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  4. Magor v State of Queensland (Queensland Corrective Services) - [2022] QIRC 35

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Magor v State of Queensland (Queensland Corrective Services)[2022] QIRC 35

Magor v State of Queensland (Queensland Corrective Services)[2022] QIRC 35

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Magor v State of Queensland (Queensland Corrective Services) [2022] QIRC 035

PARTIES: 

Magor, Ben

(Appellant)

v

State of Queensland (Queensland Corrective Services)

(Respondent)

CASE NO:

PSA/2020/408

PROCEEDING:

Public Service Appeal – appeal against a disciplinary decision

DELIVERED ON:

11 February 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decisions appealed against are confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision ordered on 10 December 2020 be revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY  – public service appeal – appeal against a disciplinary finding decision and disciplinary penalty decision – where disciplinary action taken against appellant pursuant to s 188 of the Public Service Act 2008 (Qld) – where appellant submits allegations cannot be substantiated on the evidence  – where appellant submits finding decision is unfair and unreasonable – where disciplinary finding decision confirmed – where disciplinary finding decision fair and reasonable – where disciplinary penalty decision confirmed – stay of decision revoked

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B, 562C and 566

Public Service Act 2008 (Qld) ss 187, 188, 194 and 197

Directive 14/20: Discipline, cls 7 and 8

CASES:

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

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

Reasons for Decision

Introduction

  1. [1]
    Mr Ben Magor ('Mr Magor') is employed by the State of Queensland, Queensland Correctional Services ('QCS'), as a Correctional Supervisor at Lotus Glen Correctional Centre ('the Centre'). Mr Magor seeks to appeal both a disciplinary finding decision and a disciplinary penalty decision of the QCS.
  1. [2]
    On 1 October 2020, a disciplinary finding decision was made which substantiated the following allegations:
  1. On 16 February 2019 at Lotus Glen Correctional Centre (LGCC), you used force on a Prisoner that was not reasonably necessary in the circumstances. The allegation related to the application of Oleoresin Capsicum (OC) spray to the Prisoner during an incident reported in INCI 249296.
  1. On 16 February 2019, at LGCC, you prepared an inaccurate officer report regarding the use of force on the Prisoner. This allegation relates to INCI 249296. 
  1. [3]
    On 20 November 2020, the QCS issued a decision to Mr Magor imposing the following disciplinary penalty:
  • a reduction in remuneration of Mr Magor's substantive position, from GS3-4 to GS3-3 for a period of 12 months;
  • a reprimand; and
  • to complete refresher training in relation to the Code of Conduct.
  1. [4]
    Mr Magor appealed against the disciplinary finding and disciplinary penalty decision pursuant to s 194(1)(b)(i) of the Public Service Act 2008 (Qld) ('PS Act').
  1. [5]
    This Commission ordered that the decision subject of the appeal be stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  1. [6]
    The appeal is made pursuant to s 197 of the PS Act which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [7]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [8]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [9]
    For the reasons contained herein, I have found that the decisions were fair and reasonable.

Background

  1. [10]
    On 30 July 2019, an allegation was made by a prisoner at the Centre that Mr Magor had used 'excessive force' by allegedly deploying Oleoresin Capsicum ('OC') spray directly into the prisoner's mouth during an incident on 16 February 2019.
  1. [11]
    On 1 October 2019, the Ethical Standards Group ('ESG'), commenced an investigation into allegations of unreasonable use of force by Mr Magor and the completion of an inaccurate Officer Report.
  1. [12]
    On 18 February 2020, during the course of the investigation, the ESG investigator interviewed Mr Magor.
  1. [13]
    On 7 May 2020, the ESG investigator issued an investigation report.
  1. [14]
    On 17 August 2020, a show cause notice was issued by Deputy Commissioner Gary McCahon ('Deputy Commissioner McCahon') to Mr Magor in the following relevant terms:

Dear Mr Magor

I am in receipt of an investigation report prepared by the Ethical Standards Group (ESG) dated 7 May 2020 (Investigation Report) regarding your alleged conduct. The ESG investigated the following allegations against you.

  1. On 16 February 2019 at Lotus Glen Correctional Centre (LGCC), you used force on Prisoner [Prisoner's name redacted] that was not reasonably necessary in the circumstances. The allegation relations to the application of Oleoresin Capsicum (OC) spray to Prisoner [Prisoner's name redacted] during an incident reported in INCI 249296; and
  1. On 16 February 2019, at LGCC, you prepared an inaccurate officer report regarding a use of force on Prisoner [Prisoner's name redacted]. The allegation relates to INCI 249296.

The ESG concluded that on the balance of probabilities, the allegations are capable of being substantiated.

Section 187 of the Public Service Act 2008 (PS Act) provides that a chief executive may discipline an employee if they are reasonably satisfied that a discipline ground has been established. I confirm I have been delegated the function of chief executive for this matter.

After giving full and careful consideration to the matters contained in the Investigation Report, I am of the view that you may be liable for disciplinary findings pursuant to section 187 of the PS Act. 

You are now required to show cause as to why a disciplinary finding should not be made against you in relation to the following allegations (as reframed by me) on the grounds set out below.

…

  1. [15]
    On 8 September 2020, Mr Magor provided a response to the show cause notice. 
  1. [16]
    On 1 October 2020, the decision maker issued Mr Magor the disciplinary finding decision and a second show cause notice – decision on disciplinary finding and proposed disciplinary action. On 13 October 2020, Mr Magor provided a response to the second show cause notice.
  1. [17]
    The disciplinary finding decision substantiated allegations one and two and put Mr Magor on notice that the QCS was giving serious consideration to taking disciplinary action. 
  1. [18]
    With respect to allegation one, the factual findings made included, but were not limited to, the following:

…

  • At the time you deployed a burst of OC spray towards the prisoner's face, he was lying on the ground with his hands behind his back, with three CCOs in the process of restraining him, soon to be joined by a fourth.
  • CS Muller had taken control of and was holding the prisoner's head down with his right cheek to the floor.
  • CCO Nihcolls had already incurred the injury from the prisoner's free arm, and he was then restrained.
  • You deployed the burst of OC spray towards the prisoner's face from a distance of, at most, half a metre away. The force you used against the prisoner  in that particular instance was excessive and applied in a manner that was likely to cause injury to the prisoner.
  • Your use of the OC spray caused the prisoner breathing difficulties and stinging and burning sensations to his face and eyes.
  • Your use of OC spray was not reasonably likely to de-escalate the situation (and nor did it).
  • In the lead up to your use of the OC spray, I am satisfied the following occurred:
  • At 11:11.53, following your direction, the prisoner  approached the door between the S 25 unit and the spine, where he waited until 11:12.13 when the door was opened, and he entered the doorway.
  • The prisoner was waiting compliantly by the door in accordance with your direction to him while up to nine (9) officers were assembling closely just inside the doorway. You have not provided any explanation as to why so many officers were assembled in anticipation of his entry.
  • In t's interview he stated that when confronted by nine officers, he 'freaked out' and backed away as CS Muller attempted to 'punch' him. Having regard to the evidence of CS Muller and CS Shem Beguely, I am satisfied that upon entering the doorway did not place his hands on the wall and instead backed out of the spine. On the CCTV footage the prisoner has his hands raised, open palmed in a submissive gesture as CS Muller attempts to grab him.
  • On the evidence available, I am satisfied the prisoner was lunged at/grabbed at by CS Muller and quickly backed out of the door. He was then rushed closely by the nine officers (of which you were the fifth), backwards into the S 25 common dining area. I note you have not provided me any explanation as to what prompted all nine officers (including yourself) to rush at the prisoner.
  • I am not satisfied the prisoner's refusal to place his hands on the wall warranted nine officers rushing out at him as he backed up with his hands raised in a submissive gesture. In the absence of any explanation, it is unclear to me why the officers involved would have done so, and it is particularly concerning in circumstances where the approached encouraged by QCS in managing prisoners is effective tactical communication and de-escalation. As an experienced CS you would have known, or ought to have reasonably known, that this approach was instead likely to escalate the situation.
  • I have had regard to the CTTV footage of the events, and i am satisfied you obtained CCO Simon Carlisle's MKIX OC Fogger while other officers were communicating with the prisoner through the kitchen window. This included CCO Scot Nicholls who warned the prisoner regarding the use of chemical agents and then deployed a burst of OC spray from his MKIX Streamer.
  • Having regard to the CCTV footage and the evidence of CS Beguely and CCO Nicholls, both CS Beguely and CCO Nicholls gave direction to the prisoner to lie on the ground. the prisoner then lay in a prone position on the floor with his arms behind his head. I am satisfied that due to the prisoner's agitated state it was necessary for three officers to then approach and restrain the prisoner on the floor.
  • You then approached and bent over the prisoner and used the MKIX Fogger to deploy a burst of OC spray to his facial area.
  • The events leading up to your deployment of the OC spray are relevant because the prisoner's resistance did not occur in a vacuum. He is known to have some cognitive issues and he had been distressed since just after 11:00am. He had followed your directions to approach the door to enter the spine from the unit, however once he entered the doorway he was confronted by nine officers (including yourself) and then rushed at closely by those officers. This resulted in the prisoner backing up and then running into the kitchen where he was further agitated and distressed. However, he then complied with the direction to lie on the floor and was restrained by three officers. In this context, I do not accept your use of the OC spray was reasonably intended to reduce or mitigate the prisoner's distress, de-escalate the situation or prevent further harm.
  • I accept that at the time you bent down and deployed the OC spray at the prisoner's face he was not fully restrained (i.e his legs were free). However, I do not consider his ability to move his legs warranted the use of chemical agent in his face. The prisoner had only just laid on the ground and was in a prone position. The three officers holding him had only just taken up position (soon to be joined by a fourth, CCO Nicholas lee). I am satisfied that three officers, soon to be joined by a fourth, were capable of restraining the prisoner effectively in a prompt manner and without chemical agent being deployed at his face. In the moment the prisoner may have been able to move his legs, however I do not consider this means he was such a risk to his own safety or the safety of officers that a further application of chemical agent was immediately warranted, particularly at his face and at close range.
  • By the time you sprayed the prisoner in the face with OC spray, CCO Nicholls had already incurred injury from the prisoner digging his nails into his arm. Your actions came after the initial injury to CCO Nicholls and before affording the officers any reasonable time to restrain the prisoner without chemical agent being sprayed in his face. Noting the rapid approach from CCO Lee I am not satisfied by your submission that your decision to use the OC spray was reasonably intended to prevent further harm.

…

  1. [19]
    With respect to allegation two, the factual findings made included, but were not limited to, the following:

…

  • It is not in dispute that you were responsible for generating an incident report (INCI 249296) in relation to the events of S 25 of 16 February 2019 and did so the same day. I acknowledge you were not responsible for ultimately signing off on the Incident Report. The Correctional Manager did so and stated they were satisfied the officer reports met the requirements of the COPD: Use of Force.
  • On 16 February 2019 you also generated an individual officer report in relation to INCI 249296.
  • You do not dispute the contents of your Officer Report.
  • You acknowledge your Officer Report was not clear regarding the prisoner's ground stabilisation, in that he placed himself on the ground. The prisoner followed the direction to lie on the ground and your Officer Report omitted that, instead stating the prisoner failed to follow staffs [sic] directions' and was then 'ground stabilised'. I am therefore satisfied your Officer Report was not accurate with respect to the prisoner lying down on the ground following the direction of CS Beguely and CCH Nicholls.
  • I have had regard to the CCTV footage available, which shows following Officer Nicholls' use of MKIV Streamer, the prisoner complied with staff directions to lie on the ground in a prone position. I therefore do not accept your Officer Report was accurate in stating the prisoner remained non-compliant following CCO Nicholls using the MKIV Streamer.
  • You admit your Officer report does not reflect the warning given to the prisoner by CCO Nihcolls. You submit you may have conflated the contents of the Incident Report with your Officer Report. I appreciate when drafting and reviewing multiple documents this may be possible but remind you that your Officer Report is required to[sic] be as accurate as possible. Significantly, your Officer Report, should be completed separately and distinctly from your Incident Report, because the Incident Report is then compiled based upon all reports of officers involved.
  • You concede you failed to record your use of CCO Carlisle's MKIX Fogger, however  submit this failure is irrelevant because you reported the use of the chemical agent in any event. I do not accept this because:
  • Only authorised officers are entitled to carry and use chemical agents. On that day you were not registered to carry the MKIX Fogger.
  • For safety and control records, it is important for your Officer Report to be accurate in recording where you obtained the MKIX Fogger to then use. While it may well be deduced that you obtained the MKIX Fogger from CCO Carlisle because you reported its use, this is not an assumption your superior officers should have to make.
  • I am concerned by your apparent disregard for best practice in accurate reporting in this respect. Your Officer Report should be accurate, and the fact you were not the authorised carrying officer of the MKIX Fogger, but used it, is a noteworthy omission in your Officer Report.
  • I appreciate you had some other duties to undertake before you had the opportunity to complete your Officer Report. However, as CS you are expected to manage multiple priorities and lead by example in the quality and consistency of your reporting of incidents within the centre. You are required to ensure tasks (including the writing of officer reports) are completed in accordance with all  relevant policies and procedures within the correctional environment. This means ensuring accuracy and sufficient detail in your reporting of incidents in accordance with the COPD – Use of Force.
  • I do not accept your submission that you likely did not report 'exactly who directed the prisoner to the floor' because you are unsure who stated this. Your report does not refer to the prisoner being directed to the floor at all, let alone who may have given that direction. Your report only refers to the prisoner failing to follow staff directions generally. I am therefore satisfied the reason your Officer Report did not refer to any particular officer directing the prisoner was because it omitted that sequence of events entirely.
  • You admit you did not include in your Officer report that the prisoner had laid down [sic] on the floor in a prone position with his hands behind his head. I am not satisfied by your explanation the reason you did not do so was because at the time you sprayed the chemical agent, the prisoner was not compliant. The CCTV footage clearly shows the prisoner lying down on the floor with his hands locked behind his head, following which three officers engage in restraining him. The prisoner was lying face down and in a prone position well before you sprayed the OC spray. However, your Officer Report makes no reference at all to this. I am therefore satisfied your Officer Report did not accurately record the events immediately preceding your use of the OC spray.
  • I am not satisfied by your submission the reason you did not include that the prisoner was stabilised/restrained on the ground by three officers when you approached was because the prisoner was merely 'in the process of being restrained, ineffectively'. Firstly, your submission he was not stabilised is inconsistent with your Officer Report, which states the prisoner was 'ground stabilised.' Secondly, even if, in your view, the prisoner was only 'in the process' of being restrained and you deemed it 'ineffective', it is relevant that the prisoner had three officers on him in the process of restraining him. Your Officer Report failed to record there were three officers involved (again noting a fourth was quickly approaching). You do not provide any explanation regarding this notable omission. I am, therefore, satisfied you did not accurately report the events occurring as you approached to use the MKIX Fogger on the prisoner.

…

  • Finally, I appreciate you were managing multiple matters that day and acknowledge your submission that this had an impact on the information your provided in your Officer Report. I accept some details missed may not have been left out intentionally. However, I remain concerned by some of the glaring omissions and your selective responses to the details of your Officer Report under scrutiny.

…

  1. [20]
    On 20 November 2020, Deputy Commissioner McCahon issued the disciplinary penalty decision to Mr Magor. The reasons for the disciplinary penalty decision included, inter alia, the following:

…

In reaching my decision on disciplinary action to be taken, I have had regard to the following matters:

  • You have admitted to deploying a burst of OC spray at the prisoner's face but maintain that at the time you made the decision to do so, you thought it was the best tactical response in the circumstances. At no time have you made submissions reflecting contrition for your actions, and I am not satisfied that independent of this process you would have appreciated the seriousness of your actions or taken the time to reflect upon them.
  • At the time you deployed the OC spray at the prisoner's face, he was lying on the ground with his hands tied behind his back and three CCO's were restraining him (shortly to be four). I do not consider the prisoner was on ongoing danger to himself or the CCOs at the time, such that it warranted the use of OC spray. I am satisfied the force you used on the prisoner was not justified and therefore not reasonably necessary in the circumstances.
  • You have been employed with the QCS since July 2007, making you an experienced public service employee. You are a substantive CS at QCS and have acted up in a number of roles, most recently as Acting Correctional Manager (Centre Services). You are also a Team leader of the LGCC Correctional Emergency Response Team (CERT).
  • As an experience officer you are expected to perform your duties with a considerable degree of responsibility and authority. You also have the opportunity and responsibility as a CS to demonstrate and model how to appropriately engage with prisoners [sic] to less experienced officers. I consider your additional training and experience indicates you should have had the skills and discernment to respond appropriately to the incident involving the prisoner. You did not.
  • Prisoners are in the care of the chief executive when in custody and imprisoned in the correctional centres. QCS, through the correctional officers employed at the correctional centres, owe a duty of care to prisoners. Force can only be lawfully used on a prisoner in specific circumstances.
  • The Corrective Services Act 2006 (CS Act) permits officers to lawfully use force on prisoners in specific circumstances. The use of reasonable force may involve the use of weapons, such as the OC spray. The force used by a corrective services officer must be reasonably necessary to compel compliance with an order given or applying to a prisoner, to restrain a prisoner who is committing an offence against an Act or a breach of discipline or preparing to commit an offence or breach of discipline, or where the prisoner is harming themselves, or attempting or preparing to harm themself.
  • In accordance with the Custodial Operations Practice Directive (COPD) – Use of Force a corrective services officer must utilise all methods of tactical communications and situational response and consider the most appropriate option for a safe and effective outcome to ensure only a reasonable amount of force is used to effect a lawful purpose. QCS has developed approved control and restraint techniques to ensure both officer and prisoner safety. Any use of force (including chemical agents) that may restrict a prisoner's ability to breathe is inherently unsafe and highly improper.
  • I consider your conduct, namely the decision you made to disseminate a burst of OC spray at the prisoner was a serious error in judgement. You make submissions that you try to make the best tactical decisions when responding to incidents and would  never intentionally take action outside of the QCS practises. However, I am satisfied that in this instance your decision was not consistent with the requirements and expectations of the COPD – Use of Force or CS Act. You failed to comply with a law of the State and a policy of QCS. You now submit in response to the proposed penalty that you would never intentionally act outside the scope of approved practices. You do not acknowledge you may have done so in these circumstances. Rather, you continue to maintain the decision you made was reasonable in the circumstances. I am therefore not satisfied you are open to acknowledging and learning from errors in judgement or have learned from this experience.
  • It is important you understand the seriousness with which I view your conduct in using force on a prisoner that was not reasonably necessary. Custodial Officers are given unique powers pursuant to the CS Act to use force on prisoners that would otherwise amount to an unlawful restraint or assault. It is important that force is only used on prisoners in circumstances where it can be lawfully justified. Given your significant length of service and experience, which you often outline in your own defence., I would expect that you would be aware of your powers, obligations and responsibilities with respect to the use of force on prisoners.
  • I have had regard to your submission that you are aware of the seriousness of the effects of chemical agents, having been exposed to them on numerous occasions before. However this is inconsistent with the general attitude reflected in your previous correspondence to me, wherein you emphasised there was no actual injury, and did not acknowledge any of the distress or discomfort the prisoner may have experienced. Correctional officers are not only responsible for the management and security of offenders in QCS custody but also the wellbeing and care of those offenders. As a CS you are expected to lead by example in your attitude regarding officer responsibilities and uses of force in performing those responsibilities. You are required to provide leadership and contribute to the provision of a safe environment for all, including offenders. I am concerned your attitude regarding chemical agents hinders these requirements and expectations and I am not satisfied your attempts to clarify your previous submissions are genuine.
  • You have admitted to omitting details from your Officer Report that day, and I have considered your submissions. I note you were supervising the unit and another incident occurred that day, which you were required to manage. Nevertheless, I consider the omissions of detail in your Officer Report, noting you were directly involved in the incident , to be highly problematic. Correctional Centres are high pressure environments and as an experienced CS and frequent acting Manager, I expect you to appropriately delegate, respond to, and recall incidents occurring within the Centre. The accurate recording of incidents, particularly by the individuals involved, is paramount to the safety and security of the Centre. I appreciate 16 February 2019 was a particularly stressful day and you were managing a number of events or incidents, and human error is possible in such circumstances. Notwithstanding this, your failure to admit and take responsibility for omissions in your Officer Report when these allegations were put to you does not reflect well on your credit or integrity.
  • Consequent upon receiving your response, I undertook my own enquiries in relation to some of your submissions. In particular, your submission in relation to your overall work record and experience. I accept you received an Award for Incident Management as part of the LGCC awards for Corrections Day 2018 and that you work as a CERT Commander when you are not acting up in a management position. I am instructed your work is commended by management at LGCC, and you perform effectively when acting up in management roles. While these factors do reflect positively upon you, they do not diminish the seriousness with which I view your actions from 16 February 2019. Further, due to your level and years of experience, I would expect you to take these matters seriously and be accountable for your own decisions and conduct. Throughout this process, you have not fully accepted responsibility for your actions or demonstrated sufficient understanding of the seriousness of your conduct.
  • I also note you do not have an unblemished record of conduct with QCS. I am aware you have previously been subject to disciplinary action in relation to allegations of inappropriate use of your departmental email. On 12 November 2014, the following disciplinary action was taken against you in relation to this:
  • reduction in pay point from a CO2-4 to CO2-3 for a period of 12 months;
  • a reprimand; and
  • a final warning that should you engage in similar conduct your employment with QCS maybe in jeopardy.
  • This is not a circumstance similar to that for which you were disciplined in 2014, Therefore, I am prepared to give you a further opportunity to regain my full trust and confidence in relation to your ability to only use force on prisoners which is reasonable and necessary. 
  • I have considered very carefully your submissions regarding your personal circumstances, particularly your financial circumstances. While I empathise with your personal circumstances, I do not consider that this factor entirely outweighs the seriousness of your conduct. I have had regard to your submissions as the proposed reduction in pay increment and restrictions upon your ability to act up as a Correctional Manager. My decision as to penalty reflects my consideration of these submissions and I reiterate how important it is that you are aware of the seriousness with which QCS views your conduct.
  • A CS at your level should be a role model to other officers, QCS should expect to have full confidence in your ability to ensure procedures are followed and that values and principles outlined in QCS policies and the Code of Conduct are upheld.

…

Relevant statutory provisions

  1. [21]
    Section 194 of the PS Act relevantly identifies the decisions against which appeals may be made as follows:

194  Decisions against which appeals may be made

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

…

  1. (b)
    a decision under a disciplinary law to discipline—
  1. (i)
    a person (other than by termination of employment), including the action taken  in disciplining the person; or
  1. [22]
    Section 187 of the PS Act provides for the grounds for discipline as follows:

187  Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  2. (b)
    been guilty of misconduct; or
  3. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  4. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  5. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  6. (ea)
    contravened, without reasonable excuse, a requirement of the chief executive under section 179A (1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  2. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.
  2. (3)
    Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) —
  1. (a)
    a public service employee under section 187A; or
  2. (b)
    a former public service employee under section 188A .
  1. (4)
    In this section—

misconduct means—

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

Example of misconduct—

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

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

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

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

  1. [23]
    Section 188 of the PS Act identifies the disciplinary action that may be taken against a public service employee as follows:

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

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

Examples of disciplinary action—

  • termination of employment
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other public service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments
  • a reprimand
  1. (2)
    If the disciplinary action is taken following an agreement under section 187A (4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
  2. (3)
    However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
  3. (4)
    Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
  1. (a)
    must not be more than half of the amount payable to or for the employee in relation to the payment; and
  2. (b)
    must not reduce the amount of salary payable to the employee in relation to the period to less than—
  1. (i)
    if the employee has a dependant—the guaranteed minimum wage for each  week of the period; or
  1. (ii)
    otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
  1. (5)
    In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
  2. (6)
    An order under subsection (1) is binding on anyone affected by it.
  1. [24]
    Directive 14/20: Discipline ('Discipline Directive') came into effect on 25 September 2020. The purpose of the Discipline Directive, amongst other things, is to outline the process for managing disciplinary action under the PS Act.
  1. [25]
    Clause 7 of the Discipline Directive provides a process for disciplining for conduct as follows:

7.1 Section 187 of the PS Act provides a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises.

7.2  The circumstances in which a contravention of a relevant standard of conduct under section 187(1)(g) of the PS Act is likely to be considered sufficiently serious to warrant disciplinary action are where the chief executive forms a view that management action is not likely to address and/or resolve the work performance matter.

7.3  In forming a view under clause 7.2, the chief executive must consider whether there are more proactive strategies than disciplinary action to manage the personal and professional development of employees, including through training and development. Additionally, the chief executive must consider:

  1. (a)
    whether the matter has been assessed as meeting the definition of corrupt conduct and has been referred to the Crime and Corruption Commission, or has been referred to the Queensland Police Service as a potential criminal offence
  2. (b)
    whether management action is an appropriate response based on the nature of the alleged conduct (for example, management action is not appropriate for matters involving theft, fraud, sexual harassment, negligence, or maladministration)
  3. (c)
    whether implementing management action would eliminate or effectively control the risk to the health and safety of employees, or other people, posed by the alleged conduct
  4. (d)
    whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector
  5. (e)
    whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee’s conduct
  6. (f)
    if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee’s potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct.
  1. [26]
    Clause 8.3 of the Discipline Directive relevantly provides the process that must be followed in commencing a show cause process for a disciplinary finding and is in the following terms:
  1. (a)
    The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
  1. (b)
    Written details of each allegation in clause 8.3(a) must include:
  1. (i)
    the allegation
  1. (ii)
    the particulars of the facts considered by the chief executive for the allegation
  1. (iii)
    the disciplinary ground under section 187 of the PS Act that applies to the allegation.
  1. (c)
    A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
  1. (d)
    The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
  1. (e)
    If the employee does not respond to a show cause notice on disciplinary finding or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
  1. [27]
    Clause 8.4 of the Discipline Directive provides for a disciplinary finding decision on grounds as follows:
  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
  1. (b)
    The chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding.
  1. (c)
    For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
  1. (d)
    The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
  1. (e)
    If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.

If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.

  1. [28]
    Clause 8.5 (d) of the Discipline Directive sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:
  1. (i)
    the seriousness of the disciplinary finding
  2. (ii)
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  3. (iii)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  4. (iv)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  5. (v)
    the employee’s explanation (if any)
  6. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  7. (vii)
    the impact on the employee’s ability to perform the duties of their position
  8. (viii)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  9. (ix)
    the impact a financial penalty may have on the employee
  10. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  11. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.
  12. (xii)
    the degree of risk to the health and safety of employees, customers and members of the public
  13. (xiii)
    the impact on the employee’s ability to perform the duties of their position
  14. (xiv)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  15. (xv)
    the impact a financial penalty may have on the employee
  16. (xvi)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  17. (xvii)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

Grounds of appeal

  1. [29]
    Mr Magor relies on the following grounds of appeal as set out in his appeal notice:
  1. (a)
    the force used was reasonably necessary ('appeal ground one');
  1. (b)
    the force used complied with agency policy ('appeal ground two');
  1. (c)
    the factual and 'state of mind' findings have been made unreasonably and contrary to a rational view of the evidence ('appeal ground three');
  1. (d)
    the investigation excluded relevant evidence ('appeal ground four');
  1. (e)
    the findings unskilfully and arbitrarily judge tactical decisions with insufficient regard to the urgency and fluidity of the situation ('appeal ground five'); and
  1. (f)
    the delay of 12 months from the event to the version of events of those involved using electronically recorded footage by the Ethical Standards Unit is prejudicial to Mr Magor's interests ('appeal ground six').

Whether the decision was fair and reasonable

  1. [30]
    I will consider the appeal in the context of the appeal grounds relied on by Mr Magor.

Appeal ground one

  1. [31]
    Mr Magor accepts that on 16 February 2019 he sprayed an OC spray directly at the prisoner's face. Relevantly, the terms of the acceptance by Mr Magor are contained in his submissions[4] as follows:

On the 16th of February 2019, I deployed a short burst of OC spray directly at a prisoner's face whilst three of my colleagues were attempting to restrain him. He had placed himself on the ground face down at the direction of my colleagues, after having assaulted them with bottles of disinfectant he had prepared for that purpose. I had authority to deploy the chemical agent as a measure to stop his assaults. [citations omitted]

  1. [32]
    Mr Magor argues that he had authority to deploy the chemical agent on the basis of s 143 of the Corrective Services Act 2006 (Qld) ('the CS Act')
  1. [33]
    Section 143 of the CS Act relevantly provides as follows:

143  Authority to use force

  1. (1)
    A corrective services officer may use force, other than lethal force, that is reasonably necessary to—
  1. (a)
    compel compliance with an order given or applying to a prisoner; or

Example—

A corrective services officer may use force that is reasonably necessary to compel a prisoner to submit to a search ordered by the chief executive under section 36 that applies to the prisoner.

  1. (b)
    restrain a prisoner who is attempting or preparing to commit an offence against an Act or a breach of discipline; or restrain a prisoner who is committing an offence against an Act or a breach of discipline; or
  2. (c)
    compel any person who has been lawfully ordered to leave a corrective services facility, and who refuses to do so, to leave the facility; or
  3. (d)
    restrain a prisoner who is—
  1. (i)
    attempting or preparing to harm himself or herself; or
  2. (ii)
    harming himself or herself.
  1. (2)
    The corrective services officer may use the force only if the officer—
  1. (a)
    reasonably believes the act or omission permitting the use of force can not be stopped in another way; and
  1. (b)
    gives a clear warning of the intention to use force if the act or omission does not stop; and
  1. (c)
    gives sufficient time for the warning to be observed; and
  1. (d)
    attempts to use the force in a way that is unlikely to cause death or grievous bodily harm.
  1. (3)
    However, the corrective services officer need not comply with subsection (2)(b) or (c) if doing so would create a risk of injury to—
  1. (a)
    the officer; or
  1. (b)
    someone other than the person who is committing the act or omission; or
  1. (c)
    a prisoner who is—
  1. (i)
    attempting or preparing to harm himself or herself; or
  2. (ii)
    harming himself or herself.
  1. (4)
    The use of force may involve the use of only the following—
  1. (a)
    a gas gun;
  2. (b)
    a chemical agent;
  3. (c)
    riot control equipment;
  4. (d)
    a restraining device;
  5. (e)
    a corrective services dog under the control of a corrective services officer.
  1. [34]
    Mr Magor argues that at the time that he deployed the OC spray on the prisoner, that he observed the prisoner to be struggling against his colleagues. Mr Magor argues that he formed a view that his colleagues' efforts were not stopping the prisoner's assault and presented a risk to the prisoner's wellbeing. Mr Magor submits that the chemical agent, while painful, was the only way to stop the assaults. In this regard, Mr Magor relies on s 143(2) of the CS Act.
  1. [35]
    Mr Magor contends that he was authorised to use force if he reasonably believed he could not stop the assault in any other way. Mr Magor further contends that to wait to see if the prisoner stops assaulting the officers on his own accord was not a viable option. Similarly, he submits that waiting for the other officers to overpower the prisoner was not a viable option.
  1. [36]
    Mr Magor further submits that guiding his actions on the day was his long running training and experience in response to violence, and he states that what he saw and heard of the prisoner's conduct at the time, and the necessity that the situation be resolved as early as possible and with the minimum of injury.
  1. [37]
    The difficulty with accepting Mr Magor's submissions in this regard is that it does not entirely accord with the CCTV footage of the incident. I have had the benefit of reviewing the CCTV footage and note that it depicts that the prisoner had seemingly commenced to comply with a direction to lie on the floor. Whilst the CCTV footage did not record any sound, this conclusion may be inferred from watching the CCTV footage. The footage depicts the prisoner lying on the ground face down in front of the officers. Three of Mr Magor's colleagues are in the process of restraining the prisoner (whilst he remains lying face down on the ground) when Mr Magor bends down and deploys the OC spray into the prisoner's face.
  1. [38]
    Whilst s 143 of the CS Act permits the use of non-lethal force in limited circumstances, it was open on the evidence before the decision maker to conclude that there were other responses available to restrain the prisoner in the circumstances of this matter. 
  1. [39]
    The matters raised by Mr Magor were considered by the decision maker, and whilst
    Mr Magor's submissions with respect to why he considered it was appropriate to use the OC spray in the circumstances of the matter were considered, there was a further body of evidence, including the CCTV footage, that the decision maker had regard to and ultimately preferred.
  1. [40]
    I consider it was open on the material before the decision maker to conclude that the force used was excessive and likely to cause injury to the prisoner. This finding is consistent with the evidence that Mr Magor deployed the OC spray in the prisoner's face from a distance of approximately 0.5 metres whilst he was lying face down on the ground, having complied with a direction to do so.
  1. [41]
    I consider that Mr Magor's appeal ground one does not establish that the decision was not fair and reasonable.

Appeal ground two

  1. [42]
    Mr Magor submits that, a reasonable person judging the use of force must not do so in hindsight. He submits that the question is whether the use of force was reasonably necessary in the prevailing circumstances and not whether it was necessary by reference to the successful and safe resolution of the incident, ex post facto.
  1. [43]
    I accept Mr Magor's submissions that the conduct must be viewed within the context in which it occurs. In this matter, it appears that the decision maker has considered the context of the incident.
  1. [44]
    As noted above, the decision maker refers to the events leading up to Mr Magor's deployment of the OC spray and considered those to be relevant to the matter. The decision maker also had regard to the fact that there were a number of other officers (approximately nine including Mr Magor) that rushed at the prisoner, which appeared to result in the prisoner becoming further agitated and distressed. However, the decision maker also had regard to the fact that the prisoner was compliant with the subsequent direction to lie face down on the floor and was in the process of being restrained by three officers (soon to be joined by a fourth) at the time Mr Magor deployed the OC spray.
  1. [45]
    The decision maker analysed the matters leading up to the OC spray being deployed, including by reference to the timing with respect to when an injury to another officer was sustained and the relevance of that.
  1. [46]
    The decision maker concluded that Mr Magor, by spraying the prisoner in the face at close range, did not serve to achieve the goal of de-escalating the situation or to prevent further harm. I consider it was open on the evidence for the decision maker to form this conclusion, particularly given the evidence, including, the timing of when the OC spray was used, the fact that the prisoner had complied with a direction to lie face down and that the prisoner was indeed lying face down and was in the process of being restrained by three officers.
  1. [47]
    For these reasons, I am satisfied that the decision maker had regard to the context in which Mr Magor deployed the use of the OC spray.
  1. [48]
    Mr Magor further submits that the question before the Commission is not whether the actions were lawful, but rather, whether Mr Magor's conduct falls below the standard prescribed by QCS policy or is unethical.
  1. [49]
    The question before the Commission is whether the decisions, subject to the appeal, were fair and reasonable. I take it from Mr Magor's submissions that he contends the decision was not fair and reasonable because his conduct did not fall below the standard prescribed by the QCS policy or is unethical. 
  1. [50]
    Mr Magor submits that the Custodial Operations Practice Directive ('COPD') on the Use of Force, establishes the principle of 'the minimum [force] necessary for the least amount of time to resolve the situation'. Mr Magor submits that the COPD then ventures no further than the legislation in guiding how force is to be used.
  1. [51]
    Mr Magor makes a general submission with respect to findings in the various coronial inquests with respect to deaths directly the result of positional asphyxia where the deceased is restrained face down and responders engage in a struggle. Mr Magor submits that the difficulties 'one may have with the proposition that the use of OC sprays serves to reduce harm, are only sustainable in ignorance of the risks of prolonged struggles on the ground'.
  1. [52]
    Mr Magor argues that the use of OC spray results in no long-lasting injuries of itself. He submits that it diminishes a prisoner's ability and will, to continue to resist and thereby reduces the necessity to subdue a prisoner by physical defeat.
  1. [53]
    However, Mr Magor's submissions do not take into account or address the facts of this matter, including that the prisoner had complied with the direction to lie face down and was in the process of being restrained by three officers at the point in time when Mr Magor determined to lean down and spray him in the face with the OC spray.
  1. [54]
    There was no evidence of a struggle between the prisoner and the officers immediately before Mr Magor deploying the OC spray. Indeed, on the evidence it was open to conclude, as the decision maker did, that he was satisfied that the officers were capable of restraining the prisoner in a prompt manner and without the use of a chemical agent being deployed to the prisoner's face.
  1. [55]
    The decision maker had the evidence of the prisoner before him that he could not breathe following the deployment of the OC spray and raised his head to try and do so. As a result of the movement of the prisoner raising his head, another officer used force on the prisoner. The decision maker concluded that the prisoner's exposure to the OC spray, together with the other officers who may have been exposed to secondary spray, was not the safest option.
  1. [56]
    Ultimately, the decision maker made findings that Mr Magor's conduct was not consistent with the COPD - Use of Force. The decision maker referred to a guiding principle outlined in the COPD - Use of Force that the force being used is the minimum necessary for the least amount of time to resolve the situation. The decision maker stated that he was not satisfied that Mr Magor (by spraying the chemical agent in the prisoner's face) resolved the matter as quickly and safely as possible.
  1. [57]
    The decision maker further contended that Mr Magor's submissions that the use of the chemical agent does not induce injury does not acknowledge the burning, distress and difficulty breathing that the prisoner likely experienced.
  1. [58]
    I consider that it was open on the evidence before the decision maker to come to this conclusion. Mr Magor's appeal ground two does not establish that the decision was not fair and reasonable.

Appeal ground three

  1. [59]
    Appeal ground three was articulated by Mr Magor as 'the factual and "state of mind" findings have been made unreasonably and contrary to a rational view of the evidence'. However, Mr Magor's written submissions depart somewhat from this ground and focus on what Mr Magor considers to be unreasonable or unsupported findings. To be clear, Mr Magor's submissions do not refer to any 'state of mind' findings.
  1. [60]
    Mr Magor submits that there are a number of unreasonable or unsupported findings in the disciplinary penalty decision including the following:
  1. (a)
    that the law was breached, and by implication a crime was committed;
  1. (b)
    that the COPD – Use of Force was breached;
  1. (c)
    the number of officers attempting to restrain the prisoner bears on the question of whether he was restrained, or committing assaults;
  1. (d)
    the suggestion of the impropriety of the use of force that may affect breathing, without finding any relevant present circumstances; and
  1. (e)
    Deputy Commissioner McCahon did not consider the prisoner an ongoing danger.
  1. [61]
    Firstly, Mr Magor does not provide any submissions to support his contentions that the matters referred to above are either unreasonable or unsupported findings and what, if any, the consequences were of such findings being made. It is not for this Commission to stand in the shoes of an appellant and seek to assume what the appellant's argument is in the absence of detailed and particularised submissions to support the appellant's contentions.
  1. [62]
    Relevantly, the decision maker concluded with respect to allegation one, that Mr Magor, pursuant to s 187(1)(g) of the PS Act, contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, namely the Code of Conduct. In the earlier show cause notice, Mr Magor had been provided the relevant extracts of the Code of Conduct.
  1. [63]
    That finding was made following the decision maker referring to the obligations under the CS Act and the COPD – Use of Force with respect to the use of force by officers.
  1. [64]
    Further, that finding was made following a factual analysis of the matter with findings ultimately being made that the use of force by Mr Magor was not justified and therefore not reasonably necessary in the circumstances. I consider that the conclusion was reasonable and supported by the evidence before the decision maker.
  1. [65]
    In addition to that, Mr Magor submits that there are a number of 'unreasonable' or 'unsupported' assertions in the show cause notice of 17 August 2020 including the following:
  1. (a)
    that there was a requirement that Mr Magor issue a s 143(2)(b)[5] warning in addition to that which had already been given;
  1. (b)
    that the range of deployment of the chemical agent is indicative of more or less harm; and
  1. (c)
    that OC spray causes injury.
  1. [66]
    The show cause notice of 17 August 2020 is not the subject of this appeal. However, if Mr Magor was able to establish that the information contained within the show cause notice in one way or another infected the process going forward, including to infect the decisions that are the subject of this appeal, such matters might be considered in the appeal. However, Mr Magor's submissions on that point do not go further than the matters referred to in paragraph [65] herein. On the limited submissions made by Mr Magor on this point, it is unclear what the relevance of these matters are to the Commission's consideration.
  1. [67]
    Mr Magor submits that the following should be 'kept in mind', including:
  1. (a)
    the corrective services investigation unit did not proceed against him by way of a criminal investigation;
  1. (b)
    the effects of OC spray are independent of distance from dispersal;
  1. (c)
    there is no evidence that the prisoner suffered breathing difficulties attributable to the OC spray; and
  1. (d)
    it is unreasonable to determine the prisoner was not a danger, particularly against witness accounts, without audio recording, and the narrow frame and poor quality of the footage.
  1. [68]
    Mr Magor does not submit the reason as to why the matters referred to by him 'should be kept in mind'. The Commission does not consider an appeal of this nature as a fresh hearing. As noted above, it is a review of the decision to determine whether the decision and the decision-making process associated with it is fair and reasonable.
  1. [69]
    Mr Magor does not state what outcome he is seeking by requesting that such matters be 'kept in mind' and as noted above, it is not for this Commission to make assumptions  as to what Mr Magor really meant, when it is not readily apparent from the face of his submissions.
  1. [70]
    Mr Magor's appeal ground three does not establish that the decision was not fair and reasonable.

Appeal ground four

  1. [71]
    Appeal ground four states that the investigation excluded relevant evidence, however, Mr Magor's submissions filed in support of his appeal do not specifically address this ground of appeal, nor does Mr Magor provide particulars of the purported excluded material.
  1. [72]
    It is noted that within Mr Magor's submissions with respect to another point, that he does refer to Mr Nicholls, who he contends had a central role in the incident, as not being interviewed. However, Mr Magor does not address why any failure to interview
    Mr Nicholls has rendered the decisions subject to the appeal as being unfair and unreasonable. Consequently, appeal ground four fails.

Appeal ground five

  1. [73]
    Appeal ground five is included in Mr Magor's appeal notice in the following terms, 'the findings unskilfully [sic] and arbitrarily judge tactical decisions with insufficient regard to the urgency and fluidity of the situation'.
  1. [74]
    Mr Magor appears to have abandoned this appeal ground as no meaningful submissions have been made which could be said to support appeal ground five.

Appeal ground six

  1. [75]
    Mr Magor contends that the delay of 12 months from the event, to the time the witnesses were interviewed prejudices his interests.
  1. [76]
    Mr Magor submits that the only record of what was said was in the memory of the witnesses, such as whether the prisoner threatened to bite.
  1. [77]
    I accept Mr Magor's submission that the human memory is fallible and increasingly so with the passage of time. However, this is not a matter where the evidence is based on the witnesses memories alone. Relevantly, and as previously referred to, the incident was filmed, and the CCTV footage was available to the investigator and the decision maker. I have also viewed the footage in my review of the material. In addition to the CCTV footage, the material also consists of documents which were created contemporaneously to the incident, including each of the Officer Reports and medical records.
  1. [78]
    Accordingly, whilst I accept that a lengthy delay has the potential to be prejudicial to Mr Magor's interests, I am not satisfied that he has established such a prejudice in the circumstances of this matter.
  1. [79]
    Ultimately, the decision maker had before him a body of evidence, including CCTV footage and contemporaneous records, together with the transcripts of interview. It is clear from the reasons for the decision that the decision maker had particular regard to the CCTV footage. When considering the totality of that evidence, I do not consider that the delay was prejudicial to Mr Magor's interests.
  1. [80]
    For these reasons, I do not consider that appeal ground six establishes that the decision was not fair and reasonable.

Additional matters

  1. [81]
    Whilst not included as a ground of appeal, Mr Magor's submissions also contend that the finding of reporting inaccuracies is unreasonable. I have assumed that this submission relates to the substantiation of allegation two. Allegation two states that Mr Magor prepared an inaccurate Officer Report regarding the incident involving the prisoner. The full particulars of the inaccuracies relied on in support of the allegation were provided to Mr Magor, but include, that Mr Magor stated in his Officer Report, that the prisoner 'failed to follow staff [sic] directions' and was then 'ground stabilised'. It was found, inter alia, that Mr Magor's Officer Report was not accurate insofar as it omitted any reference to the prisoner lying down on the ground and following the direction of the relevant officers.
  1. [82]
    Mr Magor submits that all Officer Reports are inaccurate. He supplements this submission by stating that each report is the author's best attempt to set out their account of events as they saw, heard, perceived and thought relevant. He submits that a report includes matters which are the product of subjective judgement of relevance and priority. He further submits that reports are compiled in limited time and that his report is a brief and accurate account of the event. 
  1. [83]
    Mr Magor further submits that untruthfulness can not be established through mere inaccuracy or mistake. He submits that he is not omnipresent when he responds to a violent incident and should not be required to direct his mind to every movement or action that occurs therein, when he writes his brief account of an incident.
  1. [84]
    In respect of Mr Magor's submissions, it should be noted that there was no finding that Mr Magor was untruthful, rather the findings show that Mr Magor's Officer Report was inaccurate. Mr Magor is in error to conflate the two.
  1. [85]
    Whilst the decision maker had regard to Mr Magor's submission that the day on which the incident occurred was a potentially stressful day and that Mr Magor was managing several incidents, the decision maker concluded that these matters did not detract from Mr Magor's obligations to submit an accurate report. Relevantly, the decision maker found the omissions (from the account of the incident), given Mr Magor's direct involvement in the incident, to be highly problematic.
  1. [86]
    Mr Magor's submissions fail to have regard to the proper purpose of the Officer Report which is to accurately record incidents in writing. The omissions in Mr Magor's report were not of an insignificant or trivial nature. They go to the conduct of the officers and the prisoner immediately before the OC spray was deployed. Given the use of force used by Mr Magor in deploying the OC spray, it was fair and reasonable for the Respondent to require Mr Magor's Officer Report to be accurate and detailed with respect to those matters.
  1. [87]
    As is evident from the investigation into this incident, an Officer Report forms part of the contemporaneous records of an incident. It is encumbent on officers to ensure they are accurate. Given this, I consider it was open to the decision maker to conclude that the accurate recording of incidents, particularly by the individuals involved, is paramount to the safety and security of the Centre.
  1. [88]
    I consider, having regard to the relevant material, that it was open on the evidence for the decision maker to substantiate allegation two. 

The penalty

  1. [89]
    Mr Magor does not argue that the penalty proposed in the disciplinary penalty decision is harsh or disproportionate. Rather, Mr Magor contends that the disciplinary penalty decision be set aside on the basis that the allegations are not capable of being substantiated.
  1. [90]
    I consider, on the evidence, that the allegations were capable of being substantiated. Further, I do not consider that the grounds of appeal, together with Mr Magor's submissions are able to establish that the disciplinary finding decision was not fair and reasonable.

Conclusion

  1. [91]
    For these reasons, I consider the disciplinary finding decision and the disciplinary penalty decision to be fair and reasonable. 

Order

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decisions appealed against be confirmed.
  2. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision ordered on 10 December 2020 be revoked.

Footnotes

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

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

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

[4] Filed on 4 January 2021.

[5] Corrective Services Act 2006 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Magor v State of Queensland (Queensland Corrective Services)

  • Shortened Case Name:

    Magor v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2022] QIRC 35

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    11 Feb 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

Case NameFull CitationFrequency
O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 2832 citations
Patterson v State of Queensland (Queensland Corrective Services) (No. 2) [2024] QIRC 2872 citations
Vickers v State of Queensland (Department of Justice and Attorney-General) [2025] QIRC 901 citation
1

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