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  4. Bennett v State of Queensland (Queensland Fire and Emergency Services) - [2022] QIRC 262

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Bennett v State of Queensland (Queensland Fire and Emergency Services)[2022] QIRC 262

Bennett v State of Queensland (Queensland Fire and Emergency Services)[2022] QIRC 262

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bennett v State of Queensland (Queensland Fire and Emergency Services) [2022] QIRC 262

PARTIES:

Bennett, Mace

(Appellant)

v

State of Queensland (Queensland Fire and Emergency Services)

(Respondent)

CASE NO:

PSA/2021/307

PROCEEDING:

Public Service Appeal – Fair Treatment

DELIVERED ON:

12 July 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

1. The decision appealed against is set aside.

2. The decision appealed against is returned to the decision-maker with a copy of these reasons.

3. The decision-maker is directed to reissue their decision to the appellant containing only the substantiated allegations I have found to be fair and reasonable, namely:

  1. (a)
    Allegation 4(a);
  2. (b)
    Allegation 4(b);
  3. (c)
    Allegation 6(a);
  4. (d)
    Allegation 6(c); and
  5. (e)
    Allegation 7.

4. The decision-maker is further directed to specify the following in the reissued decision:

  1. (a)
    the section or sections of the Fire and Emergency Services Act 1990 the decision-maker finds the appellant contravened in respect of each of the substantiated allegations contained in Allegations 4(a), 4(b), 6(a), 6(c) and 7; and
  2. (b)
    the decision-maker's reasons for determining the appellant contravened each of the specified sections.

5. The decision-maker reissue their decision within 21 days of these reasons.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a decision pursuant to s 197 of the Public Service Act 2008 – where appellant employed as a Firefighter – where investigation into appellant's conflict of interest and associated conduct – where appellant invited to show cause why disciplinary findings should not be made against him – where appellant responded – where three allegations, some including multiple parts, substantiated – whether fair and reasonable to make disciplinary findings – decision set aside and returned to decision-maker with directions

LEGISLATION AND INSTRUMENTS:

Code of Conduct for the Queensland Public Service

Criminal Code 1899 (Qld) s 89

Fire and Emergency Services Act 1990 (Qld) s 30

Industrial Relations Act 2016 (Qld) s 562B

Integrity Act 2009 (Qld)

Public Service Act 2008 (Qld) ss 194, 197

Public Service Commission Directive 14/20: Discipline cl 8

Public Service Commission Executive Guideline 01/17: Discipline

Public Service Regulation 2018 (Qld) sch 8 cl 3

CASES:

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

  1. [1]
    When the events the subject of this appeal occurred, Mr Mace Bennett was employed by the State of Queensland through Queensland Fire and Emergency Services ('QFES') as a 3rd class Firefighter within the Fire and Rescue Service.
  2. [2]
    In a decision letter dated 6 August 2021, Deputy Commissioner, Readiness and Response Services, Mark Roche AFSM, informed Mr Bennett he had substantiated several allegations in relation to his conduct and determined he had engaged in 'misconduct, that is inappropriate or improper conduct in an official capacity' within the meaning of s 30(5)(a) of the Fire and Emergency Services Act 1990 (Qld) ('the FES Act') ('the Decision').
  3. [3]
    By appeal notice filed 26 August 2021, Mr Bennett appeals the decision under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld).[1]
  4. [4]
    It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]

Background

  1. [5]
    Between January and May 2020, repairs, maintenance, and other building improvement activities were undertaken at the Bowen Fire and Rescue Station ('the BFRS').
  2. [6]
    This work consisted of painting, the replacement and installation of lighting and exhaust fans, the renovation of an existing bathroom to eliminate a recurring mould problem and the installation of a new turnout/Personal Protective Equipment ('PPE') room to store PPE.
  3. [7]
    The budget for the bathroom renovation was sourced from the region's repairs and maintenance funds, whereas the funds for the new turnout/PPE room were allocated by QFES's State Capital Works Program.
  4. [8]
    It is not in contention that Inspector Stephen Knight advised Station Officers ('SOs') located at the BFRS, including SO Leslie Green, that funding allocated for capital works could not be utilised to fund repairs and maintenance at the BFRS.
  5. [9]
    Several of the SOs and Firefighters ('FFs') based at the BFRS, including Mr Bennett, were involved, to varying degrees, in the procurement process. This included developing the scope of works to be undertaken, liaising with contractors and sourcing quotes in relation to the projects.
  6. [10]
    Relevantly, in addition to his role as a FF with QFES, Mr Bennett is a licenced electrician who owns and operates the business Nextgen Energy & Irrigation ('Nextgen'), which performs electrical and air-conditioning work.
  7. [11]
    It is not in contention that, during the course of the improvement works, Mr Bennett prepared and submitted a quote dated 18 January 2020, in the name of Nextgen, with a view to undertaking electrical work at the BFRS, namely the:
  • replacement of lights at the rear of the engine bay;
  • installation of flood and batten lights;
  • replacement of lighting in the downstairs bathroom;
  • installation of two exhaust fans in the downstairs bathroom; and
  • installation of lighting for a pizza area.
  1. [12]
    The bathroom renovation mentioned above was undertaken in the period from 18 to 21 February 2020.
  2. [13]
    Although Mr Bennett submitted a quote, obtained the electrical supplies and materials necessary for the work on credit from his supplier, and undertook some (if not all) of the work listed on the quote during this period, he did not subsequently submit an invoice for payment.
  3. [14]
    Instead, Mr Bennett's supplier prepared two invoices on 13 March 2020, some three weeks later, for the lights and other electrical supplies Mr Bennett had obtained, totalling $1,337.81. On the same date, identical amounts to those listed on the invoices were recorded on the QFES Corporate Card Transaction Account held by Senior FF Ian Patchett.
  4. [15]
    The work associated with the turnout/PPE room project was undertaken in late March 2020.
  5. [16]
    Prior to that work being undertaken, Mr Bennett was responsible for liaising with contractors and co-ordinating quotes. He also engaged with the successful contractor in respect of the completion of Request for Quote ('RFQ') documentation.
  6. [17]
    The initial contact between Mr Bennett and external contractors in relation to the preparation of quotes for the turnout/PPE room work took place in the first week of February 2020. Glenn Merrick Constructions ('GMC') and Lowcock Builders were invited to attend the station to discuss the proposed work with the object of providing a quote.
  7. [18]
    In the absence of a quote from GMC, Mr Bennett sent Lowcock Builders a RFQ on 19 February 2020.
  8. [19]
    It is not in contention that, on his days off, Mr Bennett subsequently installed air-conditioning in his capacity as a private subcontractor as part of the turnout/PPE room project. He invoiced Lowcock Builders who had earlier been awarded the contract for this work.
  9. [20]
    In or around the same period, concerns were raised with QFES by employees from within, and external to, the BFRS in relation to FFs performing trade related work, including electrical work, while on duty which may have amounted to a conflict of interest ('COI').
  10. [21]
    After preliminary inquiries were made throughout March 2020, the Conduct Assessment Team ('the CAT')[4] determined the matter should be referred to the Conduct Investigations Unit ('the CIU') for formal investigation. Mr Mark Campion, Principal Investigator, was subsequently appointed to investigate the issues raised.
  11. [22]
    Mr Campion delivered his report ('the Investigation Report') in December 2020 making several findings in relation to various officers, including Mr Bennett, regarding maintenance and capital improvement works undertaken at the BFRS. The findings predominantly relate to COI matters.

Show Cause Process

  1. [23]
    In a show cause notice dated 27 April 2021, Mr Bennett was invited to respond to four allegations, some of which included multiple parts, that, if substantiated, may have amounted to grounds upon which he could be disciplined pursuant to s 30 of the FES Act, namely:

Allegation 4

In January and February 2020, you (a QFES employee and owner of an electrical contracting business) failed to declare and resolve a conflict of interest in relation to submitting a quotation to undertake electrical work (installation of external lights and bathroom exhaust fans) at Bowen FRS.

Allegation 6

You did not comply with QFES procurement policy in relation to the turnout/PPE room minor capital works project at Bowen FRS, specifically by:

  1. (a)
    Favouring your private interest as an electrical contractor in the contract established between QFES and Lowcock Builders Pty Ltd (thus creating an unresolved conflict of interest).
  1. (b)
    Discouraging other contractors from submitting quotations for the work so that only Lowcock Builders Pty Ltd were in a position to be considered for the project.
  1. (c)
    Manipulating the contract price (in association with Lowcock Builders Pty Ltd), to enable additional works to be completed on other parts of the station, which were unrelated to the turnout/PPE room project.

Allegation 7

On 24 March 2020, you made a conflict of interest declaration that did not transparently disclose the true nature of your involvement as a contractor in the turnout/PPE room minor capital works project at Bowen FRS.

Allegation 10

At a staff meeting on 16 March 2020, you harassed and intimidated FF Ricky Skipper, because you believed FF Skipper had made an external complaint about your electrical work at Bowen FRS.

  1. [24]
    Attached to the show cause notice was, among other things, a redacted copy of the Investigation Report.

Mr Bennett's Response

  1. [25]
    Having been granted an extension of time to respond, Mr Bennett provided his response, through his union representatives, on 29 June 2021. In summary, Mr Bennett:
  • denied he was aware of his COI obligations at the time or that he had undergone training in those obligations either before or after the subject events;
  • submitted his actions were a result of genuine mistake based on lack of knowledge;
  • submitted that at no point did any person in his chain of command raise those obligations with him, including when requesting that he provide a quote in his capacity as the owner of Nextgen;
  • argued he reasonably expected to be instructed and guided by his chain of command, particularly on matters which have no bearing on day-to-day operational duties;
  • submitted the COI obligations were generally not well understood, including by members of his chain of command;
  • denied being present during a meeting held by Inspector Knight regarding the performance of electrical works;
  • noted Inspector Knight had previously authorised other kinds of work to be undertaken by FFs and submitted that he reasonably believed the work he was quoting for would not be in issue;
  • submitted he had understood Inspector Knight's concerns related to warranties and licencing, and genuinely understood he was entitled to bid for work given his licence and insurance;
  • submitted his relationship with Lowcock Builders developed naturally;
  • denied having any involvement in the decision-making process regarding selecting contractors, or acting in a manner to favour Lowcock Builders above other bidders;
  • submitted he maintained high levels of personal respect and integrity, and on being informed of the concerns regarding his obligations, he immediately completed the required forms in good faith; and
  • raised concerns regarding procedural fairness and natural justice during the investigation process.[5]

The Decision

  1. [26]
    Having received Mr Bennett's response, DC Roche informed Mr Bennett of his decision on 6 August 2021, determining the following allegations had been substantiated:

Allegation 4

  1. (a)
    In January and February 2020, you (a QFES employee and owner of an electrical contracting business) failed to declare and resolve a conflict of interest in relation to submitting a quotation to undertake electrical work (installation of external lights and bathroom exhaust fans) at Bowen FRS.
  1. (b)
    In February 2020, you installed electrical items at Bowen FRS in your official capacity, which was contrary to the instructions provided by Inspector Knight.

Allegation 6

You did not comply with QFES procurement policy in relation to the turnout/PPE room minor capital works project at Bowen FRS, specifically by:

  1. (a)
    You improperly initiated a subcontractor relationship with Lowcock Builders for work relating to the turnout/PPE room project at Bowen FRS, thereby creating an unresolved actual conflict of interest.
  1. (b)
    On or about 5 February 2020, you communicated an unreasonable deadline to Glenn Merrick Constructions for submission of their quotation for the turnout/PPE room project, resulting in only one contractor being considered for the project.
  1. (c)
    On 19 February 2020, you manipulated the contract price, as documented in the RFQ (in consultation with Lowcock Builders Pty Ltd), to enable additional works to be completed in other parts of Bowen FRS, which were unrelated to the turnout/PPE room project.

Allegation 7

On 24 March 2020, you made a conflict of interest declaration that did not transparently disclose the true nature of your involvement as a subcontractor in the turnout/PPE room minor capital works project at Bowen FRS.

  1. [27]
    He then made the following findings in relation to each allegation:

Allegation 4

  1. [28]
    In respect of Allegation 4(a), DC Roche:
  • noted it could not be in dispute that a COI occurs when a private interest interferes, or appears to interfere, with the performance of official duties;
  • noted it is not in dispute Mr Bennett owns Nextgen, that he submitted a quote for work dated 18 January 2020 in his capacity as the owner of Nextgen, and that the quote did not state Mr Bennett's name;
  • stated SO Christopher Neden gave evidence he advised Mr Bennett on 16 January 2020 that, if he did submit a quote, he would need to complete a COI form;
  • considered that when the quote was submitted, an actual COI arose that was not promptly addressed by Mr Bennett;
  • determined the fact Mr Bennett did not ultimately invoice for the work was not a mitigating factor as it was incumbent on him to report the conflict as soon as it arose; and
  • found that, having regard to his learning history, Mr Bennett ought to have known what his obligations were regarding managing and resolving COIs.
  1. [29]
    In respect of Allegation 4(b), DC Roche:
  • noted it was not in dispute Mr Bennett undertook the work for which he had quoted, but that he did not invoice QFES for the work notwithstanding the quote;
  • set out Inspector Knight's evidence that he had made it clear to SOs they were not to do electrical work, he was unaware Mr Bennett had installed electrical fittings, and he told Mr Bennett not to undertake electrical work at the BFRS when he discovered he had done this, whereupon Mr Bennett had been apologetic;
  • set out Mr Bennett's evidence that he had not sourced material through his private company, and that he was aware Inspector Knight had told FFs not to do plumbing or electrical work at the BFRS but believed someone had changed their mind after receiving Mr Bennett's quote, permitting him to do the work;
  • noted SO Neden's evidence confirmed Inspector Knight had given his instruction several times, indicating that it presented an unacceptable risk, including during a meeting when Mr Bennett was present; and
  • found that, despite Inspector Knight's instructions, Mr Bennett installed electrical items at the BFRS.

Allegation 6

  1. [30]
    In respect of Allegation 6(a), DC Roche:
  • set out the evidence of Mr Ben Kirkpatrick of Lowcock Builders that Mr Bennett had contacted Lowcock Builders for a quote, met with Mr Kirkpatrick and Mr Jack Lowcock to explain the scope of work during which they were advised not to include any provision for electrical work in the quote, and after that meeting Mr Kirkpatrick understood Mr Bennett would personally undertake the electrical work including the placement of power points and lights and the installation of air-conditioning;
  • stated that Mr Kirkpatrick denied advising Mr Bennett that Lowcock Builders would have difficulty providing the air-conditioning cost because of the short timeframe, and that he did not recall Mr Bennett indicating he would assist Lowcock Builders by providing an estimated cost of installing air-conditioning for the quote;
  • set out Mr Lowcock's evidence that Lowcock Builders had no previous relationship with Mr Bennett before the quote for the air-conditioning was prepared, that the relationship had been initiated by Mr Bennett, that Lowcock Builders was not experiencing any difficulties at the relevant time that would have prevented them from accessing their usual subcontractors for the work, and that Mr Bennett had invoiced Lowcock Builders seeking payment once the work was finished;
  • stated the evidence of Ms Ashley Denyer of Lowcock Builders was that Lowcock Builders had not communicated with its usual subcontractors on the basis Mr Bennett had made it clear he would undertake the work;
  • set out Mr Bennett's evidence that Lowcock Builders told him they might not be able to provide the quote in time, whereupon he offered to provide a provisional installation cost but told Lowcock Builders they would need to find a contractor to install it, and that, around 20 March 2020, Lowcock Builders asked Mr Bennett if he could install the air-conditioning for which he said he would seek approval;
  • noted it was not in dispute there was a COI in relation to Mr Bennett's employment with QFES and subcontracting relationship with Lowcock Builders;
  • accepted it was likely Mr Bennett had been requested by SO Green and encouraged by Inspector Knight to obtain quotes from potential contractors due to his electrical contracting experience, but did not accept he had been asked to perform the work; and
  • rejected Mr Bennett's evidence that his relationship with Lowcock Builders developed naturally, instead preferring the evidence of Mr Lowcock that the relationship had been imposed on Lowcock Builders.
  1. [31]
    In respect of Allegation 6(b), DC Roche:
  • stated the evidence of Mr Lowcock and Mr Kirkpatrick was that no deadline was imposed for providing a quote when Lowcock Builders inspected the premises;
  • stated the evidence of Mr Rodney Nilsson of GMC was that when he inspected the premises, the QFES employee who accompanied him told him that a quote would need to be produced the next day;
  • stated Mr Nilsson formed the view the short deadline to produce the quote meant QFES had no intention of considering the quote fairly and, for that reason, GMC elected not to quote for the work;
  • stated the evidence of Ms Cindy Merrick of GMC was that she recollected Mr Nilsson informing her of the deadline and could not recall anyone from the BFRS contacting her in the days after the inspection seeking a quote;
  • set out Mr Bennett's evidence that he did not provide a shorter deadline for GMC to quote, and that he had telephoned the company on a number of occasions asking for a quote but none was produced;
  • rejected Mr Bennett's suggestions Mr Nilsson had falsified his evidence to cause damage to Lowcock Builders on the basis the evidence he gave related to Mr Bennett's conduct, not that of Lowcock Builders;
  • preferred the evidence of Mr Nilsson and Ms Merrick over Mr Bennett's evidence in circumstances where they had no motive to provide false evidence, and where Ms Merrick's evidence corroborated Mr Nilsson's evidence;
  • accepted Mr Bennett was not the decision-maker in relation to the quotes, but noted his responsibility for communicating with potential contractors meant that he had the power to dissuade companies from quoting;
  • considered Mr Bennett had a motive to favour Lowcock Builders because he had already set in motion a plan whereby he would perform the air-conditioning work; and
  • found that Mr Bennett had dishonestly indicated a deadline existed which he knew to be unreasonable and thereby discouraged GMC from submitting a quote.
  1. [32]
    In respect of Allegation 6(c), DC Roche:
  • set out Mr Bennett's evidence that, after obtaining the quote from Lowcock Builders, he had a discussion with SO Green about the quote and then contacted Mr Kirkpatrick to negotiate a better price, and sought to include additional painting works;
  • acknowledged that Mr Bennett took responsibility for not including reference to the additional painting services in the amended RFQ;
  • set out Mr Lowcock's evidence that Mr Bennett had contacted him seeking to amend the quote on 19 February 2020 and he had done so, forwarding the revised quote to Mr Bennett that afternoon;
  • noted the additional painting works were not within the scope of works for the turnout/PPE room project;
  • noted there was no evidence that Inspector Knight, SO Green or SO Neden instructed Mr Bennett to negotiate a different price for the works, or obtain quotes for works beyond the scope of the project;
  • formed the view Mr Bennett did not inform his managers he had caused the contract price to be adjusted because Inspector Knight was not aware of the price adjustment and had understood the additional painting had been funded under the repairs and maintenance budget, rather than the turnout/PPE room project; and
  • considered Mr Bennett had manipulated Lowcock Builders into adjusting the contract price and undertaking additional works which were not within the scope of the project.

Allegation 7

  1. [33]
    In respect of Allegation 7, DC Roche:
  • noted it is not in dispute Mr Bennett was a subcontractor for Lowcock Builders or that this created a COI;
  • noted it is not in dispute Mr Bennett submitted a COI form to QFES indicating he is a QFES employee, the owner of Nextgen and that he subcontracted for Lowcock Builders;
  • considered the COI form did not address specific conflicts and was expressed in a way that suggested Mr Bennett may have a future COI, as opposed to an existing, actual COI; and
  • found the COI form did not disclose the nature of the interests and conflict.

Other Matters

  1. [34]
    After setting out his findings in relation to each allegation, DC Roche addressed other matters raised by Mr Bennett in his response as follows:

In your response, you say that you did not perform contracted works during your hours of work. For the sake of clarity, whether or not you performed work during your hours of work is not one of the allegations the subject of this disciplinary process.

You also say in your response that the Conduct and Investigations Branch (CIB) was biased, pre-determined the outcome of the investigation and did not afford you natural justice.

To be clear, as the decision-maker in this disciplinary process, I have considered all the evidence before me, reached my own conclusions independently of the investigator and taken into account all of the matters raised in your response.

I have also turned my mind to whether natural justice was afforded to you in the investigation process. On the material before me, I am of the view that the investigation was comprehensive and independent. You were afforded the opportunity to provide a response to the allegations against you at interview, and you wholly took that opportunity. I am not persuaded that you were denied natural justice or procedural fairness.

Misconduct and Proposed Penalty

  1. [35]
    In respect of each allegation, DC Roche determined that, pursuant to s 30(1)(f) of the FES Act, Mr Bennett had engaged in misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 30(5)(a) of the Act.
  2. [36]
    He concluded the decision by noting he was considering imposing the disciplinary action of dismissal, and invited Mr Bennett to show cause in relation to the proposed penalty.

Grounds of Appeal

  1. [37]
    Mr Bennett appeals the Decision on the following grounds:
  1. (a)
    the decision to substantiate each of the allegations was in error, harsh and unreasonable;
  2. (b)
    disproportionate weight has been placed on the COI training undertaken by Mr Bennett; and
  3. (c)
    even if the allegations are substantiated, his actions do not amount to misconduct.[6]

Relevant Provisions

  1. [38]
    The FES Act relevantly provides:[7]

30 Grounds for disciplinary action

  1. (1)
    A fire service officer is liable to disciplinary action upon any of the following grounds shown to the satisfaction of the commissioner to exist—
  1. (a)
    incompetence or inefficiency in the discharge of duties;
  1. (b)
    negligence, carelessness or indolence in the discharge of duties;
  1. (c)
    wilful failure to comply, without reasonable excuse, with a provision of this Act or an obligation imposed on the officer under—
  1. (i)
    a code of practice; or
  1. (ii)
    a code of conduct—
  1. (A)
    approved under the Public Sector Ethics Act 1994; or
  1. (B)
    prescribed under a directive of the commission chief executive under the Public Service Act 2008; or
  1. (iii)
    an industrial instrument;
  1. (d)
    absence from duty except—
  1. (i)
    upon leave duly granted; or
  1. (ii)
    with reasonable cause;
  1. (e)
    wilful failure to comply with a lawful direction of the commissioner or another person having authority over the officer;
  1. (f)
    misconduct;
  1. (g)
    use, without reasonable excuse, of a substance to an extent adversely affecting competent performance of duties;
  1. (h)
    contravention of a requirement of the commissioner under section 25B(1) or 25C(1) by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information.

...

  1. (5)
    In this section—

misconduct means—

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

Example of misconduct—

victimising another fire service officer in the course of the other officer's employment in QFES

Was the Decision Fair and Reasonable?

Allegation 4(a)

Allegation 4

  1. (a)
    In January and February 2020, you (a QFES employee and owner of an electrical contracting business) failed to declare and resolve a conflict of interest in relation to submitting a quotation to undertake electrical work (installation of external lights and bathroom exhaust fans) at Bowen FRS.

...

  1. [39]
    Although Mr Bennett accepts a COI existed, he disputes the finding made in relation to Allegation 4(a).[8] Relying on a section of the QFES Procedure PR1002.1.0 – Conflict of Interest ('the COI Procedure'), he accepts he was responsible for disclosing the COI, and submits he did so, verbally, to SOs Neden and Green in accordance with action 2 of the COI Procedure.[9]
  2. [40]
    The fact that he made the disclosure, he argues, is supported by SO Neden's evidence that he advised Mr Bennett that he would need to complete a COI form.[10] Mr Bennett submits SO Neden would have had no reason to make such a comment unless Mr Bennett had already disclosed the COI to him.[11] Likewise, he submits the fact that SO Green sought advice from Inspector Knight about the conflict reveals the conflict must have been disclosed.[12]
  3. [41]
    Mr Bennett accepts the COI was handled poorly, but places responsibility for the subsequent actions of the COI Procedure on SO Neden, SO Green and Inspector Knight, in circumstances where they held management and supervisory roles.[13]
  4. [42]
    He argues their failure to complete actions 3 to 9 of the COI Procedure hindered his ability to comply with his responsibilities, particularly in circumstances where he relied on his superiors to guide him through the process which he was otherwise unfamiliar with.[14] Consequently he submits it is harsh and unreasonable that he is being penalised for their failures.[15]
  5. [43]
    Finally, Mr Bennett contends the Code of Conduct training he completed in June 2016 and March 2019 did not provide sufficient information on how to manage and resolve a COI without direct instruction, advice or support from superiors.[16] He submits the only training he recalls was a short video presentation, which identified only basic information and he cannot recall it including practical components regarding resolving the conflict.[17]
  6. [44]
    QFES contends Mr Bennett's characterisation of his disclosure is not borne out by the evidence given during the investigation, including the evidence given by SO Neden and Mr Bennett himself.[18]
  7. [45]
    It submits SO Neden's evidence is that he was aware Mr Bennett had a potential COI if submitting a quote from Nextgen which resulted from his knowledge of the situation, not from any disclosure made by Mr Bennett.[19] Further, it notes SO Neden's evidence was that he advised Mr Bennett to complete a COI form in January 2020, prior to receiving a quote from Nextgen, but Mr Bennett did not submit a form until 24 March 2020.[20]
  8. [46]
    QFES argues it is the relevant employee's responsibility to identify and declare a COI as set out in the COI Procedure, and further actions can only occur after the employee has made the disclosure.[21] In this respect, it notes other FFs interviewed as part of the investigation demonstrated a general awareness of COIs and how to address them, and these individuals completed the same training as Mr Bennett.[22]
  9. [47]
    In reply submissions, Mr Bennett argued SO Neden managed him on only one overtime shift and denied he raised any COI issues with Mr Bennett at this time.[23] Consequently, he argues he did not disregard a supervisor's direction to complete a COI form, and there is no evidence other than the recollection of SO Neden that he did in fact make the request of Mr Bennett.[24]

Consideration – Allegation 4(a)

  1. [48]
    DC Roche determined Allegation 4(a) and the failure on the part of Mr Bennett to declare and resolve a COI in relation to the submission of the 18 January 2020 quote for electrical work, was substantiated. The reasoning provided by DC Roche, and relied on within the Decision, included:
  • Mr Bennett's involvement in QFES Code of Conduct training on 30 June 2016 and 5 March 2019, which included information about how to identify and manage COIs;
  • his acceptance of SO Neden's evidence that Mr Bennett was advised in mid-January 2020 to complete a COI form in the event he submitted a quote for electrical work;
  • Mr Bennett's subsequent submission of a quote on behalf of Nextgen to undertake and charge for electrical work; and
  • Mr Bennett's failure to promptly address the COI once the quote had been submitted.
  1. [49]
    In respect of the above reasons, Mr Bennett was critical of the Code of Conduct training and disputes DC Roche's position that the training included adequate information on how to manage a COI.
  2. [50]
    Likewise, during the show cause process, representatives for Mr Bennett claimed he was not aware of his COI obligations predominantly because of his earlier experiences as an auxiliary fireman in towns such as Hughenden, Julia Creek and Cloncurry where he maintains he was engaged by QFES as a contractor to undertake electrical work from time to time.[25]
  3. [51]
    It is not in contention Mr Bennett completed QFES Code of Conduct training on 30 June 2016 and again on 5 March 2019, less than one year before the events which form the basis of Allegations 4(a) and (b).
  4. [52]
    Having had an opportunity to review the training materials, including a video, training script and an interactive e-learning module, I am unable to accept Mr Bennett's position that the training materials were inadequate.[26]
  5. [53]
    In my view, the e-learning materials are quite detailed and include many examples of how a COI could arise, several of which are, in part, analogous to the events which form the basis of this appeal.
  6. [54]
    In the latter half of the module, having been provided with detailed information about a COI, an employee's duty to disclose the conflict and various examples of where a conflict might arise, the training participant is required to participate in testing based on different scenarios. During the testing, the participant is provided with feedback on how to manage a COI having regard to their responses to the questions.
  7. [55]
    The training material refers to QFES policies and procedures and specifically includes a dedicated link to QFES Policy 1.4 – Conflict of Interest ('the COI Policy') within the 'resources' component of the module.
  8. [56]
    In those circumstances, I consider it was fair and reasonable for DC Roche to conclude the COI training provided to Mr Bennett was adequate, such that he should have been aware of his obligations.
  9. [57]
    In relation to the remaining reasons relied on by DC Roche, it is not in contention Mr Bennett is the owner of Nextgen and that on or around 18 January 2020 he submitted a quote, albeit in the name of Nextgen, setting out proposed work and the associated costs for the replacement and installation of several lights and exhaust fans within the BFRS complex.
  10. [58]
    Referencing the Integrity Act 2009 (Qld), the COI Policy defines a COI, in so far as it involves a person, as an issue about a conflict or possible conflict between a person's personal interest and the person's official responsibilities.
  11. [59]
    Although Mr Bennett did not, in the end, invoice QFES for the electrical repair and installation work he undertook at the BFRS in February 2020, I accept that, in circumstances where the likelihood of a financial gain or loss arose at the time the quote was submitted on 18 January 2020, an actual COI arose at that time.
  12. [60]
    It follows, having regard to the COI Policy and the accompanying COI Procedure, that Mr Bennett was obligated to disclose and resolve the conflict that arose when he submitted the quote for electrical work.
  13. [61]
    Mr Bennett asserts he promptly addressed the COI arising out of the 18 January 2020 quote by verbally advising his supervisors, but QFES maintains this version of events is not borne out by the evidence. I agree.
  14. [62]
    Having regard to the detailed accounts of interviews and findings contained within the Investigation Report, I consider it was fair and reasonable for DC Roche to arrive at a conclusion that Mr Bennett's COI was neither promptly declared nor resolved. On balance, I am satisfied SO Neden advised Mr Bennett of his obligations, but his advice was not followed.
  15. [63]
    Even if I am wrong in relation to this point, I consider the earlier COI training undertaken by Mr Bennett was detailed enough such that he should have possessed a reasonable awareness that he was required to take steps to identify and resolve any COI, absent any encouragement from a supervisor.
  16. [64]
    In subsequent submissions to the Commission, Mr Bennett acknowledges the management and resolution of his COI was handled badly but blames Inspector Knight and SOs Neden and Green for his failure to comply with his obligations.
  17. [65]
    The difficulty I have with this position is that the COI Procedure accompanying the COI Policy clearly places the onus on a QFES employee to identify and declare their own COI. Thereafter, any further actions associated with managing and resolving the COI are undertaken in conjunction with the support and guidance of a supervisor.
  18. [66]
    Having failed to initiate the process in the first instance, it is difficult to comprehend how SO Neden or Inspector Knight, for example, could be blamed for hindering Mr Bennett in his attempts to manage the conflict.
  19. [67]
    In my view, it was open to DC Roche to conclude Mr Bennett failed to declare and resolve a COI in respect of the 18 January 2020 electrical quote. On the materials before me, there was nothing unfair or unreasonable in respect of the conclusions he came to about this allegation.

Allegation 4(b)

Allegation 4

...

  1. (b)
    In February 2020, you installed electrical items at Bowen FRS in your official capacity, which was contrary to the instructions provided by Inspector Knight.
  1. [68]
    Mr Bennett concedes he installed electrical items at the BFRS, but contends he was unaware of the instructions provided by Inspector Knight.[27] In making that submission, he relies on the evidence of another colleague given during the investigation, and an approved leave form, indicating he was absent from the workplace when Inspector Knight gave the instruction.[28]
  2. [69]
    Mr Bennett submits Inspector Knight had previously authorised and offered to assist in work such as sheeting, plastering and paint scraping during operational hours such that Mr Bennett perceived performing work at the BFRS to be acceptable.[29] This perception, he notes, was shared by his colleagues which he says is reflected in their evidence during the investigation.[30] Although he accepts Inspector Knight may have changed his position regarding performing works at some point, he submits he did not receive any notification of that change in position.[31]
  3. [70]
    Finally, Mr Bennett maintains he relied on the information provided to him by SO Green and his directions, although he accepts these were contrary to the instructions of Inspector Knight.[32]
  4. [71]
    QFES argues Mr Bennett acknowledged during the investigation he was aware of Inspector Knight's instructions. Moreover, the interviews conducted by CIU with other employees indicated there was a general awareness about those instructions.[33]
  5. [72]
    In reply submissions, Mr Bennett highlights that the individuals who had a general awareness of Inspector Knight's instructions likely gained that awareness from their respective SOs.[34] He also notes those employees gave their evidence once the investigation had been commenced and COI matters were at the forefront of everyone's minds.[35]

Consideration – Allegation 4(b)

  1. [73]
    On 15 October 2020, Mr Bennett attended an interview with two investigators from the QFES CIU.[36] The precis of the interview prepared by the investigators, in response to questions relating to obtaining electrical quotes for the downstairs bathroom and exterior lighting, notes Mr Bennett confirmed that, in a meeting in January 2020, Inspector Knight told FFs he did not want them undertaking plumbing and electrical work at the BFRS because he was concerned about insurance, warranties and licencing.[37]
  2. [74]
    Similarly, Inspector Knight confirmed in an interview conducted on 14 October 2020 that he had advised staff at the BFRS he did not want FFs performing any electrical or plumbing work at the station, as this needed to be undertaken by licenced professionals.[38]
  3. [75]
    Correspondence dated 29 June 2021, which was submitted during the show cause process on behalf of Mr Bennett, also acknowledges Mr Bennett was aware of concerns from senior officers associated with licensing, warranties and insurances.[39]
  4. [76]
    In his submissions to the Commission, Mr Bennett does not dispute, nor has he been able to provide a meaningful explanation as to why, he initially confirmed his awareness of Inspector Knight's position in an earlier interview undertaken by the CIU.
  5. [77]
    While I accept it is possible there may have been other employees within the BFRS that were aware Mr Bennett was performing electrical work at the station in February 2020 notwithstanding Inspector Knight's instructions, I consider there was nothing unfair or unreasonable about the conclusion DC Roche arrived at in relation to this allegation.

Allegation 6(a)

Allegation 6

You did not comply with QFES procurement policy in relation to the turnout/PPE room minor capital works project at Bowen FRS, specifically by:

  1. (a)
    You improperly initiated a subcontractor relationship with Lowcock Builders for work relating to the turnout/PPE room project at Bowen FRS, thereby creating an unresolved actual conflict of interest.

...

  1. [78]
    Mr Bennett's submissions in respect of Allegation 6(a) are relatively brief and note that air-conditioning was not in the original scope of works.[40] He maintains SO Green advised Lowcock Builders not to quote for air-conditioning because it was intended that existing air-conditioning would be serviced, as opposed to replaced or altered.[41]
  2. [79]
    QFES argues that, despite denying the allegation, Mr Bennett has failed to give an alternative explanation or challenge the evidence provided.[42] In this respect QFES relies on the evidence provided by Mr Kirkpatrick, Mr Lowcock, Ms Denyer and Mr Bennett during the investigation, including Mr Bennett's own admission about inserting the price for air-conditioning into the quote and sending it to Lowcock Builders to complete the document.[43]

Consideration – Allegation 6(a)

  1. [80]
    The suggestion by Mr Bennett that air-conditioning in the new area was not originally contemplated as part of the project is at odds with an email from Inspector Knight to A/Inspector Jock Crome on 6 February 2020, where the installation of air-conditioning appears in an indicative description of the extent of works proposed to be undertaken in respect of the turnout/PPE room.[44]
  2. [81]
    Likewise, Mr Bennett's evidence that it was Lowcock Builders who approached him to ask whether he could install the air-conditioning on or around 20 March 2020 does not align with the evidence of Mr Lowcock and Ms Denyer, who both maintained the subcontractor arrangement was imposed on them by Mr Bennett, with whom they did not have a pre-existing relationship.
  3. [82]
    The cost of the work performed by Mr Bennett was incorporated into the invoices Lowcock Builders submitted to QFES for payment once the company had completed the new turnout/PPE room.
  4. [83]
    Relevantly, after the air-conditioning work was completed, Mr Bennett submitted an invoice to Lowcock Builders, seeking payment for the work performed. The amount payable was identical to the original amount Mr Bennett included on the RFQ, other than a variation increase of $170 which was subsequently submitted for payment.
  5. [84]
    The Public Safety Business Agency[45] Procurement and Contracts Practice Manual v 3.1 describes the principles, practices, roles and responsibilities within the QFES procurement system. Section 2.8 of the manual states (in part):

... Officers and Personnel involved in any aspect of the Procurement process must:

  • not engage in any activity or obtain any interest likely to conflict with their obligation to be impartial in respect of a procurement process;
  • regularly assess the circumstances of their activity to identify any Conflict of Interest;
  • declare any actual, perceived or potential Conflict of Interest to the Procurement Delegate and/or Chief Procurement Officer immediately as such conflict is identified;

...

  1. [85]
    It is not in dispute there was a COI in relation to Mr Bennett's employment at QFES and his subcontracting role with Lowcock Builders.
  2. [86]
    In the absence of any other explanation from Mr Bennett, and having regard to the investigation interviews and the evidence of Ms Denyer and Mr Lowcock, I consider it was fair and reasonable for DC Roche to substantiate Allegation 6(a), particularly in circumstances where Mr Bennett:
  • acknowledged he was responsible for co-ordinating or managing the process for obtaining quotes from contractors for the new turnout/PPE room;
  • made arrangements for contractors to inspect the proposed works;
  • did not have a prior relationship with either contractor;
  • confirmed he met with Mr Lowcock and Mr Kirkpatrick at the BFRS in the week commencing 4 February 2020 to discuss the project; and
  • admitted to inserting a price into the RFQ which was then sent on to Lowcock Builders on 19 February 2020 to complete.

Allegation 6(b)

Allegation 6

You did not comply with QFES procurement policy in relation to the turnout/PPE room minor capital works project at Bowen FRS, specifically by:

...

  1. (b)
    On or about 5 February 2020, you communicated an unreasonable deadline to Glenn Merrick Constructions for submission of their quotation for the turnout/PPE room project, resulting in only one contractor being considered for the project.

...

  1. [87]
    Mr Bennett denies communicating an unreasonable deadline to Mr Nilsson, arguing SO Green was the person dealing with GMC.[46] He submits the evidence of SO Green, Mr Nilsson and Ms Merrick each identify SO Green was the contact person.[47] Further, he submits SO Green acknowledged in his evidence he had communicated a sense of urgency to the company.[48]
  2. [88]
    QFES contends Mr Bennett has failed to provide alternative evidence or address the evidence produced during the investigation.[49] Further, it argues Mr Bennett's submission that SO Green was the person dealing with GMC is inconsistent with Mr Bennett's evidence that he was the person responsible for arranging quotes and inviting contractors to attend the BFRS.[50]
  3. [89]
    It also notes that Mr Bennett's evidence that he contacted GMC in the days following the inspection is inconsistent with Ms Merrick's evidence that there was no follow up.[51]

Consideration – Allegation 6(b)

  1. [90]
    The dispute in respect of this allegation is about which officer communicated a deadline (if at all) to GMC such that they were deterred from submitting a quote and the period within which GMC was requested to submit a quote.
  2. [91]
    In an interview conducted by the CIU on 15 October 2020, Mr Bennett confirmed he told both Lowcock Builders and GMC that the project had a short timeframe and they had only one week to provide QFES with a quote.[52] In the same interview, Mr Bennett advised he contacted GMC on a couple of occasions and asked the 'office lady' for the quote, but that the company did not provide one.[53]
  3. [92]
    Mr Lowcock's recollection was that there was no deadline imposed by QFES on his company in relation to the initial quote, but that he produced it more quickly than normal due to his desire to secure the job in circumstances where other projects Lowcock Builders was involved in had been delayed due to inclement weather.[54]
  4. [93]
    In contrast, the evidence of Mr Nilsson, who attended the BFRS premises on behalf of GMC on 5 February 2020, was that he was advised the quote was required the following day.[55] In response, Mr Nilsson recalled he expressed surprise to the QFES employee about the short deadline, indicating it was unlikely he would be able to prepare a quote in such a short timeframe.[56]
  5. [94]
    SO Green's evidence, in an interview conducted on 16 October 2020, was that he, Mr Bennett and FF Heath Mudge accompanied the contractors when they attended the BFRS to inspect the proposed works.[57] He recalled asking GMC if there was any possibility they could provide a ballpark estimate of the cost within the next few days, but that it was Mr Bennett who followed up with Lowcock Builders and GMC in relation to obtaining their quotations.[58]
  6. [95]
    In his show cause response Mr Bennett denied the allegations regarding the deadline and the version of events provided by Mr Nilsson.
  7. [96]
    In his decision letter, DC Roche advised he had considered the evidence and preferred the version of events given by Mr Nilsson and Ms Merrick because, among other factors, they had no motive to provide false evidence. Further, Ms Merrick's recollection of being advised of the short timeframe supported a conclusion Mr Nilsson did not falsify or twist his recollection of events.
  8. [97]
    DC Roche considered Mr Bennett had a motive to favour Lowcock Builders as the successful candidate in circumstances where he had already met with the company by 5 February 2020 and set in motion a plan where he would perform the air-conditioning work, concluding:

On the balance of probabilities, you told Mr Nilsson that a deadline existed, which was a lie. The deadline you imposed meant that Glenn Merrick Constructions was not given a reasonable amount of time to draft and submit a quote. Given your experience as an electrical contractor, I consider that you would have known that it was an unreasonable timeframe. I therefore consider that by imposing an unreasonable timeframe, you discouraged Glenn Merrick Constructions from submitting a quote.

  1. [98]
    After considering the Investigation Report and accompanying interviews, I consider it is open to conclude that both Mr Bennett and SO Green interacted with GMC in relation to the project.
  2. [99]
    At the very least, and on his own evidence, Mr Bennett imposed a one-week deadline.
  3. [100]
    SO Green communicated there was a sense of urgency around the project, with a requirement that a quote would need to be turned around within a matter of days.
  4. [101]
    Given the recollections of Mr Nilsson and Ms Merrick it seems more likely than not that Mr Nilsson was left with the impression from either SO Green or Mr Bennett that GMC had a limited timeframe within which to finalise its quote. In contrast, I accept it is likely Lowcock Builders was not advised about a deadline.
  5. [102]
    However, one of the challenges with the substantiation of this allegation is that Mr Nilsson was unable to name the QFES employee he was engaging with in respect of the quotation process. This difficulty, when considered in concert with the interview responses from SO Green, creates some uncertainty, in my view, around which employee was primarily responsible for discouraging GMC from finalising a quote.
  6. [103]
    Although I consider it was fair and reasonable for DC Roche to conclude that a quotation deadline had been communicated to GMC, which may in turn have contributed to a decision on the part of GMC to not finalise a quote, I cannot be satisfied on the materials before me that it was reasonable to conclude it was Mr Bennett who was responsible for communicating an unreasonable deadline.
  7. [104]
    Consequently, I am not persuaded it was fair and reasonable to substantiate Allegation 6(b) in its current form. At best, it would be reasonable to conclude Mr Bennett communicated a deadline to GMC for submission of their quote for the turnout/PPE room project, but not that he was solely responsible for having discouraged GMC from quoting for the work.

Allegation 6(c)

Allegation 6

You did not comply with QFES procurement policy in relation to the turnout/PPE room minor capital works project at Bowen FRS, specifically by:

...

  1. (c)
    On 19 February 2020, you manipulated the contract price, as documented in the RFQ (in consultation with Lowcock Builders Pty Ltd), to enable additional works to be completed in other parts of Bowen FRS, which were unrelated to the turnout/PPE room project;

...

  1. [105]
    Mr Bennett rejects DC Roche's finding that there is no evidence Inspector Knight, SO Green or SO Neden instructed him to negotiate a different price.[59] He submits that any manipulation of works documents, costs or other matters were at the direction of SO Green and were never self-initiated.[60] Mr Bennett adds that SO Green's evidence during the investigation reflects that SO Green believed it was acceptable to adjust pricing in an attempt to achieve as much work as possible within the allocated budget.[61]
  2. [106]
    QFES did not address Mr Bennett's submissions in respect of this allegation.

Consideration – Allegation 6(c)

  1. [107]
    In his decision letter, DC Roche's reasoning for substantiating the allegation included reference to Mr Bennett's direct and undisputed request to Mr Lowcock to increase the painting subcategory in Lowcock Builder's quote to encompass the painting of additional areas of the station beyond the scope of the project and to further reduce the overall quote by an amount of $2,000.
  2. [108]
    One of the problems with Mr Bennett's actions, as observed by Inspector Knight in his interviews with CIU, is that it was not permissible to rely on an allocation for a capital works project (in this case the building of the turnout/PPE room) to fund repairs and maintenance identified in other areas of the BFRS.
  3. [109]
    It is clear on the materials that Mr Bennett requested Mr Lowcock to amend the contract price for the turnout/PPE room in a way that enabled additional and unauthorised works to be completed in other parts of the BFRS which were unrelated to the original project.
  4. [110]
    Unhelpfully, the finalised RFQ did not include any detail about the additional painting services being undertaken in other areas of the BFRS which, whilst not permitted in any event, would have at least alerted other responsible officers that the funds allocated by QFES State Capital Works were being wrongly diverted to repairs and maintenance.
  5. [111]
    For these reasons, DC Roche's conclusion about Allegation 6(c) was fair and reasonable.
  6. [112]
    This does not mean, however, that Mr Bennett's submissions that he was not acting on his own should be disregarded when further consideration is given to any disciplinary penalty which may arise as a result of the substantiated allegations. Relevantly, there is evidence within the Investigation Report and accompanying interviews that another more senior officer based at the BFRS, who was also involved in the turnout/PPE room project, considered it was acceptable to adjust the pricing within the contract notwithstanding it is not permissible to utilise funding for capital works projects for repairs and maintenance.

Allegation 7

On 24 March 2020, you made a conflict-of-interest declaration that did not transparently disclose the true nature of your involvement as a subcontractor in the turnout/PPE room minor capital works project at Bowen FRS.

  1. [113]
    Mr Bennett submits SO Green transferred to the BFRS from interstate four weeks prior to the project commencing.[62] Consequently, he argues SO Green's inexperience meant he was unable to provide appropriate support to Mr Bennett in completing a COI form, which is consistent with his failure to adhere to the COI Procedure.[63]
  2. [114]
    Mr Bennett submits he was aware of his obligation to disclose a COI but was confused about what information he was required to put on the form.[64] He submits he made enquiries with SOs Green and Neden who were unable to assist, and argues he attempted to complete the form without assistance to the best of his ability.[65]
  3. [115]
    QFES contends the COI disclosure form submitted by Mr Bennett was deliberately misleading in that it implied he had an ongoing relationship with Lowcock Builders and did not address the actual COI that arose from the specific commercial arrangement between Mr Bennett and Lowcock Builders.[66]
  4. [116]
    In reply submissions, Mr Bennett argues QFES's characterisation of his actions as 'deliberately misleading' is a gross overestimation of his lack of knowledge of the correct process, and ability to control that process.[67]

Consideration – Allegation 7

  1. [117]
    It is not in contention that on around 6 March 2020, a complaint was raised by a FF based at the BFRS in relation to QFES employees, including Mr Bennett, undertaking electrical work at the station and related COI concerns.
  2. [118]
    During the period 6 March 2020 to 16 March 2020, several senior officers and advisers within QFES took steps to consider the complaint, which in turn led to an advisor from QFES Workplace Standards formally lodging the complaint for follow-up on the QFES NEXUS Complaint Management system.
  3. [119]
    Relevantly, at this point, Mr Bennett had not submitted a 'Notification of Conflict of Interest' form ('COI form') in relation to either the 18 January 2020 quote for electrical works submitted on behalf of Nextgen, or the air-conditioning installation component of Lowcock Builders' RFQ for the turnout/PPE room project. However, I note it appears Mr Bennett submitted a 'Declaration of Interest' form dated 6 March 2020 identifying himself as the owner of Nextgen.
  4. [120]
    On 18 March 2020, the CAT conducted a preliminary assessment of the allegations and referred the matter back to the QFES Northern Region with a view to conducting further 'fact finding' activities in relation to the concerns that had been raised.
  5. [121]
    By mid-March 2020, Mr Bennett had become aware that a complaint had been made in respect of trade work being undertaken by employees at the BFRS.
  6. [122]
    On 19 and 23 March 2020, A/Inspector Warren Stubberfield travelled to Bowen to meet with individual employees at the BFRS in respect of COI and governance issues that had been raised. The CAT subsequently determined the CIU should undertake an investigation.
  7. [123]
    On 24 March 2020, Mr Bennett signed and submitted a COI form.
  8. [124]
    The COI Procedure describes various actions that are required to be undertaken to notify QFES of a conflict and states:

All of the Queensland Fire and Emergency Services (QFES) workforce … have an obligation to disclose an interest which conflicts or may conflict with the performance of their official duties.

  1. [125]
    The first action on the COI Procedure requires an employee to identify a potential COI.
  2. [126]
    On Mr Bennett's COI form, under the heading 'Provide details of conflict of interest', he noted:

Mace Bennett is employed as a permanent fire fighter at Bowen station [and] is also the owner of Next Gen [sic] Energy & Irrigation, I sub-contract for but not limited to the below companies:

–Lowcock Builders

–DMK Industries

From time to time I will tender/Quote direct to clients including QFES as requested.

  1. [127]
    Further down the form, under the heading 'Provide details of how the conflict of interest will be managed', Mr Bennett stated:

I am a 3rd class fire fighter and therefore have no financial delegations or [i]nfluence over any tendering process. However [I] reserve my right to consult within my field of expertise as requested by management.

  1. [128]
    Mr Bennett indicated the COI ought to be classed as a 'Perceived' and 'Potential' conflict.
  2. [129]
    In my view, the reasoning given by DC Roche when substantiating the allegation is reasonable when regard is had to the timing of the completion of the form and the events that had taken place in the lead up to Mr Bennett's completion of the form on 24 March 2020. DC Roche's reasoning included consideration of the following:
  • the confirmation of Mr Bennett's role as a private subcontractor for Lowcock Builders, who had been awarded the contract for the turnout/PPE room project;
  • the existence of an actual COI;
  • Mr Bennett's involvement, while engaged as a QFES employee, in obtaining quotes and the financial benefit he would accrue as a result of the awarding of the contract to Lowcock Builders;
  • the lack of detail contained within Mr Bennett's COI form, including the absence of any reference to specific conflicts that existed at the time it was completed; and
  • Mr Bennett's characterisation of the COI in a manner that intimated he may have a future conflict, when instead, an actual conflict had already arisen.
  1. [130]
    The COI Policy defines an 'actual' COI as a:

…direct conflict between a staff member, volunteer or contractor's official duties and responsibilities to QFES and existing private interests or obligations, whether personal or involving a third party.

  1. [131]
    Although Mr Bennett was a private subcontractor for Lowcock Builders at the time he completed the COI form, he nominated both 'Perceived' and 'Potential' as the type of conflict that had arisen, despite 'Actual' being an option on the COI form.
  2. [132]
    For these reasons, I consider it was fair and reasonable for DC Roche to conclude the COI form submitted by Mr Bennett on 24 March 2020, did not properly disclose the true nature of his involvement as a subcontractor with Lowcock Builders and his involvement in the capital works project being undertaken at the BFRS at the time.

Weight Placed on Mr Bennett's COI Training

  1. [133]
    Mr Bennett contends he has been made the 'scapegoat' for poor decisions and leadership exercised by his superior officers.[68] He submits QFES is a hierarchical organisation with a rank structure and strict chain of command and, as a less senior officer, he reasonably expected direct instruction and guidance on matters related to his operational duties and employment.[69] In reply submissions, Mr Bennett reiterated that he understood compliance with his chain of command to be 'absolute'.[70]
  2. [134]
    Mr Bennett contends that in substantiating each allegation DC Roche has placed disproportionate weight on the expectation that Mr Bennett would have a comprehensive knowledge of his COI obligations.[71] In this respect, Mr Bennett highlights the early stage of his career and the fact that there is, what he describes to be, 'an overwhelming amount of policy and procedural knowledge' applicable to his role as an employee of the State of Queensland.[72]
  3. [135]
    QFES contends it is reasonable to expect an employee who has undertaken Code of Conduct training on two occasions in June 2016 and March 2019 to be aware of the requirements to avoid a COI and disclose one where it is exists.[73]
  4. [136]
    QFES further submits it is disappointed there is a perception in the BFRS and local contracting community that responding to a RFQ may not be worthwhile as the outcome may have already been determined in favour of existing employees.[74]

Consideration – Weight

  1. [137]
    For the reasons set out above at [51] to [56] of these reasons, I am not persuaded DC Roche has placed disproportionate weight on the expectation Mr Bennett would have knowledge of his COI obligations.
  2. [138]
    Even if I was to place less weight on the Code of Conduct training Mr Bennett undertook on 30 June 2016 when he was an auxiliary FF, the difficulty I have with his submissions is that he participated in an interactive e-learning module about COI training less than one year before the events which are the subject of the allegations took place.
  3. [139]
    The training differentiates different types of COI as 'actual', 'perceived' and 'apparent' conflicts, and directs the participant to relevant policies and procedures.[75]
  4. [140]
    The e-learning module Mr Bennett undertook clearly describes the circumstances where a COI may arise and sets out relevant examples, including the procurement of trade-related services and the challenges which could arise where a QFES employee is engaged in secondary employment.[76]
  5. [141]
    Although I am prepared to accept Mr Bennett may not have retained every point canvassed within the training, I consider it was fair and reasonable for DC Roche to rely on an expectation that Mr Bennett possessed a reasonable awareness of his obligations to identify a COI and disclose one where it exists.

Grounds for Discipline

  1. [142]
    Mr Bennett argues QFES has not complied with the Public Service Commission Executive Guideline 01/17: Discipline ('the Guideline') in that it did not choose the most appropriate ground of discipline in substantiating the allegations against him.[77] He contends this was an attempt by QFES to 'shore up' its position for the purpose of taking more serious disciplinary action, namely termination of his employment.[78]
  2. [143]
    Although he disputes he wilfully failed to comply with his obligations without a reasonable excuse, he submits it would have been more appropriate for QFES to consider his actions in light of s 30(1)(c) of the FES Act, as opposed to finding they equated to misconduct.[79] Mr Bennett does not provide any reasons as to why this should be the case.
  3. [144]
    Finally, Mr Bennett submits his risk of reoffending is low, particularly in circumstances where he has been permitted to continue in his role with QFES while this matter was determined.[80]
  4. [145]
    QFES maintains the allegations constitute misconduct based on the premeditated nature of Mr Bennett's decisions and subsequent actions.[81] This characterisation, it submits, also takes into account Mr Bennett's failure to acknowledge that he took deliberate steps to impose himself into the contract for the building works, and that he invented a false version of events whereby Lowcock Builders sought his help to complete the works.[82] Additionally, it refutes Mr Bennett's risk of reoffending is low in the absence of any admission of wrongdoing and subsequent reflection.[83]
  5. [146]
    Further, QFES argues it has taken a 'generous approach' by deciding to proceed under the FES Act as opposed to s 89 of the Criminal Code 1899 (Qld) which relates to public officers interested in contracts related to their employment.[84] QFES submits it has not reached its decision lightly and has relied on the detailed Investigation Report which afforded Mr Bennett natural justice and the right to respond.[85]
  6. [147]
    Finally, in rejecting Mr Bennett's submission it has failed to comply with the Guideline, QFES maintains it is a guideline only and sometimes more than one ground for discipline exists but, in any event, confirmed the grounds for discipline in its second show cause notice, namely:[86]

… Mr Bennett has engaged in misconduct within the meaning of section 30(5)(a) of the FES Act, being inappropriate or improper conduct in an official capacity.

  1. [148]
    In reply submissions, Mr Bennett denies his actions were premediated and reiterated that they instead stemmed from a limited understanding of the COI Procedure, notwithstanding his training.[87] Further, he re-characterises his risk of reoffending as 'non-existent', relying on his continued employment in his role and providing undertakings not to quote for any contracted work with QFES during the remainder of his employment.[88]

Consideration – Grounds for Discipline

  1. [149]
    Public Service Commission Directive 14/20: Discipline ('the Directive') came into effect on 25 September 2020.[89] In circumstances where the disciplinary process was commenced after this date, it is the relevant Directive to refer to in this appeal when determining, among other things, whether QFES complied with the process for managing disciplinary action under the PS Act.
  2. [150]
    Clause 8 of the Directive, amongst other things, requires a Chief Executive or their delegate to provide written details of the disciplinary ground that applies to the allegation. The purpose of this part is to ensure an employee is put on notice before responding to allegations, such that they have a full appreciation of the consequences in the event the allegations are substantiated.
  3. [151]
    In his initial show cause correspondence, DC Roche set out two potential grounds for discipline, including misconduct, in the event the allegations were substantiated. The other ground related to a failure to comply with relevant parts of the Code of Conduct for the Queensland Public Service ('the Code').
  4. [152]
    In circumstances where the show cause process was in its early stages and where QFES was attempting to determine the circumstances in which Mr Bennett had failed to comply with his COI obligations, I consider this was a reasonable approach, particularly given there may have been an explanation proffered on behalf of Mr Bennett during the show cause process such that his conduct could have been more accurately characterised as a breach of the Code, rather than misconduct.
  5. [153]
    In any event, I am satisfied the potential consequences and significance of Mr Bennett's conduct, if proven, were clearly communicated in the initial show cause correspondence and included reference to the more serious disciplinary ground of misconduct.
  6. [154]
    Clause 8.4(c) of the Directive requires a Chief Executive or their delegate, having explained their findings of fact, to state whether the disciplinary ground to which the allegation was applied has been established.
  7. [155]
    Although QFES goes into some detail within its submissions to the Commission as to the reasons for selecting misconduct as its preferred ground for discipline rather than s 30(1)(c) of the FES Act, which provides for circumstances where an employee has failed to comply with the Code without reasonable excuse, there is limited explanation within the decision letter to Mr Bennett.
  8. [156]
    The absence of these details, particularly in a decision inviting an employee to respond as to why he should not have his employment terminated, is not fair and reasonable.

Conclusion

  1. [157]
    Pursuant to s 194(eb) of the PS Act, an appeal may be made against a decision a public service employee believes is unfair and unreasonable.[90]
  2. [158]
    Mr Bennett maintains that DC Roche's decision was unfair and unreasonable.
  3. [159]
    For the reasons given above, other than in respect of the substantiation of Allegation 6(b) and the failure to adequately justify his reasons for determining Mr Bennett's conduct amounted to misconduct, DC Roche's decision was fair and reasonable.

Orders

  1. [160]
    I make the following orders:
    1. The decision appealed against is set aside.
    2. The decision appealed against is returned to the decision-maker with a copy of these reasons.
    3. The decision-maker is directed to reissue their decision to the appellant containing only the substantiated allegations I have found to be fair and reasonable, namely:
  1. (a)
    Allegation 4(a);
  2. (b)
    Allegation 4(b);
  3. (c)
    Allegation 6(a);
  4. (d)
    Allegation 6(c); and
  5. (e)
    Allegation 7.
    1. The decision-maker is further directed to specify the following in the reissued decision:
  1. (a)
    the section or sections of the Fire and Emergency Services Act 1990 the decision-maker finds the appellant contravened in respect of each of the substantiated allegations contained in Allegations 4(a), 4(b), 6(a), 6(c) and 7; and
  2. (b)
    the decision-maker's reasons for determining the appellant contravened each of the specified sections.
    1. The decision-maker reissue their decision within 21 days of these reasons.

Footnotes

[1] Public Service Act 2008 (Qld) s 197.

[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[3] Industrial Relations Act 2016 (Qld) s 562B(3).

[4] Formerly known as the Ethical Standards Unit.

[5] Mr Bennett's submissions in reply filed 15 October 2021, Attachment 1.

[6] Appeal notice filed 26 August 2021, Part C.

[7] My underlining.

[8] Mr Bennett's submissions filed 15 September 2021, [2].

[9] Ibid [3].

[10] Ibid [4], Attachment 3.

[11] Ibid [4].

[12] Ibid [5], Attachment 4.

[13] Ibid [6]-[7].

[14] Ibid [8]-[9], Attachment 5.

[15] Ibid [10].

[16] Ibid [11], [14].

[17] Ibid [11]-[13].

[18] QFES submissions filed 11 October 2021, [12].

[19] Ibid, [13], [16].

[20] Ibid [13]-[14].

[21] Ibid [18].

[22] Ibid [17].

[23] Mr Bennett's reply submissions filed 15 October 2022, [9].

[24] Ibid [10].

[25] Ibid Attachment 1.

[26] Training material filed 6 July 2022.

[27] Ibid [15].

[28] Ibid [16]-[17], Attachments 7 and 8.

[29] Ibid [18].

[30] Ibid [19], Attachments 9 and 10.

[31] Ibid [20].

[32] Ibid [21]-[23], Attachment 11.

[33] QFES submissions filed 11 October 2021, [20].

[34] Mr Bennett's reply submissions filed 15 October 2022, [7].

[35] Ibid [8].

[36] Mark Campion, Investigation Report (December 2020) Attachment 30.

[37] Ibid Attachment 30, 3.

[38] Ibid Attachment 27, 4.

[39] Mr Bennett's reply submissions filed 15 October 2022, Attachment 1.

[40] Mr Bennett's submissions filed 15 September 2021, [25]-[27].

[41] Ibid.

[42] QFES submissions filed 11 October 2021, [21].

[43] Ibid [22]-[23].

[44] Mark Campion, Investigation Report (December 2020) Attachment 28b, 2.

[45] I note the Public Safety Business Agency ('the PSBA') was disestablished as of 1 July 2021, with all of its functions and staff transferred to the Queensland Police Service or QFES. However, at the time of the events giving rise to this appeal, the PSBA provided corporate support services to Queensland's public safety agencies, including QFES.

[46] Mr Bennett's submissions filed 15 September 2021, [29].

[47] Ibid [30]-[33], Attachments 13, 14 and 15.

[48] Ibid [34], Attachment 16.

[49] QFES submissions filed 11 October 2021, [24].

[50] Ibid.

[51] Ibid [25].

[52] Mark Campion, Investigation Report (December 2020) Attachment 30, 5.

[53] Ibid.

[54] Ibid Attachment 31, 4.

[55] Ibid Attachment 33, 1.

[56] Ibid.

[57] Ibid Attachment 28, 4.

[58] Ibid.

[59] Mr Bennett's submissions filed 15 September 2021, [35].

[60] Ibid [36]-[37].

[61] Ibid Attachment 17.

[62] Ibid [39].

[63] Ibid [39]-[40], Attachment 18.

[64] Ibid [41].

[65] Ibid [42]-[43].

[66] QFES submissions filed 11 October 2021, [19].

[67] Mr Bennett's reply submissions filed 15 October 2022, [15].

[68] Mr Bennett's submissions filed 15 September 2021, [45].

[69] Ibid [46].

[70] Mr Bennett's reply submissions filed 15 October 2022, [5].

[71] Mr Bennett's submissions filed 15 September 2021, [51].

[72] Ibid [53].

[73] QFES submissions filed 11 October 2021, [38].

[74] Ibid [39].

[75] Training material filed 6 July 2022.

[76] Ibid.

[77] Mr Bennett's submissions filed 15 September 2021, [48].

[78] Ibid [49].

[79] Ibid [50].

[80] Ibid [44].

[81] QFES submissions filed 11 October 2021, [29].

[82] Ibid [30].

[83] Ibid [32].

[84] Ibid [33].

[85] Ibid [35].

[86] Ibid [37].

[87] Mr Bennett's reply submissions filed 15 October 2022, [3]-[4], [12], [14].

[88] Ibid [16].

[89] The Directive applies to Mr Bennett's employment by virtue of Public Service Regulation 2018 (Qld) sch 8 cl 3(j).

[90] Chapter 7 of the Public Service Act 2008 (Qld), which includes s 194(eb), applies to Mr Bennett's employment by virtue of Public Service Regulation 2018 (Qld) sch 8 cl 3(k).

Close

Editorial Notes

  • Published Case Name:

    Bennett v State of Queensland (Queensland Fire and Emergency Services)

  • Shortened Case Name:

    Bennett v State of Queensland (Queensland Fire and Emergency Services)

  • MNC:

    [2022] QIRC 262

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    12 Jul 2022

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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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