upon Mrs Weaver.
  1. [56]
    As such, I do not draw an adverse inference against Mr Weaver as a result of Mrs Weaver not being called as a witness in these proceedings.  Neither can I draw a positive inference about what her testimony may have been.  The influence is neutral.

Mr Michael Speck

  1. [57]
    The Respondent submitted that "reinstatement is not appropriate because there has been a justifiable loss of trust and confidence" with respect to several factors.  Those included Mr Weaver's written response provided at interview with the ESG Investigator on 6 September 2019, in which he relayed:

…that Prisoner [X] had told him on 28 January 2019 that he 'knew' CCO Watts.  This was not correct. The applicant's written response indicates the applicant was prepared to make serious allegations against his co-workers, with no real evidence, to discredit them.  The applicant gave evidence that he prepared the document with Michael Speck…While the applicant said in 'hindsight the letter could well have been better articulated' but that he was 'frustrated'…Mr Speck was not called by the applicant to give evidence about the extent to which he prepared the written response.  It follows the Commission should draw a Jones v Dunkel inference and conclude Mr Speck would confirm the contents of the written response was based on information, including information about his co-workers without any basis or foundation, that came from the applicant.[54]

  1. [58]
    In circumstances where Mr Weaver accepted that "…it's not the case that you don't agree with any of those points in that letter",[55] notwithstanding he would have perhaps been more circumspect if not for his frustration, I don't consider the failure to call Mr Speck as a witness to be of any great significance.
  1. [59]
    I consider that Mr Speck's contribution to the questions to be decided at the Hearing of this matter would be tangential at best.  Very little turns on the extent of Mr Speck's involvement in the preparation of the letter presented by Mr Weaver to the ESG Investigator in my view.
  1. [60]
    As such, I do not draw an adverse inference against Mr Weaver as a result of Mr Speck not being called as a witness in these proceedings.  Neither can I draw a positive inference about what his testimony may have been. 
  1. [61]
    The influence is neutral.

Evidence and submissions

  1. [62]
    In a Directions Order dated 20 August 2021, written closing submissions were directed in the order Applicant – Respondent – Applicant (in reply, on issues of law only).
  1. [63]
    The Applicant's written closing submissions were filed on 8 October 2021.
  1. [64]
    The Respondent's written closing submissions were filed on 15 November 2021.  An attachment titled "Table summary of CCTV footage" was also submitted.
  1. [65]
    The Applicant's reply submissions were filed on 6 December 2021.
  1. [66]
    The evidence of the witnesses and exhibits tendered at the Hearing, together with the written closing submissions (and attachment) filed by the parties and their Statements of Facts and Contentions, were all considered in this Decision.  I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided.

Question 1: Whether Mr Weaver engaged in the conduct subject of Allegation 1

Allegation 1

  1. [67]
    The first allegation against Mr Weaver was (emphasis added):

That on 10 October 2018 you were derelict in the performance of your duties, when you were required to be alert and performing constant observations of a prisoner at the Princess Alexander Hospital Secure Unit.[56]

  1. [68]
    The Show Cause Notice – Liability for Disciplinary Findings (SCN-LDF) issued to Mr Weaver explained the problem with the alleged conduct as:

Your actions on 10 October 2018 including closing your eyes, dozing and/or being asleep for short periods of time, placed yourself, your fellow officers, the prisoner and the public at risk.

Your actions also created a potential security risk in that you were in no condition to respond to an emergency had the situation required for it.[57]

  1. [69]
    The SCN-LDF advised Mr Weaver that he may be liable to disciplinary action on the following basis (emphasis added):

(a) Pursuant to s 187(1)(b) of the Act, in that you have been guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).

Alternatively,

(b) Pursuant to s 187(1)(a) of the Act, in that you have performed your duties carelessly, incompetently or inefficiently.

Alternatively,

(c) Pursuant to s 187(1)(f)(ii) of the Act, in that you have contravened, without reasonable excuse, a standard of conduct applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, namely the Code of Conduct for the Queensland Public Service (the Code)…[58]

  1. [70]
    The Show Cause Notice – Decision on Disciplinary Action (SCN-DDA) issued to Mr Weaver finally concluded that (emphasis added):

In respect to Allegations 1, 2 and 3, pursuant to section 187(1)(b) of the Public Service Act 2008 (the Act), you are guilty of misconduct, namely inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).[59]

  1. [71]
    It is noted that the allegation investigated by the ESG was earlier cast as (emphasis added):

That on 20 October 2018 you were not fit for duty at your post at the Princess Alexander Hospital Secure Unit.[60]

Nature of the shift on 10 October 2018

  1. [72]
    Mr Weaver was working an overtime shift of 12 hour duration, 6 am to 6 pm.[61] 
  1. [73]
    The CCO duties he was required to perform was "constant open door observations of a prisoner who had been self harming".[62]  This involved "monitoring the prisoner to ensure his safety, and maintain the security of the PAHSU (where the prisoner was located)."[63]
  1. [74]
    Mr Weaver and CCO Singh were the pair of Officers assigned to perform the duties with respect to that particular prisoner for that shift.  They were "located at the doorway of room 20, and were seated in two armchairs."[64]
  1. [75]
    Mr Weaver had assessed his own fitness for duty prior to commencement of the shift.[65] 

Was Mr Weaver "awake and alert" and "performing constant observations" of a prisoner?

  1. [76]
    It is not disputed that Mr Weaver had more than likely succumbed to microsleeps on 10 October 2018.  Mr Weaver "accepts that he was more than likely asleep or dozing for brief moments on the relevant dates." [66]
  1. [77]
    Dr Lee's medical evidence was that people suffering from untreated Severe Obstructive Sleep Apnoea (SOSA) commonly fall asleep for brief periods:

It is common for people to fall asleep briefly in untreated obstructive sleep apnoea.[67]

  1. [78]
    Dr Lee stated that it would only be a matter of minutes[68] and that:

…if people have very light sleep, transition sleep for 30 seconds or a minute, they may not know that they have actually fallen asleep at that time.[69]

  1. [79]
    The Applicant submits that the video footage shows Mr Weaver's microsleeps occurred for "very brief periods…best described as the head dropping and immediately startling awake."[70]
  1. [80]
    The Respondent noted that the video footage showed Mr Weaver to be not moving at 6.33.52 am, 6.34.40 am, 8.43.57.48 am, 1.08.15.77 pm, 1.08.50 pm and 2.44 pm.  Mr Weaver did not recall being asleep and was not aware that he had been asleep at those times, though he did accept that it were possible he may have succumbed to microsleep at various times.[71] 
  1. [81]
    With respect to the 6.33.52 am time stamp, Mr Weaver concluded:

I don't recall being asleep at that time.  I – I guess from the footage, its difficult to tell.  I'm not moving but – … you know, I could well be.  I might have had a microsleep… But I don't – look, I don't recall being asleep at that time.  No.[72]

  1. [82]
    With respect to the 6.34.40 am time stamp, Mr Weaver said "I don't recall" what he was doing at that point.  His evidence was that:

Mr Weaver: I may have been asleep.  I may have been watching the television.  I may have been watching the prisoner.  I mean, exactly what it is I don't recall but certainly it would be seen as if I'm – had a microsleep.

Mr Sibley: Is it your normal posture to sit there and watch the prisoner in that sort of position?

Mr Weaver: Yes.

…

Mr Sibley: Not move?

Mr Weaver: Yeah.  Exactly.

…

Mr Weaver: And depending on what you're doing, if I was reading something, I may have been reading, if I was focused on something –

Mr Sibley: Yes?

Mr Weaver: I would have been sitting fairly still, I'd imagine.

Mr Sibley: And is it the case that no one's told you that you're asleep and no one's tried to -?

Mr Weaver: That's right.

Mr Sibley: - wake you?

Mr Weaver: I don't recall anyone telling me that.

Mr Sibley: Yes.  Yes?

Mr Weaver: At that point on that day.

Mr Sibley: And you weren't aware if you were asleep?

Mr Weaver: That's – yeah.  If I was asleep, I certainly wasn't aware that I was asleep.

Mr Sibley: Okay.  So as far as we can see, you were simply sitting still?

Mr Weaver: Yes.[73]

  1. [83]
    However, with respect to the 8.43.57.48 am time stamp, Mr Weaver did agree that "Yes, certainly possible.  Yes"[74] that he was asleep at that point.
  1. [84]
    It cannot be the case that Mr Weaver was "awake and alert" during the microsleeps he succumbed to on that shift, noting though that was for brief periods at a time.
  1. [85]
    With respect to the duty to "perform constant observations" of the prisoner, the records variously showed either Mr Weaver's or CCO Singh's initials at 15 minute intervals as required, confirming the observations performed by the CCO pair throughout the 12 hour shift.[75]  However, that differs from the requirement of "constant observations" to continually watch the prisoner.  The video footage showed that Mr Weaver was discharging the duty, other than the periods of microsleep.

Response to emergency

  1. [86]
    An incident did occur on that shift that Mr Weaver responded to with alacrity.  When the prisoner fell to the ground moving from the bed to the toilet, it was left to Mr Weaver to raise the alarm for medical assistance and enter the prisoner's room immediately.[76] 
  1. [87]
    The video footage showed that CCO Singh was absent from his post at the doorway without first arranging another CCO to relieve him, both at that critical time and at several other times for extended periods during that shift.  Mr Weaver was left alone.
  1. [88]
    As Mr Weaver was at least on the spot when the incident occurred, I consider he was better placed to respond to that emergency situation and indeed did so.
  1. [89]
    That incident was subject of the only Officer's Report completed with respect to Mr Weaver on that shift.

Did Mr Weaver intend to sleep on duty?

  1. [90]
    The video footage shows Mr Weaver taking active steps to ensure his alertness throughout the shift, including reading, conversing, drinking tea, standing and moving from a sedentary position.[77] 
  1. [91]
    Further Mr Weaver had not positioned himself in such a manner that would increase his risk of falling asleep.
  1. [92]
    In my view, Mr Weaver could not be said to be indifferent as to whether or not he succumbed to fatigue.

Did Mr Weaver know he had been asleep on duty?

CCO Singh's account

  1. [93]
    CCO Singh is with the Escort and Security Branch and has worked for QCS for approximately 15 years.  He was also on a rostered day off when he accepted the overtime shift at the PAHSU.[78]
  1. [94]
    CCO Singh provided an Officer's Report[79] six days after the incident and accepted that was the most accurate recollection of events.[80]
  1. [95]
    CCO Singh's Officer's Report claimed that from 6:10 am until approximately 8:30 am, Mr Weaver was falling asleep continually:

CCO Paul Weaver commencing from 0610 Hours was falling off to sleep continually.  I shook him a few times but he continued.

…

At approximately 0830 I informed the Acting Supervisor Scott Krueger that CSO Weaver was constantly closing his eyes and to speak with him whether he requires relief.[81]

  1. [96]
    CCO Singh's evidence was that he had prodded Mr Weaver on two or three separate occasions,[82] prior to speaking with CCS Krueger about it at 8:30 am.[83]
  1. [97]
    However, in cross-examination when the video footage was viewed, CCO Singh accepted that the first occasion he became aware that Mr Weaver was asleep was at 8:43:54 am:

Mr Sibley: Okay.  But you – do you agree with me that this is the first occasion that you have become aware that he is asleep?

CCO Singh: Yes.

Mr Sibley: And you've woken him up by touching him?

CCO Singh: Yes.

Mr Sibley: Okay.  Do you accept that you did not say to him anything about him being asleep?

CCO Singh: I'm not sure whether I said it there or maybe later.

Mr Sibley: Maybe later?

CCO Singh: Yeah.

Mr Sibley: All right.  So these things that you said that you had been doing on two, maybe even three occasions to – to wake up my client prior to going and seeing Mr – Officer Krueger at around 8:30, do you accept that, in fact, this is when that has happened?  The first instance that we've seen of you being aware that my client is asleep and waking him up is at 8:43.  Do you accept that?

CCO Singh: Eight-forty-three.

Mr Sibley: Okay.  That's the first instance that you become aware of it?

CCO Singh: Yes.[84]

  1. [98]
    CCO Singh asserted that Mrs Weaver came to visit Mr Weaver at his post at about 6:40 am, potentially 15 minutes either side.[85]  CCO Singh stated that Mrs Weaver said words to the effect of "just keep an eye on him"[86] (meaning Mr Weaver) and that it had not been a joking conversation. 
  1. [99]
    In his evidence in chief, CCO Singh said that he had informed Mr Weaver he was sleeping and that Mr Weaver replied "I'm okay. I'm okay".[87]  That was not included in either his Officer's Report or interview with the investigator "because he didn't ask me".[88] 
  1. [100]
    In cross examination, CCO Singh said Mr Weaver did not respond when he told him he had been asleep:

Mr Sibley: What was his response when you said "You're sleeping"?

CCO Singh: Say it again.  I ---

Mr Sibley: What was Mr Weaver's response , now that you're telling us that you told him that he was asleep?

CCO Singh: He didn't say anything.

Mr Sibley: He didn't say anything?

CCO Singh: No.

Mr Sibley: So is it possible he wasn't even aware that you had said that?

CCO Singh: He was aware, but he said – I mean, he did not make any comment when I said, "Mate, you are sleeping."[89] 

However, earlier in his evidence in chief, CCO Singh stated that Mr Weaver did reply:

Dr Brooks: Okay.  Now, did you do anything when you saw Mr Weaver was asleep?

CCO Singh: Yes.  I actually prodded him a couple of times to say, "Hey, mate.  Get up."

Dr Brooks: And when you say you prodded him a couple of times, do you mean you prodded him twice in succession or on two separate occasions?

CCO Singh: I think two or three separate occasions.

Dr Brooks: All right.  Did you say anything to Mr Weaver?

CCO Singh: Yeah.  I told him, "Mate, you're – you're falling off to sleep."

Dr Brooks: And what did Mr Weaver say in response?  Do you recall?

CCO Singh: He'd say, "I'm okay.  I'm okay." [90]

  1. [101]
    CCO Singh's Officer's Report and evidence is inconsistent with the video footage, in that:
  • In cross examination, CCO Singh accepted that Mr Weaver had not been continuously falling asleep from 6:10 am until 8:30 am when he spoke to CCS Krueger, as he had claimed in his Officer's Report.[91]  CCO Singh agreed that Mr Weaver's first confirmed microsleep was at 8:43:54 am according to the video footage. 
  • The only time CCO Singh prods Mr Weaver awake is at 8:43 am.  He had not shaken him a few times before he went to speak to CCS Krueger as claimed in his Officer's Report.[92]
  • Mrs Weaver visited Mr Weaver and CCO Singh at 8:48am, in which a short jovial conversation occurs.  The Applicant submitted that:

The brevity of the interaction between CCO Singh and Ms Weaver explains why CCO Singh may have believed this was not the interaction where he believed Ms Weaver said those words.  In any event a statement to "Keep your eyes on him" does not infer that the Applicant or Ms Weaver was in any way aware the Applicant was at risk of falling asleep.[93] 

  1. [102]
    Despite the inconsistency between the video footage, Officer's Report and ESG interview, CCO Singh's confidence in his own evidence was indefatigable.  CCO Singh's Officer's Report was prepared 6 days after the incident occurred and is itself inconsistent with the video footage in several respects. 
  1. [103]
    One would presume inherent challenges in being asked to recall an incident with precision at an ESG interview and thence at a Hearing of the matter.  Indeed the Respondent submitted that:

It is not unreasonable that more than three years after a shift, CCO Singh could not recall the precise number of occasions on which he touched the applicant.[94] 

  1. [104]
    Bluntly, CCO Singh himself did not agree.  When it was suggested to him that he was placed in an unenviable position being asked to recall events some 11 months earlier within the investigation process, he was not concerned that his memory may have faded after 11 months had elapsed and neither was he concerned that his "memory of an incident two and a half, maybe three years later might be somewhat faulty as well."[95] 
  1. [105]
    In my view, a failure to make sensible concessions throughout his evidence impacted on CCO Singh's credibility as a witness.

CCS Krueger's account

  1. [106]
    CCS Krueger has worked with the QCS since 2012.  He has been Acting Correctional Supervisor at the Escort and Services Branch for the past 5 years and was based at the PAHSU on this day.[96]
  1. [107]
    CCS Krueger's evidence was that it had been reported to him that Mr Weaver appeared to be asleep and that he had checked on him when doing his rounds. 
  1. [108]
    CCS Krueger suggested that he had seen Mr Weaver asleep and when calling out to Mr Weaver, he woke up and it appeared he wasn't aware that he was asleep and carried on as if nothing had happened.[97]
  1. [109]
    CCS Krueger's Officer's Report stated he had confronted Mr Weaver about falling asleep on duty and offered to arrange a break if he required it.[98] 
  1. [110]
    CCS Krueger's oral evidence was that he offered Mr Weaver a relief break, however he resiled from the statement in his Officer's Report.  Instead, CCS Krueger confirmed that at no time that day did he tell Mr Weaver he had been asleep:[99]

Mr Sibley: Right.  So he didn't say anything about being asleep at that time, did he?

CCS Krueger: No.

Mr Sibley: And you didn't either, did you?

CCS Krueger: To my recollection…

Mr Sibley: No?

CCS Krueger: No.

  1. [111]
    I found CCS Krueger to be an honest and credible witness.  He gave a clear account of his recollection of the first two allegations and was an objective witness in these proceedings.
  1. [112]
    CCS Krueger,[100] CCS Watts[101] and Mr Henderson[102] each gave evidence that an officer would be asked to complete a report if they had been found asleep.  On the occasion of the second allegation, CCS Krueger did just that.  The fact that CCS Krueger did not ask Mr Weaver to write an Officer's Report that day supports the position that he did not witness him asleep nor tell him others had observed him to have been asleep.

NUM's email

  1. [113]
    Evidence was given that the Nurse Unit Manager (NUM) had observed that Mr Weaver appeared to be asleep and had subsequently emailed Mr Peter Coyne.  In that email, the NUM said she had reported her concern to CCS Krueger and observed that:

I am not sure why the second officers at the post do not take it upon themselves to rectify these situations and wait for the nursing staff to initiate reporting as was the case on Wednesday.[103]

Mr Weaver's account

  1. [114]
    Mr Weaver did not recall anyone telling him he was asleep, or indeed waking him up:[104]

Mr Sibley: All right.  Now at any stage during that shift do you recall falling asleep?

Mr Weaver: No, I don't.  No.

Mr Sibley: Okay.  Do you recall anyone telling you that you were asleep?

Mr Weaver: No. No, I don't.

Mr Sibley: Do you recall anyone waking you up during the shift?

Mr Weaver: No.

  1. [115]
    Mr Weaver indicated that it was entirely normal for an officer to be asked if they required a break and no inference was to be drawn from that.[105]

Consideration

  1. [116]
    So the sum of all those accounts is that whilst there were a number of staff who apparently saw Mr Weaver's microsleeps during that shift, CCO Singh alone did not resile from his claim to have told Mr Weaver of it. 
  1. [117]
    In the circumstances, I quite agree with the Applicant's submission that:

…the evidence of Singh is impossible to reconcile with the fact he left Mr Weaver for considerable periods of time on his own to watch the unrestrained prisoner.[106]

  1. [118]
    In several critical elements, CCO Singh's Officer's Report, statements to the ESG investigator and oral evidence are inconsistent with the actual video footage.[107]  At the Hearing, CCO Singh also gave contradictory evidence as to whether or not Mr Weaver responded when he told him he was asleep.[108]
  1. [119]
    Throughout his evidence, Mr Weaver steadfastly held that he did not recall falling asleep, no one told him he had been asleep and he did not recall waking up or being woken from sleep. 
  1. [120]
    The medical expert supported the possibility that SOSA sufferers can microsleep during the day without knowing it.  Dr Lee's evidence was that it is possible for someone suffering SOSA to fall asleep and be woken by someone touching their leg, and not being aware they were asleep, or that they had just awoke:

Mr Sibley: …If the person is asleep for a brief period, which as I understood, your opinion was up to minutes – if during that period somebody put their hand on their leg and even twice and the person then woke up, is it possible that that person, the sleeping person that is wouldn't be as well aware that someone else had touched their leg and they have woken up and not been aware of being asleep?

Dr Lee: Yes, with the – yes, is the simple answer but as often, the whole context needs to be taken into consideration, such as how long had they been actually asleep for, did they wake up for a long period of time, and then before falling back asleep, if they fell asleep, first of all.  So I think the simple answer is, yes, it is possible, particularly if they weren't aware of the fact that they were asleep in the first place.

Mr Sibley: Okay.  And would it also be particularly the case if that person didn't actually then say to them about being asleep after they have woken?

Dr Lee: You wouldn't know.

Mr Sibley: You wouldn't know.  All right?

Dr Lee: You wouldn't know.  When the awareness of symptoms is not there in the first place, why would you think that you would have fallen asleep in the first place if you give me an Epworth Score of four, say.

Mr Sibley: Yes.  You would just carry on as though nothing had happened?

Dr Lee: Exactly…[109] 

  1. [121]
    In weighing the evidence before me, I believe Mr Weaver's account.  CCS Krueger confirmed in cross examination that he had not told Mr Weaver that he had been asleep.  While the NUM reportedly saw Mr Weaver asleep, it is not contended that the NUM raised the matter directly with him.  The medical evidence also supports that someone with SOSA can be woken without having been aware that they had been asleep. 
  1. [122]
    In light of all that, the outlier position was that of CCO Singh.  I was entirely unimpressed with CCO Singh as a witness.  CCO Singh was confident to the point of dogmatic in his evidence, however that was belied by his patchy recall of the facts.  Throughout his evidence, CCO Singh failed to make sensible concessions until confronted with the clear contradiction of the video footage.  I did not consider his responses to be measured and objective.
  1. [123]
    I find that Mr Weaver was not informed and did not know that he had been asleep on duty on 10 October 2018.[110]

Did Mr Weaver know that he had a propensity to fall asleep at that time?

  1. [124]
    Mr Weaver's evidence was that he did not know that he had a propensity to microsleep at that time, as his medical condition was as yet undiagnosed.
  1. [125]
    Before commencing his shift on 10 October 2018, Mr Weaver thought himself fit for duty.[111] That is consistent with the medical evidence.  Dr Lee confirmed that SOSA sufferers "can wake pretty refreshed" [112] and that "it can be common for people to feel that they have been asleep the whole night". [113]
  1. [126]
    I have earlier considered CCO Singh's account of an exchange with Mrs Weaver at about 6:40 am,[114] in which Mrs Weaver reportedly said words to the effect of "just keep an eye on him (Mr Weaver)"[115] and that the comment was not in jest.  The video footage showed the time of Mrs Weaver's visit to be both considerably later[116] and light-hearted in tenor.  Mr Weaver was present and did not recall any such exchange.  There is no evidence before me that an exchange occurred in the terms described by CCO Singh, other than his own.  To the extent of any inconsistencies between the evidence of Mr Weaver and CCO Singh, I prefer the evidence of Mr Weaver for the reasons I have outlined above.
  1. [127]
    The medical expert evidence of Dr Lee confirmed the diagnosis of Mr Weaver's medical condition as SOSA and he described its impact as follows:

Mr Sibley: …so a person who suffers from this level of severe sleep apnoea, is it fair to say that they're not getting enough quality sleep during that period that they're in bed?

Dr Lee: It is, it is.  So there's no good quality sleep here whatsoever, I think, looking at this – looking at the sleep test.

Mr Sibley: All right.  And is it possible that a person with this score may not be aware that they're having this sleep apnoea issue?

Dr Lee: It is possible [indistinct].[117]

  1. [128]
    Dr Lee gave evidence that Mr Weaver would not have considered himself to be sleepy with an Epworth Score of four.[118]  He explained:

Dr Lee: Without knowing any more of Mr Weaver, I guess the number that speaks most to me of Mr Weaver's unawareness of his symptoms is actually the Epworth Score, the ESS score of four.  Which is a self-completed questionnaire of self-reported sleepiness.  It is a validated tool for us to assess someone's awareness of their sleepiness whereby a score of less than 10 we would consider not sleepy.  Anything more than 10 on that score, we would suggest that it – it would suggest that they are sleepy – they're reporting that they're sleepy.[119]

…

Dr Lee: We use that score to assess someone's awareness of their sleepiness symptoms, if you like.  So there are certain limitations but its validated [indistinct] when it's completed honestly, the person – I would say that Mr Weaver wasn't very aware that he was asleep – he was sleepy.[120]

…

Mr Sibley: But clearly, he is sleepy if he's falling asleep without notice – if that's something that's occurring?

Dr Lee: Well, yes.  I will qualify that statement.  I think he doesn't feel sleepy so it's possible for him to fall asleep briefly without noticing that he has fallen asleep because simply, he hasn't been aware of it.[121]

  1. [129]
    For all of those reasons, I find that Mr Weaver did not know that he had a propensity to microsleep at that time.

Allegation 1 Findings

  1. [130]
    In summary, I find that:
  • Mr Weaver was not "alert and performing constant observations of a prisoner at the Princess Alexander Hospital Secure Unit" for the entirety of the 12 hour shift on 10 October 2018;
  • Mr Weaver had succumbed to brief periods of microsleep during that shift, due to his undiagnosed and untreated medical condition (SOSA) at that time;
  • an incident did occur on that shift that Mr Weaver responded to with alacrity; 
  • Mr Weaver did not intend to sleep on duty;
  • Mr Weaver did not know that he had been asleep on duty; and
  • Mr Weaver did not know that he had a propensity to fall asleep at that time.

Question 2: Whether Mr Weaver engaged in the conduct subject of Allegation 2

  1. [131]
    The second allegation was (emphasis added):

That on 15 October 2018 you were derelict in the performance of your duties, when you were required to be alert and performing constant observations of a prisoner at the Princess Alexander Hospital Secure Unit.[122]

  1. [132]
    The Show Cause Notice – Liability for Disciplinary Findings (SCN-LDF) issued to Mr Weaver explained the problem with the alleged conduct as:

Your actions on 15 October 2018 including closing your eyes, dozing and/or being asleep for short periods of time, placed yourself, your fellow officers, the prisoner and the public at risk.

Your actions also created a potential security risk in that you were in no condition to respond to an emergency had the situation required for it.[123]

  1. [133]
    The SCN-LDF advised Mr Weaver that he may be liable to disciplinary action on the following basis (emphasis added):

(a) Pursuant to s 187(1)(b) of the Act, in that you have been guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).

Alternatively,

(b) Pursuant to s 187(1)(a) of the Act, in that you have performed your duties carelessly, incompetently or inefficiently.

Alternatively,

(c) Pursuant to s 187(1)(f)(ii) of the Act, in that you have contravened, without reasonable excuse, a standard of conduct applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, namely the Code of Conduct for the Queensland Public Service (the Code)…[124]

  1. [134]
    The Show Cause Notice – Decision on Disciplinary Action (SCN-DDA) issued to Mr Weaver finally concluded that (emphasis added):

In respect to Allegations 1, 2 and 3, pursuant to section 187(1)(b) of the Public Service Act 2008 (the Act), you are guilty of misconduct, namely inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).[125]

  1. [135]
    It is noted that the allegation investigated by the ESG was earlier cast as (emphasis added):

That on 15 October 2018 you were not fit for duty at your post at the Princess Alexander Hospital Secure Unit.[126]

Nature of the shift on 15 October 2018 

  1. [136]
    Mr Weaver was working an overtime shift of 12 hour duration, 6 am to 6 pm.[127] 
  1. [137]
    The CCO duties he was required to perform was "constant observation duties of the prisoner".[128]  The open door observations involved "monitoring the prisoner so that she did not attempt to harm herself in any way."[129]
  1. [138]
    Mr Weaver and (then CCO, now CCS) CCS Cook were the pair of Officers assigned to perform the duties with respect to that particular prisoner for that shift.  They were "located at the doorway of room 3 and were seated in two armchairs."[130]

Was Mr Weaver "awake and alert" and "performing constant observations" of a prisoner?

  1. [139]
    It is not disputed that Mr Weaver had more than likely succumbed to microsleeps on 15 October 2018.  Mr Weaver "accepts that he was more than likely asleep or dozing for brief moments on the relevant dates." [131]
  1. [140]
    The Respondent noted that the video footage showed Mr Weaver to be not moving at 9.04.58.95 am, 9.05.07.23 am, 9.05.42 am, 9.23.01 am, 9.23.10.42 am and 1.43.20 pm.  Mr Weaver did not recall being asleep and was not aware that he had been asleep at those times, though he did accept that it were possible he may have succumbed to microsleep at various times.[132] 
  1. [141]
    With respect to the 9.04.58.95 am time stamp, Mr Weaver's evidence was that he did not recall being asleep, was not aware that he had been asleep, no one spoke to him at that time about being asleep – though he did accept that it was "absolutely possible" that he may have succumbed to microsleep.[133]
  1. [142]
    With respect to the 9.05.07.23 am time stamp, Mr Weaver asserted that "I certainly believe I am awake because I'm not aware that I was asleep". Although he agreed that he may have fallen asleep and woken up because "…certainly, my being able to view the footage, it's obvious that that's certainly something that could have happened" as "I was startled, yes.  Yep."  At that time, Mr Weaver accepted that he may have succumbed to microsleep.[134]
  1. [143]
    With respect to the 9.05.42 am time stamp, Mr Weaver concluded he did not recall being asleep, was not aware that he had been asleep, no one spoke to him at that time about being asleep – though he did accept that it was "certainly possible" that he may have succumbed to microsleep.[135]
  1. [144]
    With respect to the 9.23.01 am time stamp, Mr Weaver said that he was not aware that he had been asleep, CCS Cook had not spoken to him at that time about being asleep, he had no recollection of CCS Cook touching him, tapping him or the like, he had no recollection of making a snoring, snorting or any other sort of noise – though he did accept that it appeared he had another brief episode where he had startled.[136]
  1. [145]
    With respect to the 9.23.10.42 am time stamp, Mr Weaver concluded he did not recall being asleep and was not aware if he had been asleep.
  1. [146]
    With respect to the 1.43.20 pm time stamp, Mr Weaver observed the footage to show CCS Krueger coming down the hall and CCS Cook sitting beside him outside the prisoner's room.  He said he was not aware that he was asleep.  Mr Weaver's evidence was that he and CCS Krueger then went up the corridor together.  At that point, he was told by CCS Krueger that he thought he might have been asleep and was asked to do an Officer's Report.[137]
  1. [147]
    With respect to the video footage of the incident subject of Allegation 2, the ESG investigator described Mr Weaver's observed behaviours as:

…sleeping, dozing, in very short bursts, a minute, a minute and a-half, and then you're awake…[138]

  1. [148]
    CCS Cook's evidence was:

Dr Brooks: How long were his eyes closed for?

CCS Cook: Well, it – it depends how long he was asleep for at the time.  Like, it could be a couple of seconds sometimes, and then at other times, it could be like up to 30 – 40 seconds, and I'd give him a tap with my foot.[139]

  1. [149]
    CCS Cook accepted that the statement contained in her Officer's Report that Mr Weaver "continually was falling asleep and snoring"[140] was harsh, given the video footage showed that he had not been asleep prior to 9 am.[141]
  1. [150]
    In paragraphs [77]-[78] above, the medical evidence described that people suffering from untreated SOSA commonly fall asleep for brief periods.  The statements of the ESG investigator and CCS Cook, the medical evidence and video footage are all consistent on that point.
  1. [151]
    As I have previously observed in my consideration of Allegation 1, it cannot be the case that Mr Weaver was both "awake and alert" and succumbing to microsleeps, even if it were the case that was for brief periods.
  1. [152]
    With respect to the duty to "perform constant observations" of the prisoner, the records variously showed either Mr Weaver's or CCS Cook's initials at 15 minute intervals as required,[142] confirming the observations performed by the CCO pair throughout the shift until "CCO Weaver off post" at 4:10 pm.[143]  However, I appreciate that initialling the Constant Observation record sheet is not the same as the express requirement to constantly observe the prisoner at risk of self-harm. 
  1. [153]
    At 1:43 pm,[144] CCS Krueger directed Mr Weaver to prepare an Officer's Report after observing him to be asleep on duty.[145]  Mr Weaver was not of course undertaking constant observations of the prisoner in that period of absence, whilst he was meeting with CCS Krueger and composing his Officer's Report.  However, the video footage showed that Mr Weaver was otherwise discharging the duty to perform constant observations.

Response to emergency

  1. [154]
    No emergency requiring response arose in the period that Mr Weaver was on duty that day.

Did Mr Weaver intend to sleep on duty?

  1. [155]
    The video footage shows Mr Weaver taking active steps to ensure his alertness throughout the shift, including reading, watching television, conversing, drinking tea, standing and moving from a sedentary position.[146] 
  1. [156]
    Further Mr Weaver had not positioned himself in such a manner that would increase his risk of falling asleep.  CCS Cook's evidence confirmed that Mr Weaver had not done anything deliberately to make himself comfortable so that he could take a nap.[147]
  1. [157]
    In my view, Mr Weaver could not be said to be indifferent as to whether or not he succumbed to fatigue.

Did Mr Weaver know he had been asleep on duty?

CCS Cook's account

  1. [158]
    CCS Cook is a Custodial Correctional Supervisor at Brisbane Women's Correctional Centre and has worked for QCS for more than 31 years.[148]  She was working as a CCO at the PAHSU on this day.
  1. [159]
    CCS Cook's Officer Report stated that Mr Weaver had been continually falling asleep and snoring and that she had woken him on several occasions.  CCS Cook wrote that she reported the situation to CCS Krueger at approximately 10 am.  Further, that when CCS Krueger was doing his rounds he found Mr Weaver asleep and removed him from his post at about 1:30 pm.[149]  CCS Cook does not claim to have told Mr Weaver that he had been asleep in her Officer's Report.
  1. [160]
    At the Hearing, CCS Cook confirmed that her claim that Mr Weaver was continually sleeping between 6:15 am and 10 am was harsh,[150] in light of the video footage that showed Mr Weaver had not been asleep before 9 am.
  1. [161]
    In her interview with the ESG Investigator, CCS Cook indicated that she thought Mr Weaver had been aware that he had been asleep on occasion because he tapped his legs and "jumped" upon waking.  She said "he would say sorry mate" and asked her to nudge him.[151] 
  1. [162]
    At the Hearing, CCS Cook's evidence was:

CCS Cook: I tapped him on the foot a few times, which woke him up.

Dr Brooks: All right.  And what did you observe of Mr Weaver after you'd tapped him on the foot?  What did he do, if anything?

CCS Cook: Well, what he was doing was, he was tapping his hands on his knees like that.  And – and –

Dr Brooks: When was he doing that?

CCS Cook: And he would –

Dr Brooks: After?

CCS Cook: After I nudged him –

Dr Brooks: Right?

CCS Cook: and he'd say, "Sorry Cookie", and then he'd just tap his hands and then –

Dr Brooks: And what would happen after that?

CCS Cook: Then he'd start snoring again.[152]

  1. [163]
    CCS Cook couldn't recall whether anyone had told Mr Weaver that he had been asleep prior to CCS Krueger directing him to write an Officer's Report.[153]  CCS Cook then affirmed the proposition that it was likely that any exchange between Mr Weaver and herself about him having been asleep would have happened after he came back from meeting with CCS Krueger.[154]
  1. [164]
    In cross examination, CCS Cook further agreed that Mr Weaver's request that she just nudge him if he falls asleep was made after he had returned from writing his Officer's Report as directed and after being told by CCS Krueger that he may have been asleep.  CCS Cook indicated that Mr Weaver's comment was apologetic.
  1. [165]
    In re-examination, CCS Cook explained that Mr Weaver had apologised to her when she had tapped his foot to wake him and again after his return from CCS Krueger's office after 1:45 pm.[155]  However, in earlier evidence, CCS Cook had also agreed with the proposition put to her that Mr Weaver had "woken up and carried on as though nothing's happened".[156]
  1. [166]
    The Applicant has submitted that CCS Cook's evidence is inconsistent on the exact time or times that Mr Weaver apologised to her.[157]  That is significant in my consideration of whether Mr Weaver knew he had been asleep on duty.  However, that is to be expected in circumstances where CCS Cook readily agreed that it was difficult for her to recall the details of an incident that had taken place some 10 months prior to the interview with the ESG investigator where she hadn't been given the opportunity to first view the video footage.[158]  It is also the case that, in cross examination, CCS Cook accepted that given the time that had elapsed she may have conflated her recollections into one overall description of the incident as a general commentary.[159] 
  1. [167]
    My impression of CCS Cook was that she was straight-forward and fair-minded.  She is an experienced Officer who presented as having a clear sense of her duty to QCS, colleagues and prisoners alike.  As a witness, CCS Cook made sensible concessions and gave an objective account of matters as she was able to recall them.

CCS Krueger's account

  1. [168]
    In his Officer's Report, CCS Krueger stated that CCS Cook advised him at approximately 10 am that "it appeared Paul Weaver was falling asleep and had to constantly talk a bit louder and nudge him to keep him awake."  CCS Krueger wrote that, at about 11:15 am:

I said that it wasn't acceptable for anyone to appear to be asleep, especially on an open door.  He acknowledged my comments…[160]

While completing his rounds at approximately 1:45 pm, CCS Krueger noted:

…it appeared Paul had fallen asleep again.  I called out his name a couple of times and he appeared to wake up.  I spoke to Paul again and advised him that this is totally unacceptable and I would arrange for you to be relieved while a report is submitted…[161]

  1. [169]
    At the Hearing, CCS Krueger's evidence was that Mr Weaver appeared to be asleep when he walked up behind him[162] at 11:15 am[163] but that he woke up once CCS Krueger spoke to him.[164]  CCS Krueger then asked whether Mr Weaver needed a break, to which he replied that he did not need a break and was not fatigued.[165] 
  1. [170]
    CCS Krueger's account was that:

Dr Brooks: All right.  Officer Krueger, after you had that conversation with custodial supervisor Cook, what did you do?

CCS Krueger: After that, I went and did my rounds which I think was at approximately 11:15.  I went down to see for myself just to keep an eye on – on Mr Weaver.  And it appeared that he was asleep at that particular time.  And I had to call out his name a couple of times for him to wake up.  And I outlined to him that this is totally unacceptable and there'd been a couple of complaints in regard to you falling asleep.  And I said this is a safety and security issue, not only for yourself but for the medical staff and you fellow officer, and also the prisoner as well.  And if you require fatigue break, let me know so I can organise a relief for you.  Because I don't want to have officers here causing a safety and security issue with these prisoners.

Dr Brooks: And did Mr Weaver respond to you?

CCS Krueger: He did, yes.

Dr Brooks: And what did he say?

CCS Krueger: And he said that he was fine; he didn't require a break.[166]

  1. [171]
    In cross-examination though, CCS Krueger accepted that Mr Weaver may not have known he was asleep at approximately 11:15 am that day:

Mr Sibley: What if they weren't aware that they were asleep?  What if they'd just woken up and they didn't know that they'd been asleep; would that change your view about they should do?

CCS Krueger: Most – most likely would.  Yes.

Mr Sibley: Okay.  So, in fact, if they weren't aware that they were asleep, even though they've just woken up, they may feel that they're not fatigued?

CCS Krueger: They may initially not feel that they're fatigued, initially.

Mr Sibley: Yes.  And they would say, "I'm not fatigued.  I don't need a break, Boss"?

CCS Krueger: Which is – which is what – which is what he claimed.  Yes.

Mr Sibley: What did he say?

CCS Krueger: Yes.

Mr Sibley: He said, "I don't feel fatigued", and he may not even have known he was asleep?

CCS Krueger: It's quite possible he may not have known.[167]

  1. [172]
    CCS Krueger accepted that it was "quite possible" that Mr Weaver may not have known he was asleep at the time of the 11:15 am exchange. 
  1. [173]
    I note that the exchange between CCS Krueger and Mr Weaver shown in the video footage is very brief at that time stamp.[168] I believe CCS Krueger's later account in cross-examination to be more likely the words and tenor of that 11:15 am exchange with Mr Weaver, resulting in Mr Weaver not being aware that he had been asleep but instead simply offered a break in the usual course.  In my view, CCS Krueger is most likely to have conflated his two exchanges with Mr Weaver that day – attributing the words he spoke to Mr Weaver at 1:45 pm to the earlier exchange at 11:15 am in his evidence-in-chief and then correcting the recollection in cross-examination.  That rings true in my mind.
  1. [174]
    In cross examination, CCS Krueger agreed that if he had told Mr Weaver that he was asleep at 11:15 am he would have directed him to prepare an Officer's Report.[169]
  1. [175]
    Then later in the shift at approximately 1:45 pm, CCS Krueger saw Mr Weaver asleep at his post, told him that and so directed that he complete an Officer's Report. 
  1. [176]
    CCS Krueger then took steps to replace Mr Weaver for the duration of that shift.  However, that did not occur until approximately 4:10 pm.
  1. [177]
    The Applicant submitted that:

It logically follows that this was the first time Krueger had gone so far as to notify the Applicant that he was asleep on either 10 October or 15 October.  This was confirmed under cross examination.[170]

Other Officers

  1. [178]
    The video footage also shows a group of CCOs positioned opposite Room 2 as they waited to move a prisoner, behind where Mr Weaver was seated on a chair. 
  1. [179]
    CCS Cook gave evidence that the group of about five CCOs all observed Mr Weaver asleep and laughed about it, but that none told him of that nor offered him a break.[171] 
  1. [180]
    She had advised the ESG investigator of those other witnesses and was told that he had spoken with the officers that were on shift that day and including NUM who had complained in relation to the matter.[172]  CCS Cook expressed her surprise to learn that the only people interviewed in relation to the 15 October 2018 incident was CCS Krueger, Mr Weaver and herself.[173]

Mr Weaver's account

  1. [181]
    Mr Weaver did not recall anyone telling him he was asleep, or indeed waking him up until CCS Krueger spoke to him at approximately 1:45 pm:[174]

Mr Weaver: That says at 13:45 is when the – Scott Krueger come and spoke to me.

Mr Sibley: So at – from reading that, what is your recollection about that conversation that you're referring to?

Mr Weaver: That's – that's when he called me aside and said how he thought that I may have been asleep.

Mr Sibley: Yes?

Mr Weaver: And that he'd ask me to prepare a report about it.

  1. [182]
    Sometime before lunch, Mr Weaver's evidence was that CCS Krueger came up the corridor to speak to him whilst CCS Cook was in the prisoner's room.  Mr Weaver did not recall him saying anything about being asleep at that point, only that CCS Krueger asked him if he was okay to which he responded in the affirmative.  Mr Weaver was unsurprised by CCS Krueger's inquiry, believing him to be just doing his normal rounds.[175]
  1. [183]
    Mr Weaver's evidence was that CCS Cook had not spoken to him about being asleep prior to CCS Krueger speaking to him about it and directing him to write an Officer's Report after 1:45 pm.[176]  When Mr Weaver returned, it was he who broached the subject with CCS Cook and apologised to her:

Mr Sibley: All right.  You then – your evidence was that you then returned to the post?

Mr Weaver: That's right.

Mr Sibley: What do you recall about Officer Cook and what happened after that?

Mr Weaver: Look, I remember getting back there and I – I'd – given that I'd had the day with Marilyn and I hadn't worked with her before, I apologised.  I said to her, "Scott's just mentioned this to me."  I apologised for it, because I was working with her.  And, as I say, I stood up for – for the – the best I could for the remainder of the time to – to avoid anything like that happening.

Mr Sibley: Okay.  Do you remember the words that you used when you said these things to her?

Mr Weaver: Oh, I – I was – I don't remember the exact words, but I do remember apologising.  I would have said, "Sorry that happened."

Mr Sibley: Sorry what happened?

Mr Weaver: Sorry that Scott – "Scott had mentioned to me that I may have gone to sleep.  I'm – I'm sorry about that.  I'm sorry that hap – that happened.

Mr Sibley: Okay?

Mr Weaver: Yeah.  And that – it just would have been an apology that I'd made to her, but the exact words – I can't remember exactly was it was.[177]

Consideration

  1. [184]
    With respect to the three Officer's Reports composed about the incident:[178]
  • CCS Cook does not claim to have told Mr Weaver that he had been asleep;
  • CCS Krueger wrote that he told Mr Weaver "it wasn't acceptable for anyone to appear to be asleep" at approximately 11:15 am.  When completing his rounds at about 1:45 pm, CCS Krueger noted that "…it appeared Paul had fallen asleep again" at which time he directed him to write an Officer's Report and commenced the process of arranging for Mr Weaver to be relieved for the remainder of the shift; and
  • Mr Weaver stated that CCS Krueger told him that he "may have been asleep" at 1:45 pm. 

All three reports were prepared on 15 October 2018.

  1. [185]
    With respect to the interviews with the ESG Investigator:
  • CCS Cook stated that she had a conversation with Mr Weaver about being asleep "a few times".  She told the ESG Investigator:

So I said to him mate you can't sleep, I understand that it's a boring post and you might nod off and that sort of stuff but I said you just can't sleep.  I mean snoring and everything, it wasn't just sleeping, he was snoring.[179]

CCS Cook said that Mr Weaver was aware that he had been asleep "By the tapping of his legs and the jumping" and that "he would say sorry mate" and "he asked me to nudge him and I said mate I'm not your mother."[180]

As I have earlier noted, CCS Cook readily owned that it was difficult to recall the details of an incident that had taken place some 10 months prior to the interview with the ESG investigator, in circumstances where she hadn't first been given the opportunity to view the available video footage.  

  • CCS Krueger told the ESG Investigator that at about 11:15 am, he had called out Mr Weaver's name "and I can't remember exactly but I think I may have said do you need to be relieved and he told me no I'm not fatigued…"[181]  Then at about 1:45 pm, CCS Krueger agreed that it appeared that Mr Weaver had fallen asleep again and said "…yeah this is totally unacceptable.  You know he'd told me he's not fatigued and yet he's fallen asleep again, yeah."[182]
  • Mr Weaver told the ESG investigator that he didn't recall CCS Cook saying anything to him about being asleep.  Mr Weaver stated that CCS Krueger had asked him if he was okay and he replied in the affirmative, adding that CCS Cook was in the prisoner's room talking with her.[183]  He also confirmed that neither the nurses or doctors said anything to him about being asleep.[184]
  1. [186]
    With respect to the evidence given at the Hearing:
  • CCS Cook's evidence was inconsistent as to whether or not she had expressly told Mr Weaver that he was asleep prior to him meeting with CCS Krueger.  She accepted that she did not say to Mr Weaver that "she was not his mother" and instead clarified that was 'internal dialogue'.  Foundationally though, CCS Cook accepted that her recollections may have been unknowingly conflated into one overall description of the incident as a general commentary in light of the time that had now elapsed;
  • CCS Krueger accepted that Mr Weaver may not have known he was asleep.  At the point CCS Krueger told Mr Weaver it appeared he had fallen asleep at approximately 1:45 pm, he was directed to write an Officer's Report;
  • Dr Lee's evidence supported the possibility that SOSA sufferers can microsleep during the day without knowing it.  Dr Lee agreed that included the possibility that they could be woken by someone touching their leg, and not being aware they were asleep, or that they had just awoke; and
  • Throughout his evidence, Mr Weaver steadfastly held that he did not recall falling asleep, no one told him he appeared to be asleep until CCS Krueger did so at approximately 1:45 pm and he did not recall waking up or being woken from sleep.[185]  Mr Weaver's clear account was that he apologised to CCS Cook after returning from meeting with CCS Krueger and submitting his Officer's Report, when he first was told that he may have been asleep.
  1. [187]
    In weighing the evidence before me, I believe Mr Weaver's account. 
  1. [188]
    CCS Cook's evidence differed as to whether or not she had told Mr Weaver he had been asleep, prior to the exchange initiated by Mr Weaver upon his return from submitting his Officer's Report after 1:45 pm.  Importantly, CCS Cook's Officer's Report made no mention of her telling Mr Weaver he had been asleep and her recount of events to the ESG Investigator was not entirely accurate, with respect to the "I'm not your mother" commentary being later accepted as 'internal dialogue'.  In my view, CCS Cook's observation of the challenges inherent with such interviews being conducted almost a year after the event and absent the opportunity to first view the video footage are most apposite.  I note also her sensible concession that she may have conflated the account of the shift into a general commentary.  All that is entirely understandable and casts no negative light on her personally or professionally. 
  1. [189]
    CCS Krueger's Officer's Report stated that he had told Mr Weaver at 11:15 am that it was not acceptable to appear to be asleep.  That contrasts with the account to the ESG Investigator that he had asked Mr Weaver if he needed to be relieved at that time, to which he replied that he wasn't fatigued.  That is of course quite different.  In his evidence at the Hearing, CCS Krueger accepted that Mr Weaver may not have realised that he had been asleep prior to 1:45 pm when he was directed to write an Officer's Report.
  1. [190]
    The medical evidence also supports that someone with SOSA can be woken without having been aware that they had been asleep. 
  1. [191]
    Mr Weaver gave a consistent account that he did not recall falling asleep, no one told him he appeared to be asleep until CCS Krueger did so at approximately 1:45 pm and he did not recall either waking up or being woken from sleep. 
  1. [192]
    I find that Mr Weaver did not know that he had been asleep on duty on 15 October 2018 until advised by CCS Krueger at approximately 1:45 pm that it appeared he had fallen asleep.[186]  Between that time and when he was relieved from the shift, Mr Weaver recalled:

…standing up for the remain of – the best that I could for the remainder of the time that I was there, to avoid anything like that happening again –[187]

Did Mr Weaver know that he had a propensity to fall asleep at that time?

  1. [193]
    Mr Weaver's evidence was that he did not know that he had a propensity to microsleep at that time, as his medical condition was as yet undiagnosed.
  1. [194]
    Before commencing his shift on 15 October 2018, Mr Weaver thought himself fit for duty.  His evidence was that he had absolutely no expectation that he was going to fall asleep.[188]  That is consistent with the medical evidence of Dr Lee, as described above. 
  1. [195]
    At the beginning of the shift, Mr Weaver stated that he made a joke with CCS Cook about falling asleep:

Mr Weaver: …I remember saying to Marilyn – we talked about how – what – did we have

anything to read except – I remember saying to her how boring is today going to be – I know it's a 12 hour shift – see if I look like I'm – anyone's fallen asleep we'll tap them on the foot.  That was said by me.  That's the normal banter that you'd say to any officer in those circumstances.

Mr Sibley: Is that – are you saying that that's something that you said in jest?

Mr Weaver: It's actually said in jest and it's a common thing that's said between officers when you take up a post like that.  It's certainly said in jest and in no way did I say that by inferring that I was going to fall asleep and would you wake me up.  It was just something that was said in jest as a comment.

  1. [196]
    After being spoken to by CCS Krueger at approximately 1:45 pm, Mr Weaver apologised to CCS Cook upon returning to his post, in the terms detailed at paragraph [164] above and:

I stood up for – for the – the best I could for the remainder of the time to – to avoid anything like that happening.

At 4:10 pm, he was relieved from duty.

  1. [197]
    I have earlier explained that the totality of CCS Cook's account was inconsistent.  Her Officer's Report did not claim to have advised Mr Weaver he had been asleep prior to being directed by CCS Krueger to write an Officer's Report.  Her account to the ESG Investigator was infected by the lengthy passing of time and absent the opportunity to view the video footage in order to refresh her memory.  At the Hearing, CCS Cook readily owned her recollection of events to be in terms of a "general commentary" and further did not have a clear recollection of sequence and timing. 
  1. [198]
    There are also some inconsistencies in CCS Krueger's recall of events between his Officer's Report, statement to the ESG Investigator and his evidence at the Hearing.  While his Officer's Report stated that he told Mr Weaver that it was not acceptable to appear to be asleep at 11:15 am, CCS Krueger told the ESG Investigator that he may have asked Mr Weaver if he needed to be relieved to which he replied that he wasn't fatigued.  CCS Krueger also reasonably acknowledged at that time that he couldn't remember exactly events that had occurred almost a year earlier.  At the Hearing, CCS Krueger accepted that Mr Weaver may not have known he was asleep before he expressly told him that he appeared to have fallen asleep at approximately 1:45 pm, at which time he was told to submit an Officer's Report.
  1. [199]
    Mr Weaver's evidence was that he first became aware that he had succumbed to microsleeps when advised by CCS Krueger at 1:45 pm. 
  1. [200]
    Dr Lee's medical evidence is also consistent with Mr Weaver's account:

…I think he doesn't feel sleepy so it's possible for him to fall asleep briefly without noticing that

he has fallen asleep because simply, he hasn't been aware of it.[189]

  1. [201]
    To the extent of any inconsistencies between the evidence of Mr Weaver, CCS Krueger and CCS Cook, I prefer the evidence of Mr Weaver for the reasons I have outlined above.
  1. [202]
    For all of those reasons, I find that Mr Weaver did not know that he had a propensity to microsleep at that time.

Allegation 2 findings

  1. [203]
    In summary, I find that:
  • Mr Weaver was not "alert and performing constant observations of a prisoner at the Princess Alexander Hospital Secure Unit" for the entirety of the 12 hour shift on 15 October 2018;[190]
  • Mr Weaver had succumbed to brief periods of microsleep during that shift, due to his undiagnosed and untreated medical condition (SOSA) at that time;
  • Mr Weaver did not intend to sleep on duty;
  • at approximately 1:45 pm, Mr Weaver was first advised by CCS Krueger that it appeared he had fallen asleep.  He was then directed to write an Officer's Report and was relieved from duty at 4:10 pm; and
  • Mr Weaver did not know that he had a propensity to fall asleep at that time.

Question 3: Whether Mr Weaver engaged in the conduct subject of Allegation 3

  1. [204]
    The third allegation was (emphasis added):

That on 28 January 2019 you were derelict in the performance of your duties, when you were required to be alert and performing constant observations of a prisoner at the Borallon Training and Correctional Centre Health Centre.[191]

  1. [205]
    The Show Cause Notice – Liability for Disciplinary Findings (SCN-LDF) issued to Mr Weaver explained the problem with the alleged conduct as:

Your actions on 28 January 2019 including closing your eyes, dozing and/or being asleep for short periods of time, placed yourself, your fellow officers, and the prisoner at risk.

Your actions also created a potential security risk in that you were in no condition to respond to an emergency had the situation required for it.[192]

  1. [206]
    The SCN-LDF advised Mr Weaver that he may be liable to disciplinary action on the following basis (emphasis added):

(a) Pursuant to s 187(1)(b) of the Act, in that you have been guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).

Alternatively,

(b) Pursuant to s 187(1)(a) of the Act, in that you have performed your duties carelessly, incompetently or inefficiently.

Alternatively,

(c) Pursuant to s 187(1)(f)(ii) of the Act, in that you have contravened, without reasonable excuse, a standard of conduct applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, namely the Code of Conduct for the Queensland Public Service (the Code)…[193]

  1. [207]
    The Show Cause Notice – Decision on Disciplinary Action (SCN-DDA) issued to Mr Weaver finally concluded that (emphasis added):

In respect to Allegations 1, 2 and 3, pursuant to section 187(1)(b) of the Public Service Act 2008 (the Act), you are guilty of misconduct, namely inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).[194]

  1. [208]
    It is noted that the allegation investigated by the ESG was earlier cast as (emphasis added):

That on 28 January 2019 you were not fit for duty at your post at the Borallon Training Correctional Centre Health Centre.[195]

Nature of the shift on 28 January 2019

  1. [209]
    Mr Weaver was working an overtime shift of 12 hour duration, 7 am to 7 pm.[196] 
  1. [210]
    The CCO duties he was required to perform was "constant observation duties (closed door) of a prisoner who had a history of self harming."[197]  This involved "monitoring the prisoner to ensure his safety, and maintaining the security of the BTCC Health Centre (where the prisoner was located)."[198]
  1. [211]
    Mr Weaver and (then CCO, now CCS) CCS Watts were the pair of Officers assigned to perform the duties with respect to that particular prisoner for that shift.  CCS Watts left the Health Centre between 12 noon and 4 pm approximately to attend training.[199]  CCO Sheahan was on post as Medical Security Officer.[200]  During that shift, Mr Weaver was seated in a chair outside the prisoner's cell door.[201]
  1. [212]
    Mr Weaver had assessed his own fitness for duty prior to commencement of the shift:[202]

Was Mr Weaver "awake and alert" and "performing constant observations" of a prisoner?

  1. [213]
    It is not disputed that Mr Weaver had more than likely succumbed to microsleeps on 28 January 2019.  Mr Weaver "accepts that he was more than likely asleep or dozing for brief moments on the relevant dates." [203]
  1. [214]
    Dr Lee's medical evidence was that people suffering from untreated SOSA commonly fall asleep for brief periods:

It is common for people to fall asleep briefly in untreated obstructive sleep apnoea.[204]

  1. [215]
    Dr Lee stated that it would only be a matter of minutes[205] and that:

…if people have very light sleep, transition sleep for 30 seconds or a minute, they may not know that they have actually fallen asleep at that time.[206]

  1. [216]
    This incident differs from the first two, in that there is no video footage of that particular shift available.
  1. [217]
    However, it remains the case that Mr Weaver cannot be "awake and alert" during any periods of microsleeps he may have succumbed to on that shift.
  1. [218]
    With respect to the duty to "perform constant observations" of the prisoner, the records variously showed either Mr Weaver's or CCS Watts' or CCO Pope's initials at 10 minute intervals as required, confirming the observations performed by the CCOs throughout the 12 hour shift.[207]  However, that differs from the requirement of "constant observations" to continually watch the prisoner. 

Response to emergency

  1. [219]
    No emergency requiring response arose in the period that Mr Weaver was on duty that day.

Did Mr Weaver intend to sleep on duty?

  1. [220]
    By that time, Mr Weaver had at least been told by CCS Krueger that it appeared that he may have been asleep on duty on 15 October 2018 and directed to write an Officer's Report about that; notwithstanding Mr Weaver himself had been unaware of that.[208]
  1. [221]
    In my view, the question of whether or not Mr Weaver intended to sleep on duty is informed by three particular elements of the evidence: the sunglasses, the chair and Mr Weaver's seated position.  I will consider each in turn.

Was Mr Weaver wearing sunglasses?

  1. [222]
    CCO Sheahan gave evidence that Mr Weaver's eyes were covered, as he was wearing sunglasses:

He – his eyes were closed and then on a second walk past, I couldn't see his eyes.  He had his sunglasses on.[209] 

  1. [223]
    The Respondent submitted that:

On her next round, CCO Sheahan witnessed the applicant wearing sunglasses, despite being under regular office lighting and not near a window and snoring.[210]

  1. [224]
    CCO Sheahan rather confidently stated "The events that occurred are no different in my mind now than on the day that it occurred", adding that she included all relevant information in her Officer's Report.[211] 
  1. [225]
    However, the detail about Mr Weaver wearing sunglasses was not included in CCO Sheahan's contemporaneous Officer's Report or notebook – nor did she report that to either CCS Watts[212] or the ESG Investigator.[213] 
  1. [226]
    The Respondent submitted that:

CCO Sheahan's evidence was that 'to the best of her knowledge', she had told the investigator about the sunglasses but that she had never reviewed a transcript of her interview.  It is wrong to imply, as the applicant does, the CCO Sheahan manufactured this evidence or was in any sense dogmatic about it.[214]

  1. [227]
    It is clear though that CCO Sheahan first provided the detail about the sunglasses in a statement to the Respondent's legal representatives in preparation for the Hearing of this matter.[215]  She hadn't mentioned it anywhere or to anyone before that.
  1. [228]
    The Affidavit of CCO Perry stated:

From the best of my memory CCO Weaver did not have sunglasses on his head when I approached him.[216]

  1. [229]
    The Applicant neatly summarised CCO Sheahan's evidence that Mr Weaver's eyes were covered by sunglasses on that particular shift.  I agree with the Applicant's summation that:

When it was put to her that she had never given this evidence before the trial, Sheahan responded she had told the investigation interviewer.  It was revealed, but barely conceded by the witness, that this was not the case.  In fact it is established on the evidence that at no time did CCO Sheahan make reference in her notes, her officer's report, her investigation interview or her conversation with CCO Watts that she had either told the Applicant he was asleep or mentioned that he was sleeping with sunglasses on.[217]

  1. [230]
    I find that CCO Sheahan's assertion that Mr Weaver was wearing sunglasses was not accurate.  That proposition was put to her by Mr Sibley several times.  In taking a generous view of CCO Sheahan's claim, I would characterise it as an over-reach.

Was Mr Weaver able to conduct constant observations of the prisoner whilst seated on the chair?

  1. [231]
    CCO Sheahan stated that constant observations on a prisoner could not be performed whilst seated on the chair.  She said that an officer performing constant observations could not see the prisoner through the viewing window on the cell door whilst seated on the chair.[218]  CCO Sheahan explained that:

…it's just a small rectangular viewing window so you have to be right on the window to even see into the corner of the cell where there's sort of, like, a blind spot, in a sense, if you're not standing right there.[219]

  1. [232]
    CCO Sheahan said that CCS Watts was standing "every time I did a walk around or was standing in the back area".[220]  The evidence of CCS Watts was that she got a chair that was able to be adjusted so she could sit and observe the prisoner completely in the room.[221]
  1. [233]
    CCO Sheahan's contention was contradicted by CCO Perry,[222] CCS Watts[223] and Mr Weaver.
  1. [234]
    CCO Perry's Affidavit stated that:

CCO Weaver was seated on an adjustable bar stool type chair that allowed him to see in through the cell window whilst being seated.

These chairs are commonly used in the Medical Centre by officers performing observation duties and are located in a separate room in the medical centre, which officers have access to when needed.[224]

  1. [235]
    CCS Watts told the ESG Investigator that:

…So I, I got a chair that I could adjust to see in the viewing window at all times and I had full vision of his cell and his person.[225]

  1. [236]
    At the Hearing, CCS Watts explained that although there are blind spot in the left and right corners of the cell, on either side of the viewing panel, it was still possible to move the chair into position to maintain a visual of the prisoner should he move to those areas.[226]  In fact CCS Watts agreed that when she and Mr Weaver were working together, they would interchange on the chair to watch the prisoner.[227]
  1. [237]
    I find that being seated on the chair posed no impediment to Mr Weaver being able to undertake constant observations duties.

Did Mr Weaver adopt a particular seated position in order to sleep unobserved?

  1. [238]
    The Affidavit of CCO Perry stated that:

I recall a prisoner by the name of [X],[228] who CCO Weaver was performing constant observations on, was complaining about CO Weaver being asleep on the job.

Prisoner [X] was making these complaints through the communications system contained within the cell, which contacts the front desk of the Medical Centre, where I was situated.

I walked around to Prisoner [X]'s cell and saw CCO Weaver sitting at 45 degrees to the cell door.

The Prisoner was standing up at the door saying CCO Weaver was asleep.

As I approached CCO Weaver he turned towards me and winked at me and told me "Don't look at the crook he is trying to play staff against each other."

CCO Weaver was at a 45-degree angle to the door to avoid direct confrontation with the prisoner, which is a common tactic when performing observations on prisoners who are trying to engage or manipulate an observing officer.

I can categorically confirm that CCO Weaver was not asleep when I approached him.

…

I have known CCO Weaver to be a thorough and respectable office who takes his job very seriously, and I do not believe he would have deliberately been asleep on duty on that day.[229]

  1. [239]
    Mr Weaver explained why he positioned himself as he did:

…the prisoner at – at times stood directly at the window and was saying things and trying to engage officers in different stuff and trying to get stuff.  You know, the door's closed.  We're – we're not – effectively not to have any interaction.  We're only there to observe.  Given that he'd been doing that, I – I just thought I'd position myself where he's in my peripheral vision and I sat – sort of sat there like that so that I'd given him an indication that, you know, you're not going to get anything out of me today so I'm just going to be able to watch you and – and, you know, and that's it and I – I sat there so that I was in a close position, I guess, in my peripheral vision so that he got the message as best he could that I wasn't going to engage with him but I was still able to see him as I was.[230]

  1. [240]
    With respect to the exchange with CCO Perry, Mr Weaver's evidence was that:

Mr Weaver: Look, I – I think as soon as Ray arrived the prisoner had said, "Your mate here's sleeping," and Ray said "Well, no, he's not.  I've just come around and I can see him from here."

Mr Sibley: Yep?

Mr Weaver: And he would've been able to see me from some distance because there was a couple of doors there he would've come through to come towards me.

Mr Sibley: Right?

Mr Weaver: And that was as much as what was said with the prisoner from – from memory.  I think that was.

Mr Sibley: So at that time the prisoner actually made a – an allegation that you'd been sleeping to – to Ray Perry?

Mr Weaver: Yes.

Mr Sibley: And had you been sleeping?

Mr Weaver: No, I had not.

Mr Sibley: - to your knowledge?

Mr Weaver: No.[231]

  1. [241]
    When CCS Watts returned to the Health Centre after her training, she learned from Mr Weaver that the prisoner "…was very elevated and he was avoiding eye contact with him, because it seemed to make him worse when he – he looked at him."[232]  CCS Watts' evidence was that:

CCS Watts: …Paul gave an explanation of what had happened during my absence, and he demonstrated how he was viewing the prisoner whilst I was away and to – obviously, to try and minimise eye contact and things like this with him.

Mr Sibley: All right.  As best you can recall, and I know it's been some time ago, trying to use, you know, the most accurate words you can, what did Mr Weaver say to you about that matter?  About – ?

CCS Watts: That he wasn't asleep.  That the prisoner's medication and that had, obviously, started to wear off and he was agitated.  That he was viewing the window – viewing the prisoner, and he demonstrated to me how he was viewing the prisoner, and that was like this.

Mr Sibley: And just for the transcript, you're leaning back in your chair slightly with your arms folded?

CCS Watts: Correct.  Looking through slitted eyes at the prisoner.

Mr Sibley: Is that what Mr Weaver told you?  That he was looking through – ?

CCS Watts: That's how he demonstrated it.

Mr Sibley: Okay,  All right.  Did you do anything with that information that both Prisoner [X] and Mr Weaver had discussed with you at that stage?

CCS Watts: No.

Mr Sibley: All right.  And why is that?

CCS Watts: [X] was a very unwell man, and he had been rambling on lots of topics throughout the day.  I thought it was the ramblings of an unwell person.  I believed Mr Weaver that he had maintained constant observations on the prisoner and that he wasn't asleep.[233]

  1. [242]
    CCO Sheahan's evidence was that the prisoner:

…had made statements that the officer that was watching him had turned his back on him and that he was asleep and he could hear him and he wasn't watching him at the door.  He was making him feel heightened and just general statements that he didn't like the officer that was there.  He said some not so nice things.[234] 

Later, CCS Watts asked CCO Sheahan whether there was any merit to the prisoner's complaint about Mr Weaver, to which she replied "Well, I did witness him asleep.  I did see him with his back to the door."[235]

  1. [243]
    Considering the evidence of Mr Weaver, CCO Perry, CCS Watts and CCO Sheahan on this point, I find that it was entirely reasonable for Mr Weaver to have adopted the particular seated position that he did – and that he did not do so with the intention to have a nap whilst on duty.  In circumstances where Mr Weaver was allocated to perform constant observations of a challenging prisoner with mental health issues, prone to swings in personality and who played staff off against each other, I accept that practice was a "common tactic" for an Officer to adopt.
  1. [244]
    With respect then to the three questions informing whether Mr Weaver intended to sleep on duty that shift, I have explained why I do not believe that Mr Weaver was wearing sunglasses, why Mr Weaver could be seated on the chair and continue to perform constant observations on the prisoner and I have accepted that he adopted a particular seated position in the chair in accordance with a "common tactic" used when dealing with challenging prisoners. 
  1. [245]
    I do not believe that Mr Weaver had any intention to sleep on duty.

Did Mr Weaver know he had been asleep on duty?

  1. [246]
    For approximately four hours, Mr Weaver was performing constant observations of the prisoner on his own in this particular shift. 
  1. [247]
    Without the benefit of any video footage, the only people able to attest to whether Mr Weaver was asleep on duty in the period between 12 noon and 4 pm whilst CCS Watts was undertaking training was CCO Perry, CCO Sheahan, Mr Weaver himself and Prisoner [X]. 
  1. [248]
    From the beginning of the shift at 7 am until noon, and then again from 4 pm until the end of the shift at 7 pm, CCS Watts was also present with Mr Weaver at the Health Centre.  CCO Pope was also performing constant observation duties on Prisoner [X] towards the end of the 12 hour shift.
  1. [249]
    The ESG Investigator noted in his Investigation Report that Prisoner [X] "…was not interviewed as he has been discharged from BTCC and is now an in-patient at a psychiatric facility."[236]  However, it was noted that the prisoner made a call to his wife, in which he complained to her that the officer allocated to perform constant observation duties had been asleep.
  1. [250]
    The fact that the prisoner was not provided with a sandwich lunch and cup of tea until about 3:45 pm[237] assumed some significance at the Hearing of this matter.  The clear inference being that omission was down to Mr Weaver being asleep.

CCO Perry's account

  1. [251]
    CCO Perry is based at BTCC and was working as a Medical Security Officer at the Health Centre on that day.[238]
  1. [252]
    The ESG Investigation Report dated 19 September 2019 noted that Officers were instructed by BTCC management to prepare officer reports in relation to the incident.[239]  CCO Perry was not included in that direction.

Did Mr Weaver know he had been asleep?

  1. [253]
    CCO Perry's Affidavit recounts his one interaction with Mr Weaver on that particular shift, the key elements have been reproduced at paragraph [238] above. 
  1. [254]
    In that Affidavit, CCO Perry did "categorically confirm" that Mr Weaver was not asleep when he approached him, even though the prisoner had reported to CCO Perry that Mr Weaver had been. 
  1. [255]
    In his interview with the ESG Investigator, CCO Perry said that the prisoner made an allegation to him that Mr Weaver was asleep and "when I walked around there to find out what the prisoner was talking about Paul Weaver turned around and winked at me."[240]  CCO Perry did not tell the investigator that he had seen Mr Weaver asleep at any other time during that shift.  CCO Perry also confirmed that no other officer working that day spoke to him about Mr Weaver having been asleep.[241]

 Why didn't the prisoner receive his lunch on time?

  1. [256]
    In his interview with the ESG Investigator, CCO Perry "confirmed the meals are usually delivered for prisoners on constant observations to the CCO performing observation duties to give to the prisoner between 10:45 am and about midday", that "He did not recall the specifics of when the meals were delivered" on that shift, and "He did not see any officer asleep when he delivered the meals."[242] 
  1. [257]
    CCO Perry confirmed that if a prisoner is sent to the Health Centre on short notice, a meal mix up can occur where the prisoner's lunch is sent to the location in which he is normally housed.[243]
  1. [258]
    CCO Perry stated that it would be very rare for a prisoner not to have got his lunch until 3:45 pm "because once the prisoner starts complaining about the meals and we realise that he hasn't had his meal we will do our level best to make sure he has one."[244] 

CCS Watts' account

  1. [259]
    CCS Watts is a Correctional Supervisor at BTCC and has worked for QCS for 21 years.  She was working as a CCO at the BTCC Health Centre on this day.[245]
  1. [260]
    CCS Watts claimed that her recollection was unaffected by the time that had elapsed between 28 January 2019 and the date of the ESG Interview some six months later and did not believe her memory of things faded over time.[246]

Did Mr Weaver know he had been asleep?

  1. [261]
    In her Officer's Report written on 1 February 2019, CCS Watts stated that "…I personally did not witness the officer asleep at any time during my shift but understand that I have an ethical duty to report when advised of an alleged incident."[247]
  1. [262]
    In her Officer's Report, CCS Watts stated that once outside the prisoner's cell, Mr Weaver had told her "the accusations being made were untrue and that he had purposely avoided eye contact with the prisoner because the prisoner was becoming agitated when he looked at him" and that Mr Weaver "…demonstrated how he closed his eyes and peered out to maintain constant observations."   CCS Watts said "At the time I dismissed prisoner [x]'s claims…"
  1. [263]
    CCS Watts did not say that she had seen Mr Weaver asleep in her interview with the ESG Investigator either.  Rather, CCS Watts was told Mr Weaver was asleep by CCO Sheahan and the prisoner:

…I hundred percent believe the prisoner and I hundred percent believe Sam.  It's, it's, you know it's not the first time that I've heard of a story regarding Mr Weaver in this sort of situation.[248]

That comment is unfortunate in circumstances where CCO Sheahan's account of events has been revealed to be subjective and unreliable.[249]

It is also the case that CCS Watts confirmed at the Hearing that the prisoner was elevated,[250] very unwell and been rambling on lots of topics through the day,[251] suffered swings in personality[252] and would play staff off against each other.[253]

  1. [264]
    At the Hearing, CCS Watts said that CCO Sheahan had told her about kicking Mr Weaver's chair to wake him up as he was snoring and that she had offered to give him a break so he could have a cup of tea or go for a walk but that he had declined.[254] 
  1. [265]
    CCS Watts agreed it was not unusual for people to be relieved for a break.[255]
  1. [266]
    CCS Watts confirmed that CCO Sheahan had not told her that she had confronted Mr Weaver about being asleep nor about him snoring.[256]

Why didn't the prisoner receive his lunch on time?

  1. [267]
    In her Officer's Report, CCS Watts wrote that she believed the prisoner's lunch had been organised by CCO Perry, prior to her leaving her post at 11:45 am.  CCS Watts noted that Mr Weaver had said "that he and the other officers had just forgotten."  She further recounted that the prisoner was in an elevated state of mind and appeared to be hostile towards Mr Weaver stating "that he had just received his lunch because the officer was asleep and snoring…"[257] 
  1. [268]
    However, CCS Watts had told the ESG Investigator that it was she who had organised for Prisoner [X] to have his lunch at about 12 o'clock.[258]  She further stated that "I don't know when the meal came up, I don't know who brought it up and I don't know who was there present at that time."[259]
  1. [269]
    However, in the Investigation Report 'Analysis and Conclusions' summary, the ESG Investigator has written (emphasis added):

Witness CCO Watts states the prisoner [X] did not get his lunch until about 3:45 pm when the prisoner meal was delivered at 11:45 am.  The prisoner informed her that the officer watching him (CCO Weaver) was asleep and snoring and that is why he got his lunch so late.[260]  

…

The time that the lunch meal was delivered to the health centre cannot be determined but it is clear the lunch was very late to the prisoner.[261]

  1. [270]
    At the Hearing, CCS Watts' evidence was that she had arranged the lunch meal and CCO Perry had also contacted the kitchen to double-check it, in his role as a medical security officer. 
  1. [271]
    CCS Watts explained the process would be that someone from the kitchen would deliver the meal to the medical unit, at which point the officer at the front desk (that is, either CCO Perry or CCO Sheahan) would have brought the meal over to Mr Weaver and then the officer pair would enter the cell together and give the meal to the prisoner. 
  1. [272]
    CCS Watts' evidence was that she did not forget to order the meal but that it may not have been delivered. 
  1. [273]
    She also accepted that the prisoner may have used the intercom to alert the front desk that the meal had not been received, but that he had not done so despite having used the intercom to complain to CCO Perry that Mr Weaver was asleep at another time during that shift.[262]

CCO Sheahan's account

  1. [274]
    CCO Sheahan has been a CCO at BTCC since June 2018.  She was working as a Medical Security Officer at the BTCC Health Centre on that day.[263]
  1. [275]
    At the Hearing, CCO Sheahan claimed that "The events that occurred are no different in my mind now than on the day that it occurred."[264]

Did Mr Weaver know he had been asleep?

  1. [276]
    In an Officer's Report composed on the following day, CCO Sheahan stated that she asked Mr Weaver if he needed a break or a cup of tea at about 12 noon, as his eyes were closed when she approached the observation area.  CCO Sheahan wrote:

As I was standing there talking to CCO WAEVER (sic) he nodded off and started snoring, I nudged the chair and asked again if he needed a break or a drink to which he replied "no, I'm good here mate."  Over the next 3 hrs I observed CCO WEAVER a number of times to doze off with his back to the observation cell.  I offered a number of times to give CCO WEAVER a break to which he kept declining.[265]

  1. [277]
    The evidence of a contemporaneous handwritten note by CCO Sheahan was also submitted.  She had noted that between 12:30 and 3 pm she "…saw on a number of occasions CCO Weaver had fallen asleep while the prisoner was on obs."[266]
  1. [278]
    At the Hearing, CCO Sheahan's evidence was that she saw Mr Weaver asleep on several occasions,[267] had tapped the base of his chair or kicked the door going from the clinical room out to the observation cells to wake him up and asked him if he needed a break.[268]  CCO Sheahan confirmed that those questions would be asked of any officer performing observations.[269] 
  1. [279]
    CCO Sheahan said she could tell Mr Weaver was asleep because she heard him snoring[270] and that when Mr Weaver woke up, he would carry on as though nothing had happened.[271]
  1. [280]
    In her interview with the ESG Investigator, CCO Sheahan said that when she had woken Mr Weaver:

He didn't say anything.  He just made it out like he wasn't asleep.[272] 

  1. [281]
    CCO Sheahan's evidence was that she had told Mr Weaver at the time that he was asleep:[273]

I offered him another break and I did mention to him, "you were asleep.  Do you need a bit of a rest?"

Then Mr Weaver had replied:

 No. I'm fine, I can manage it.[274]

  1. [282]
    CCO Sheahan also wrote that she told Mr Weaver that he was snoring and that he had denied it:

When I told Mr Weaver he was snoring, he denied it and said he did not know what I was talking about.  On a few occasions, I noticed a noise in Mr Weaver's own snoring appeared to wake him up.[275] 

  1. [283]
    Conversely, CCO Sheahan had also claimed she was reluctant to challenge Mr Weaver about being asleep, as he was an acting supervisor.[276]

Notes of Prisoner [X]'s telephone call

  1. [284]
    On 3 February 2019, CCS Watts made a diary note that Prisoner [X] had called his wife at 9:08 am and told her that Mr Weaver had been asleep on the shift in question.[277]

CCO Pope

  1. [285]
    I note that CCO Pope's initials were also on the Observation Log in the time period between 5:10 pm and 6 pm; however CCO Pope was not interviewed by the ESG Investigator nor requested by BTCC management to prepare an Officer's Report.

Mr Weaver's account

Did Mr Weaver know he had been asleep?

  1. [286]
    The Applicant submitted that Mr Weaver:

…has no recollection of falling asleep on 28 January, if he did so, it was not intentional or deliberate, he had no knowledge of it, and no one advised him he was.  That is consistent with the medical evidence of his condition.[278]

  1. [287]
    In an Officer's Report written on 4 February 2019, Mr Weaver stated that he had no recollection of being asleep on that particular shift, whilst conducting constant observations on Prisoner [X].[279]
  1. [288]
    In his interview with the ESG Investigator, Mr Weaver confirmed that he had no recollection of being woken at any time by CCO Sheahan.[280] 
  1. [289]
    Mr Weaver also advised the ESG Investigator that Prisoner [X] had used the intercom to contact CCO Perry at the front desk alleging that he was asleep when he was not.[281]
  1. [290]
    At the Hearing, Mr Weaver's evidence was that he was not aware if he were asleep at any time and did not recall being asleep.  He also denied CCO Sheahan had said anything to him about being asleep.[282] 
  1. [291]
    Mr Weaver indicated that CCO Sheahan must have offered him a cup of tea or something given he was there for some period of time but could not recall precisely:

Mr Sibley: Is that a normal thing for people to do when you're in those positions?

Mr Weaver: Yes and no.  Just depends on how busy it is at the front and – and, you know, how busy everyone is.  It – it – they may not get a chance to do that.  Different people would, well, do things differently.[283] 

Why didn't the prisoner receive his lunch on time?

  1. [292]
    In his interview with the ESG Investigator, Mr Weaver stated:

I recall the prisoner was asking about his lunch, I called the kitchen and organised a lunch, when I got back I said to Watts or when Watts come back o said to her he was asking about his lunch do you know about that, and she went oh I forgot to do that, I said well I've called the kitchen.[284]

From there, Mr Weaver went on to explain that:

Someone from the kitchen arranges for the meal to be delivered down to the medical centre.[285]

  1. [293]
    At the Hearing, Mr Weaver's evidence was that the special order lunch would be brought by a prisoner:

…to the front of the medical centre, knock on the door, the officer would open it up and will see them there, grab the meal and then get it out back.[286]

That is, the officer on the front desk at the medical centre would bring the lunch around to where the observation cell was located, and an officer pair would then enter the cell and deliver lunch to the prisoner.

  1. [294]
    Mr Weaver told the ESG Investigator that Prisoner [X] had not made the allegation that he hadn't received his lunch because Mr Weaver was asleep to him.[287] 

Consideration

Did Mr Weaver know he had been asleep?

  1. [295]
    From the beginning of the shift at 7 am until noon, and then again from 4 pm until the end of the shift at 7 pm, CCS Watts was present with Mr Weaver at the Health Centre. 
  1. [296]
    At no time did CCS Watts claim to have herself seen Mr Weaver asleep. 
  1. [297]
    CCO Pope was also performing constant observation duties on Prisoner [X] towards the end of the 12 hour shift.  He was not asked to provide any evidence, interview or report about this matter.
  1. [298]
    In the period between 12 noon and 4 pm, the only people able to attest to whether or not Mr Weaver was aware that he was asleep on duty was CCO Perry, CCO Sheahan, Mr Weaver himself and Prisoner [X]. 
  1. [299]
    CCO Perry did not see Mr Weaver asleep on duty.  Whilst Prisoner [X] had used the intercom in his cell to make the allegation that Mr Weaver was asleep, when CCO Perry arrived he observed Mr Weaver to be very much awake. 
  1. [300]
    Prisoner [X] had complained to CCO Perry that Mr Weaver was asleep but his allegation proved to be false at that time.  Given CCO Perry had observed that Mr Weaver was clearly awake in the context of their exchange, it follows that Mr Weaver continued to be unaware that he may have succumbed to microsleeps during that shift.  Mr Weaver would reasonably have assumed that the prisoner's comments about him having been asleep were with respect to that baseless intercom complaint to CCO Perry.
  1. [301]
    Mr Weaver's evidence was consistent throughout that he was not aware if he were asleep at any time and certainly did not recall being asleep.  He rejected absolutely CCO Sheahan's claim that she had said anything to him about being asleep or snoring.  
  1. [302]
    CCO Sheahan claimed to have seen Mr Weaver asleep and caused him to wake on several occasions by either nudging the base of his chair or noisily entering the observation cell area. 
  1. [303]
    At the Hearing, CCO Sheahan's evidence was that she had actually told Mr Weaver that he had been asleep and that he had been snoring, to which Mr Weaver had apparently both replied "No. I'm fine, I can manage it" and had also flatly denied it saying he did not know what she was talking about.  CCO Sheahan also conversely stated that when Mr Weaver woke, he carried on as though nothing had happened.  It is significant that CCO Sheahan had not earlier claimed to have told Mr Weaver he had been asleep or snoring in either her Officer's Report, handwritten note or ESG Interview.
  1. [304]
    A further contradiction in CCO Sheahan's evidence was her claim that she had confronted Mr Weaver about being asleep and snoring – given she had earlier stated her reluctance to challenge Mr Weaver about his sleeping at the time that it was occurring because he was an acting supervisor with more than five years' service and his wife also worked at BTCC.[288]
  1. [305]
    CCS Watts also confirmed that CCO Sheahan had not told her that she had confronted Mr Weaver about being asleep nor about him snoring.[289]
  1. [306]
    I have placed little weight on CCO Sheahan's evidence.  Her contradictory evidence with respect to whether she confronted Mr Weaver about being asleep or snoring, what he said about that or not, her recent claim regarding the sunglasses and her assertions regarding the inadequacy of the chair used were entirely unimpressive.  Appropriately, each of those propositions were put to her by Mr Sibley in the course of cross-examination.  To the extent that her evidence differs from Mr Weaver's, I have preferred his word for those reasons.
  1. [307]
    I find that no one told Mr Weaver that he had been asleep or was snoring that day.[290]  Mr Weaver did not know that he had been asleep on the shift in question. 

Why didn't the prisoner receive his lunch on time?

  1. [308]
    The evidence is clear that Prisoner [X] received his lunch at 3:45 pm.
  1. [309]
    The process by which meals are ordered, are brought from the kitchen to the Health Centre, delivered to the Medical Security Officer at the front desk, who then takes it to the officer stationed on constant observations duties outside the particular cell has been well canvassed.
  1. [310]
    Variously, it has been said that CCS Watts claimed to have organised the prisoner's lunch, CCO Perry called to double-check that it had been ordered and that Mr Weaver had told CCS Watts that he had himself sorted it.  For example, CCS Watts' statement to the ESG Investigator that it was she who had organised for the prisoner to have his lunch at about 12 o'clock is different from the note in her Officer's Report that identified CCO Perry as having arranged lunch for the prisoner. 
  1. [311]
    In my view, the EGS Investigation Report has somewhat mischaracterised the situation as the lunch having arrived at 11:45 am though not provided to the prisoner until 3:45 pm. 
  1. [312]
    In reality, 'who ordered the lunch' and 'why it was late' is relevant only insofar as it relates to the question of whether or not Mr Weaver was aware that he had been asleep. 
  1. [313]
    Seemingly, any number of people might have done something about it much earlier.  The kitchen staff, the officers said to have contacted the kitchen about the lunch in the first place, the two officers variously stationed on the front desk or Mr Weaver himself. 
  1. [314]
    It has been explained that two officers would go together into a prisoner's cell to deliver a meal.  In that sense, at least one other officer besides Mr Weaver had forgotten to give the prisoner his meal.  Clearly, Mr Weaver should have remembered the prisoner hadn't been given his lunch at the point when he would have eaten his own.  Likewise, the officer at the Medical Security Desk may also have realised that it hadn't been delivered.  The prisoner himself could have called for the lunch via the intercom.  The point is that any number of people may have acted upon it but did not do so until mid-afternoon.
  1. [315]
    As previously noted, the prisoner had already once that day contacted the front desk via intercom to complain that Mr Weaver was asleep when in fact he was not, as attested to by CCO Perry.  If it were truly the case that Mr Weaver was asleep for lengthy periods and that was the real reason that he had not given the prisoner lunch, Prisoner [X] surely would have again contacted the front desk to complain as he had previously done that day.
  1. [316]
    In my view, this was simply a case of the responsibility of many being the responsibility of no-one.  Although clearly regrettable, it was just a mistake.  The evidence does not support a finding that Prisoner [X] did not get his lunch until mid-afternoon because Mr Weaver had been asleep.

Did Mr Weaver know that he had a propensity to fall asleep at that time?

  1. [317]
    Having been alerted to the risk that he may have been asleep on duty at about 1:45 pm on 15 October 2018, Mr Weaver had consulted his doctor on 4 December 2018 subsequent to a period of leave and a holiday to America.[291]  His GP advised some lifestyle changes to focus on Mr Weaver's blood pressure and weight loss.  That plan included exercise, diet and medication in the intervening period.[292] 
  1. [318]
    At the Hearing, Mr Weaver was asked about his assessment of his fitness for duty for the shift on 28 January 2019:

 Mr Sibley: …on that day you had become aware that there had been a – at least a suggestion that you may have been asleep on – ?

Mr Weaver: That's correct. Yes.

Mr Sibley : - on one of the posts?

Mr Weaver: Yeah.

 Mr Sibley: So how did that factor into your consideration of your fitness for duty?

 Mr Weaver: I – certainly, given the allegations, I wasn't going to put myself in jeopardy or put myself in a position or the centre in a position where that may occur, so I wouldn't have taken up any post if I thought there was going to be an issue.[293]

…

Mr Sibley: …what was your view of your state of alertness and were you feeling fatigued, sleepy or any of those sorts of issues?

Mr Weaver: I – certainly wasn't fatigued.  I certainly felt that I was in a position to be able to attend work and do the shift without any issues.[294]

  1. [319]
    Mr Weaver's evidence is consistent with Dr Lee's confirmation that SOSA sufferers "can wake pretty refreshed" [295] and that "it can be common for people to feel that they have been asleep the whole night". [296]
  1. [320]
    Importantly, Mr Weaver had not "had the benefit of seeing any footage to realise, you know, what it was"[297] and had not at that point had a sleep apnoea test.[298]  His SOSA medical condition was as yet undiagnosed.
  1. [321]
    For those reasons, I find that Mr Weaver did not know that he had a propensity to microsleep at that time.

Allegation 3 Findings

  1. [322]
    In summary, I find that:
  • Mr Weaver was not "alert and performing constant observations of a prisoner at the Borallon Training and Correctional Centre Health Centre" for the entirety of the 12 hour shift on 28 January 2019;
  • Mr Weaver had succumbed to brief periods of microsleep during that shift, due to his undiagnosed and untreated medical condition (SOSA) at that time;
  • Prisoner [X] did not receive lunch until mid-afternoon – however that was not due to Mr Weaver being asleep;
  • Mr Weaver did not intend to sleep on duty;
  • Mr Weaver did not know that he had been asleep on duty; and
  • Mr Weaver did not know that he had a propensity to fall asleep at that time.

Question 4: Whether the alleged conduct gave rise to a disciplinary finding that was fair and reasonable

Meaning of "derelict in the performance of duty"

  1. [323]
    With respect to each of the three allegations, QCS made disciplinary findings that Mr Weaver was "…derelict in the performance of your duties when you were required to be alert and performing constant observations of a prisoner…"
  1. [324]
    The question of 'whether the alleged conduct gave rise to a disciplinary finding that was fair and reasonable' first requires my consideration of the meaning of "derelict in the performance of your duties". 
  1. [325]
    The meaning was explained by Judge J Chaney (DP WASAT) in Hargreaves and Local Government Standards Panel (emphasis added):

The Oxford English Dictionary online defines dereliction as 'implying a morally wrong or

 reprehensible abandonment or neglect; chiefly in the phrase dereliction of duty'. The Macquarie

Dictionary defines dereliction as 'culpable neglect, as of duty'. Cr Hargreaves argued that

derelict, or dereliction, does not impute anything reprehensible or culpable. I do not accept that

submission. While the same words are used in relation to forsaken or abandoned ships or other

objects, the expression 'dereliction of duty' carries with it, in my view, notions of blameworthy

conduct.[299]

  1. [326]
    In my view, the "notions of blameworthy conduct" and "reprehensible" and "culpable neglect" are inherent in any finding of "dereliction of duty".  That in turn would rely on tests such as whether or not Mr Weaver was aware of being asleep or waking up whilst on duty and whether or not he had any knowledge of his propensity to fall asleep.  A similar approach in many respects to the consideration of whether certain behaviour would constitute "misconduct", as explained in paragraphs [21]-[26] of this Decision.
  1. [327]
    I would observe that to be quite different to the alleged conduct subject of the earlier ESG Investigation – that is, that Mr Weaver was "not fit for duty."
  1. [328]
    The phrase "not fit for duty" is not otherwise defined and so shall be given its ordinary meaning.  The Oxford English Dictionary defines "unfit" as (emphasis added):

Of persons (or other agents): Not fitted, suited, or adapted for some end or action. Also in combinations (in unfit-like)

…

A person whose mental or physical health falls below a desired standard.[300]

  1. [329]
    The obvious point being that one's physical health may fall below a desired standard, without one's "blameworthy conduct" and "reprehensible" and "culpable neglect" having caused, contributed or otherwise disguised the physical condition that would render one 'unfit' for duty at any point in time. 

Asleep on duty

  1. [330]
    It is not disputed that Mr Weaver had more than likely succumbed to microsleeps on different occasions on 10 October and 15 October 2018 and on 28 January 2019.[301]  That concession was made on the basis of the medical evidence and the CCTV footage.[302]
  1. [331]
    As earlier explained in this Decision, Mr Weaver cannot be "awake and alert" during periods of microsleeps he may have succumbed to on the three shifts in question.

Medical evidence

  1. [332]
    It is not disputed that Mr Weaver suffered from a medical condition in the relevant period, specifically Severe Obstructive Sleep Apnoea (SOSA) that was both undiagnosed and untreated at the time of the incidents.[303]
  1. [333]
    Dr Lee's medical evidence was that people suffering from untreated SOSA commonly fall asleep for brief periods. 
  1. [334]
    Significantly, Dr Lee reported that Mr Weaver's unawareness of his SOSA symptoms was best supported by his Epworth Score[304] of 4,[305] in circumstances where someone with a score of less than 10 would not consider themselves to be sleepy.[306]  Dr Lee explained:

…you wouldn't know.  When the awareness of the symptoms is not there in the first place, why would you think that you have fallen asleep in the first place, why would you think that you have fallen asleep in the first place if you give me an Epworth Score of four, say.[307]

  1. [335]
    In the Respondent's closing submissions, issue is rather belatedly taken with the Applicant's "purported"[308] medical evidence:

The applicant relies heavily on the evidence of Dr Lee as establishing both that the applicant has a medical condition (severe obstructive sleep apnoea) and that said condition meant he would not have been aware he was continually falling asleep.  The lack of awareness in turn is said to ground a conclusion that the applicant's dismissal was unfair.[309]

  1. [336]
    The Respondent identifies the areas of complaint with the "purported medical evidence" as:
  1. Dr Lee's diagnosis was based on a self-assessment questionnaire;
  1. Dr Lee never examined Mr Weaver in person;
  1. Dr Lee's evidence as to the level of awareness a person may have of the symptoms of the condition was not "specific to the applicant";
  1. Dr Lee's report was informed by data compiled by Mr Weaver's use of diagnostic equipment in his home;
  1. The context of Dr Lee's evidence given with respect to one's awareness of the symptoms of SOSA;
  1. Although Mr Weaver was unaware of why he was falling asleep, he was told that he had done so on the dates of all three allegations; and
  1. "There is evidence which supports a finding that the applicant was aware of his tendency to fall asleep."  That is, the exchange between CCO Singh and Mrs Weaver in which it was claimed she asked to him to keep an eye on him as he dozes off. 
  1. [337]
    With respect to the issues at a) – d) above, the Respondent was invited to cross-examine Dr Lee at the Hearing and declined that opportunity.  If further interrogation of the medical evidence or methodology of assessment was sought, that was the chance to do so.[310]
  1. [338]
    I have considered the context of Dr Lee's evidence with respect to one's awareness of the symptoms of SOSA in my earlier considerations at paragraph [120] above.
  1. [339]
    Although the Respondent contends that the evidence supports Mr Weaver was told he was asleep on the dates of all three allegations, I have earlier found that was only the case on 15 October 2018 when CCS Krueger directed Mr Weaver to write an Officer's Report about it at approximately 1:45 pm. 
  1. [340]
    Similarly, I have considered the exchange between CCO Singh and Mrs Weaver earlier in this Decision.  On the balance of probabilities, I have concluded that conversation most likely did not occur as CCO Singh said it did.  As I have explained earlier, the evidence of the video footage, CCO Singh's own evidence that it was a serious conversation and QCS' failure to interview Mrs Weaver have been persuasive in that determination.  With respect to the Respondent's submission that:

Thus the applicant accepted in cross-examination that his wife told CCO Singh that he 'tends to doze off'.[311]

That was not exactly the case.  In response to Dr Brooks' proposition that:

And I suggest to you that at that point she says, "Can you keep an eye on him because he tends to doze off", or words along those lines.  Do you accept that it's possible she said that to him?[312]

Mr Weaver in fact replied:

It's possible.  I don't recall it being said.[313]

Clearly, that is not the same as agreeing it were so.

Consideration

  1. [341]
    Dr Lee's evidence is particularly important with respect to whether Mr Weaver had any awareness of his propensity to fall asleep at that time – and whether Mr Weaver was aware that he had been asleep at that time.
  1. [342]
    That is critical to my consideration of whether the QCS's finding that Mr Weaver was "derelict in the performance of his duties" was fair and reasonable. 
  1. [343]
    In my view, it does not automatically follow that because Mr Weaver succumbed to microsleeps, he has been derelict in the performance of his duties, absent any prerequisite "blameworthy conduct" and "reprehensible" and "culpable neglect" on his part.
  1. [344]
    To that end, QCS failed to give appropriate weight to the relevant medical information provided by Mr Weaver when considering whether his conduct constituted "dereliction in the performance of duty."
  1. [345]
    By the time of his response to the SCN – LDF,[314] Mr Weaver's medical condition was diagnosed and treated.  He provided QCS with a letter from his General Practitioner Dr Kumar certifying he was "clinically fit to perform his normal duties of a Custodial Correctional Officer".  Mr Weaver had also comprehensively conveyed information to QCS about his medical condition and health status, attaching evidence of his SOSA assessment:[315]

I submit these events have occurred as a result of an onset medical condition (Severe Obstructive Sleep Apnoea and other related health issues) I had at the time, but was not aware of.

At the time, I have suffered involuntary microsleeps as the result of this medical condition.  I sought medical assistance for this which has been resolved and no longer causes any further concerns.

At no time prior to these events was I aware of my medical condition and I was not aware as to the impact and affect this medical condition had on my daily function.

It is apparent, due to the medical condition these events occurred spontaneously and I had no passive indicators of onset.

…

On 12 July 2019 I had further consultations and tests subsequently being diagnosed with Severe Obstructive Sleep Apnoea.

…

I was diagnosed at -70 events per/hr.  This indicates how chronic my condition was at the time and the subsequent affects this had on my daily function.  This includes fatigue and an issue with micro sleep patterns.

…

A recent assessment shows an extreme improvement in my condition.

  • My current assessment is 5 even/hr which is now in the normal range.
  • I currently do not suffer from symptoms of severe obstructive sleep apnoea.

 …

On reflection, whilst I thought I was well rested, I now understand the affects the severe obstructive sleep apnoea had on my daily function.

Until the subject events occurred I believed I was taking care of my physical health and had no notice of the existence of any medical condition.  Accordingly I had no reason to believe I was not performing my duties to the best of my ability.[316]

  1. [346]
    By that time too, Mr Weaver had taken a number of steps to remedy the impacts of the condition and ensure his fitness for duty, having now become aware of the medical condition.  He outlined those steps to QCS:

As a consequence of this diagnosis I have proactively taken the following actions to manage the condition, and eliminate subsequent episodes as we are discussing today;-

  • Weight reduction of 12 kilograms, and continued focus on further weight loss.
  • Purchased a CPAP (Continued Positive Airway Pressure) machine, at a costs of $1850.  This is an advanced machine with the option of providing me ongoing information so as I can monitor my sleep (integral to my focus on this issue).
  • The use of this machine ensures I have an uninterrupted restful sleep which significantly

reduces fatigue and eliminates day sleep events.

 …

 As part of my continued focus on my health and well being:

  • I maintain healthy eating and a regular physical fitness programme.
  • I voluntarily have regular health check ups to monitor my progress.
  • Regularly monitor my sleep via the readings from my CPAP machine.

As a result of this treatment this medical condition has been resolved and no longer causes any further concerns.  This has been demonstrated by my continued work since these events without further incident.[317]

  1. [347]
    The Applicant submitted that:

When (Mr Weaver) first became aware on 15 October that his supervisor believed he was asleep, he took steps to make further enquiries into the truthfulness of this allegation.  He saw his General Practitioner on 4 December 2018 after a period of annual leave and undertook several lifestyle changes to correct his underlying health concerns.  He lost significant weight before subsequently engaging a sleep test study in July 2019 and learned of an underlying medical condition which potentially explained the allegations that had been levelled against him.  He provided the testing results to the Respondent.

Having become aware of this condition, and having footage at their disposal, it was unreasonable for the Respondent to conclude that the Applicant's conduct did not amount to microsleeps.  This was the case given the investigator, Mr Brian Sims, who presumably viewed all the footage, concluded that the Applicant was "sleeping, dozing, in very short bursts, a minute, a minute and a-half, and then you're awake."[318]

  1. [348]
    The Applicant has submitted that "It is quite clear that there was disbelief, and / or disregard of that condition by QCS."[319]  That appears to have been the case.  In the course of the Hearing, AC Shaddock offered evidence that traversed a personal experience with sleep apnoea.[320]  He simply could not fathom how Mr Weaver may be unaware of having SOSA.[321] 

Mr Sibley: And, again, those things, if they occurred, in order to wake Mr Weaver up, are still consistent with what Mr Weaver said about his medical condition, that he wasn't aware that he'd been asleep?

AC Shaddock: Yeah.  Well, I don't – I don't entirely accept that.  I know what the medical evidence is saying, but I have some intimacy of sleep apnoea, so I'm speaking with some degree of awareness.

Mr Sibley: Right.  Do you have sleep apnoea?

AC Shaddock: No, I do not.

Mr Sibley: Okay?

AC Shaddock: But I –

Mr Sibley: Well?

AC Shaddock: - know the – the reports, the processes.  I've seen these reports before for someone else, and it's not something in that case that just suddenly appeared.  There were indicators for months in advance.[322]

…

Mr Sibley: …I'm saying your understanding of the sleep apnoea process, and your expectation there must have been warning signs, and that Ms Weaver must have seen the warning signs, Mr Weaver must have seen the warning signs – you have come to that view about Mr Weaver based on your own personal journey of the sleep apnoea process?

AC Shaddock: Some.  Some of it.[323]

  1. [349]
    I believe the above factors combined to scuttle a purely objective consideration of Mr Weaver's case.  Whilst AC Shaddock accepted that he could have sought advice from a Queensland Health expert as to whether Mr Weaver's assertions were plausible before rejecting them out of hand,[324] the most he would concede was that consideration was an element of fairness.[325] 
  1. [350]
    Mr Weaver also communicated the fact of his medical condition to the ESG Investigator at interview on 6 September 2019, who accepted that the video footage appeared to support the medical evidence of microsleeps due to SOSA.  The ESG Investigator described Mr Weaver's observed behaviours in the following terms:

…it's pretty obvious you're sitting there, you're sitting there for a long period of time, you start to

relax and bang quickly doze.  I wouldn't say you're sleeping, I'd say you're dozing very quickly on

and off, on and off, on and off and you can see your body reaction each time to it.  So you understand

what I'm saying that I think the medical report is correct even though I'm not a doctor.[326]

  1. [351]
    However, a different conclusion was reached by Assistant Commissioner[327] Kim Papalia in his SCN – DDF & PDA correspondence dated 13 May 2020. 
  1. [352]
    AC Papalia noted that Mr Weaver's interview with the ESG Investigator occurred some two months after his SOSA diagnosis and yet "you continued to 'unequivocally' deny that the incident ever happened."[328]  Notwithstanding that assessment, the context of Mr Weaver's denials appeared to be well understood by the ESG Investigator:

BS:  Okay. So…you're then saying it's possible you did fall asleep but you didn't do it deliberately and if you did, you didn't know you did.

PW: Absolutely and that's, that's the incident, it's the only way that I can answer to you…(a) certainly wasn't intentional, (a) if I did do it I wasn't aware that it happened and in no way am I about to do something that was negligent at work.[329]

  1. [353]
    AC Papalia found that the CCTV footage showed Mr Weaver asleep on at least nine occasions between 6:30 am and 10:38 am on 10 October 2018 and that he was shown to be asleep on at least 12 occasions between 9 am and 10:11 am on 15 October 2018.[330]  However, AC Papalia accepted in cross-examination that he didn't know whether Mr Weaver was asleep or awake[331] but that there was a risk he was asleep.[332]  The Applicant has submitted that was "inconsistent with Mr Papalia's subsequent findings, which he knew would be relied upon as accurate by a decision maker."[333]
  1. [354]
    At the Hearing, AC Papalia explained his findings of dereliction of duty as:

AC Papalia: …The allegations are that he was derelict in his duty because he wasn't focused and alert and wasn't undertaking constant observations.  It's not whether he was asleep or not.  I don't know if he was asleep.[334]

  1. [355]
    That rather appears to me to be moving the goal posts.  The clear theme of AC Papalia's correspondence was the issue of Mr Weaver having been asleep.  That the basis of the "dereliction of duty" finding is now said to be about Mr Weaver not being "alert and performing constant observations" seems to be retrofitting the argument.
  1. [356]
    Foundationally, there remains the earlier consideration of the prerequisites for "dereliction of duty" to be established – "blameworthy conduct" and "reprehensible" and "culpable neglect".  As the reason that Mr Weaver was not "alert and performing constant observations" was because he was involuntarily succumbing to microsleeps as a result of his undiagnosed and untreated SOSA at that time, I am not persuaded that he was derelict in the performance of his duties on that limb either.  The video footage at various times revealed Mr Weaver to be conscientiously stationed at his post and taking steps to manage his fatigue within the scope of his knowledge in the relevant period.  Mr Weaver was not a habitual wanderer, absent from his allocated prisoner duties without first organising a relief officer.  When not defeated by the involuntary symptoms of his medical condition, Mr Weaver was diligently performing his duty.
  1. [357]
    For all those reasons, the disciplinary finding arrived at was not fair and reasonable in my view. 

Briginshaw

  1. [358]
    Whether the microsleeps resultant from the undiagnosed and untreated (at that time) SOSA medical condition could reasonably be found to constitute a "dereliction of duty" is the key consideration here. 
  1. [359]
    In that regard, the Applicant submitted that the evidence is inadequate to support the conclusions drawn with respect to the three incidents; notwithstanding it is accepted that Mr Weaver had succumbed to microsleeps on the shifts in question.
  1. [360]
    In support of that contention, the Applicant submitted that (emphasis added):

…the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding.  Given the serious consequences for the Applicant, it is submitted that the Briginshaw standard is the appropriate standard to apply, and stronger evidence, more than a mere suspicion or impression is required to establish the alleged conduct.

In order to meet this test, it is submitted that the Respondent must establish that Mr Weaver was not only asleep, but there was a degree of wilfulness, deliberateness, indifference or serious negligence in the Applicant's actions.  The Respondent must have excluded all possibilities consistent with someone who is not deliberately falling asleep or is not aware they are falling asleep, such as a medical condition, or the possibility that the Applicant was not aware he was falling asleep.  If there is evidence that the Applicant's conduct was not wilful, or he was not indifferent in terms of his risk of falling asleep, then the Commission would determine that he has been unfairly dismissed.[335]

  1. [361]
    As explained by Merrell DP in Coleman v State of Queensland (Department of Education):

Whether the misconduct occurred is to be decided on the balance of probabilities; and the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding.  This consideration invokes the principle in Briginshaw v Briginshaw ('Briginshaw').  That principle does not go to the standard of proof but to the standard of evidence, such that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[336]

  1. [362]
    In civil matters, the standard of proof is the balance of probabilities.[337]  The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed.  As explained by Dixon J in Briginshaw v Briginshaw:

… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…

(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[338]

  1. [363]
    The applicability of the Briginshaw principle in this case was put to AC Papalia at the Hearing:

  Mr Sibley:   And given the severe – potential severe outcome, your comfort level or satisfaction level in terms of being satisfied on the balance of probabilities would be – if we say there's a spectrum, it would be at the higher end of the spectrum; would that be right?

  AC Papalia:   I – Commissioner, I do apply Briginshaw in terms of expectation that the closer you come to termination, the higher the threshold of the evidence you should be reliant upon. It's not the unreasonable doubt, but it's at a higher threshold.

  Mr Sibley:   It's getting up towards reasonable doubt; is that fair to say? So the Briginshaw v Briginshaw test that you've just referred to, you apply that, do you, in your decision-making?

  AC Papalia:   Commissioner, I rely on my experience, my knowledge, and the material available to me. I also look at –

  Mr Sibley:   …Did you say that you rely on the Briginshaw v Briginshaw principle in your decision-making about the balance of probabilities?

  AC Papalia:   I certainly looked at the – I'm aware. And that informs my consideration.

  Mr Sibley:   All right. So it's not beyond reasonable doubt, as you say, but where there's significance – or the outcome is potentially very significant, such as termination, your – what you need to be satisfied of in your assessment process would be towards the higher end of that assessment, Briginshaw v Briginshaw standard, wouldn't it?

  AC Papalia:   Commissioner, yes.

  Mr Sibley:   That's your evidence? All right. So – and in fact, the more significant something becomes in terms of outcome, the closer you can get to something being beyond a reasonable doubt?

  AC Papalia:   Commissioner, yes.[339]

  1. [364]
    This consideration goes to whether it was open for the decision maker to be reasonably satisfied of each of the substantiated disciplinary findings.  That question informs whether the disciplinary finding decision was fair and reasonable.  To this point, AC Papalia's evidence was that he did not know whether Mr Weaver was asleep or awake but only that there was a risk that he was. 
  1. [365]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[340]

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.

The pluarity in Li said:

… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power...

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

  1. [366]
    Given the seriousness of the allegations of "dereliction of duty", I have acknowledged the principles in Briginshaw.  The devastating impact of termination on any worker mandates that such a penalty is not undertaken lightly.
  1. [367]
    In that light, I have found that it was not open to AC Papalia to conclude on the material before him that the three allegations of dereliction of duty against Mr Weaver were substantiated. 

Question 5: Whether the alleged conduct constitutes 'misconduct' within the meaning of s 187(1)(b) of the PS Act

  1. [368]
    Section 187(1)(b) of the PS Act provides that an employee may be subject to discipline "…if the chief executive is reasonably satisfied the employee has…been guilty of misconduct".  The section goes on to define misconduct as "inappropriate or improper conduct in an official capacity".
  2. [369]
    The definition of misconduct was earlier considered in this Decision,[341] including the recent observations by Merrell DP in Coleman v State of Queensland (Department of Education) (emphasis added):

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[342]

  1. [370]
    The significant point is rather whether or not Mr Weaver was aware that he was falling asleep or had any real knowledge of his propensity to fall asleep – and thus whether misconduct could be said to have occurred by such "serious departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by the Applicant."[343] 
  1. [371]
    The evidence of AC Papalia supports that assessment.  When asked by Dr Brooks about his findings in relation to the allegations against Mr Weaver, AC Papalia response included (emphasis added):

AC Papalia: …given consideration of the reply that came from Mr Weaver which I actually found was commendable in terms of acknowledging that he had a medical condition and had taken active steps to rectify that medical condition, and what concerned me in his reply initially during interview and then through the process was, he was – his demonstrated reluctance to accept that – acknowledge the awareness from either officers, his supervisors, any of his peers in terms of what appeared to be him falling asleep on the duty.  Given that knowledge, my expectation that the officer would have responded at the time to mitigate risk that he knew was brought to his attention but declined to accept that awareness I found was compelling for me in terms of stepped that into a consideration of misconduct as opposed to the performance or a medical issue alone.  And that's part of the consideration in terms of – I made that determination that the matter could be considered for a disciplinary outcome.[344]

  1. [372]
    Mr Weaver maintained that he had no warning in relation to the microsleeps resultant from his undiagnosed medical condition "and in fact may have fallen asleep and not even been aware that he had fallen asleep when he woke up moments later."[345]  As such, it was submitted on behalf of the Applicant that the conduct cannot be fairly characterised as 'misconduct' as Mr Weaver's behaviour did not amount to:

…any deliberate or intentional act or a deliberate and indifferent departure from accepted policy.  He was not recklessly negligent in assessing his fitness for duty on those days and he was not indifferent to whether he did or did not fall asleep.  It's simply not the case that Mr Weaver found an opportunity to have sleeps and to make himself comfortable for the purpose of sleep.[346]

  1. [373]
    At the Hearing, the Applicant's position was explained as:

So what occurred was the result of a confluence of circumstances and the – that is impacted by the nature of the overtime shifts that Mr Weaver had worked beforehand, the monotonous task of sitting for 12 hours and watching the prisoner, essentially from a seated position, and starting those shifts at early hours of the morning, 6 am, to working through to 6 pm, and most importantly, the severe obstructive sleep apnoea he was suffering at the time of those shifts all creating what was, essentially, in our submission, a perfect storm for him to fall in and out of consciousness at different times without being aware that that was likely to happen and not even being aware that it had happened.[347]

  1. [374]
    For each of the three allegations, I have carefully considered the evidence before me as to whether or not Mr Weaver:
  • intended to sleep on duty;
  • knew that he had been asleep on duty; and/or
  • knew that he had a propensity to sleep on duty.
  1. [375]
    In each of the three incidents subject of the allegations against Mr Weaver, I have concluded that he had no such intention to sleep, knowledge that he had been asleep nor awareness of any propensity to fall asleep on duty. 
  1. [376]
    Having determined that point, for the reasons explained in paragraphs [368]-[375] of this Decision, I find that Mr Weaver is not guilty of misconduct with respect to either of the three allegations.
  1. [377]
    I note the submission on behalf of the Applicant that it was for the Respondent to establish that the:

…conduct amounted to misconduct, and if it's not an amount to misconduct, then his dismissal was unjust and he was, in turn, unfairly dismissed.  And in order to show the tribunal his conduct was misconduct…they must show he was deliberately sleeping or was recklessly negligent in doing so.[348]

Question 6: Whether Mr Weaver was afforded procedural fairness as per the considerations mandated by s 320 of the IR Act

  1. [378]
    CJ Gleeson remarked that:

Fairness is not an abstract concept.  It is essentially practical.  Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[349]

  1. [379]
    The IR Act requires that I consider whether Mr Weaver was told the reason for his dismissal[350] and whether he was warned or given the opportunity to respond to the allegations.[351] 
  1. [380]
    Below is a summary of the disciplinary process that led to Mr Weaver's termination:

4 February 2019 Mr Weaver was advised of concerns with his conduct on 28 January 2019 (Allegation 3)

5 February 2019 Correspondence from Acting General Manager BTCC Alan Houchin to Mr Weaver confirming that ESG investigation into Allegation 3 is underway and that he will not perform duties that involve prisoner contact until investigation finalised.

[Mid-2019: Mr Henderson returns Mr Weaver to his full range

of duties, including those duties involving prisoner contact,

having resumed as General Manager of BTCC]

[19 September 2019: ESG Investigation Report finalised]

7 February 2020 Show Cause Notice – Liability for Discipline Findings (SCN – LDF) correspondence from Acting Deputy Commissioner, Custodial Operations Peter Shaddock to Mr Weaver advising that an ESG Investigation Report had been received substantiating three allegations that he was "not fit for duty", requiring Mr Weaver to show cause as to why a disciplinary finding should not be made against him for dereliction of duty with respect to the three allegations and placing him on paid suspension.

Undated Correspondence from Mr Weaver asking that the decision to suspend him from duty be urgently withdrawn.

29 February 2020 Response to Show Cause Notice – Liability for Discipline Findings (SCN – LDF Response) correspondence from Mr Weaver to Acting Deputy Commissioner, Custodial Operations Peter Shaddock. Attached was a medical certificate attesting to capacity to undertake normal duties and SOSA assessments.

13 May 2020 Show Cause Notice – Decision on Disciplinary Finding and Proposed Disciplinary Action (SCN – DDF & PDA) correspondence from Assistant Commissioner, Professional Standards and Governance Kim Papalia to Mr Weaver.

21 May 2020 Response to Show Cause Notice – Decision on Disciplinary Finding and Proposed Disciplinary Action (SCN – DDF & PDA Response) correspondence from Sciacca's Lawyers on behalf of Mr Weaver to Assistant Commissioner, Professional Standards and Governance Kim Papalia.

28 July 2020 Decision on Disciplinary Action (DDA) correspondence from Assistant Commissioner, Custodial Operations Peter Shaddock to Mr Weaver advising of the decision to terminate his employment.

  1. [381]
    While Mr Weaver had an opportunity to respond to the three allegations and was informed of the reason for his dismissal as mandated by s 320 of the IR Act, there are nonetheless critical defects in procedural fairness within the disciplinary process undertaken.  These are outlined below.

The entirety of the evidence relied upon by the decision maker to make the disciplinary findings was not first put to Mr Weaver

  1. [382]
    Citing Kioa v West,[352] the Applicant submitted that:

Procedural fairness requires that a person have the opportunity to respond to credible, relevant and significant material that will be relied upon by a decision maker.[353]

  1. [383]
    The alleged factual matters that Mr Weaver was not given an opportunity to respond to prior to substantiation of the 10 October 2018 allegation included:
  • the conversation between CCO Singh and Mrs Weaver;[354] and
  • that CCS Krueger was said to have spoken to Mr Weaver about complaints of him being asleep.[355]

Neither of the above points were put to Mr Weaver in the SCN – LDF correspondence for his response,[356] ahead of the disciplinary findings being substantiated in the SCN – DDF & PDA.[357]

  1. [384]
    AC Papalia confirmed that Mr Weaver wasn't asked to respond to the issue about a conversation between Mrs Weaver and CCO Singh that would demonstrate that he had some prior knowledge of his propensity to fall asleep within the SCN – LDF correspondence.[358] 
  1. [385]
    It was also put to AC Shaddock that it was unfair not to include anything about CCO Singh's claimed conversation with Mrs Weaver in the SCN – LDF correspondence, in circumstances where so much weight was placed on it.  AC Shaddock countered "Some weight on it.  Yeah" but that "There's a lot of significant elements in this matter"[359] before himself concluding "I'm not – I'm not saying, Mr Sibley, that it's the perfect scenario", "Like I said before, there's an element of it, but not overwhelming."[360]
  1. [386]
    AC Papalia further confirmed that Mr Weaver wasn't given the opportunity to respond to the suggestion that CCS Krueger had come to him and spoken about the complaints of him being asleep on 10 October 2018 within the SCN – LDF correspondence.[361]
  1. [387]
    I agree with the Applicant's submission that those two matters were "clearly heavily relied upon in substantiating the allegations of misconduct"[362] and yet were "not referred to in the initial show cause letter".[363]  I find that omission was procedurally unfair.

Witness evidence accepted without decision maker viewing video footage

  1. [388]
    AC Papalia relied on CCO Singh's assertions that Mr Weaver had been asleep constantly between 6:10 am and 8:30 am without viewing the entirety of the relevant video footage.[364] 

Mr Sibley: So you're saying it's not unfair to Mr Weaver that you didn't check to see whether he was, in fact, not continually falling asleep?

AC Papalia: I didn't go through the whole footage.  No, I didn't.

Mr Sibley: With respect, Assistant Commissioner, that's not answering my question.  I'm suggesting to you – ?

AC Papalia: I don't accept that that's unfair.[365]

  1. [389]
    That was certainly unfortunate, as CCO Singh's account was shown to be inaccurate in several respects.
  1. [390]
    Further, CCO Singh's word regarding his reported exchange with Mrs Weaver, in which he alleged she asked him in all seriousness to keep an eye on her husband as he dozes off from time to time,[366] was also simply accepted.  The tone and timing of any such conversation between CCO Singh and Mrs Weaver was not evident from the video footage.[367]
  1. [391]
    AC Papalia and AC Shaddock confirmed that CCO Singh's evidence was accepted without having viewed the entirety of the video footage.[368] 
  1. [392]
    Faced with competing accounts of events with respect to Allegations 1 and 2, and in light of the serious consequences for Mr Weaver, verification through viewing the available video footage would have been a reasonable step for the decision maker to take.  That did not occur – and so errored findings of fact have been made that have contributed to QCS's decision to terminate Mr Weaver's employment.

Failure to interview relevant witnesses

  1. [393]
    The failure to interview relevant witnesses constituted a deficiency in the investigation conducted. 
  1. [394]
    With respect to Allegation 1, Mrs Weaver was not interviewed, as a party to the conversation exchange claimed by CCO Singh. 

Mr Sibley: …in circumstances where you place so much weight on this issue, I'm suggesting to you that's procedurally unfair that part of the investigation, you did direct that Ms Weaver be interviewed about that conversation?

AC Shaddock: No. I – I don't think that's a fair comment. I know where your comments coming from. I appreciate that. But, no.

Mr Sibley: Why is it – why is it not fair?

AC Shaddock: Because I think there's so many elements to this case of Mr Weaver.  I think people have gone about it with the level of reasonableness [indistinct] and appropriateness.  It's not perfect.  No – no report investigation is.  There's a lot at stake, it's highly motive.  I get all those things.  I'd like the comment that I made with respect to Ms Weaver – I also place weight – just as much weight on other matters of people in the transcripts talking about, you know, they had to slam doors shut, kick the chair, you know, do this, do that.  Yes.  So, there's a lot of elements at play here.  There's not just single elements.[369]

  1. [395]
    Instead, CCO Singh's word was relied upon without question.[370] 

Mr Sibley: So you – based on your working relationship with Mr Singh, you're – you had a great degree of confidence that everyone he'd said in his report and interview with – was reliable?

AC Shaddock: Would be accurate, yes.

Mr Sibley: Would be accurate?

AC Shaddock: Yes.

Mr Sibley: And would it surprise you to learn that things that he'd said in his officer's report and in his interview were not accurate, based on the CCTV footage?

AC Shaddock: It would.

Mr Sibley: It would. And did you take any steps to verify those assertions by Mr Singh with reference to the CCTV yourself?

AC Shaddock: No.[371]

  1. [396]
    With respect to Allegation 2, at the time of the ESG Interview, CCS Cook had been told many others had also been interviewed:

 BS:  And do you know of any other officer or person I should speak to in relation to the matter at the moment? Bearing in mind I've already spoken to a lot of other staff.

 …

 BS: Yeah, so it's fair to say to you that I've spoken with the officers that were on -

 MC: Sweet.

 BS: - shift that day.

 MC: Yeah that's probably about all.

 BS: And including the nurses…[372]

  1. [397]
    CCS Cook confirmed that she had given names to the investigator and informed him of their relevance and he had indicated those people had been interviewed.[373] 

Mr Sibley: …But you have started at that point to identify to the investigators that there other people there who have knowledge of this event?

CCS Cook: Yes, sir.

…

 Mr Sibley: …So what I'm saying to you is that he's giving you the impression there that he's spoken to a lot of other people in relation to this incident. Is that right?

CCS Cook: Yes, sir.

…

 Mr Sibley: Would you be surprised to learn that in fact, the only people that he's spoken to on that day in relation to this incident are yourself and Officer Krueger?

CCS Cook: That surprises me. Yes, sir.

 Mr Sibley: Yes. Because clearly lots of other people had matters they could touch on that were relevant to –

CCS Cook: Definitely.

Mr Sibley: - the investigation?

CCS Cook: Absolutely, sir. Yes.

Mr Sibley: And you've done your best to try to make him aware of that?

CCS Cook: Mmm.

Mr Sibley: And he's in fact indicated to you that he's already done all that?

CCS Cook: He did. Yes.

 Mr Sibley: And you're surprised that you would be being told things about what Officer Weaver has done where it's being suggested that lots of other people have given evidence about it, and you would expect that that would occur – ?

CCS Cook: That was my assumption, that he had spoken to other –

Mr Sibley: Yes – ?

CCS Cook:  – officers. Yes, sir.

 Mr Sibley: And you would think, as a matter of fairness, that that would occur?

CCS Cook: Yes, sir.[374]

  1. [398]
    With respect to Allegation 3, CCO Perry was not asked to write an Officer's Report by BTCC management proximate to the time of the incident, although he was interviewed by the ESG Investigator on 5 August 2019 – some 6 months afterwards. 
  1. [399]
    Prisoner [X] was not interviewed at all "as he has been discharged from BTCC and is now an in-patient at a psychiatric facility".[375]  Notwithstanding that, the report noted that CCO Sheahan's evidence was "possibly corroborated by a prisoner with a psychiatric condition whom is unable to be spoken with".[376]
  1. [400]
    AC Papalia provided some insight into what had occurred with respect to the prisoner:

Mr Sibley: What evidence was provided by him in this process?

AC Papalia: The prisoner declined to participate in an interview but it was report in regard to the officer's reflection on it and it was consistent by a couple of officers from my recollection.

Mr Sibley: So you – is it the case that you caused someone to try and take a statement from officer [x] or participate in an interview with you?

AC Papalia: Prisoner [x].  Yes, prisoner [x] was a potential witness.

Mr Sibley: So it was hearsay comments about what prisoner [x] had said as opposed to anything that prisoner [x] provided as part of the process?

AC Papalia: Yes, Commissioner.  Yes.[377]

Delay in commencing the investigation

  1. [401]
    The Applicant submitted that "…the substantial delay in investigating the Applicant's matter is, in and of itself, procedurally unfair.  To the extent the respondent relies on the Applicant's guarded and defensive responses during the investigation interview, it should be discounted to factor in the significant frustration that any officer would experience by the delay."[378]
  1. [402]
    The sentiment above was supported by the flavour of evidence given by General Manager Henderson and CCS Cook and Watts. 
  1. [403]
    Both CCS Cook and Watts agreed that such delay would frustrate them too, if they were in Mr Weaver's shoes.  When asked about their view of ESG investigations into matters that had occurred a significant period of time prior,[379] they offered sentiments in these terms:

CCS Cook: I think it's ridiculous that the Ethical Standards Unit takes so long to be able to give a person knowledge of – of what – or formal knowledge of what it is that they are – allegations made against them. Sometimes it's two years later – two and a half years later. It's crazy.[380]

…

Mr Sibley: So on the basis that Mr Weaver was confronted some time later, some year or more later about the suggestion that Officer Sheahan had observed him to be asleep and was responding to that all this time later, he would find that frustrating, wouldn't he?

Dr Brooks: I don't know that this witness can give that evidence.

Mr Sibley: Well, let me ask it a better way, then. Would you find that frustrating?

CCS Watts: I would find that frustrating.

Mr Sibley: All right. You might become defensive if that was happening to you?

CCS Watts: Quite possibly.

Mr Sibley: Yeah. Guarded?

CCS Watts: Guarded.

Mr Sibley: Yea. Because you hadn't been aware of it before the time and not given an opportunity at the time to respond to it; correct, yes?

CCS Watts: Correct.[381]

  1. [404]
    Although Mr Henderson was more circumspect, he agreed the delay was unfair to Mr Weaver:

Mr Sibley: And is it a source of frustration for you the officers are asked to respond to incidents often half a year or even longer after an incident is said to have occurred?

Mr Henderson:  I think it's – justice, as you know, should be swift. I think that a delay in that is a disservice both to the officer and for us as an organisation. But I'm also understanding that there is a lot of disciplinary matters that are going through the process, and we've only got a very small investigations and ethical standards team. So I'm accepting of delays.

Mr Sibley: You're accepting of delays?

Mr Henderson: Yeah. It doesn't mean I'm happy about them. But I have to accept that that's been the par for the course for the 11 years I've been running jails in Queensland.

Mr Sibley: So delay is par for the course?

Mr Henderson: Yes.

Mr Sibley: But it is unfair to the officer, is it?

Mr Henderson: Yes.

Mr Sibley: Yes. And as you say – ?

Mr Henderson: As an individual, yes.[382]

  1. [405]
    AC Shaddock also gave evidence about the frustrating nature of the timeframes for dealing with such matters:

AC Shaddock: …It's a frustration for me, it's a frustration for the deputy, it's a frustration for my peer in the AC role. I raised the matter with the former Commissioner Peter Martin formally about the – the time delays, that we've seen no improvement. Papalia may have provided an alternate view, but I see it strategically. To answer your question, there is no elevation or increasing the speed of these matters being dealt with. This is a frustration for not only the subject officer in an outcome, but the whole process.

…

Mr Sibley: Yes. So it's a frustration for the subject officer Mr Weaver?

AC Shaddock: - Yes.

Mr Sibley: - that it takes so long. It's unfair to Mr Weaver that it takes so long?

AC Shaddock: I don't know if it's unfair or not, but you asked me is it – has there been any increase with the timing-ness of things. No, there hasn't been –

Mr Sibley: So – ?

AC Shaddock: - in my opinion.

Mr Sibley: All right. So if Assistant Commissioner Papalia posits the view that things have speeded up since he's taken over the role, you would disagree with that?

AC Shaddock: I would.[383]

  1. [406]
    AC Papalia was also asked whether such delay would cause frustration to officers who were being asked to explain themselves about allegations from sometimes a year before.  His evidence was that:

AC Papalia: Commissioner, my expectation and belief is that it would have created frustration for those officers that may be subject to matters, or witnesses to matters, then complainant to matters, and it would probably have been very frustrating for the organisation in terms of improvement through investigation.  We have opportunity for improvement and we need to do that in a timely manner.

Mr Sibley: And that situation existed back at the time that Mr Weaver's matter – that was unfair to Mr Weaver and other in his position in terms of those delays, wasn't it?

AC Papalia: I think that's on the record from Flaxton in terms of it was unacceptable for the agency in order to shape a different model in terms of our policy, procedure and practice and the capability and capacity to deliver it [indistinct].[384]

  1. [407]
    Notwithstanding there may have been legitimate reasons for the delay in the investigation, I do appreciate the fact of the delay would nonetheless have made it more difficult for all the witnesses involved to best recall the events in the interviews. 

Question 7: Other relevant matters mandated by s 320 of the IR Act

  1. [408]
    Section 320(d) of the IR Act provides that the Commission must also consider "any other matters the commission considers relevant" when determining whether a dismissal is unfair.  I have addressed my consideration of such other matters below, in no particular order.

Length of service

  1. [409]
    Mr Weaver commenced with QCS on 31 March 2014 and his employment was terminated on 5 August 2020.  A period of 6 years and 4 months approximately.[385] 
  1. [410]
    In my view, that is not an insignificant period of service and commitment to QCS. 

Officer held in high regard

  1. [411]
    Mr Weaver was held in very high regard by General Manager Henderson, who said in evidence:

Mr Henderson: Paul, I have found to be an exceptional officer. He was very good to work with. One of my acting supervisors, high performer, on the workplace health and safety committee, had done some work with the roster committee, and with period of time that had elapsed between the incidents, I decided to move him back into the role where he was more productive for me.

Dr Brooks: All right?

Mr Henderson: Which was managing prisoners and staff.[386]

  1. [412]
    Mr Henderson went on to express that whilst Mr Weaver did a considerable amount of overtime, he did not dip into his sick leave accruals to compensate for that in any way.  He added:

Mr Henderson: In fact, we used to say that on some days, we wouldn't have been able to open the jail up without Paul and his family coming to work.

Mr Sibley: Right. Okay. So he's someone you considered to be pretty important in the – ?

Mr Henderson: Very.

 Mr Sibley: - in your centres?

Mr Henderson: Mm.[387]

  1. [413]
    In Mr Weaver's SCN – DDF & PDA Response correspondence to AC Papalia, he outlined the scope of his contribution and commitment to QCS including:
  • Workplace Health and Safety Representative;
  • Roster Committee Representative;
  • Trainer and Assessor of new and existing officers;
  • Violence Prevention Committee Representative;
  • completion of Certificate IV in Correctional Practice;
  • completion of Certification IV in Workplace Trainer and Assessor;
  • undertaken a Diploma of Correctional Administration;
  • appointed to the role of Acting Supervisor by Chief Superintendent Peter Henderson and the BTCC Management Team; and
  • he was seen as a point of reference for colleagues on policy and procedure matters, prisoner management issues and the like.[388]

Personal impact of termination

  1. [414]
    The devastating impact of the proposed termination of Mr Weaver's employment was thoroughly explained in his SCN – DDF & PDA Response correspondence.  It was submitted that course would:

…significantly impact upon his family's financial security particularly at a time when Queensland's unemployment rate has increased to 6.8%.

My client is 56 years of age, is married with three step teenage daughters.  Taking into consideration the current climate due to the impacts of COVID-19 in Australia and Queensland, it is submitted that given my client's age it entirely possible that he will find gaining new employment difficult.

Therefore, not only will my client experience financial hardship, the emotional impact of him being terminated from his secure employment will significantly impact upon his mental well-being.[389]

  1. [415]
    That was well-understood by Mr Henderson, who spoke of his concern for Mr Weaver when directed to suspend him from duty:

 Mr Henderson: …I had concerns about his mental health in regards to it.  I have concerns when we suspend everybody about their mental health.  But he was gobsmacked.[390]

  1. [416]
    At the Hearing, Mr Weaver also explained that he and Mrs Weaver are sole financial providers for their three girls.[391]
  1. [417]
    In the DDA correspondence to Mr Weaver, AC Shaddock stated he had given consideration to his personal and financial circumstances and the impact termination would have on the Weaver family.  He wrote:

While I understand there may be financial repercussions for you if your employment was to be terminated due to your conduct, particularly given the current COVID-19 pandemic, I do not consider your personal circumstances outweighs the seriousness of your conduct such that I should impose a lesser penalty.[392]

Medical evidence that Mr Weaver is fit to perform duties

  1. [418]
    As outlined earlier in this Decision, Mr Weaver had comprehensively explained the nature of his SOSA medical condition, the symptoms experienced, the subsequent diagnoses and treatment, the considerable efforts he had undertaken to resolve his health issues and attested to the continued steps to secure his ongoing health and well-being well ahead of any determination to terminate his employment. 
  1. [419]
    Mr Weaver had made QCS aware of that information within his SCN – LDF Response correspondence dated 29 February 2020.[393]  Significantly, that included a recent medical assessment demonstrating that he did not now suffer from symptoms of SOSA and that the medical condition had now resolved. 
  1. [420]
    A medical certificate certifying Mr Weaver to be "clinically fit to perform his normal duties of a Custodial Correctional Officer" was also attached to the SCN – LDF Response provided to QCS at that time.[394]

Mr Weaver had been returned to his normal duties by Mr Henderson, in the months prior to his suspension, without issue

  1. [421]
    Upon the return of Mr Henderson as General Manager of BTCC, Mr Weaver resumed his substantive role in June 2019, rather than continuing in the non-prisoner contact duties he had previously been allocated.[395] 
  1. [422]
    Mr Henderson stated that:

Mr Henderson: I rang Ethical Standards to get some sort of direction about where the investigation was going. Under their privacy, they decided that they weren't going to tell me anything that was going on.

Dr Brooks: Right?

Mr Henderson: It was a very unsatisfactory conversation.  And based on that and based on the fact that Paul had – was a very good officer, I decided to move him back to his normal role and was considering him – putting him back acting up as a supervisor.[396]

  1. [423]
    That turn of fortunes came about because Mr Henderson had spoken with Mr Weaver at the gatehouse and had made positive comment to him about his weight loss since he had last seen him.[397]  Mr Henderson recalled the headlines of that conversation as:

 Mr Henderson: I just remember to conversation about undiagnosed, diagnosed, I've taken these actions –

 Mr Sibley: Treated – ?

 Mr Henderson: - lost some weight, spent some money on a machine, and I'm feeling a lot better.

 Mr Sibley: Yes. And you wouldn't have wanted to put him back, I assume, into an operational role if you had concerns that he was going to continue to fall asleep?

 Mr Henderson: No.  I wouldn't have put him back if I had concerns.[398]

  1. [424]
    At the Hearing, Mr Henderson confirmed that he returned Mr Weaver to his substantive role as at June 2019, because he considered him to be such a high performing officer and had no concerns with his capacity to perform his duties.[399] 
  1. [425]
    I would also observe that the extensive evidence presented at the Hearing as to the high level of responsibility involved in the Centre Services duties (gatehouses, master control and the like) that Mr Weaver had been allocated to in the interim period was itself persuasive.  A high level of trust in an officer's capacity to be alert and responsive to maintain the safety and security of the prison was evidently integral to the discharge of those important functions too.
  1. [426]
    In his SCN – DDF & PDA correspondence, Mr Weaver submitted that he had remained actively employed as a CCO without issue between the date of the last event in January 2019 until his suspension on 12 February 2020 – a period of more than 12 months.[400]  In the DDA correspondence of 28 July 2020, AC Shaddock responded that:

Significantly, you were placed on non-prisoner contact duties on 5 February 2019, almost immediately after the incident on 29 January 2019.  I consider your submission that you remained working as a CCO without incident until your suspension to be highly misleading in that you were not performing the full range of duties as a CCO, having been placed on duties that did not involve you having prisoner contact.[401]

  1. [427]
    Contrary to the above, Mr Weaver had in fact been successfully performing the full range of CCO duties following the return of the BTCC General Manager, Peter Henderson.  While AC Shaddock gave evidence at the Hearing that "it is not a process I would support" and that he became "aware after the fact", it nonetheless did occur in that way – for a significant period of time and without any further incident.[402] 
  1. [428]
    AC Shaddock became aware that Mr Weaver had been returned to his substantive duties at the time of receiving correspondence from AC Papalia in November 2019.  It was some three months after that AC Shaddock took the decision to suspend Mr Weaver.[403]
  1. [429]
    The significance of that sequence is that, prior to taking a decision to terminate Mr Weaver's employment, QCS knew both that he was fit to perform the full range of duties required in the role (through the medical certificate and SOSA assessment provided) and that Mr Weaver had in fact demonstrated his capacity to do so for many months (between being returned to full duties in mid-2019 and being suspended in February 2020).

Disciplinary history

  1. [430]
    Mr Weaver was "subject to an unrelated disciplinary incident in 2017" but otherwise stated he had an "outstanding performance history" [404] and "unblemished disciplinary record",[405] prior to the three allegations that resulted in the termination of his employment. 
  1. [431]
    By letter dated 9 March 2018, Mr Weaver was reprimanded for breaching the Code of Conduct.  In that matter, Acting Deputy Commissioner Peter Shaddock determined the following allegation against Mr Weaver to be substantiated:

On 9 March 2017 without authority you notified staff of staff searches being undertaken at the BTCC.[406]

  1. [432]
    ADC Shaddock wrote in that correspondence:

Whilst on this occasion I have determined to impose a penalty toward the lower end of the scale, it is important that you are aware of the seriousness with which QCS views your inappropriate behaviour, namely notifying staff of the staff searches being undertaken at the BTCC.  You should be aware that any future substantiated allegations of misconduct and / or a breach of the Code of Conduct will be viewed very seriously and may result in the termination of your employment.[407]

  1. [433]
    AC Shaddock inserted the above excerpt into his DDA correspondence to Mr Weaver dated 28 July 2020, noting that Mr Weaver had been "…expressly warned by me on that occasion that any future findings of misconduct or a breach of the Code of Conduct may result in the termination."[408]
  1. [434]
    However, while I accept that Mr Weaver had certainly been warned by AC Shaddock in the resolution of the 2017 disciplinary incident, I have earlier disturbed the findings of misconduct with respect to the three allegations subject of this matter, with my reasons for doing so explained above.
  1. [435]
    I set it out here as it forms part of the circumstances and context in which AC Shaddock's decision to terminate Mr Weaver's employment was made.[409] 
  1. [436]
    At the Hearing, AC Shaddock's evidence was that he had considered terminating Mr Weaver's employment for the 2017 disciplinary matter "such was the gravitas I attached to it", but that had not been communicated to Mr Weaver as it was "just considerations until I gathered material, thought about it, reflected on it."[410] 
  1. [437]
    Undoubtedly, the 2017 disciplinary incident made a lasting impression on AC Shaddock's opinion of Mr Weaver:

AC Shaddock: …I was significantly troubled by that. I remain significantly troubled by that. It caused me great umbrage at the time and continues to. I remember talking about the matter to various parties at the time, from the Commissioner down, such was my concern. But with respect, it just told me a lot, from my perspective, about the character, the fibre, and the calibre of the individual…[411]

…

Dr Brooks: All right. Assistant Commissioner, why did you consider that Mr Weaver should be terminated, despite having a medical condition that seemed to explain his falling asleep, or prone to falling asleep?

AC Shaddock:  Why did I still see fit to pursue the termination of Mr Weaver. There's a number of things, and again, with respect, there is that event that I just spoke to –

Dr Brooks: Yes?

AC Shaddock: - from the 9th of March 2017. And you can't unknow things.

Dr Brooks: Sure?

AC Shaddock: You form an opinion about character, calibre, integrity, honesty and transparency. All those hallmark [indistinct] from staff, but also from the correctional supervisor, substantive or acting. They were not demonstrated, and I think that was a terrible episode and an incident. It's shameful. So, do I have certain obligations to do certain things.

Dr Brooks: Yes?

AC Shaddock: People have expectations of me in my role, and just as I have high expectations of them.  So I would make those decisions without fear or [indistinct] but the termination is not a light decision.  I understand the consequences…[412]

  1. [438]
    Notwithstanding AC Shaddock's assessment of Mr Weaver's general 'character' and his comment that "you can't unknow things" resultant from the 2017 disciplinary incident, AC Shaddock's evidence was that while he had considered terminating Mr Weaver's employment at that earlier time, he had taken on board the "advices and considerations, comments" of the Executive Director of the Ethical Standards Unit[413] – and a reprimand was instead "where it ultimately ended up."[414]
  1. [439]
    However, when it was put to AC Shaddock at the Hearing that he was "attempting to repunish Mr Weaver for that transgression in 2017 in this matter", the proposition was expressly denied.[415]
  1. [440]
    For completeness, disciplinary history is of relevance in matters of this type.  It was a relevant matter considered by AC Shaddock in determining the disciplinary penalty to be imposed.[416] Further to that, the legislation requires me to consider matters such as whether the employee was warned in relation to their conduct.[417]

Considerations of the appropriate disciplinary penalty

  1. [441]
    The evidence before me is that Deputy Commissioner McCahon considered a formal warning to be the appropriate disciplinary penalty to apply to Mr Weaver in this case. 
  1. [442]
    Mr Weaver's SCN – DDF & PDA Response had been emailed by Sciacca's Lawyers to the Discipline Advisory Group on 22 May 2020, marked for the attention of AC Papalia. 
  1. [443]
    On 8 May 2020, Mr Weaver's Response was forwarded on to the Office of the Deputy Commissioner Custodial Operations.  Later that afternoon, acknowledgement was emailed back to the Discipline Advisory Group simply stating "With Staff Officer for review and progression to DC."[418]
  1. [444]
    Then on 15 June 2020, an outcome of that consideration was emailed from the Office of the Deputy Commissioner Custodial Operations to the Discipline Advisory Group, subject heading "RE: DAG – Response to 2nd Show Cause Notice – Paul Weaver".  The email read:

Good morning,

DC McCahon has reviewed the further submission made by Mr Weaver's lawyers, and the sum total of the file.  He would like to progress to a formal warning letter for these allegations.

Kind regards,

Anne[419]

  1. [445]
    That email advice contained DC McCahon's apparent determination of the appropriate disciplinary penalty to be applied to Mr Weaver in this case, consistent with the notation made in a register, just three days earlier:

12.6.20 Reviewed Response 2nd Show

Cause Letter.

Based on Evidence Provided

'Formal Reprimand'[420]

  1. [446]
    That register was held in the Deputy Commissioner's office and concerned matters such as Mr Weaver's.  AC Shaddock explained:

AC Shaddock: …There's notations of the process of where they are at a particular juncture, some thoughts at a particular time, some rationale for some decision-making at a particular time…[421]

  1. [447]
    In cross examination, AC Shaddock accepted that the email sent from the Office of the Deputy Commissioner Custodial Operations to the Discipline Advisory Group on 15 June 2020 appeared to give effect to the notation in the register:

Mr Sibley: So do you accept that this is an email putting into action what appears to have been said to be a formal reprimand on the – on the register?

AC Shaddock: Okay.  I – I understand the link there, yes.[422]

  1. [448]
    At the Hearing, AC Shaddock said that he was not copied into the email containing DC McCahon's determination and that he didn't think he was aware of that email.  AC Shaddock explained the process was that if correspondence was sent on behalf of the Office of the Deputy Commissioner to the Disciplinary Advisory Group, he would have expected that:

AC Shaddock: Certain things, as requested, would be actioned, but for some reason they haven't been.[423]

  1. [449]
    AC Shaddock "imagined so" that the file before Deputy Commissioner McCahon for his review would have included the reprimand from the 2017 disciplinary incident.[424] 
  1. [450]
    Sometime later, Mr Weaver's matter (as yet unactioned) was returned to AC Shaddock for resolution.  AC Shaddock did not know how that came to be the case. 

Mr Sibley: Right. Is it a breakdown of process that the deputy commissioner who's still in place made a determination about what action to take – has attempted to set that in motion, and then somehow that hasn't occurred, and you've got the file back and decided to terminate Mr Weaver? Is that breakdown of process?

AC Shaddock: No, because I don't know, like you, the entire circumstances of why certain things – we don't know what Mr McCahon – he may have pulled this email five minutes later, for all I know. I don't know. I don't recall. I haven't – I haven't seen that email before. I can only talk to what you've decided and what I read there. How that ultimately didn't end up as a final outcome, I don't know.

Mr Sibley: Did you take steps of your own volition to get the file back in relation to Mr Weaver to -?

AC Shaddock: No.

Mr Sibley: - consider it?

AC Shaddock: No.[425]

  1. [451]
    The question of how there came to be two different decision-makers delegated to determine the disciplinary penalty that was to apply to Mr Weaver remains unclear.  Needless to say, it contributed to the procedural muddle in this matter.
  1. [452]
    To recap, AC Shaddock's evidence was that he was unaware that DC McCahon had in fact made a prior determination on the matter before the file was returned to him to decide. 
  1. [453]
    However, AC Papalia knew of DC McCahon's disciplinary penalty determination that the matter was to be dispensed of by warning letter and that Mr Weaver was to be returned to duty as a result of the 15 June 2020 email sent to the Disciplinary Advisory Group.[426]  AC Papalia clarified "By reminder of obligations is our terminology.  It was explicit."[427] 
  1. [454]
    When AC Papalia belatedly discovered that a second and different disciplinary penalty determination to terminate Mr Weaver's employment was later made by AC Shaddock,[428] he inquired to see if any additional investigation had been undertaken or any further material considered.  It was not. 

 Dr Brooks: …Who made – who ultimately made the decision to terminate Mr Weaver?

 AC Papalia: Commissioner, I'm aware that – it – I wasn't the ultimate determinator, but there were two other officers that provided determination.  There was a determination in regard to Mr Weaver's matters undertaken provided by Deputy Commissioner McCahon.  At the time, Deputy Commissioner McCahon was relatively new to our agency.  As a Deputy Commissioner, he held a delegation under chapter 6.  He provided a determination in regard to this matter.  Then sometime later, Assistant Commissioner Shaddock also provided a determination in regard to this matter, both operating as chapter 6 decision-makers.  In my awareness, through that process of different determination, I made inquiry to see if any additional investigation had been undertaken or any further material was considered.  I'm aware that there hadn't been different investigation undertaken and there was no additional material considered in difference between the two determinations.[429]

  1. [455]
    Having discovered that two different decision makers had made two different determinations as to Mr Weaver's fate and absent any new information emerging, it is unclear whether or what steps AC Papalia took to alert either DC McCahon or AC Shaddock to that occurrence. 
  1. [456]
    AC Shaddock explained the considerable efforts he had gone to locate the register.[430]  Commendably, AC Shaddock expressed his view that:

AC Shaddock: …I thought it was important to find the register, in particular.  I didn't know whether it was going to serve any favour for me or not.  I don't really care…[431]  

  1. [457]
    I found the register to be particularly significant and so have reproduced the notations contained therein below. 

1840 6.2.20 Paul Weaver BTCC

Gravitas of issue

1 x PAHSU 20.10.18

1 x PAHSU 15.10.18

1 x BTCC 28.01.19

HRA elements considered

Significant compromise risk exposure

Safety of person

Security risk

Duty of care – Open door obs regime

Suspension considered and actioned

______________________________________

17.3.20 1704 hrs

Warning letter – To file

______________________________________

21.4.20 1310 - Crown Law advices provided

- Corro to Mr Weaver to be actioned

- Right of Response[432]

- Formal Warning – Discipline Potential Outcome

_______________________________________

12.6.20 - Received Response 2nd Show

Cause Letter

Based on evidence provided

'Formal Reprimand'[433]

  1. [458]
    The first three notations were in the hand of AC Shaddock.  The last notation was penned by another person, that AC Shaddock believed to be "…Mr McCahon, who is the deputy commissioner now", as the register was kept in the Deputy Commissioner's office and the email dated 15 June 2020 "appeared to be an attempt to action the note that's been made on the 12th of June 2020…"
  1. [459]
    In light of the documentary evidence that a penalty of written warning had earlier been determined by Mr McCahon but that decision had not been actioned, it is significant that the same penalty had at the very least been contemplated (if not also determined) by AC Shaddock in March and April 2020. 
  1. [460]
    Further, just four minutes after making the notation "Warning letter – To file" in the register on 17 March 2020, AC Shaddock had made a similar notation on a copy of Mr Weaver's SCN – LDF Response correspondence, in these terms:

1708 17.3.20

  • Material reviewed
  • Circumstances acknowledged
  • Determination –  Warning letter

to file

Setting out –

Considerations

Compromise / Failure acknow…

Expectations going forward.[434]

  1. [461]
    AC Shaddock did not agree that the notations he had made in the register or on the SCN Response correspondence constituted his determination as such.  Instead he said the notations were reflective only of his "thoughts at that time":[435]

Mr Sibley: So will you accept that it appears that you've reached your determination at that point?

AC Shaddock: No, I – I don't, and I say that with respect to yourself and the process. As I've tried to explain, both these handwritten notes are point in time. They're – they're my notes. They're not a formal outcome to anything. I've made them contemporaneously. I didn't have to make them, I didn't have to retrieve them, but I found them – so –

…

AC Shaddock: But, no, I – I don't.  I know what you're saying.  I understand that, Mr Sibley, but no, I don't agree with that, with respect.  I made some notations at a particular time for a particular reason quite some time ago, but no, that wasn't where that matter eventually wound its journey through to.[436]

  1. [462]
    In cross examination, AC Shaddock was questioned further about the purpose of the register at the Hearing:

Mr Sibley: Right. Well, you haven't set out there other things that you were cogitating about, for example, termination?

AC Shaddock: No.

Mr Sibley: No. Other things that you could have been cogitating about like reprimands?

AC Shaddock: As I explained earlier, and again perhaps poorly, it's not comprehensive. This – this is not a formal document. It's a register that – I kept. Others who came after me, before me, may not have used it to the extent I did. Did it capture all my thoughts, all my considerations. No, it did not. Nor is it intended to.

Mr Sibley: Well, it appears, doesn't it, that it only captures one option. That's – ?

AC Shaddock: One option.

Mr Sibley: One outcome?

AC Shaddock: One option.

Mr Sibley: That – that's so, isn't it?

AC Shaddock: No, that – that –

Mr Sibley: So, what. There's only one outcome that been noted as your thoughts on your log, your register?

AC Shaddock: Yeah. Yeah. Yeah. As I said, it's not formal. It's not binding, it's not the end of it.

Mr Sibley: No. No. You – you – you've taken a different course subsequently, but you accept that the – there was no new information made available to you after that point?

AC Shaddock: No, I don't believe there was.[437]

  1. [463]
    AC Shaddock was asked what he relied upon when making that final determination to terminate Mr Weaver's employment.  His evidence was that he relied on:
  • information provided by Mr Peter Coyne, General Manager, Escort and Security Branch;
  • matters provided by Mr Alan Houchin, Acting General Manager, BTCC;
  • Officers Reports by Officer Singh, CCS Watts, CCO Sheahan, CCS Krueger;
  • emails between the NUM Ms Suruj Noor and Mr Peter Coyne, with respect to Allegation 1;
  • the Reports from AC Papalia;
  • the responses from those acting on behalf of Mr Weaver;
  • Mr Weaver's behaviour in the earlier 9 March 2017 event;
  • AC Shaddock's view of the calibre, character and fibre of Mr Weaver as an individual, resultant from the 2017 event;
  • the Memorandum from Mr Neil Boyd, Executive Director, Ethical Standards Unit relevant to the 2017 event; and
  • various medical documentations, assessments and outcomes.[438]
  1. [464]
    When asked by Dr Brooks why he considered that Mr Weaver should be terminated, despite having a medical condition that seemed to explain his falling asleep, or prone to falling asleep, AC Shaddock replied:

 Why did I still see fit to pursue the termination of Mr Weaver.  There's a number of things, and again, with respect, there is that event that I just spoke to…from the 9th of March 2017…And you can't unknow things.[439]

  1. [465]
    Whether ultimately AC Shaddock's notations[440] were his 'determinations' or simply his 'musings' at various points in time, no clear and persuasive reason was given to explain the seismic shift on the appropriate disciplinary penalty to apply in this case.  From the time of AC Shaddock's earlier recorded considerations of the option of formal warning – to instead ultimately deciding to terminate Mr Weaver's employment – no new information had emerged to shed a different light on the matter.  So what caused AC Shaddock's change of heart?  No satisfactory explanation was given.
  1. [466]
    It is also noteworthy that with exactly the same material before him, DC McCahon's assessment was that a "formal warning letter" was the appropriate disciplinary penalty in the circumstances.  That is quite a discrepancy between the decision makers – with 'termination' and 'reprimand' at either ends of the disciplinary penalty range.
  1. [467]
    In the absence of any other plausible reason proffered by AC Shaddock, his rather unbridled assessment of Mr Weaver's character sticks in my mind.  I believe AC Shaddock's personal opinion of Mr Weaver remained infected by that earlier resolved 2017 disciplinary matter.  Relevant extracts of the Hearing transcript with respect to that have been extracted at paragraph [437] above.
  1. [468]
    AC Shaddock's evidence also indicated the high level of trust he had in CCO Singh, having worked with him in his previous capacity as General Manager of PAHSU.  On that basis, AC Shaddock accepted CCO Singh's account of what had occurred, as outlined at paragraph [95] above.  That unfaltering confidence was misplaced in my view.
  1. [469]
    AC Shaddock also offered evidence that he had direct personal experience with sleep apnoea, as outlined at paragraph [348] above.  Simply, AC Shaddock backed his own understanding of SOSA and remained quite incredulous that someone may have the condition without any awareness of the symptoms.  AC Shaddock's opinion was not supported by the medical evidence provided by Mr Weaver.  Neither had AC Shaddock taken the step of testing his personal beliefs with a Queensland Health medical expert that would have been available to him.
  1. [470]
    In deciding the appropriate disciplinary penalty applicable to Mr Weaver, I believe AC Shaddock's assessment was marred by the above factors.  In my view, AC Shaddock's strong personal opinions of both Mr Weaver's and CCO Singh's respective 'characters' subconsciously infected the objective weighing of evidence in this case. 

Question 8: Whether the termination was harsh, unjust or unreasonable?

  1. [471]
    I have heeded the explanation of McHugh and Gummow JJ in considering whether or not the termination of Mr Weaver's employment was unfair (emphasis added):

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust.  In many cases the concepts will overlap.  Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[441]

Procedural fairness

  1. [472]
    Section 320 of the IR Act mandates matters that the Commission must take into account when determining whether a dismissal is unfair (emphasis added): 

320  Matters to be considered in deciding an application

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

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  2. (b)
    whether the dismissal related to –
  1. (ii)
    the operational requirements of the employer's undertaking, establishment or service; or
  1. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance –
  1. (iii)
    whether the employee had been warned about the conduct, capacity or performance; or
  2. (iv)
    whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant.
  1. [473]
    That criteria largely pertains to matters of procedural fairness. 
  1. [474]
    I accept that Mr Weaver was "notified of the reason for dismissal" in the DDA correspondence issued to him by AC Shaddock on 28 July 2020.
  1. [475]
    I accept that Mr Weaver was "warned" at the time of the earlier 2017 disciplinary incident that:

…You should be aware that any future substantiated allegations of misconduct and / or a breach of the Code of Conduct will be viewed very seriously and may result in the termination of your employment…[442]

However, I have earlier found in this Decision that it was not open to the decision maker to determine that Mr Weaver's conduct amounted to 'misconduct' in this case.

  1. [476]
    I have found that although Mr Weaver "was given an opportunity to respond to the claim about the conduct, capacity or performance", the necessary provision of such opportunity was not adequately executed.  Mr Weaver was entitled to respond to credible, relevant and significant material relied upon by the decision maker;[443] however his opportunity to do so suffered from inherently flawed process. 
  1. [477]
    In summary, I am persuaded that the process conducted by QCS was deficient in that:
  • the entirety of the evidence relied upon by the decision maker to determine the disciplinary findings, upon which the decision to terminate Mr Weaver was ultimately based, was not first put to him for response;
  • the witness evidence was accepted without the decision maker confirming its veracity by viewing the entirety of the relevant video footage available;
  • the failure to interview Mrs Weaver; and
  • the delay in investigation.
  1. [478]
    I note also that it is now QCS's practice to provide officers with the available video footage of an incident or event; however that was not the case at the time the interviews occurred with respect to Mr Weaver's matter.[444] 
  1. [479]
    For the reasons explained earlier in this Decision at paragraphs [378]-[407], I consider the combination of those process deficiencies has resulted in procedural unfairness to Mr Weaver that supports a finding that his termination of employment was unjust.
  1. [480]
    If I am wrong on that point, I have also found that Mr Weaver's substantiated actions do not constitute 'misconduct', as explained below.

Substantiated actions do not constitute 'misconduct'

  1. [481]
    I have considered the words of McHugh and Gummow JJ above that (emphasis added):

…termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted…

  1. [482]
    It was submitted on behalf of the Applicant that it was for the Respondent to establish that the:

…conduct amounted to misconduct, and if it's not an amount to misconduct, then his dismissal was unjust and he was, in turn, unfairly dismissed.  And in order to show the tribunal his conduct was misconduct…they must show he was deliberately sleeping or was recklessly negligent in doing so.[445]

  1. [483]
    I have earlier referred to the observations of DP Merrell with regards to the inherent elements of 'misconduct' as a "…deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies…"
  1. [484]
    On that basis, I have earlier found that Mr Weaver's conduct did not amount to 'misconduct' for the reasons explained at paragraphs [368]-[377] of this Decision.
  1. [485]
    For that reason, I find Mr Weaver's termination to be unjust.
  1. [486]
    If I am wrong on that point, I have also found that it was not open to the decision maker to find that all events occurred as alleged, as explained below.

Not open to the decision maker to find that all events occurred as alleged

  1. [487]
    It was submitted on behalf of the Applicant that Mr Weaver's:

…dismissal was unreasonable given the inferences which have been relied upon by the decision-maker which were not open to be made from the evidence before him.[446]

  1. [488]
    In many instances, I have found that it was not open to the decision maker to find that all events occurred as alleged.  My reasons are explained above.
  1. [489]
    The decision-maker placed weight on their presumption that Mr Weaver was aware that he had succumbed to microsleeps and yet had not taken steps to mitigate that risk.  That presumption was errored in my view and I find Mr Weaver's termination to be unreasonable on that basis.
  1. [490]
    If I am wrong on that point, I have also found that it was not open to the decision maker to find that Mr Weaver was "derelict in the performance of his duties", as explained below.

Not open to the decision maker to find that Mr Weaver was "derelict in the performance of his duties"

  1. [491]
    Neither do I find that it was reasonably open to the decision maker to find that Mr Weaver was "derelict in the performance of his duties". 
  1. [492]
    As I have earlier explained in this Decision, one's physical health may fall below a desired standard, without one's "blameworthy conduct" and "reprehensible" and "culpable neglect" having caused, contributed or otherwise disguised the physical condition that would render one 'unfit' for duty at any point in time.  I believe that to be the case here.
  1. [493]
    I have also considered the recent case of Ball,[447] in which O'Connor VP noted the relevance of the remarks of Ross VP (as his Honour then was) (emphasis added):

Ross VP (as his Honour then was) found that the circumstances dictated whether sleeping on the job was a valid reason for dismissal, including the frequency and duration of naps, the nature of work and the employee's responsibilities.  His Honour wrote:

In reply the respondent relied on a number of authorities in support of its contention that sleeping at work constitutes a valid reason for termination, and made reference to the introductory words in chapter 6 of The Law of Employment, namely:

'Unless an employee has a job as a mattress tester or a similar occupation, sleeping on duty is neglect of duty.'

In my view the question of whether sleeping at work constitutes a valid reason for termination depends on the circumstances.  The relevant factual matrix must be considered.  Issues such as the frequency and duration of sleeping, the nature of the work being performed and the responsibilities of the employee concerned, will all be relevant.  In certain circumstances a single instance of sleeping has been found to be sufficient to constitute a valid reason for termination.  For example, where the applicant was a security officer on duty at Kirribilli House or an emergency services officer at a mine site who was required to 'maintain a state of alertness on duty and conduct themselves in a manner which ensures their ability to respond to emergencies for the full twelve hours of their shift'.

At the relevant time, the Applicant was a CCO at WCC, a high security prison.  What was alleged against the Applicant is more than a single episode of sleeping whilst on duty… 

  1. [494]
    In my view, the clear difference between Mr Weaver's circumstances here and the case of Ball is the significant element of knowledge and awareness of being asleep on duty. 
  1. [495]
    In Ball, an exchange between prisoners and Mr Ball was observed to be:

…'when they would wake him up, he'd sort of like raise his right arm a bit from his folded arms and give them the finger, then put it back, and his head would dip back down again.'  In his Affidavit, CCO Crichton said, 'as the prisoners banged on the window, Mr Ball would wake up, give them the finger and then the prisoners would run away from the window.  When the prisoners ran away, and the banging stopped, Mr Ball would then go back to sleep.'[448]

  1. [496]
    I note in Ball that CCO Crichton's evidence was that Mr Ball was said to be "…wearing glasses and he could not see his eyes.  He 'appeared' to be asleep."[449]
  1. [497]
    I have not found the circumstances in Ball to be analogous to that of Mr Weaver's. 
  1. [498]
    For the reasons I have explained in paragraphs [323]-[357] of this Decision, it was not open to the decision maker to find that Mr Weaver was "derelict in the performance of his duties".  I find Mr Weaver's termination to be unreasonable on that basis.
  1. [499]
    If I am wrong on that point, I have also found that the discipline was not authorised under the PS Act as there could not be reasonable satisfaction that Mr Weaver had engaged in misconduct, as explained below.

Discipline not authorised under the PS Act

  1. [500]
    Section 187 of the PS Act states that:

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-

  …

 (b)  been guilty of misconduct; or

 …

  1. [501]
    It was earlier observed that should it be found that Mr Weaver's dismissal was not authorised by the PS Act, a conclusion that the dismissal was unjust within the meaning of the IR Act may follow.
  1. [502]
    So could the decision maker be "reasonably satisfied" that Mr Weaver was guilty of misconduct?  With respect to the inherent elements of 'misconduct', I have earlier considered whether it was reasonably open to the decision maker to find that Mr Weaver was aware that he was falling asleep or had any real knowledge of his propensity to fall asleep – and thus whether misconduct could be said to have occurred.  I have found that it was not.
  1. [503]
    It follows then that for the reasons explained at paragraphs [368]-[377] above, I have concluded that the decision maker could not be "reasonably satisfied" that Mr Weaver's conduct amounted to misconduct.  On that basis, I find that discipline exercised under the PS Act on that basis resulted in the unjust termination of Mr Weaver's employment.
  1. [504]
    If I am wrong on that point, I have also found that Mr Weaver's dismissal was harsh given his personal and economic situation and the disproportionate nature of the disciplinary action taken, as explained below.

Other matters

  1. [505]
    It was submitted on behalf of the Applicant that the:

…dismissal was harsh due to the consequences for his personal and economic situation for the employee and due to the disproportionate nature of the disciplinary action, especially in the context of the fact that he had this undiagnosed medical condition which he was able to rectify and which resulted in him being fit for not only his other duties but in fact the type of duty he'd been found to have fallen asleep during.[450]

Personal and economic situation

  1. [506]
    It should be self-evident that a decision to terminate the employment of an older worker – who also financially provides for three teenage girls – in the middle of the COVID pandemic, is not a step to be taken lightly.
  1. [507]
    That decision had dire consequences on the fortunes of the Weaver family.  Mr Weaver's evidence recounted how he had to draw down his savings and take any insecure or contract work he could find to assist his wife to support the family in this period.[451]
  1. [508]
    It has affected Mr Weaver's wife and her work.  Mr Henderson's evidence was that:

Mr Henderson: So I only found out that Paul had been dismissed when his wife came up and asked to get moved from a roster.  I touched base with Paul's wife, another high performing officer that does at a lot of overtime and involved in a lot of roles in the centre.  She came up to me very upset and wanted to move roster.  So it was again from one area to another area, just moving her down into residential, because she didn't want to face questions about Paul being dismissed.  And that's the first time I found out Paul had been dismissed.[452]

  1. [509]
    Mr Weaver also spoke about the impact of his dismissal on his family in these terms:

Mr Weaver: I'm married. My wife works with Corrective Services so there was a certain level of embarrassment that we'd been suffering because of it. We have – my wife and three teenage girls. So they're ours and we look after – so I had – we had that. We had a house that we had to look after. You know, a car. I was concerned about superannuation going forward as well so – and retirement given my age so – yeah – I – there was a lot of financial issues to be – to be taken into consideration with that.

Mr Sibley: Now, at this time there was also the issue of the COVID pandemic?

Mr Weaver: That's correct.

…

Mr Sibley: So you were concerned that there'd be less options for you?

Mr Weaver: Absolutely.  Yes.[453]

  1. [510]
    The SCN – DDF & PDA Response provided on behalf of Mr Weaver on 21 May 2020 outlined the personal impact of termination on Mr Weaver and proposed an alternative suggestion of a more appropriate disciplinary penalty in the circumstances.
  1. [511]
    While AC Shaddock's DDA correspondence indicated that Mr Weaver's submissions in relation to the impact termination of employment would have on his personal and family circumstances were carefully considered, he did not consider that outweighed the seriousness of the conduct.[454]
  1. [512]
    When considered in concert with the fact that the said conduct occurred involuntarily and without awareness on the part of Mr Weaver, the decision to terminate his employment was harsh in my view.

Disproportionate nature of the disciplinary action

  1. [513]
    I have also considered the disproportionate nature of the disciplinary action.
  1. [514]
    The muddle of the two different decision makers making two different disciplinary penalty determinations in this matter is front of mind.  Even with a disciplinary finding of 'misconduct' before him (which I have disturbed in this Decision), DC McCahon had determined the appropriate disciplinary penalty to be a formal warning letter of reprimand.
  1. [515]
    However, with the same set of facts before him, AC Shaddock made a very different decision, one at the opposite end of the disciplinary penalty range available to him. 
  1. [516]
    I do not believe that discrepancy can be explained as a case of reasonable minds differing.  Instead, I rather consider that difference to be accounted for by AC Shaddock being so encumbered with a deep-held view about Mr Weaver's 'character' harking back to the resolved 2017 disciplinary incident. 
  1. [517]
    I acknowledge that AC Shaddock expressly rejected the proposition put to him as to whether it was his intention to repunish Mr Weaver for that earlier 2017 incident.  But in the absence of any clear or persuasive reason as to what caused AC Shaddock's change of heart with respect to the appropriate disciplinary penalty, I have explained why I believe that may subconsciously have been the case.
  1. [518]
    AC Papalia also gave evidence about a number of similar matters and the different treatment each received:

AC Papalia: …I mentioned earlier that in the time I've been here, we've had 17 matters that was similar in nature.  I'm aware of a variety of outcome.  So in my response, I did include the full suite of outcome in terms of potential sanction that could be faced by Mr Weaver.  I know that of the 17, five officers have been returned to duty with no – other than a reminder of obligation outcome.  Of the remaining 12, there was a variety of disciplinary sanctions applied through from reduction in level to loss of employment.[455]

  1. [519]
    For the reasons explained above, the disproportionate nature of the disciplinary action determined to terminate Mr Weaver's employment was harsh in my view.

Question 9: Whether reinstatement is impracticable or otherwise inappropriate

  1. [520]
    Having found that the decision to terminate Mr Weaver's employment was harsh, unjust or unreasonable on the eleven grounds reasoned above, my consideration now turns to the appropriate remedy.
  1. [521]
    Mr Weaver seeks reinstatement to his former position without loss of service and compensation (being reimbursement lost because of the dismissal) from the date the dismissal took effect and the date of reinstatement.[456]  That is, from 5 August 2020 to the release of this Decision.
  1. [522]
    Mr Weaver's application was made under s 317 of the IR Act.  The remedies he seeks are available under ss 321 and 322 of the IR Act in particular circumstances:

321 Remedies—reinstatement or re-employment

(1) This section applies if the commission is satisfied an employee was unfairly dismissed.

(2) The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

(3) If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.

(4) The commission may also—

  1. (a)
    make an order it considers necessary to maintain the continuity of the employee's employment or service;

and

(b) order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and

(c) order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.

(5) This section does not limit the commission's power to make an interim or interlocutory order.

322 Remedies—compensation

(1) If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission.

(2) The commission must not award an amount of compensation that is more than—

(a) if the employee was employed under an industrial instrument—the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or

(b)  if the employee was not employed under an industrial instrument—the lesser of the wages under paragraph (a) and an amount equal to half the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.

(3) The commission must take into account any amount paid to the employee by the employer on the dismissal.

(4) This section does not limit the commission's power to make an interim or interlocutory order.

Trust and confidence

  1. [523]
    Vice President O'Connor previously considered the effect of a loss of trust and confidence on the question of the 'practicability' of a reinstatement remedy.  In Ball,[457] his Honour cited with approval the Full Court of the NSW Industrial Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd (emphasis added):

Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation.  Compensation, which is subject to a statutory limit, would be the only available remedy.  Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits.  There may be cases where any ripple on the surface of the employment relationship will destroy its viability.  For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability.  There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information.  But those are relatively uncommon situations.  In most cases, the employment relationship is capable of withstanding some friction and doubts.  Trust and confidence are concepts of degree.   It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.  Whether that standard is reached in any particular case must depend upon the circumstances of the particular case.  And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing.  The requirement may cause inconvenience to the employer.  But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee.  The problems will be of the employer's own making.  If the employer is of even average fair-mindedness, they are likely to prove short-lived.  Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.[458]

  1. [524]
    The Applicant submitted that "it is simply untenable for the Respondent to say there has been a loss of trust or confidence" in circumstances where a lengthy period elapsed between the alleged events and initiation of paid suspension, and with respect to the duties performed by Mr Weaver in the intervening period.[459] 
  1. [525]
    It was submitted on behalf of the Applicant that he:

….was not suspended after the incident occurred, and whilst he was placed on alternative duties for a short period of time, he was, by June 2019, reinstated to his substantive role, and he continued in that role for a further eight months before being suspended from his position.

…the alternative duties that he performed…involved a very high degree of trust and a very high degree of responsibility and in our submission that indicates that they had not lost trust in his ability as a correctional officer to perform those roles.[460]

  1. [526]
    The Applicant further asserts that "the doctrine of condonation applies to the extent that the Respondent relies upon the misconduct which they say justified dismissal."[461] 
  1. [527]
    That argument is expressly rejected by the Respondent.[462]  The Respondent has submitted that:

The transfer of the Applicant to alternative duties from 4 February 2019 was consistent with the Respondent's statutory obligations.[463]

…

…the decision to return the Applicant to his usual roster was made prior to the conclusion of the Ethical Standards Unit investigation.   The Applicant was suspended from duty when a decision maker with delegated authority to suspend the Applicant from duty reviewed the investigation report and determined to commence a disciplinary process.  The decision to return the Applicant to his usual roster does not alter the seriousness of his conduct.

The fact that the Applicant remained in the workplace until 12 February 2020 does not prevent a finding that the Respondent had lost trust and confidence in his ability to comply with his obligations as an employee, noting the repeated nature of his conduct.[464]

  1. [528]
    Earlier in this Decision, I have considered the length of time that had elapsed between the allegations and initiation of paid suspension, the high-level of responsibility that remained inherent in the 'non-prisoner contact' duties Mr Weaver performed in the intervening period, the evidence that the SOSA medical condition had resolved due to Mr Weaver's active continued attention and Mr Henderson's high regard for him as an officer. 
  1. [529]
    On all those measures, any suggestion that there has been a loss of trust and confidence that would prevent Mr Weaver's reinstatement does not hold water in my view.

AC Shaddock

  1. [530]
    AC Shaddock has made no secret of his view of Mr Weaver's 'character' throughout this proceeding.  I believe that was a significant factor that led to him ultimately concluding that termination was the appropriate disciplinary penalty, departing from the option of his earlier notated 'consideration' – and a significant departure from the 'reprimand' that DC McCahon had separately and independently determined to apply. 
  1. [531]
    The significant factor in AC Shaddock's assessment of 'trust and confidence' was the earlier 2017 incident in which Mr Weaver was said to have alerted colleagues to a covert operation at the correctional facility in which staff bags would be checked.  To be clear, that earlier incident had been investigated, the penalty of reprimand applied to Mr Weaver and the matter closed. 
  1. [532]
    At the Hearing, AC Shaddock denied that he was repunishing Mr Weaver for that earlier incident by terminating his employment.
  1. [533]
    Nonetheless, it was self-evident that AC Shaddock continued to harbour a negative opinion of Mr Weaver's character as a result of that prior event.  AC Shaddock's evidence on that issue was reproduced at paragraph [437] of this Decision and need not be again repeated here.
  1. [534]
    AC Shaddock is currently Assistant Commissioner for the Central Northern Region Command for Queensland Corrective Services, that is the area described as "From Woodford north".[465]  I recognise that in the event that Mr Weaver was reinstated to "a role as a correctional officer in Borallon or the Brisbane area",[466] he would fall under the Southern Command and AC Ursula Roter.[467] 

AC Papalia

  1. [535]
    For his part, AC Papalia ruminated that "…part of the confidence for me is that how – how honest and forefront are they in terms of their [indistinct] we seek to promote that".[468] 
  1. [536]
    AC Papalia went on to agree though that he would have confidence in someone returning to work where their prior medical condition had been resolved:

Mr Sibley: So I mean, if the sole issue is about their fitness for duty because of a sleeping disorder and that's been rectified and they're now fit for duty, you'd have confidence in them being returned to work, wouldn't you?

AC Papalia: Commissioner, I see that as no different than any other medical condition,  If it's diagnosed medical condition and there's treatment available and we can fulfil that treatment then that's the approach we'd take.  If an officer was on the floor having a stroke, then we would look to try and respond to the medical condition.[469]

  1. [537]
    He made positive comment about the positive actions taken by Mr Weaver to resume his health and well-being in these terms:

Mr Sibley: And you didn't, as you say, you didn't make the decision in Mr Weaver's case but you certainly consider it commendable that he took such quick action to identify his medical condition and to rectify it?

AC Papalia: What I feel is commendable regarding Mr Weaver's action is that he's taken active steps in terms of getting diagnosed but then followed a treatment program and, candidly, he's lost a lot of weight.  I understand that that contributes to the risk.  I think those are very commendable actions, not only for, you know, a potential work environment but for personal survivability.[470]

Mr Henderson

  1. [538]
    I recognise that AC Shaddock's assessment of Mr Weaver's character was at odds with that of Mr Henderson, General Manager, Brisbane Correctional Centre.  Mr Henderson's evidence was effusive that he held Mr Weaver in high regard. 
  1. [539]
    Mr Henderson spoke of being required to serve the SCN – LDF, informing Mr Weaver that he was to be placed on paid suspension in these terms:

Dr Brooks:  All right. And you gave it to him a couple of days after you received it?

Mr Henderson: Yes.

Dr Brooks: Why was that?

Mr Henderson: I had a conversation with the delegate that night.

Dr Brooks: Who is that?

Mr Henderson: Peter Shaddock.

Dr Brooks: Yes?

Mr Henderson: Where I rang him up and voiced a range of concerns about serving this document on Mr Weaver.

Dr Brooks: All right. And what concerns did you hold?

Mr Henderson: I had concerns – I struggled with the fact that these incidents happened a year previously, 12, 14 months previously, that we'd kept Mr Weaver in the workplace.  We'd placed a great deal of responsibility on him, including managing our gatehouse, response vehicles, and master controls.  So I voiced my concerns about that.  I voiced my moral concerns about serving it.  I voiced my concerns that I thought this was procedurally fraught with contestability.[471]

  1. [540]
    Mr Henderson's assessment proved apposite in this case.
  1. [541]
    Further, Mr Weaver's conduct upon suspension did not seem to create any impediments to his return to QCS:

Mr Sibley: Okay. When – when you spoke to Paul about all these issues, and in fact, you've reviewed that document that he prepared in relation to the suspension, did Mr Weaver – sorry, I shouldn't say Paul, Mr Weaver, did he appear aggressive or defensive about his – in his manner?

Mr Henderson: Paul has never appeared aggressive or defensive about anything that he's had in his involvement of me. I've always – he was a professional corrections officer with me.

Mr Sibley: So he wasn't lashing out or making disparaging comments about anyone?

Mr Henderson: No.  My conversation, if I can – he was – my conversation when I first spoke to him about it, he was somewhat surprised that we'd ended up in these circumstances and almost dismayed that I was suspending him – well, I was providing him suspension paper.  I had concerns about his mental health in regards to it.  I have concerns when we suspend everybody about their mental health.  But he was gobsmacked.[472]

CCOs and CSOs

  1. [542]
    Several CCOs and CSOs who gave evidence were asked whether they would be confident working alongside Mr Weaver once again, should medical evidence show that his medical condition was now appropriately managed.  Each of the witnesses below affirmed that they would be prepared to again work with Mr Weaver in those circumstances.
  1. [543]
    CCO Sheahan's evidence was as follows:

Mr Sibley: …so your only issue about Mr Weaver, is it fair to say, is that he – that there was a risk that he would fall asleep?

CCO Sheahan: Correct.

Mr Sibley: And if you knew now, or you know now that that is no longer a risk because he's treated for sleep apnoea, would you be confident and have trust in him to be able to form that role without falling asleep?

CCO Sheahan: If it was treated and it was proven that it was treated, I wouldn't have an issue.[473]

  1. [544]
    CCS Krueger's evidence was as follows:

Mr Sibley: Is that yes to my question, that you would have confidence that if he was no longer at risk of falling asleep while he was on duty, because the sleeping – the falling asleep had been caused by a medical condition that he'd rectified – you would then be confident and have trust in him to perform his duty?

CCS Krueger: Obviously, yes, I would have to – I'd have to agree, yes.

Mr Sibley: You would?

CCS Krueger: Yes.[474]

  1. [545]
    CCS Cook's evidence was as follows:

Mr Sibley: …if you were of the understanding that a person in Mr Weaver's position, in hindsight, was unaware that they were falling in and out of sleep because of their medical condition, and they had that condition rectified such that they would no longer be at risk of falling in and out of sleep during a shift, would you have confidence in working alongside Mr Weaver?

CCS Cook: If Mr Weaver's aware of what his medical condition is now and he's being treated for it, I don't have any issue with working with Mr Weaver at all.

Mr Sibley: Because the only issue that caused you concern was the fact that he was falling in and out of sleep?

CCS Cook: That's correct.  Yes.

Mr Sibley: All right.  And so I suggest to you that in circumstances where he had treated that medical condition and he was no longer at risk of falling asleep – in and out of sleep – during a shift, you would have full trust and confidence in working alongside him?

CCS Cook: Absolutely.  Yes.[475]

  1. [546]
    CCO Singh's evidence was as follows:

Mr Sibley: …If I said to you that he had a medical condition at the time that meant that he was falling asleep during the day without being aware of it and being unable to control it, okay, so he wasn't aware that he was falling asleep and he wasn't able to control the fac that he would fall asleep, and when he woke up, he may not even have been aware that he was asleep.  If that condition was rectified, such that he was no longer at risk of falling asleep during times that he should be awake, but, like, at work, would you feel confident to work with him and trust him as a colleague to stand beside you?

CCO Singh: Yes.[476]

  1. [547]
    Notwithstanding AC Shaddock's contrary view of Mr Weaver, the CCOs who gave evidence in this case indicated they would not have any issues working with Mr Weaver in the event that he was reinstated, providing his medical condition was now appropriately managed. 

Impact of Mr Weaver's written response provided to the ESG Investigator

  1. [548]
    With respect to the Respondent's assertion that "reinstatement is not appropriate because there has been a justifiable loss of trust and confidence" with respect to Mr Weaver's written response provided at interview with the ESG Investigator on 6 September 2019, my assessment is that Mr Weaver, CCS Watts and CCO Sheahan had all recounted snippets of what Prisoner [X] had said to them about another officer at some time during the ESG Investigation, within their Officer Reports or throughout the disciplinary process. 
  1. [549]
    CCS Watts objected to what the prisoner was said to have told Mr Weaver about her – just as Mr Weaver had objected to what the prisoner said about him. 
  1. [550]
    Ultimately, the prisoner declined to be interviewed and it was noted by the ESG Investigator that he was now ensconced as an in-patient at a psychiatric facility. 
  1. [551]
    Even so, it was generally accepted by the relevant witnesses that on 28 January 2019, Prisoner [X] was already a "difficult customer", rambling, playing staff off against each other and altogether a very unwell individual. 
  1. [552]
    Against that backdrop, it is unsurprising that he said things about at least two officers that day, and succeeded in causing upset to both of them. 
  1. [553]
    I quite agree with AC Papalia's sensible observation that in such circumstances, little weight would be given to the word of the prisoner – and as it was he declined to be interviewed. 

Remedy

  1. [554]
    At the Hearing of this matter, it was submitted that:

…there has been no loss of trust and confidence in the applicant and the appropriate remedy would be the Commission find…that the dismissal was harsh, unjust or unreasonable and to reinstate (Mr Weaver) to his former position.[477]

  1. [555]
    For the reasons explained above, I find that reinstatement is the appropriate remedy in this case.

Conclusion

  1. [556]
    Mr Weaver impressed me as a straightforward, hardworking and diligent person – the type of person that most would feel fortunate to have in their employ. 
  1. [557]
    The video footage I have viewed extensively over the course of the Hearing showed Mr Weaver to be conscientious in remaining at his post as required, taking active steps to manage his fatigue, engaging pleasantly with people around him and using some of the available time to review work-related material.
  1. [558]
    When Mr Weaver was made aware that he had fallen asleep by CCS Krueger, he took a period of leave to refresh shortly thereafter and then sought medical advice in order to investigate whether there may be any underlying issue.  Once Mr Weaver obtained a medical diagnosis for a problem only recently suspected, he acted to remedy the problem with commendable alacrity.  His actions included seeking expert medical advice and assessment, purchasing a special machine at considerable personal expense and faithfully following a weight loss regime with great success.
  1. [559]
    Mr Weaver appraised the ESG investigator and QCS of his medical condition, once a diagnosis was obtained.  In my view, Mr Weaver engaged with the investigation and subsequent show cause process appropriately given all the circumstances.  It is entirely understandable that Mr Weaver could only provide answers within his knowledge at any point in time.  QCS made much of Mr Weaver's continuation to deny he was asleep on duty even after he was aware of the SOSA diagnosis.  However, the medical evidence confirmed that someone with an Epworth score of 4 may not well feel sleepy and that it were possible that Mr Weaver was not aware that he had fallen asleep or woken up.  I have accepted Mr Weaver's account that was in fact the case.
  1. [560]
    I find it concerning that Mr Weaver was required to respond to allegations that occurred some considerable time ago, in circumstances where the available video footage was not first provided to him.
  1. [561]
    Further procedural problems were that all relevant witnesses were not interviewed and that the entirety of the material relied upon in taking the decision to terminate Mr Weaver's employment was not first put to him for response ahead of any disciplinary finding being made.
  1. [562]
    I have considered other relevant factors mandated by s 320 of the IR Act, including Mr Weaver's length of service, the personal impacts of termination, evidence that he is held in high regard and his commendable contribution and commitment to QCS.  Those factors were certainly considered against an isolated incident of disciplinary action in 2017.
  1. [563]
    Having seen medical evidence that Mr Weaver is fit to perform duties and evidence that he had successfully done so leading up to his suspension, I am satisfied that Mr Weaver can and should be reinstated.
  1. [564]
    Ultimately my considerations of procedural fairness, whether the allegations could be substantiated, misconduct and whether Mr Weaver was derelict the performance of his duties have led to my conclusion that the termination of Mr Weaver's employment was harsh, unjust and unreasonable. The evidence supporting this conclusion is overwhelming in my opinion.
  1. [565]
    It was not a fair decision in the circumstances for the eleven grounds I have explained above.  Those reasons include significant procedural errors within the disciplinary process.
  1. [566]
    I find that the termination of Mr Weaver's employment was harsh, unjust and unreasonable. 
  1. [567]
    The application for reinstatement is granted.

Orders:

  1. Pursuant to s 321(2) of the Industrial Relations Act 2016 (Qld), Mr Weaver is to be reinstated to his former position on conditions at least as favourable as the conditions on which he was employed immediately before dismissal.  
  1. Pursuant to s 321(4)(a) of the Industrial Relations Act 2016 (Qld), Mr Weaver’s continuity of employment shall be maintained between the date his dismissal took effect on 5 August 2020 and the date of reinstatement (the relevant period).
  1.  

(a)     Pursuant to s 321(4)(b), (c) of the Industrial Relations Act 2016 (Qld), the Respondent shall pay to Mr Weaver:

  1. the remuneration lost, or likely to have been lost, by Mr Weaver because of the dismissal in the relevant period;

Less:

  1. the monies earnt by Mr Weaver in the relevant period; and
  1. the monies paid by the Respondent to Mr Weaver, by way of notice upon the termination of his employment; and
  1. any monies paid by the Respondent to Mr Weaver for any accrued entitlements upon the termination of his employment (provided those accrued entitlements are now to be reinstated).

(b)     The gross amount shall be taxed according to Australian Law.

(c) Should the parties, within 21 days of date of reinstatement, be unable to agree on the amount of remuneration lost, either party has liberty to notify the Registrar and I will list the matter for further Directions to determine the amount of remuneration lost.           

  1. Mr Weaver is to be reinstated within 22 days of the release of the date of this Order.

Footnotes

[1] T 1-7, l 29.

[2] Exhibit 1, 438 [8].

[3] Ibid 439 [24].

[4] T 1-7, l 33; Respondent's Closing Submissions filed 15 November 2021, 1.

[5] T 1-7, ll 34-40.

[6] T 1-7, ll 41-45; Respondent's Closing Submissions filed 15 November 2021, 1.

[7] Exhibit 1, 439 [24].

[8] T 1-8, ll 4–6.

[9] "At that stage" refers to the date of the first alleged incident – 10 October 2018.

[10] T 1-21, l 27; That is, the Queensland Corrective Services Academy.

[11] Ibid ll 20-24.

[12] Affidavit of Mr Weaver filed 21 August 2020, 5 [46].

[13] Exhibit 1, 440 [29].

[14] T 1-21, ll 14-17.

[15] Ibid ll 33-45.

[16] Affidavit of Mr Weaver filed 21 August 2020, 3 [6].

[17] During the investigation interview; Affidavit of Mr Weaver filed 21 August 2020, 5 [36]-[37].

[18] In Mr Weaver's responses to the two Show Cause Notices dated 29 February 2020 and 21 May 2020; Affidavit of Mr Weaver filed 21 August 2020, 5 [36]-[37].

[19] Affidavit of Mr Weaver filed 21 August 2020, 3 [12].

[20] Applicant's Statement of Facts and Contentions filed 10 November 2020, 9 [4].

[21] Laegal v Scenic Rim Regional Council [2018] QIRC 136, 17 [63]-[65].

[22] [1995] 185 CLR 410, 465.

[23] [2018] QIRC 136, 18 [66].

[24] (1993) 144 QGIG 914, 916.

[25] [2021] QIRC 116, 18 [79]-[84].

[26] [2021] QIRC 116, 19 [86].

[27] [2020] QIRC 032, 13 [62].

[28] Ibid.

[29] [2020] QIRC 067, 11 [36].

[30] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 15 [71].

[31] Ibid.

[32] Gold Coast District Health Service v Walker (2001) 168 QGIG 258, 259.

[33] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 14 [69]; The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067, 12 [39]; O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 123, 5 [13]; T 1-6, ll 15–18.

[34] [2021] QIRC 116, 6 [17]-[18].

[35] [1993] 144 QGIG 914, 916.

[36] (1959) 101 CLR 298.

[37] Respondent's Closing Submissions filed 15 November 2021, 7 [55], 9 [69].

[38] Ibid 7 [55].

[39] T 1-79, ll 41-42.

[40] T 1-80, ll 3-5.

[41] T 1-85, ll 40-47; T 1-86, ll 1-10.

[42] Industrial Relations Act 2016 (Qld) s 531(2).

[43] Office of the Queensland Parliamentary Counsel, 'Principles of good legislation: OQPC guide to FLPs' (2013) 1, 10 [27].

[44] Applicant's Reply Submissions, 6 December 2021, 4 [26].

[45] T 2-89, ll 1-4.

[46] Jones v Dunkel (1959) 101 CLR 298.

[47] J D Heydon AC, Cross on Evidence (LexisNexis, 10th ed, 2014) [1215].

[48] Jones v Dunkel (1959) 101 CLR 298, 320-321.

[49] Power v Torres Strait Island Regional Council [2011] ICQ 7, cited in Guymer v Workers' Compensation Regulator [2018] ICQ 009.

[50] [2013] QIRC 19, 6 [51]-[53]; See also White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041.

[51] [2015] NSWCA 56, cited in White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041, 22 [74].

[52] RHG Mortgage Ltd v Ianni [2015] NSWCA 56, [76]; See also Jones v Dunkel [1959] 101 CLR 298, 320-321.

[53] T 2-73, ll 27-28.

[54] Respondent's Closing Submissions filed 15 November 2021, 9 [67], [69].

[55] T 2-91, ll 10-11.

[56] Exhibit 1, 442.

[57] Ibid 367-368.

[58] Ibid 368.

[59] Ibid 442.

[60] Ibid 366.

[61] Exhibit 1, 367; Respondent's Closing Submission filed 15 November 2021, 1 [3].

[62] Exhibit 1, 367.

[63] Ibid.

[64] Ibid.

[65] T 1-11, ll 41-44; T1-12, ll 1-5.

[66] Applicant's Statement of Facts and Contentions filed 10 November 2020, 5 [3.1].

[67] T 1-39, ll 32-33.

[68] T 1-40, l 17.

[69] Ibid ll 15-16.

[70] Applicant's Closing Submissions filed 8 October 2021, 3 [17].

[71] Respondent's Closing Submissions filed 15 November 2021, 2 [11]; Respondent's Table Summary of CCTV Footage filed 15 November 2021; T 1-23, l 37; T 1-25, l 14; T 1-49, l 5; T 2-8, l 7; T 2-28, l 24; T 1-49, l 5.

[72] T 1-23, ll 37-46.

[73] T 1-25, ll 12-40.

[74] T 1-49, l 16.

[75] Exhibit 1, 12.

[76] T 2-11, ll 1-20.

[77] Exhibit 2; Applicant's Closing Submissions filed 8 October 2021, 3 [22].

[78] Respondent's Closing Submission filed 15 November 2021, 1 [6].

[79] Exhibit 1, 4.

[80] T 2-140, ll 32-34.

[81] Exhibit 1, 4.

[82] T 2-138, ll 35-37.

[83] T 2-145, ll 45-47.

[84] T 2-180, ll 25-41.

[85] T 2-145, ll 9-29.

[86] T 2-137, ll 1-2.

[87] T 2-138, ll 35-44.

[88] Exhibit 1, 168; T2-152, l 12.

[89] T 2-152, ll 19-27.

[90] T 2-138, ll 32-43.

[91] T 2-180, ll 25-41.

[92] T 2-180, ll 1-10; Exhibit 1, 4.

[93] Applicant Closing Submissions filed 8 October 2021, 4 [26].

[94] Respondent's Closing Submissions filed 15 November 2021, 3 [17].

[95] T 2-194, ll 33-45.

[96] Respondent's Closing Submission filed 15 November 2021, 2 [13].

[97] T 3-82, ll 8-10.

[98] Exhibit 1, 7.

[99] T 3-82, ll 35-39; T 3-84, ll 1-10.

[100] T 3-123, ll 1-6.

[101] T 4-31, ll 3-8.

[102] T 4-77, ll 5-7.

[103] Exhibit 1, 3.

[104] T 1-16, ll 10-15; T 1-53, ll 17-47.

[105] T 1-53, ll 17-39.

[106] Applicant's closing submissions filed 8 October 2021, 5 [36].

[107] [101] of this Decision.

[108] [97] and [100] of this Decision.

[109] T 1-43, ll 19-38.

[110] Applicant's Reply Submissions, 6 December 2021, 2 [8].

[111] T 1-11, ll 41-44; T 1-12, ll 1-5.

[112] T 1-38, ll 37-45.

[113] T 1-37, ll 41-42.

[114] T 2-145, ll 9-29.

[115] T 2-137, ll 1-2.

[116] 8:48 am.

[117] T 1-38, ll 13-21.

[118] Exhibit 1, 328.

[119] T 1-41, ll 21-29.

[120] Ibid ll 45-46; T 1-42, ll 1-2.

[121] T 1-42, ll 17-20.

[122] Exhibit 1, 442.

[123] Ibid 371.

[124] Exhibit 1, 368.

[125] Ibid 442.

[126] Ibid 366.

[127] Ibid 370.

[128] Ibid.

[129] Ibid.

[130] Ibid; The Officers' Reports at Exhibit 1, 24-30, 49-55 and Respondent's Closing Submissions filed 15 November 2021 all refer to Allegation Two instead occurring outside Room 2, rather than Room 3.  However, whether it was Room 3 or Room 2 is not material to my considerations.

[131] Applicant's Statement of Facts and Contentions filed 10 November 2020, 5 [3.1].

[132] Respondent's Closing Submissions filed 15 November 2021, 4 [27]; Respondent's Table Summary of CCTV Footage filed 15 November 2021; T 1–63, l 38.

[133] T 1-63, ll 32-44.

[134] T 1-64, ll 1-16.

[135] Ibid ll 18-30.

[136] T 1-66, ll 1-18.

[137] T 2-22, ll 4-33.

[138] Exhibit 1, 244 [182]-[184], 246 [213] when discussing Allegation 2.

[139] T 3-7, ll 29-31.

[140] Exhibit 1, 27.

[141] T 3-34, ll 3-5.

[142] Exhibit 1, 37.

[143] Ibid 38.

[144] T 3-54, l 10; T 3-71, l 29.

[145] T 3-71, ll 35-37.

[146] Exhibit 3; Applicant's Closing Submissions filed 8 October 2021, 5 [39]; T 3-38, ll 7-10.

[147] T 3-48, ll 33-46; T 3-49, ll 1-6.

[148] Respondent's Closing Submissions filed 15 November 2021, 4 [25].

[149] Exhibit 1, 27.

[150] T 3-34, ll 3-5.

[151] Exhibit 1, 192.

[152] T 3-8, ll 5-19.

[153] T 3-44, ll 42-46; T 3-45, ll 1-10.

[154] T 3-45, ll 11-20.

[155] T 3-59, ll 15-21.

[156] T 3-48, ll 12-13.

[157] Applicant's closing submissions, filed 8 October 2021, 6 [47].

[158] T 3-14.

[159] T 3-44, ll 30-31.

[160] Exhibit 1, 24.

[161] Ibid.

[162] T 3-104, l 35.

[163] T 3-105, ll 12-14.

[164] T 3-104, l 29.

[165] T 3-105, ll 12-34.

[166] T 3-70, ll 13-26.

[167] T 3-105, ll 23-37.

[168] Respondent's Closing Submissions filed 15 November 2021, 'Table Summary of CCTV Footage', 84.

[169] T 3-107, ll 15-17.

[170] T 3-109, l 11-14; Applicant's Closing Submissions filed 8 October 2021, 7 [50].

[171] T 3-47, ll 26-40.

[172] Exhibit 1, 195.

[173] T 3-22 – T 3-24, ll 1-21.

[174] T 1-71, ll 4-10.

[175] T1-70, ll 1-26.

[176] T 1-69, ll 30-44.

[177] T 1-72, ll 25-44.

[178] Exhibit 1, 23-30.

[179] Ibid 188.

[180] Ibid 192.

[181] Ibid 220.

[182] Ibid 221.

[183] It is apparent that account related to the 11:15 am approach by CCS Krueger. 

[184] Exhibit 1, 248-249.

[185] T 1-57, ll 37-47.

[186] Applicant's Reply Submissions, 6 December 2021, 2 [13].

[187] T 1-72, ll 5-10.

[188] T 1-59, ll 45-46.

[189] T 1-42, ll 17-20.

[190] Exhibit 1, 385.

[191] Ibid 442.

[192] Ibid 374.

[193] Exhibit 1, 375.

[194] Ibid 442.

[195] Ibid 366.

[196] Ibid 388; T 2-26, ll 40-47; T 2-27, ll 1-20.

[197] Exhibit 1, 388-389.

[198] Ibid 389.

[199] Ibid.

[200] Ibid.

[201] Ibid.

[202] T 2-27, ll 42-46; T 2-28 ll 1-13.

[203] Applicant's Statement of Facts and Contentions filed 10 November 2020, 5 [3.1].

[204] T 1-39, ll 32-33.

[205] T 1-40, l 17.

[206] T 1-40, ll 15-16.

[207] Exhibit 1, 65.

[208] T 2-28 – T 2-29.

[209] T 3-134, ll 45-46.

[210] Respondent's Closing Submissions filed 15 November 2021, 6 [42].

[211] T 3-145, ll 37-47.

[212] T 3-148, ll 22-24.

[213] T 3-164, ll 6-7.

[214] Respondent's Closing Submissions filed 15 November 2021, 6 [43].

[215] T 3-151, ll 29-47.

[216] Exhibit 5, [13].

[217] Applicant's closing submissions filed 8 October 2021, 7 [55].

[218] T 3-132, l 23.

[219] Ibid ll 4-23.

[220] T 3-131, l 41-45.

[221] T 4-21, ll 10-34.

[222] Exhibit 5.

[223] Exhibit 1, 174, l 32.

[224] Exhibit 5, [14]-[15].

[225] Exhibit 1, 174, l 32.

[226] T 4-22, ll 4-29.

[227] T 4-21, ll 32-34.

[228] The name of the particular prisoner has been omitted from this Decision.

[229] Exhibit 5, 1 [6]-[12], [16].

[230] T 2-35, ll 11-21.

[231] T 2-37, ll 2-17.

[232] T 4-9, ll 33-35.

[233] T 4-10, ll 13-36.

[234] T 3-137, ll 7-11.

[235] Ibid ll 31-32.

[236] Exhibit 1, 105.

[237] Ibid 103; Entry from BTCC Health Centre Observations Log.

[238] Exhibit 5.

[239] Exhibit 1, 102.

[240] Ibid 203 [71].

[241] Ibid [71]-[75].

[242] Ibid 105.

[243] Ibid 201.

[244] Ibid 202 [67].

[245] Respondent's Closing Submissions filed 15 November 2021, 5 [39].

[246] T 4-20, ll 12-4.

[247] Exhibit 1, 61.

[248] Ibid 180-181 [108].

[249] With respect to the sunglasses evidence, in particular.

[250] T 4-9, l 34.

[251] T 4-10, ll 33-35.

[252] T 4-23, l 5.

[253] T 4-23, l 7.

[254] T 4-14, ll 3-7.

[255] T 4-32, ll 11-14.

[256] T 4-31, ll 24-29.

[257] Exhibit 1, 60.

[258] Ibid 175 [56].

[259] Ibid 178.

[260] Ibid 107.

[261] Ibid 108.

[262] T 4-32, l 29 – T 4-34, l 46.

[263] Respondent's Closing Submissions filed 15 November 2021, 5 [40].

[264] T 3-145, ll 39-40.

[265] Exhibit 1, 56.

[266] Ibid 59.

[267] T 3-135, l 16-20; ll 39-43.

[268] T 3-134, ll 15-21; T 3-135, ll 16-20.

[269] T 3-165, ll 19-21.

[270] T 3-134, l 36.

[271] T 3-165, l 17.

[272] Exhibit 1, 209 [81].

[273] T 3-168, ll 16-17.

[274] T 3-135, ll 30-37.

[275] T 3-168, ll 40-47; T 3-169, ll 1-7.

[276] T 3-170, ll 4-9.

[277] Exhibit 1, 70.

[278] Applicant's closing submissions filed 8 October 2021, 8 [63].

[279] Exhibit 1, 62.

[280] Ibid 259 [407]-[408].

[281] Ibid 262 [469].

[282] T 2-37, ll 19-45.

[283] T 2-38, ll 1-24.

[284] Exhibit 1, 260 [425].

[285] Ibid 262 [457].

[286] T 2-129, ll 14-45.

[287] Exhibit 1, 262 [458]-[460].

[288] T 3-170, ll 4-9.

[289] T 4-31, ll 24-29.

[290] Applicant's Reply Submissions, 6 December 2021, 3 [17].

[291] T 1-75, l 1, 29; Respondent's Closing Submissions filed 15 November 2021, 5 [34].

[292] T 1-76, l 10; Respondent's Closing Submissions filed 15 November 2021, 5 [34].

[293] T 2-28, ll 1-9.

[294] T 2-29, ll 14-17.

[295] T 1-38, ll 37-45.

[296] T 1-37, ll 41-42.

[297] T 2-28, ll 44-45.

[298] T 2-29, l 19.

[299] [2008] WASAT 300, [19].

[300] Oxford English Dictionary (online at 23 November 2021) 'unfit'.

[301] Applicant's Closing Submissions filed 8 October 2021, 1 [8]; T 1-5, ll 4-5.

[302] T 1-5, ll 5-10.

[303] Ibid ll 8-10.

[304] A self-completed questionnaire of self-reported sleepiness.

[305] Exhibit 1, 328.

[306] T 1-41, ll 21-28.

[307] T 1-43, ll 34-36.

[308] Respondent's Closing Submissions filed 15 November 2021, 7 "Purported medical evidence".

[309] Ibid [54].

[310] Applicant's Reply Submissions, 6 December 2021, 4 [23].

[311] Respondent's Closing Submissions filed 15 November 2021, 7 [55].

[312] T 2-89, ll 1-2.

[313] Ibid l 3.

[314] Issued by Acting Deputy Commissioner Shaddock on 7 February 2020.

[315] On 29 February 2020.

[316] Exhibit 1, 403-404.

[317] Ibid 404.

[318] Applicant's Closing Submissions, filed 8 October 2021, 9 [71] – 10 [72].

[319] Ibid 1 [10].

[320] T 5-143, ll 33-46; T 5-144; T 5-144; T 5-145; T 5-146, ll 1-29.

[321] T 5-137, ll 11-16; T 5-139, ll 24-39.

[322] T 5-143, ll 30-42.

[323] T 5-146, ll 13-18.

[324] T 5-147, ll 43-46; T 5-148, ll 1-4.

[325] T 5-148, ll 1-24.

[326] Exhibit 1, 246.

[327] Professional Standards and Governance.

[328] Exhibit 1, 424.

[329] Ibid 243.

[330] Ibid 424, 427.

[331] T 5-63, ll 1-4.

[332] T 5-57, ll 40-43.

[333] Applicant's Closing Submissions, filed 8 October 2021, 10 [75].

[334] T 5-59, ll 18-20.

[335] Applicant's Closing Submissions, filed 8 October 2021, 1 [5]-[6].

[336] [2020] QIRC 032, 15 [70].

[337] See, eg, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.

[338] (1938) 60 CLR 336, 363.

[339] T 5-29, l 32 – T 5-30, l 9.

[340] Gilmour v Waddell & Ors [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[341] Paragraphs [21]-[26].

[342] [2020] QIRC 032, 13 [62].

[343] Applicant's Closing Submissions, filed 8 October 2021, 1 [9].

[344] T 5-8, ll 41-47; T 5-9, ll 1-6.

[345] T 1-5, ll 16-19.

[346] Ibid ll 31-36.

[347] Ibid ll 41-47; T 1-6, ll 1-2.

[348] T 1-6, ll 15-21.

[349] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, [37].

[350] Industrial Relations Act 2016 (Qld) s 320(a).

[351] Ibid s 320(c)(ii).

[352] (1985) 159 CLR 550, 629.

[353] Applicant's Closing Submissions, filed 8 October 2021, 9 [64]-[65].

[354] Exhibit 1, 424.

[355] Ibid 425; T 5-43, ll 4-20.

[356] Exhibit 1, 366; T 5-42, ll 22-40.

[357] Exhibit 1, 425.

[358] T 5-39, ll 40–44.

[359] T 5-142, ll 40-46.

[360] T 5-143, ll 8-13.

[361] T 5-42, ll 22-40.

[362] Exhibit 1, 425.

[363] Ibid 366.

[364] T 5-49, ll 38-46; T 5-50, ll 1-6.

[365] T 5-50, ll 4-9.

[366] Exhibit 1, 4.

[367] T 5-41, ll 38-47; T 5-42, ll 1-10.

[368] T 5-56, l 14-41; T 5-41, ll 38-46; T 5-42, ll 1-5; T 5-150, ll 37-45; T-151, ll 1-2.

[369] T 5-143, ll 14-28.

[370] T 5-40, ll 21-32.

[371] T 5-150, ll 37-45; T 5-151, ll 1-2.

[372] Exhibit 1, 195, [195], [197]-[201].

[373] Applicant's Closing Submissions, filed 8 October 2021, 9 [69].

[374] T 3-22, ll 13-44; T 3-23, ll 1-22.

[375] Exhibit 1, 105.

[376] Ibid 107.

[377] T 5-34, ll 26-36.

[378] Applicant's Closing Submissions, filed 8 October 2021, 9 [68].

[379] T 3-13, ll 18-34.

[380] Ibid ll 24-27.

[381] T 4-29, ll 18-34.

[382] T 4-76, ll 8-24.

[383] T 5-111, ll 22-41.

[384] T 5-23, ll 12-24.

[385] Mr Weaver was on paid suspension for about five months of that period.

[386] T 4-59, ll 8-14.

[387] T 4-71, ll 11-22.

[388] Exhibit 1, 439-440.

[389] Ibid 438.

[390] T 4-76, ll 43-45.

[391] T 2-127, ll 23-39.

[392] Exhibit 1, 448.

[393] Ibid 399-416.

[394] Ibid 407.

[395] T 4-59, l 6.

[396] T 4–58, ll 44-46; T 4-59, ll 1-4.

[397] T 4-70, l 19; T 4-58, l 41.

[398] T 4-71, ll 1-9.

[399] T 4-70, l 11-12; T 4-71, ll 1-9.

[400] Exhibit 1, 439 [16], 441 [37].

[401] Ibid 447.

[402] T 5-110, ll 15-23.

[403] Ibid ll 30-40.

[404] Exhibit 1, 440.

[405] Ibid 473.

[406] Ibid 471.

[407] Ibid 474.

[408] Ibid 449.

[409] Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20.

[410] T 5-102, ll 29-43.

[411] T 5-99, ll 10-14.

[412] T 5-99, ll 26-42.

[413] T 5-103, ll 5-14.

[414] T 5-102, l 2.

[415] T 5-103, ll 22-24.

[416] Exhibit 1, 448-449.

[417] Industrial Relations Act 2016 (Qld) s 320(c).

[418] Exhibit 7, 1.

[419] Ibid.

[420] Exhibit 6.

[421] T 5–94, ll 28-30.

[422] T 5-128, ll 13-15.

[423] Ibid ll 21-29.

[424] T 5-129, ll 31-35.

[425] T 5-130, ll 6-14.

[426] T 5-73, ll 25-43; T 5-61, ll 4-11.

[427] T 5-74, l 12.

[428] T 5-72, ll 9-21.

[429] T 5-9, ll 23-36.

[430] T 5-94, ll 46-47; T 5-95, ll 1-17.

[431] T 5-96, ll 6-8.

[432] At the Hearing, it was suggested and accepted that the words read "Lighter Response"; however that is not the case with respect to Exhibit 6 in my view; T 5-126, ll 8-10.

[433] Exhibit 6.

[434] Exhibit 1, 417.

[435] T 5-125, ll 19-21.

[436] T 5-123, ll 45-47; T 5-124, ll 1-11.

[437] T 5-125, ll 23-45.

[438] T 5-98, ll 10-47; T 5-99, ll 1-25.

[439] T 5-99, ll 26-32

[440] Exhibit 1, 417; Exhibit 6.

[441] Byrne & Frew v Australian Airlines Ltd [1995] 185 CLR 410, 465.

[442] Exhibit 1, 474.

[443] Kioa v West (1985) 159 CLR 550, 629

[444] T 5-26, ll 1-47; T 5-27, ll 1-27.

[445] T 1-6, ll 15-21.

[446] Ibid ll 23-25.

[447] [2021] QIRC 116, 37 [178]-[179] citing Barclay v Nylex Corporation Pty Ltd [2003] AIRC 593, [196]-[197].

[448] [2021] QIRC 116, 11 [46].

[449] Ibid [44].

[450] T 1-6, ll 27-32.

[451] T 2-72, ll 32-47; T 2-73, ll 1-31.

[452] T 4-73, ll 27-33.

[453] T 2-71, ll 14-30.

[454] Exhibit 1, 448.

[455] T 5-9, ll 10-16.

[456] Application for Reinstatement filed on 21 August 2020.

[457] [2021] QIRC 116, 42 [197].

[458] (1997) 72 IR 186, 191.

[459] Applicant's Closing Submissions, filed 8 October 2021, 10 [77].

[460] T 1-6, ll 34-43.

[461] Antony Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226, [40]-[41]; Applicant's Closing Submissions, filed 8 October 2021, 10 [77].

[462] Respondent's Closing Submissions filed 15 November 2021, 9 [65].

[463] "…to consider all alternative duties that may be available for the employee to perform"; Respondent's Statement of Facts and Contentions filed 17 November 2020, 6 [46].

[464] Respondent's Statement of Facts and Contentions filed 17 November 2020, 5-6 [47]-[48].

[465] T 5-152, l 31.

[466] Ibid ll 35-36.

[467] Ibid ll 28-46; T 5-153, ll 1-4.

[468] T 5-76, ll 35-36.

[469] T 5-77, ll 6-12.

[470] T 5-76, ll 25-31.

[471] T 4-60, ll 42-46; T 4-61, ll 1-9.

[472] T 4-76, ll 31-44.

[473] T 3-179, ll 5-11.

[474] T 3-123, ll 26-33.

[475] T 3-58, ll 20-34.

[476] T 2-194, ll 18-25.

[477] T 1-6, ll 45-46; T 1-7, ll 1-2.

Close

Editorial Notes

  • Published Case Name:

    Weaver v State of Queensland (Queensland Corrective Services)

  • Shortened Case Name:

    Weaver v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2021] QIRC 413

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    06 Dec 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Antony Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226
2 citations
Jump To
Cite 1 - [2015] FWC 3226
Cite 2 - [2015] FWC 3226
Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116
7 citations
Jump To
Cite 1 - [2021] QIRC 116
Cite 2 - [2021] QIRC 116
Cite 3 - [2021] QIRC 116
Cite 4 - [2021] QIRC 116
Cite 5 - [2021] QIRC 116
Cite 6 - [2021] QIRC 116
Cite 7 - [2021] QIRC 116
Barclay v Nylex Corporation Pty Ltd [2003] AIRC 593
2 citations
Jump To
Cite 1 - [2003] AIRC 593
Cite 2 - [2003] AIRC 593
Bostik (Aust) Pty Ltd v Gorgevski (1992) 36 FCR 20
2 citations
Jump To
Cite 1 - (1992) 36 FCR 20
Cite 2 - (1992) 36 FCR 20
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
3 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Cite 3 - (1995) 185 CLR 410
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
6 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32
Cite 4 - [2020] QIRC 32
Cite 5 - [2020] QIRC 32
Cite 6 - [2020] QIRC 32
Farrell v Q-COMP [2013] QIRC 19
2 citations
Jump To
Cite 1 - [2013] QIRC 19
Cite 2 - [2013] QIRC 19
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Gold Coast Health District v Walker (2001) 168 QGIG 258
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258
Guymer v Workers' Compensation Regulator [2018] ICQ 9
2 citations
Jump To
Cite 1 - [2018] ICQ 9
Cite 2 - [2018] ICQ 9
Hargreaves and Local Government Standards Panel [2008] WASAT 300
2 citations
Jump To
Cite 1 - [2008] WASAT 300
Cite 2 - [2008] WASAT 300
Jones v Dunkel (1959) 101 CLR 298
5 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Cite 3 - (1959) 101 CLR 298
Cite 4 - (1959) 101 CLR 298
Cite 5 - (1959) 101 CLR 298
Kioa v West (1985) 159 C.L.R 550
3 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Cite 3 - (1985) 159 C.L.R 550
Laegal v Scenic Rim Regional Council [2018] QIRC 136
3 citations
Jump To
Cite 1 - [2018] QIRC 136
Cite 2 - [2018] QIRC 136
Cite 3 - [2018] QIRC 136
M v M (1988) 166 CLR 69
1 citation
Jump To
Cite 1 - (1988) 166 CLR 69
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
2 citations
Jump To
Cite 1 - (2003) 214 CLR 1
Cite 2 - (2003) 214 CLR 1
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
2 citations
Jump To
Cite 1 - (1992) 67 ALJR 170
Cite 2 - (1992) 67 ALJR 170
O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 123
2 citations
Jump To
Cite 1 - [2021] QIRC 123
Cite 2 - [2021] QIRC 123
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
2 citations
Jump To
Cite 1 - (1997) 72 IR 186
Cite 2 - (1997) 72 IR 186
Power v Torres Strait Island Regional Council [2011] ICQ 7
2 citations
Jump To
Cite 1 - [2011] ICQ 7
Cite 2 - [2011] ICQ 7
RHG Mortgage Corporation Ltd v Ianni [2015] NSWCA 56
3 citations
Jump To
Cite 1 - [2015] NSWCA 56
Cite 2 - [2015] NSWCA 56
Cite 3 - [2015] NSWCA 56
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
3 citations
Jump To
Cite 1 - (1993) 144 QGIG 914
Cite 2 - (1993) 144 QGIG 914
Cite 3 - (1993) 144 QGIG 914
The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67
3 citations
Jump To
Cite 1 - [2020] QIRC 67
Cite 2 - [2020] QIRC 67
Cite 3 - [2020] QIRC 67
White v Queensland [2017] QIRC 41
3 citations
Jump To
Cite 1 - [2017] QIRC 41
Cite 2 - [2017] QIRC 41
Cite 3 - [2017] QIRC 41

Cases Citing

Case NameFull CitationFrequency
Black v Gladstone Regional Council [2024] QIRC 2852 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.