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Brar v State of Queensland (Queensland Police Service)[2023] QIRC 142

Brar v State of Queensland (Queensland Police Service)[2023] QIRC 142

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Brar v State of Queensland (Queensland Police Service) [2023] QIRC 142

PARTIES:

Brar, Tanvir

(Applicant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

TD/2020/63

PROCEEDING:

Application for reinstatement

DELIVERED ON:

26 May 2023

HEARING DATES:

26 and 27 April 2022

11 May 2022 (Respondent's submissions)

9 June 2022 (Applicant's submissions)

16 June 2022 (Respondent's reply submissions)

MEMBER:

Knight IC

HEARD AT:

Brisbane

ORDER:

The Application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPLICATION FOR REINSTATEMENT – applicant was employed as Probationary Constable of Police – where applicant purportedly engaged in unprofessional personal conduct towards employees of a nightclub – where applicant purportedly engaged in unauthorised and unjustified access to information by accessing a QPRIME record – where applicant purportedly displayed behaviour, attitude and integrity unbecoming of a Queensland Police Service (QPS) employee – where investigation  process commenced in relation to allegations of poor conduct, unauthorised and unjustified access to QPRIME records and behaviour, attitude and integrity unbecoming of a QPS employee – where show cause issued to applicant in relation to three allegations and future employment with QPS – where all allegations substantiated – where applicant on probation – where delegate then considered suitability of applicant to be a police officer – where applicant dismissed pursuant to s 5.12(4)(a)(i) – whether dismissal harsh, unjust or unreasonable pursuant to  s 316 of the Industrial Relations Act 2016 – application is dismissed

LEGISLATION:

Criminal Code 1899 (Qld) s 408E

Industrial Relations Act 2016 (Qld) ss 316,  317, 320, 321

Information Privacy Act 2009 (Qld)

Police Service Administration Act 1990 (Qld) ss 1.4, 4.9, 5.2, 5.12, 10.1, 10.2

Police Service Administration Bill 1990 (Qld)

Public Sector Ethics Act 1994 (Qld) s 11

Public Services Act 2008 (Qld) s 188

Right to Information Act 2009 (Qld)

2012/33 Standard of Practice – Professional Conduct cl 15, 16, 18

Code of Conduct for the Queensland Public Service

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 335

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG

Bostik (Aust) Pty Ltd v Georgevski (No 1) (1992) 36 FCR 20

Nesterowich v Acting Assistant Commissioner Deborah Platz, [2018] QCATA 119

Police Service Board v Morris (1985) 156 CLR 397

APPEARANCES:

Mr M. Black, Counsel instructed by Gnech and Associates, Lawyers for the Applicant.

Ms A.C. Freeman, Counsel directly instructed by the State of Queensland (Queensland Police Service), the Respondent.

Introduction

  1. [1]
    Mr Tanvir Singh Brar commenced employment with the State of Queensland (Queensland Police Service) (QPS) as a police recruit on 17 July 2017.[1] He was sworn in as a probationary Constable of police pursuant to section 5.12 of the Police Service Administration Act 1990 (Qld) ('PSAA') on 10 May 2018.[2]
  1. [2]
    Section 5.12 of the PSAA deals with the appointment of a police officer on probation.[3] Section 5.12(4)(b)(i) of the PSAA provides the Commissioner of the Police Service with the power to terminate the employment of a probationary police officer during the initial period of probation or during any extension of a period of probation.[4]
  1. [3]
    In a decision dated 8 June 2020, Assistant Commissioner Charysse Pond ('AC Pond'), terminated Mr Brar's employment pursuant to her powers under section 5.12(4) of the PSAA. The dismissal was effective from 8 June 2020.[5]
  1. [4]
    By application filed on 26 June 2020, Mr Brar contends his termination was harsh, unjust or unreasonable within the meaning of the Industrial Relations Act 2016 (Qld) ('the IR Act').[6]
  1. [5]
    The remedy sought by Mr Brar is reinstatement to his former position as a Constable (probationary) with the QPS, where reinstatement is on the basis that his continuity of service is maintained.[7] Further, that an order be made for 'some amount of lost remuneration' save that the order for lost pay should be limited to three months remuneration at the rate Mr Brar would have been paid, but for the dismissal.[8]
  2. [6]
    QPS opposes the application for reinstatement and maintains the termination of Mr Brar's employment was not unfair. The dismissal, it submits, was reasonable, just and proportionate to the circumstances, Mr Brar's probationary position at the relevant time and the nature of the conduct found to have been committed.[9]

Background

  1. [7]
    On the weekend of 5 April 2019, Mr Brar visited the Gold Coast with several friends to attend his bachelor party celebrations.[10]
  1. [8]
    On 16 September 2019, Mr Brar was served with a Notice to Appear in relation to a criminal computer hacking charge arising from QPRIME access.[11]
  1. [9]
    On 17 September 2019, Mr Brar was stood down from his role as a Constable but continued to work in a non-police role at the Logan District Property Office.[12]
  2. [10]
    On 11 November 2019, Mr Brar was convicted in the Magistrate Court of a 'computer hacking' charge on a plea of guilty.[13]
  1. [11]
    By notice on 27 February 2020, Mr Brar was advised of the particulars of the allegations set out below; and in the event they were able to be substantiated requested to show cause as to whether he was a fit and proper person to remain as a member of the Queensland Police, having regard to the conduct, the subject of the allegations, namely:

Allegation One

Unprofessional personal conduct towards employees at the Toybox Showgirls adult club on 5 April 2019.

Allegation Two

Unauthorised and unjustified access to information by accessing a QPRIME record where you were the complainant on 9 April 2019, twice on 11 April 2019, 13 April 2019, twice on 14 April 2019, twice on 17 April 2019 and once on 18 April 2019.

Allegation Three

Displaying behaviour, attitude and integrity unbecoming of an employee of the Queensland Police Service.[14]

  1. [12]
    In the same notice AC Pond advised:

I am of the opinion that the alleged conduct, if proven, may demonstrate that you are not a fit and proper person to continue as a police officer which could result in the termination of your employment pursuant to Section 5.12(4) of the Police Service Administration Act 1990.

Further, you are put on notice that, should I not be satisfied that you are a fit and proper person to be a police officer, or should I be uncertain of whether you are fit and proper, then I would be considering whether to, and may, terminate your employment, extend your probation or seek additional information to assist me in making a determination as to you being a fit and proper person.

However, before I give the matter further consideration, you are invited to respond to me in writing regarding the matters being considered, to show cause why I should not take such action, if I am satisfied the conduct occurred, or to demonstrate that another course of action may be more appropriate. Similarly, you are invited to make any submissions in relation to whether you are a fit and proper person to be a police officer.[15]

  1. [13]
    Mr Brar submitted a response to the show cause notice on 19 March 2020, whereafter AC Pond made a decision to terminate his employment.[16]
  1. [14]
    In making the decision to dismiss Mr Brar, AC Pond advised:
  1. I find your conduct as alleged in matters 1 – 3 has been proven to the required standard and is in direct conflict with organisational values and community expectations.
  1. I am mindful of the range of potential actions available to me pursuant to section 5.12(4)(a) of the Act. I find that your conduct demonstrates you are not a fit and proper person, and you are not suitable to continue as a Constable of the Queensland Police Service.
  1. In accordance with my delegated authority to exercise the powers of the Commissioner pursuant to section 5.12(4)(a)(i)&(ii) and 4.10 of the Act and the Human Resource Delegations and Approval Authorities for the efficient and proper administration, management and functioning of the police service in accordance with the law, and pursuant to section 5.12(4)(a) of the Act, I order that your employment with the Queensland Police Service be terminated effective immediately.[17]
  1. [15]
    Although AC Pond acknowledged within her decision that several of the particulars referenced in the initial show cause correspondence concerning Allegation One were not substantiated, she concluded:
  1. After carefully considering all the information before me, I am extremely concerned by your behaviour during this matter. Whilst acknowledging that some of the allegations are not substantiated, your conduct towards the manager of the Toybox Showgirls was unprofessional and has since brought unwarranted attention to the reputation of the QPS. The manager had the right to eject you if she believed you were unduly intoxicated, disorderly or creating a disturbance and you are immediately required to comply. She also has the right to use reasonable force if you do not comply, so her actions were lawful. As a police officer it would be expected that you are aware of this and would comply with any lawful direction without the need for a person to use force.
  1. I don't consider that you produced your badge to gain a benefit however in doing so you have identified that you are a police officer and your actions subsequent to this have brought unnecessary, negative and unwarranted attention to the reputation of the QPS as stated in the report by the Logan PPM, Acting Detective Senior Sergeant HART and I agree with those findings.
  1. You have failed to comply with the Code of Conduct for the Queensland Public Service and the Standard of Practice by failing to take personal responsibility in the way you conduct yourself in an off-duty capacity that reflects poorly on the integrity of the QPS.
  1. After carefully considering all the information before me in relation to this matter, I find your behaviour and personal conduct throughout this matter is not befitting of a member of the Queensland Police Service.[18]
  1. [16]
    In respect of Allegation Two, which is not disputed and involved Mr Brar repeatedly accessing QPRIME records without authorisation, AC Pond stated:
  1. I acknowledge the reason you give for accessing this information was to ensure the complaint had been withdrawn however I do not accept that reason.
  1. Firstly, regarding subsections b) to d), I do not accept that the access was to ensure the complaint was withdrawn as your communication to Officer HOMMEMA advising him of your intention to withdraw the complaint did not occur until 13 April 2019, prior to that date you accessed the occurrence on three separate occasions.
  1. Secondly, regarding all nine occasions that you accessed the occurrence, it is not accepted that the access was to ensure the complaint was withdrawn. Upon first opening the occurrence you would have been able to ascertain the status of the complaint as the status is listed on that first screen however as per the breakdown of your access, you have looked at several screens and reports contained within the occurrence. Aside from the fact that your access was not authorised as it was a personal matter, the access of these further screens and reports was also inconsistent with what you claim was your reason for access.

…

  1. After carefully considering all the information before me, I find that your behaviour and personal conduct was inappropriate, unauthorised and unjustified.[19]
  1. [17]
    In relation to Allegation Three, which primarily related to Mr Brar's conduct while interacting with several employees of the Toybox Showgirls Adult Club ('Toybox'), a further separate interaction with a sworn police officer at the Surfers Paradise Police Station the following evening and the making and subsequent withdrawal of a complaint about the Manager of the Toybox, AC Pond determined:
  1. I find that based on the matters raised that you have not displayed behaviour, attitude and integrity expected of an employee of the Queensland Police Service.
  1. It is concerning that your version of events has changed over time. It would be expected that there would be consistency in the facts throughout regardless of the passage of time.[20]
  1. [18]
    Having substantiated all three allegations arising out of the show cause process, albeit with some recognition that not all particulars were able to be verified, AC Pond considered Mr Brar's suitability to be a police officer, noting his status as a probationary appointee.
  2. [19]
    In her decision, AC Pond advised:
  1. I am mindful of the range of potential actions available to me pursuant to section 5.12(4)(a) of the Act. I find that your conduct demonstrates you are not a fit and proper person and you are not suitable to continue as a Constable of the Queensland Police Service.[21]
  1. [20]
    Mr Brar's termination took effect on 8 June 2020.

Issues For Determination

  1. [21]
    The issues are:
  • did Mr Brar engage in the conduct which is the subject of the three allegations? and
  • if so, was it open to AC Pond to conclude Mr Brar was not suitable  to continue as a police officer? and
  • if so, was it open to AC Pond to terminate Mr Brar's employment pursuant to the powers under section 5.12(4) of the PSAA? and
  • if so, was Mr Brar's dismissal harsh, unjust or unreasonable having regard to s 320 of the IR Act? and
  • if Mr Brar's dismissal was harsh, unjust or unreasonable, what remedy should be ordered?
  1. [22]
    For the reasons that follow, I find that:
  • Mr Brar engaged in the conduct which is the subject of the three allegations.
  • It was open to AC Pond to terminate Mr Brar's employment pursuant to her powers under section 5.12(4) of the PSAA.
  • AC Pond's discretion in respect of section 5.12(4)(a) was exercised fairly and reasonably.
  • Mr Brar's dismissal was not harsh, unjust or unreasonable having regard to s 320 of the IR Act.

Witnesses

  1. [23]
    Evidence in chief was primarily in the form of sworn affidavits, with many witnesses not called for cross-examination.
  2. [24]
    I had the opportunity to observe the remaining witnesses who were subject to cross-examination. They included Mr Brar, Sergeant Colin Wallace, Mr Lukesh Kumar, Constable Jatinder Singh and for the QPS, Inspector Corey Allen, Constable Alex Hommema and Acting Inspector Dallas Kowald.
  3. [25]
    Inspector Corey Allen, Inspector Dallas Kowald, Constable Hommema, and Sergeant Colin Wallace were all forthright and credible witnesses. I accept their evidence.
  4. [26]
    Other than his evidence about how Mr Brar was escorted from the Toybox on the evening of 5 April 2019, Mr Kumar's evidence was not helpful in circumstances where he conceded he did not directly observe the events that led to the eviction.
  5. [27]
    Mr Kumar also acknowledged his recollection of the events on 5 April 2019 may have been influenced by subsequent and regular discussions he had held with Mr Brar and other friends who were present at the Toybox, after Mr Brar discovered he was the subject of an investigation.
  6. [28]
    Similarly, other than the point where Mr Brar was escorted out of the premises, Constable Singh conceded he did not physically see or hear several of the matters relevant to the events that unfolded at the Toybox on 5 April 2019, notwithstanding their inclusion in his sworn affidavit.
  7. [29]
    On matters that were not possible to dispute or straightforward such as his unauthorised QPRIME access, recruit training or his understanding of the 2012/33 Standard of Practice – Professional Conduct ('SoP'), Mr Brar made concessions while giving his evidence.
  8. [30]
    On the details surrounding the more significant issues in dispute during the proceedings, including the contentious aspects of his interaction with Ms Mann (the then Manager of the Toybox) or Constable Hommema; or his motivation for making a complaint about Ms Mann, Mr Brar, struggled at times to recall what had occurred or his account varied slightly from versions he had given during the internal QPS investigation.
  9. [31]
    For those reasons, I have approached Mr Brar's evidence in respect of his interaction with Ms Mann and Mr Hommema with caution.
  10. [32]
    I also prefer the evidence of Constable Hommema in relation to his interaction between he and Mr Brar on the evening of 6 April 2019, particularly given he prepared and retained a series of contemporaneous notes and emails about their discussions at this time.

The relevant Statutes and Principles

The Police Service Administration Act 1990 (Qld)

  1. [33]
    Section 5.12 of the PSAA relevantly provides:

5.12Appointment on probation

(1)This section does not apply in relation to an appointment as an officer made on a contract basis.

(2)An appointment as an officer of a person who was not an officer immediately before the appointment is an appointment on probation –

(a) for a period not less than 12 months determined by the commissioner; or

(b)in the absence of such a determination, for a period of 12 months.

...

(4)The commissioner may –

(a)in respect of an appointee referred to in subsection (2) –

(i) at any time during the initial period of probation or during any extension of a period of probation, terminate the employment of the appointee; or

(ii)at the end of any period of probation, confirm the appointment, extend or further extend the period of probation or terminate the employment of the appointee.[22]

  1. [34]
    Part 5 of the PSAA deals with the appointment of personnel, including officers and other police personnel.
  2. [35]
    Section 5.12 of the PSAA provides for new officers to be appointed subject to probationary arrangements. In the case of a new officer who was not an officer immediately before the appointment, these arrangements provide for an initial period of probation of no less than 12 months with the capacity to extend probation during the initial or extended period of probation.[23]
  3. [36]
    Section 5.12(4) of the PSAA provides that the Police Commissioner may terminate the employment of an appointee at any time during the initial period of probation or during an extension of a period of probation.[24]
  4. [37]
    Section 1.4 - Definitions of the PSAA provides:

Misconduct means conduct that–

  1. (a)
    is disgraceful, improper or unbecoming an officer; or
  2. (b)
    shows unfitness to be or continue as an officer; or
  3. (c)
    does not meet the standard of conduct the community reasonably expects of a police officer.

Industrial Relations Act 2016

  1. [38]
    Section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.[25] In deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:

320 Matters to be considered in deciding an application

…

(a)whether the employee was notified of the reason for dismissal; and

(b)whether the dismissal related to—

(i)the operational requirements of the employer's undertaking, establishment or service; or

(ii)the employee's conduct, capacity or performance; and

(c)if the dismissal relates to the employee's conduct, capacity or performance—

(i)whether the employee had been warned about the conduct, capacity or performance; or

(ii)whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and

(d)any other matters the commission considers relevant.[26]

  1. [39]
    A dismissal may be unreasonable where it was decided upon inferences which could not reasonably be made, or unjust in circumstances where the employee was not guilty of the conduct or behaviour upon which the employer has acted. Alternatively, a dismissal may be harsh because the consequences on the employee are disproportionate to the gravity of the conduct.[27]
  2. [40]
    A harsh effect alone on an employee is not of itself conclusive. A decision must be balanced against the gravity of the employee's conduct.[28]
  3. [41]
    As touched on earlier, section 320 of the IR Act requires the Commission to consider various matters, including whether Mr Brar was notified of the reason for dismissal and where the dismissal was related to his conduct, capacity or performance, whether he was warned or given an opportunity to respond to the QPS claims about his conduct; and any other matters the Commission considers relevant.[29]
  4. [42]
    During the proceedings I was helpfully assisted by Mr Brar's representative, Mr Black, who conceded there is no dispute raised in relation to whether Mr Brar was notified of the reason for his dismissal, and  whether he was afforded an opportunity to respond to the concerns raised in relation to his conduct.[30]
  5. [43]
    I note section 320 of the IR Act provides for consideration of other matters the Commission deems relevant, when determining whether a dismissal was harsh, unjust or unreasonable.[31]
  1. [44]
    In this application, one of the other relevant matters for consideration is the discretionary power set out in section 5.12(4) of the PSAA and in the case of Mr Brar, how this provision intersects with the IR Act when determining whether Mr Brar's dismissal was harsh, unjust or unreasonable.

Did Mr Brar engage in the conduct which is the subject of the three allegations?

Allegation One

  1. [45]
    The allegation was that on 5 April 2019, Mr Brar exhibited unprofessional personal conduct towards employees of the Toybox.
  2. [46]
    Mr Brar attended  the Toybox  as part of his bachelor party celebrations and was not on duty at the time.
  3. [47]
    From January 2011, the Code of Conduct for the Queensland Public Service ('Code of Conduct') came into effect and applied to employees of Queensland Public Service agencies.[32]
  4. [48]
    All members of the Queensland Police are 'public officials' and bound by the provisions of the Code.[33] From 1 October 2012, the Standard of Practice – Professional Conduct ('SoP') took effect.[34] The SoP is to be read in conjunction with the Code of Conduct.
  5. [49]
    The purpose of the SoP is to provide all members of the Queensland Police Service with a set of guiding principles and standards to assist in determining an acceptable standard of conduct. It seeks to:
  • inform all members of the Queensland Police Service of the standards of conduct expected of them, consistent with the Code of Conduct;
  • ensure that embarrassment is not brought upon the Queensland Police Service or its membership because of a lack of understanding of the Queensland Police Service's standards of conduct; and
  • promote a positive image of the Queensland Police Service and its members.[35]
  1. [50]
    Clause 1.4 of the SoP is headed 'Private Conduct – On and Off Duty' and relevantly provides:

Under section 4.9 of the Police Service Administration Act 1990 the Commissioner directs that at all times members, as defined under section 3.2 of the Police Service Administration Act 1990 are to conduct themselves on or off duty in a manner that does not reflect adversely upon:

  1. themselves, having regard to their official functions within the Queensland Police Service; or
  2. the reputation of the Queensland Police Service.[36]
  1. [51]
    Under the SoP 'conduct' is defined as:

…conduct of an officer (included a police recruit), wherever and whenever occurring, whether the officer whose conduct is in question on or off duty at the time the conduct occurs.[37]

  1. [52]
    Under the heading, 'Personal Conduct', clause 2 of the SoP provides:

Members are to act and be seen to act properly and in accordance with both the spirit and the letter of the law and the terms of the Code of Conduct and this Standard of Practice. Members are not to act in a manner which will adversely reflect on the Queensland Police Service or on themselves as members of the Service.[38]

  1. [53]
    During the proceedings, Mr Brar confirmed he was aware of the SoP and understood he was required to comply with the requirements within the document.[39]
  2. [54]
    On 11 May 2018, Mr Brar signed and returned a memorandum with the title 'Responsibilities of First Year Constables'.[40]
  3. [55]
    Clause 18 within the memorandum is headed 'Conduct in general'. That clause relevantly provides:

If you are going out to drink, leave the badge at home.

…

Comply with the provisions of the Code of Dress and Code of Conduct at all times.

Always be courteous to members of the public and other police. Do not entertain arguing with a member of the public.[41]

The QPS show cause process and investigation

  1. [56]
    The decision on show cause noted:

18. The following facts are not in dispute.

a) On 5 April 2019 you were off duty and in the company of Constable Jatinder SINGH (who was also off duty), Raminder SINGH and Lukesh KUMAR

b)At approximately 11pm, you and your associates attended the Toybox Showgirls adult club in Surfers Paradise.

c)Upon entry, you retrieved your driver licence which you kept in your official police wallet and produced that licence to security.

d)Your Police Identification is clearly visible on the CCTV footage as you put your driver licence away, the security guard appears to be looking in that direction and it was visible to those around you.

….

e)Whilst inside the Toybox Showgirls adult club, staff requested you put your mobile phone away, as they believed you were taking photos of the workers. The fact that you had your phone out and were requested by staff to put it away is not in dispute. It is also not in dispute that you did not put your phone away. There is disagreement regarding the use of the phone. While the club alleges you were taking photos, it is acknowledged that you deny this. The explanation put forward by you is lessened when considering there were no cricket matches in the Indian Premier League on at the time you were in the Toybox. This information was obtained from the official Indian Premier League website. The match commenced at 20:00 hours Indian Standard Time (IST), this is four and a half hours behind Australian Eastern Standard Time (AEST). Considering your location, the match would have commenced at 12:30 am AEST. This was an hour and half after you were in the club, it appears your suggestion is implausible.[42]

  1. [57]
    In relation to the issues that were in dispute, AC Pond observed:

19. The following matters are in dispute and will be addressed in turn.

f)You then argued with the staff in an aggressive manner which caused the manager Tarra MANN to become involved. While there is no direct evidence of this allegation, it is clear from the CCTV the staff member approaches the manager and has a conversation with her. Immediately after that conversation the manager, Tarra MANN, came over to you. MANN alleges that the staff member told her you were aggressive. It is acknowledged that you insist you were not aggressive only assertive however the difference between assertion and aggression is subjective and it is accepted that as a result of your behaviour you have rightly come to the attention of management.

g)You continued to argue with MANN, displaying rude behaviour, placing your hand in her face and telling her to stop. While you deny that you were argumentative, the CCTV shows that when MANN first approaches, you are gesturing in such a way that it is accepted that you are arguing. MANN alleges that you put your hand in her face however it is not clear on the CCTV if that occurs and as a result, I will not consider this allegation further.

h)You refused to listen to MANN, spoke over her and then flicked her nose with your hand. MANN states that you would not listen to her and the CCTV shows that there is a heated discussion between you both before she goes to grab your arm. While there is no audio the body language shows it is not a casual conversation and based on what follows it is accepted that you were not listening and as a result were ejected. Regarding the allegation that you flicked her nose, the CCTV does not support that allegation and I will not consider it further.

i)MANN then pushes you towards the stairs to evict you, you refuse to move, you tell MANN not to touch you and continue to argue with MANN, accusing her of assault. There is no dispute that MANN grabs your arm and that you pull away. You are then seen to continue to argue as you are pushed back towards the stairs by MANN as captured on the CCTV. MANN is justified in pushing you towards the stairs as you are not leaving as requested and as the venue manager, she is entitled to forcibly evict you due to your breaches.

j)You were then escorted out of the venue by MANN and security personnel from the nightclub. This cannot be disputed as it is supported by the CCTV and was a direct result of you not immediately complying with the request to leave.

k)On the CCTV footage it can be observed while you are engaged in conversation with MANN you are gesticulating with your right arm in an appearance of arguing and then when she is escorting you out, you constantly turn and continue to engage in what appears to be a heated conversation, this then required her to physically escort you out. I accept that this is supported by the CCTV as you do not immediately turn and leave the premise as required. MANN Initially grabs your arm and you pull free and at that point instead of leaving you turn and engage further. MANN then continues to push you towards the stairs at which point security are also there and then you walk down the stairs.

l)As a result of your behaviour, MANN created a Scantek banning report citing your conduct inside the Toybox Showgirls adult club and indicating you were rude and disrespectful, aggressive, refused to leave, offensive, argumentative and displayed threatening behaviour. I find that your behaviour in the club was argumentative and aggressive and as I have indicated, you did not leave the (sic) premise immediately and therefore it is accepted your refused to leave initially, and MANN was justified in her decision to issue a banning notice. I find that there is no evidence of your behaviour being threatening.

n)(sic) You chose not to make the assault complaint against MANN until that night, only because of the banning notice. Based on the information you provided in your interview on 29 May 2019 with Senior Sergeant KOWALD, it appears that your motivation for making the complaint was based on your embarrassment at having a banning notice against you.

o)Your assault complaint was then investigated by an officer from Surfers Paradise Station. During this investigation it highlighted your unprofessional behaviour within the club, which was aggravated by the fact that it was now known you were an off-duty police officer at the time. Based on all the information, I find that your behaviour throughout this incident has brought unnecessary, negative attention to the Queensland Police Service (QPS).[43]

Assistant Commissioner Pond's findings

  1. [58]
    AC Pond determined:
  • Mr Brar's conduct towards the manager of the Toybox was unprofessional and had brought unwarranted attention to the reputation of the QPS.
  • The Manager had the right to eject Mr Brar if she believed he was unduly intoxicated, disorderly or creating a disturbance and he was immediately required to comply.
  • The Manager had a right to use reasonable force if he did not comply, so her actions were lawful.
  • It was expected that as a police officer Mr Brar would be aware of these points and would comply with any lawful direction without the need for a person to use force.

The evidence before the Commission

  1. [59]
    Mr Brar's evidence-in-chief included a 27-page statutory declaration which included  12 pages of attachments, largely consisting of family or wedding photos.[44]
  2. [60]
    Mr Brar made the following points in his statutory declaration:
  • confirmed his driver's licence was stored in his police ID wallet and acknowledged staff may have seen his police ID when he took his licence out to gain entry to the Toybox;
  • he entered the Toybox with four friends;
  • acknowledged he spent time wandering around the club prior to taking a seat with his friends;
  • admits that one of his friends was intoxicated at this time and the group decided to purchase soda water while at the Toybox;
  • reasoned he was not that interested in the Toybox and spent his time on his phone watching and monitoring the Indian Premium League scores along with texting a friend on SnapChat;
  • employees of the Toybox approached he and his friends and extended an invitation to 'party' which they had declined;
  • an employee confronted Mr Brar regarding the usage of his phone in the Toybox stating words to the effect of 'you can't use your phone here';
  • an employee snatched his phone which he then immediately grabbed back; and
  • once the employee alerted Ms Mann to the situation, she approached Mr Brar and began yelling and abusing the group, requesting that the group leave the Toybox. While leaving Mr Brar recalls Ms Mann grabbing his arm, continually pushing and abusing Mr Brar as they left the venue.[45]
  1. [61]
    Also before the Commission were transcripts of interviews between Mr Brar and several senior Police Officers, which took place during the internal QPS investigation.[46]
  2. [62]
    In an interview conducted between Acting Senior Sergeant Dallas Kowald and Mr Brar, approximately eight weeks after the events of 5 April 2019, Mr Brar described his interaction with Ms Mann in this way:

…And this lady come to me and I’m still sitting and I’m still on my phone I didn’t put my phone in my pocket yet it’s I still had my phone in my hand and this lady come to me says you can’t use your phone here and she started yelling. Don’t know exactly the wording she used but basically, she told us that you need to leave.

…

... so we start and to come off the railing when we were going towards we were walking inside and it was stairs to go out.

…

So the lady’s very aggressive, she’s pushing and I said to her, I was like why are you pushing me ah you asked me to leave leaving so please don’t push me you assaulting me this is common assault. What are you doing?  Um and we all walked downstairs and I remember that when we were leaving down I think the guy who scanned our ID’s he was still standing on the scanner ID, I presume that’s the security guard.[47] 

  1. [63]
    It wasn't until Mr Brar participated in a further interview with Inspector Allen on 25 November 2019, that he said anything about Ms Mann making racist comments during their interaction, namely:

… and that lady come and start abusing us. Started saying you four Indian creepy bastards, get the f out of my place, started pushing. So, even before push, she says you need to leave and cause like my friends are sitting in a line so I just give the signal with my hand that’s like let’s go .. and when we’re leaving so she kept pushing me and I told her I was like; I don’t know you asked me leave I’m leaving, why you pushing me, your assaulting me this is common assault, what are you doing now. I don’t know why you’re doing that.[48] 

  1. [64]
    In a statutory declaration signed on 19 March 2020, approximately a year after the events on 5 Aril 2019, Mr Brar described his interaction with Ms Mann in the following way:

MANN approached me and started yelling and abusing me. I don’t remember the exact words that she said, but I recall that she racially profiled us, saying words to the effect of "you four Indians" and that she was being very abusive. I signalled my friends and I stood up from my chair to leave. She then grabbed my arm. I yanked my right arm back and told her not to touch me. I stepped backwards away from her towards the exit stairs. I was fully prepared to leave but had not been given the opportunity. I continued to back (sic) from the Manager and security guards and started to move towards the door. The Manager came up behind me. She was pushing me and kept yelling and abusing me. I told her not to push and abuse me and that she was assaulting me. This situation was very frustrating for me she continued to abuse me despite the fact that I was leaving and complying with Mann’s directions. As the CCTV footage shows, my interaction with MANN was for approximately 50 seconds overall.

…

I was very upset by the way I have been treated in the club but resolved to put the incident behind me and to try and enjoy the rest of the weekend.[49]

  1. [65]
    In cross-examination, Mr Brar:
  • confirmed he was aware the SoP applied to his employment;[50]
  • confirmed he was aware of the requirement not to act in a manner which reflected adversely on Queensland Police;[51]
  • agreed that he understood his responsibilities as a first-year constable;[52]
  • confirmed he understood the requirement to leave his police badge at home when drinking;[53]
  • confirmed he was aware his conduct, even when off duty, was considered to reflect on his professionalism;[54]
  • confirmed he was aware his conduct also reflected on the QPS, when he was not on duty;[55]
  • acknowledged he was required to behave in a professional manner when off duty;[56]
  • conceded his police badge would have been visible when opening his wallet to access his driver's licence;[57]
  • acknowledged he failed to comply with the responsibility to leave his badge at home.[58]
  1. [66]
    In relation to the events that occurred after Mr Brar and his friends entered the Toybox on 5 April 2019, in cross-examination, Mr Brar:
  • agreed that one of the employees in the club took objection to him having his phone out;[59]
  • agreed there was a disagreement between himself and an employee within the nightclub about the use of this phone, which led to the Manager, Ms Mann approaching him;[60]
  • denied he was taking photos of females working in the club;[61]
  • confirmed he believed he was treated unfairly at the club;[62]
  • was not able to recall the specific details of his conversation with Ms Mann;[63]
  • acknowledged he pulled his arm away when Ms Mann grabbed it;[64]
  • agreed he was escorted out of the club;[65] and
  • agreed he had spoken to his friends who were with him on the evening of 5 April 2019 about what had happened at the club during the period between April 2019 to November 2019, while he was participating in an investigation into the events.[66]
  1. [67]
    Mr Brar denied arguing with Ms Mann about whether he should leave.[67] He also denied he was aggressive towards Ms Mann during their interactions.[68]
  2. [68]
    In cross-examination, Mr Lukesh Kumar, a school friend of Mr Brar's who was with him at the Toybox on 5 April 2019, told the Commission he did not hear the conversations between Mr Brar and the employees at the club, but confirmed the Manager asked the group to leave the Toybox.[69] His evidence was that he did not know why they were being asked to leave.
  3. [69]
    Mr Kumar confirmed he, Mr Brar and other friends who were present on the night had since discussed the events of 5 April 2019 on several occasions. He acknowledged his memory of the night may well have been influenced by conversations he had since held with Mr Brar and his friends about the night.[70]
  4. [70]
    The evidence in chief of Mr Jatinder Singh, a Constable in the QPS and a former colleague of Mr Brar who was present at the Toybox on the evening of 5 April 2019 was:
  • he did not hear the conversation between Mr Brar and other staff members who were surrounding him, but did hear Mr Brar tell them not to snatch his phone;
  • Mr Brar was not aggressive with the staff and he did not observe any pushing or pulling;
  • no-one in his group resisted or argued and instead they just left the venue; and
  • Mr Brar told him afterwards he was just texting his wife and checking scores.[71]
  1. [71]
    One of the challenges with Mr Singh's evidence is that during cross-examination, he agreed that some of the material included within his affidavit relating to the events at the Toybox, were events he had been told about after the incident.[72]
  2. [72]
    Mr Singh acknowledged he did not see anything prior to being escorted from the club,[73] but maintained his position that he did not observe Mr Brar arguing with anyone.[74]
  3. [73]
    The Commission was also able to view CCTV footage from the Toybox from 5 April 2019, when the events which form the basis of Allegation One took place.[75]

Mr Brar's submissions

  1. [74]
    Mr Brar submitted that:
  • the failure to leave his badge at home was an error of judgement;
  • there is no evidence that any staff (other than Ms Mann who became aware he was an officer in the QPS after the event) were aware he was a police officer;
  • even if  an interaction between himself and Ms Mann could be characterised as  an 'argument' or 'heated discussion',  that does not mean he did something wrong;
  • the evidence does not support a finding he engaged in any wrongdoing on
    5 April 2019 that would support a dismissal.[76]

Consideration

  1. [75]
    The allegation is that Mr Brar engaged in unprofessional personal conduct towards employees of the Toybox  on 5 April 2019.
  2. [76]
    While AC Pond acknowledged that several of the particulars in respect of the allegation concerning the events on 5 April 2019 were unsubstantiated, she concluded Mr Brar's conduct towards the manager of the club was unprofessional and had since brought unwarranted attention to the reputation of the QPS.
  3. [77]
    AC Pond determined the Manager had the right to eject Mr Brar if she considered he was disorderly or creating a disturbance and that she also had the right to use reasonable force if he did not comply.
  4. [78]
    Although AC Pond was satisfied Mr Brar had not produced his badge to gain a benefit, she concluded that in doing so, he had identified he was a police officer and that his subsequent actions which extended to making and then withdrawing an assault complaint about the Manager of the Toybox, had brought unnecessary, negative and unwarranted attention to the QPS.
  5. [79]
    AC Pond determined Mr Brar had failed to comply with the Code of Conduct of the Public Service and the Standard of Practice by failing to take personal responsibility in the way he conducted himself in an off-duty capacity, which in turn reflected poorly on the integrity of the QPS.
  6. [80]
    Certainly, there is no question Mr Brar attended the Toybox, whilst off-duty on the evening of 5 April 2019.
  7. [81]
    It is not in dispute that when Mr Brar arrived at the Toybox, he produced his driver's license from his police wallet which also contained his police badge.[77]
  8. [82]
    The CCTV footage shows Mr Brar placing his licence back into his wallet with his police badge clearly on display for the security guard to observe.[78]
  9. [83]
    During cross-examination, Mr Brar recognised he should have left his badge at home but stated that 'it didn't strike my mind'.[79]
  10. [84]
    I do not accept Mr Brar's explanation for several reasons.
  11. [85]
    Firstly, Mr Brar signed a memorandum when he commenced with QPS which details his responsibilities as a first-year constable. The document was clear about his obligation to keep his badge at home, when choosing to go out and drink.[80]
  12. [86]
    Secondly, Mr Brar confirmed he understood his responsibilities in relation to the requirement to leave his badge at home.[81]
  13. [87]
    Thirdly, the evidence of both Mr Brett Jackson,[82] Officer in Charge at the Logan Central Police Station and Sergeant Colin Wallace[83] who was a supervisor of Mr Brar for a short period, was that Mr Brar was quite capable when it came to understanding QPS policies and procedures.
  14. [88]
    I find it implausible, for these reasons, that Mr Brar was not aware of his responsibilities and that the requirement to leave his badge at home was something that 'didn't strike' Mr Brar's mind.
  15. [89]
    AC Pond concluded Mr Brar's behaviour was both argumentative and aggressive and that he did not leave the venue immediately, which led to Ms Mann's decision to issue a ban notice.
  16. [90]
    Having regard to Mr Brar's evidence and the CCTV footage, there is insufficient evidence to conclude he was physically aggressive towards Ms Mann or other staff; however, I am satisfied, on the balance of probabilities, after viewing the CCTV footage that Mr Brar was argumentative on the night and could have left the venue sooner.
  17. [91]
    Under the heading, 'Personal Conduct', Clause 2 of the SoP provides:

Members are to act and be seen to act properly and in accordance with both the spirit and the letter of the law and the terms of the Code of Conduct and this Standard of Practice. Members are not to act in a manner which will adversely reflect on the Queensland Police Service or on themselves as members of the Service.[84]

  1. [92]
    Although Mr Brar confirmed he was aware his conduct, even when off duty, was considered to reflect on his professionalism;[85] his position is that even if his interaction with Ms Mann could be characterised as an 'argument' or 'heated discussion', that does not mean he did something wrong. Moreover, that the evidence does not support a conclusion that he engaged in any wrong-doing to the extent that it would justify a dismissal.[86]
  2. [93]
    Certainly, on its own, the conduct identified in Allegation One, may well have been dealt with through local management action, but the difficulty with this approach is that Mr Brar's conduct and the reasons for his eventual dismissal do not start and end with Allegation One. Nor can the actions and the particulars which are the subject of the individual allegations be considered in isolation.
  3. [94]
    Having come to the attention of the Manager of the Toybox, Ms Mann subsequently issued a ban notice. Then, motivated by a desire to have the ban lifted, Mr Brar made a decision to lodge an assault complaint about Ms Mann the following evening at the Surfers Paradise police station which, as a matter of procedure, had to be investigated by Constable Hommema on Sunday, 7 April 2019.[87]
  4. [95]
    Mr Brar's interaction with Constable Hommema and the subsequent investigation of the assault complaint on 7 April 2019, which included a review of CCTV footage, brought to light not only Mr Brar's argument with Ms Mann on the evening of 5 April 2019 and her reasons for issuing the ban notice, but also Mr Brar's primary motivation for making a complaint of assault against Ms Mann, which is when his connection to the QPS also became apparent to staff at the Toybox. It was this combination of events which also brought unnecessary, negative attention to the QPS.
  5. [96]
    In so far as Allegation One is concerned, I consider it was reasonable for AC Pond to conclude Mr Brar engaged in unprofessional personal conduct towards an employee of the Toybox.

Allegation Two

  1. [97]
    The allegation was that Mr Brar accessed QPRIME records on nine occasions without authorisation or justification on 9 April 2019, 11 April 2019 (twice), 13 April 2019, 14 April 2019 (twice), 17 April (twice) and 18 April 2019.[88]
  2. [98]
    As touched on above, the background to this allegation is that after being ejected from the Toybox, the Manager of the club, Ms Mann filed a Scantek report in relation to Mr Brar's conduct. The report triggered a 12 month ban on Mr Brar entering licenced premises.
  3. [99]
    Mr Brar only became aware of the report the following evening when he was refused entry into another club. On the same evening, he decided to make a complaint of assault against the Manager of the Toybox.
  4. [100]
    While the primary motivation for Mr Brar filing the complaint against Ms Mann appears to have varied over time, I am satisfied his intention was to rely on the complaint, either through a subsequent police investigation or personal inquiries, as the basis for the ban being overturned, so he could go out with his wife, friends and family.[89]
  5. [101]
    Having lodged the complaint, Mr Brar proceeded to access QPRIME to view the complaint details and its status. Then, on 13 April 2019, Mr Brar formally withdrew his complaint of assault against Ms Mann.[90]
  6. [102]
    Mr Brar accepts that between 9 April 2019 and 18 April 2019 he accessed QPRIME on nine separate occasions. However, he submits that at the time of accessing QPRIME to check the status of his complaint, he did not realise that looking at his own file was prohibited.

The evidence before the Commission

  1. [103]
    The evidence of Superintendent Josef Jaramazovic, who holds the role of Commander, Recruiting and Constable Training, was that recruits undertake comprehensive computer training.[91]
  2. [104]
    Under the heading 'Policy', the Recruit Computer Training Workbook relevantly provides:

POLICY

Recruits are to use the QPS computer systems for approved official purposes only and are to adhere at all times to QPS policies and procedures relating to the use of computers.

Members are not entitled to see or obtain information by virtue of their status, rank, office, or level of authorised access merely because they have the capability to do so. Refer to Information Management Manual Chapter 4 – Information Security, 4.13 System Access Control.

Members will:

  • not leave their terminal unattended when logged into the computer system(s).
  • only perform such transactions on the computer system(s) as may be authorised in the course of their duty and to treat all information which they obtain from that computer system as confidential.
  • not perform any unauthorised transactions on the computer system(s), nor will they release or otherwise deal with any information from that computer system in any manner which has not been approved by their superiors.
  • be aware that all transactions that they perform on the computer system(s) are recorded and such recordings can be retrieved if the need arises.
  • acknowledge that if they breach this policy they may be liable to have action taken against them under:
    • the Police Service Administration Act 1990;
    • Section 85 (Disclosure of Official Secrets); or
    • Section 408E (Computer Hacking or Misuse) of the Criminal Code.

It is essential that, regardless of the circumstances, you NEVER share or reveal your password to anyone. To do so exposes you to the responsibility for actions that the other party takes with your password. This may also make you liable to disciplinary action.[92]

  1. [105]
    It is not in dispute the computer training included tuition and instructions about accessing QPRIME. 
  2. [106]
    Superintendent Jaramazovic's evidence was that during the training an Officer In Charge undertakes face-to-face sessions with recruits where they are provided with examples of unauthorised access which have led to criminal charges or disciplinary action in the past.[93]
  3. [107]
    Superintendent Jaramazovic noted the training encompasses  reference to an earlier email issued in March 2016 by the former Queensland Police Commissioner, Ian Stewart.[94] Under the heading, 'Direction to all staff on access of information on QPS computer systems', Commissioner Stewart noted:

From:COMMISSIONER

Sent:Wednesday, 30 March 2016 13:52

To:QPS ALL POLICE OFFICERS; QPS ALL STAFF MEMBERS; QPS Chaplains

Cc:Executive Support COP

Subject:Direction to all staff on access of information on QPS computer systems

Direction to all staff on access of information on QPS computer system

Recently members and former members of the Queensland Police Service (QPS) have been charged and dealt with before the Magistrates Courts for offences of Computer Hacking. Computer Hacking is a criminal offence under s 408E of the Criminal Code which carries maximum penalties ranging from 2 years to 10 years imprisonment subject to circumstances of aggravation. The charges have arisen from members accessing information on QPRIME without a purpose related to their official duties.

The purpose of this direction is to make it very clear to all members of the QPS, both sworn and staff members, there has been a move in community attitudes towards the misuse of information held by the QPS and as a consequence the QPS and community’s tolerance for what amounts to criminal behaviour is very low. Discipline sanctions for inappropriate access of QPS information which have applied in the past will no longer apply into the future as the bar has been raised in order to clearly reflect organisational and community disapproval for such conduct.

Let there be no misunderstanding the misuse of information stored in QPS computers is serious. If you use QPS computer systems to access information and it is not for a purpose connected with your duty, the conduct will be considered misconduct. Consideration will also be given to criminal charges being applied.

It is important to understand, curiosity or personal interest, is not an acceptable reason for accessing QPS information. If the information accessed is released to someone else, particularly for a personal advantage, this will be considered corrupt conduct.

If you are ever uncertain about accessing information, ask a supervisor for advice before undertaking the access. Always accurately record your reason for access in accordance with risk management strategies.

By using the QPS computer system you agree to the restrictions associated with its use. Be aware all use of QPS computers is electronically logged (including QLITE devices), the records of this use are kept and are easily retrieved.

I take this opportunity to remind you of the duty all employees of the QPS have to report misconduct. That includes reporting the misuse of QPS information.

All members should ensure they are familiar with the policy regarding accessing and utilising information. The following are links to the QPS policy on the use of information:

Section 3.10 of the 2013/05 Procedural Guidelines for Professional Conduct and Information Management Manual section 4.13.5 user responsibilities,

IAN STEWART

COMMISSIONER[95]

  1. [108]
    On 31 December 2018, in a further email issued to all QPS Police Officers and Staff Members, when Mr Brar was a first-year constable, Commissioner Stewart also advised:

From:COMMISSIONER

Sent:Monday, 31 December 2018 15:30

To:QPS ALL POLICE; QPS ALL STAFF MEMBERS; QPS Chaplains

Cc: Executive Support COP

Subject:Unlawful and inappropriate access to QPS information systems

Colleagues

I have issued a clear directive to all members regarding access to information on QPS computer systems. Unfortunately, unlawful and inappropriate access to information systems remains a significant issue for the QPS. A small number of members doing the wrong thing impacts on the QPS’s reputation, and the trust and confidence of the community in our members.

It is my expectation, and that of the community, that members of the QPS demonstrate the highest standard of professional practice. A foundation of this standard is that we only use police information and resources for official purposes and in connection with the performance of our official duties.

We do this by:

  • Ensuring any access to or release of official information is specifically authorised by law or Queensland Police Service policy;
  • Accepting the level of trust and responsibility associated with being able to access and use police information and resources;
  • Understanding curiosity or personal interest are not acceptable reasons to access QPS information;
  • Only using police information for an official purpose, in connection with our official duty; and
  • Responsibly and appropriately handling confidential, private and sensitive information and maintaining the integrity of such information.

In early 2019, the QPS will commence publishing deidentified disciplinary outcomes in the Queensland Police Bulletin. The intention is to proactively encourage organisational and individual behavioural change through heightened awareness of the issues that impact us all.

If you have any doubt whatsoever regarding access to information held in QPS systems, speak first with your supervisor.

Don’t risk your career or damage to the reputation of the QPS and its members through unlawful and inappropriate access to information.

IAN STEWART

COMMISSIONER[96]

  1. [109]
    During the proceedings, Mr Brar acknowledged his access of QPRIME was unauthorised and not in accordance with QPS policy.
  2. [110]
    Clause 15 of the SoP is headed 'Improper Use of Information and Communication Technology' and relevantly provides:

15. Improper Use of Information and Communication Technology

All Queensland government agencies are guided by the Cabinet-endorsed Use of Internet and Electronic Mail Policy and Principles Statement and Information Standard 38. The Queensland Police Service’s policy regarding the misuse of ICT facilities and devices is primarily contained in the Information Management Manual. Anyone found to have misused ICT devices or facilities potentially faces a range of penalties, including dismissal. Any possible misuse or breach of Queensland Police Service ICT policy will be dealt with on a case-by-case basis.[97]

  1. [111]
    Clause 16 of the SoP is headed 'Improper Use of QPS Information' and sets out the obligations and standards for members of the police service when accessing information, namely:

16. Improper Use of QPS Information

In the performance of official duties, members of the Queensland Police Service are granted lawful access to many sources of information, confidential or otherwise. With this access comes a requisite level of accountability and trust that the information will only be used for official purposes. There is no excuse for members to betray the public trust by making any unauthorised, improper or unlawful access or use of any official or confidential information available to them in the performance of their duties.

When dealing with official or confidential information of the Queensland Police Service, members are not to access, use or release information without an official purpose related to the performance of their duties.

Where any member breaches this provision the Queensland Police Service will institute appropriate disciplinary or criminal proceedings. Members need to be aware that this type of activity is viewed by the Service as misconduct and any members who breach the provisions of this section will be dealt with accordingly.

Members requiring further information or assistance when dealing with official or confidential information should refer to and comply with relevant provisions of the following legislation and documents:

  1. Sections 10.1 and 10.2 of the Police Service Administration Act 1990;
  2. Right to Information Act 2009;
  3. Information Privacy Act 2009; and
  4. Chapter 1 of the Operational Procedures Manual.[98]
  1. [112]
    On each occasion before accessing the QPS computer system and the records within QPRIME, Mr Brar was required to agree to certain conditions of access and use of the system, including:

1. Access to and use of any information on this computer system is for authorised users only. Any Unauthorised access and use, e.g. the use of another's User-ID and Password, is strictly prohibited. By accessing or using this system you are representing that you are an authorised user. You are NOT authorised to access information for personal reasons.

2. The information contained on this computer system is confidential and must not be disclosed to unauthorised persons. Improper disclosure of information is an offence against section 10.1 of the Police Service Administration Act 1990.

3. Making unauthorised copies of software is a criminal act and can expose you to punishment or civil claims. Use only authorised software.[99]

  1. [113]
    As a result of his unauthorised QPRIME access, Mr Brar was subject to a criminal proceeding under s 408E(1) of the Criminal Code 1899 (Qld). The maximum penalty for the offence is two years imprisonment. He pleaded guilty, was convicted and fined $1000. No criminal conviction was recorded.[100]

Assistant Commissioner Pond's Findings

  1. [114]
    AC Pond found that Mr Brar's conduct, as alleged, had occurred.[101] Moreover, that Mr Brar's behaviour and personal conduct was inappropriate, unauthorised and unjustified.[102]
  2. [115]
    In response to Mr Brar's submission during the show cause process, that he was accessing information to ensure a complaint he had lodged about the Manager of the Toybox had been withdrawn, AC Pond determined:
  1. I acknowledge the reason you give for accessing this information was to ensure the complaint had been withdrawn however I do not accept that reason.
  1. Firstly, regarding subsections b) to d), I do not accept that the access was to ensure the complaint was withdrawn as your communication to Officer HOMMEMA advising him of your intention to withdraw the complaint did not occur until 13 April 2019, prior to that date you accessed the occurrence on three separate occasions.
  1. Secondly, regarding all nine occasions that you accessed the occurrence, it is not accepted that the access was to ensure the complaint was withdrawn. Upon first opening the occurrence you would have been able to ascertain the status of the complaint as the status is listed on that first screen however as per the breakdown of your access, you have looked at several screens and reports contained within the occurrence. Aside from the fact that your access was not authorised as it was a personal matter, the access of these further screens and reports was also inconsistent with what you claim was your reason for access.
  1. Mr HOLLANDS on your behalf, has submitted 'The information accessed was information about the subject members complaint only. The information was within his realm of knowledge and was information which he had already been (sic) provided to police. The information could not be regarded as sensitive and, as Constable Brar elected to withdraw his complaint, the information was effectively lifeless in terms of its future usage'. There was sensitive information that you had access to, when opening the occurrence, the first screen lists the involved persons and the personal details of the manager of the Toybox were visible, including her full name, date of birth and home address.[103]
  1. [116]
    Mr Brar's evidence during the proceedings was that although he knew it was against QPS policy to look at another person's complaint or personal details, he assumed it would be acceptable to look at his own file.[104]
  2. [117]
    He also told the Commission he accessed QPRIME in the period 9 April 2019 until 18 April 2019, because he was anxious and wanted to check to see if the formal complaint he had made about the Manager of the Toybox  on 6 April 2019 had been withdrawn.[105]
  3. [118]
    Although he was aware his signed withdrawal of complaint form had been received and uploaded to QPRIME on 13 April 2019, Mr Brar maintained he continued to check QPRIME to see if the complaint status had been changed.[106]

Mr Brar's submissions

  1. [119]
    Mr Brar maintains he has consistently admitted he accessed the QPRIME database when he should not have done so, noting he pleaded guilty to a criminal offence arising out of that access, but argues his improper access to QPRIME is not a matter that would justify the termination of his employment,[107] observing his access:
  • did not lead to any benefit accruing;[108]
  • did not extend to the access of any file other than his own; and
  • did not involve the disclosure of confidential information.

Consideration

  1. [120]
    It is not in contention Mr Brar accessed QPRIME on nine occasions in the period 9 April 2019 until 18 April 2019, without authorisation.
  2. [121]
    I am not persuaded by the submission that Mr Brar was unaware it was not acceptable to access QPRIME to review a file dealing with a complaint he had filed.
  3. [122]
    Mr Brar attended computer training while he was a recruit, which encompassed training about QPRIME. I accept that during this training, recruits including Mr Brar, were provided with examples of access that were considered unacceptable and that could lead to criminal charges and disciplinary action.
  4. [123]
    I also accept recruits were referred to the email of the former Police Commissioner, Ian Stewart which stressed that the use of QPS computer systems for a purpose not connected with the performance of duties, would be considered misconduct. Moreover, that accessing information due to curiosity or personal interest, was not an acceptable reason for accessing QPRIME.
  5. [124]
    The SoP provides that Officers are not to access, use or release information without an official purpose related to the performance of their duties.
  6. [125]
    Mr Brar was aware he was required to comply with the SoP, which stressed that any person found to have breached the relevant computer policies potentially faced a range of penalties, including dismissal.
  7. [126]
    Similarly, I accept Mr Brar, as a first-year recruit, was more than likely the recipient of a further directive from the former QPS Commissioner, on Monday 31 December 2018 which again stressed the importance of accessing and using information only for official purposes and in connection with the performance of official duties.
  8. [127]
    Having regard to the above, along with the  conditions associated with accessing the QPS system, which were visible on each occasion Mr Brar accessed QPRIME, I am satisfied Mr Brar was aware he should not access QPRIME for personal reasons and that his conduct, in accessing QPRIME was a deliberate and serious departure from the SoP and earlier Directives issued by the former Police Commissioner.
  9. [128]
    For these reasons, I consider  it was open to AC Pond to conclude Mr Brar's personal conduct in respect of Allegation Two was inappropriate, unauthorised and unjustified.

Allegation Three

  1. [129]
    The allegation was that Mr Brar displayed behaviour, attitude and integrity unbecoming of an employee of the Queensland Police Service.

QPS Investigation and Show Cause Process

  1. [130]
    The particulars in the original show cause notice included:

b)On 6 April 2019, when speaking to Constable Alex HOMMEMA, his observation was that you were intoxicated and arrogant, and he informed you should attend when not intoxicated. You then identified you were a Police Officer and he should just put it on QPRIME. He stated he tolerated your rude behaviour out of respect for a fellow police officer.

c)You have demonstrated this behaviour when challenged in the past.

i.During recruit training, you were being assessed during a Domestic Violence scenario.

ii.You were provided with extensive feedback from the assessor and it was observed by the assessor that you were argumentative and either denied or tried to justify all the matters raised by stating that this is what your facilitator told you to do.

iii.You continued to argue with the assessor even after the relevant sections were read out and you would not accept feedback.

d)You utilised police resources to benefit yourself, you stated that the only reason you made a complaint was to try and have the banning notice removed, it was not from any genuine concern arising from an assault.

e)You have provided conflicting versions regarding the incident which casts doubt on the truth of any version you have provided:

i.On 7 May 2019, Constable Jatinder Singh stated to Acting Senior Sergeant Dallas KOWALD, you told him you were texting your wife when using your phone in the Toybox.

ii.On 29 May 2019, you stated to Acting Senior Sergeant Dallas KOWALD you were texting on snapchat to your friends when using your phone in the Toybox Showgirls adult club.

iii.On 11 November 2019, submissions made by your lawyer on your behalf stated you were checking cricket scores when using your phone in the Toybox Showgirls adult club.

iv.On 25 November, you stated to Inspector Corey ALLEN, you were checking cricket scores when using your phone in the Toybox Showgirls adult club.

v. On 29 May 2019, you stated to Acting Senior Sergeant Dallas KOWALD, you were told by the Toybox employee you can’t use your phone, you told her you would finish your text message and put your phone in your pocket. She then grabbed your phone and you snatched it back.

vi.On 25 November 2019, you stated to Inspector Corey ALLEN, the female snatched your phone out of your hand at the same time as telling you that you couldn’t use it. You stated to Inspector Allen that you understand if you are asked to put it in your pocket you would do that.

vii.On 29 May 2019, you stated to Acting Senior Sergeant Dallas KOWALD, when the other lady came over she started yelling, you stated you didn’t know the exact wording she used but she basically told you, you needed to leave.

viii. On 25 November 2019, you stated to Inspector Corey ALLEN, when the other lady came over she started abusing you and said, ‘You four Indian creepy bastards, get the f out of my place’.

f)On the CCTV from the Toybox at 11:09:54, one of the workers walks past and you hold your phone behind her backside and appear to take a photo.[109]

  1. [131]
    In respect of the incident described at (f), AC Pond was unable to determine on the evidence whether Mr Brar was taking photos of a worker's backside, but reached the following conclusions in respect of the other matters set out above:

a)  On 5 April 2019, when spoken to by staff at the Toybox Showgirls adult club, you were argumentative, aggressive and rude. After considering all the information, I find that you were argumentative, aggressive and rude towards staff at the Toybox Showgirls adult club.

b)On 6 April 2019, when speaking to Constable Alex HOMMEMA, his observation was that you were intoxicated and arrogant, and he informed you should attend when not intoxicated. You then identified you were a Police Officer and he should just put it on QPRIME. He stated he tolerated your rude behaviour out of respect for a fellow Police Officer. Officer HOMMEMA provided frank observations of your behaviour when taking your complaint, I have considered all the available material and I accept [sic] HOMEMMA’s observations of your behaviour.

c)You have demonstrated this behaviour when challenged in the past.

i.During recruit training, you were being assessed during a Domestic Violence scenario.

ii.You were provided with extensive feedback from the assessor and it was observed by the assessor that you were argumentative and either denied or tried to justify all of the matters raised by stating that this is what your facilitator told you to do.

iii.You continued to argue with the assessor even after the relevant sections were read out and you would not accept feedback.

I have reviewed the feedback and your response and find that the feedback was reasonable in the circumstances, there was nothing to suggest any unfairness in the assessment and I further find that you were argumentative.

d)You utilised police resources to benefit yourself, you stated that the only reason you made a complaint was to try and have the banning notice removed, it was not from any genuine concern arising from an assault. After considering the information that you provided to Officer HOMMEMA on 6 April 2019 and to Senior Sergeant KOWALD on 29 May 2019, I find that you took issue with the banning notice and that by making an assault complaint you would be able to have it removed. Based on this you made an assault complaint. Once it was discovered that the ban could not be removed and the assault complaint could affect your chances of progression in the Police Service, you withdrew the complaint. In considering all that information, I find that you utilised police resources to benefit yourself.

...

38.I have reviewed your submissions regarding your time at the academy and the comments made by Mr RYAN during your scenario-based assessments. While I acknowledge that you believe you were discriminated against by Mr RYAN based on your race. I could not see any justification of that claim in his remarks about your behaviour during that assessment. Your submissions regarding Mr RYAN to some degree are based on anecdotal evidence from other recruits which led you to believe he was racist; however, I am not aware of any complaints regarding Mr RYAN from any recruit, facilitator or supervisor.

39.I have considered all the material surrounding your interactions with the Manager of the Toybox Showgirls night club, I could not find anything to suggest her actions were unjustified based on information she had at hand. There is nothing to suggest that the way she dealt with you was any different to any other patron, while I accept you hold the belief that you were racially profiled, there is insufficient evidence of this.[110]

The evidence before the Commission concerning the particulars of Allegation Three

On 5 April 2019, when spoken to by staff at the Toybox Showgirls adult club, you were argumentative, aggressive and rude.[111]

...

When speaking to Constable Alex HOMMEMA, his observation was Mr Brar was intoxicated and arrogant, and he informed him he should attend when not intoxicated. Mr Brar then identified he was a Police Officer, and stated he should just put it on QPRIME. Mr Hommema stated he tolerated Mr Brar’s rude behaviour out of respect for a fellow Police Officer.[112]

...

Mr Brar utilised police resources to benefit himself, stating the only reason he made a complaint was to try and have the banning notice removed, it was not from any genuine concern arising from an assault.[113]

  1. [132]
    It is not in dispute that following his ejection from the Toybox on the evening of 5 April 2019, a representative of the club, in response to Mr Brar's alleged conduct towards Ms Mann, created a Scantek banning report.[114]
  2. [133]
    Under the heading 'Ban Description', the author of the report included the words 'Refusal to leave venue, offensive behaviour. Aggressive. Argumentative & Threatening'. The report notes contained the following, in respect of Mr Brar's conduct:

… very aggressive to tarra (sic) would not listing (sic) to staff to put his phone away talk over staff member and because staff member was a female he though he did not have to listen when asked to leave venue he waved his hand in mangers (sic) face hitting her on the nose then she removed him down the stairs and out the venue DO NOT WANT PATRON BACK IN VENUE EVER !!!!!!!!!! VERY RUDE AND DISRESPECTFUL

  1. [134]
    Mr Brar's evidence was that he was not aware of the ban until the following evening when he attempted to enter another nightclub in Surfers Paradise and was told he had been banned from entering any licenced venue in Queensland for one year, as a result of the Scantek report.[115] 
  2. [135]
    In a transcript of an interview between Senior Sergeant Dallas Kowald and Mr Brar on 29 May 2019, Mr Brar stated:

... I was getting married my family was coming from India and from Canada and I was supposed to take my Brother In Law and everyone out when they arrive in Brisbane and that's the most embarrassing thing for me umm.. that I'm banned from the venues and I work as a police officer that’s the most embarrassing part. Umm.. me and Jay had [sic] a quick conversation [sic] cos we were really close to Surfer Paradise police station [sic] cos they all members over there. Me and Jay had a good chat and I said to Jay, Jay that's really unfair, she banned us.. she is the one assaulting me and she banned me for one year.. it's really unfair.. actually I [sic] wanna make [sic] an complaint. Um.. I [sic] wanna go to Liquor Licencing compliance so I can get this ban removed. So we walked to the Police Station [sic] cos the police station was right next to us...[116]

  1. [136]
    In relation to the steps he took when making the complaint about Ms Mann and his interaction with Constable Hommema on the evening of 6 April 2019,  Mr Brar's evidence was:

As a member of (sic) public, I have a right to lodge a formal complaint and to expect that my complaint will be fully investigated without bias. I attended (sic) at Surfers Paradise police station to lodge my complaint. Constable HOMMEMA refused to take my complaint despite this being within the parameters of his duties and requirements as a Constable of police. It was only when I informed him that I myself was a police officer and that I was aware of police procedures that he begrudgingly agreed to do his job.[117]

  1. [137]
    Mr Brar was critical of Constable Hommema’s unwillingness to take a statement from him because he [Constable Hommema] considered Mr Brar was intoxicated, observing:

…Undoubtedly, it would not have been an unpleasant experience for Constable Hommena to be told that he needs to do his job and take my complaint. It is concerning that members of the public who do not know their rights may have been unable to have their complaints recorded if Constable Hommema had previously been turning them away on grounds of intoxication or inability to assist in any meaningful way due to alleged intoxication.[118]

  1. [138]
    In cross-examination, Mr Brar confirmed:
  • he consumed a few drinks before attending the police station;[119]
  • he attended the police station around 11pm or 12pm at night;[120]
  • he produced his police badge, which he had taken to other venues while drinking that night;[121]
  • the reason for visiting the police station was to make a complaint of assault against the Manager of the Toybox, Ms Tara Mann and to have the Scantek ban removed;[122]
  • he was not going to make a complaint that Ms Mann had assaulted him until after he found out about the Scantek banning report;[123]
  1. [139]
    Mr Brar confirmed he did not consider the ban was justified, that he was upset, and he wanted to challenge the ban.[124]
  2. [140]
    Although, Mr Brar was unable to recall many of the details of his conversation with Mr Hommema during cross-examination, he denied being intoxicated.[125]
  3. [141]
    Constable Singh told the Commission he was out with Mr Brar on 6 April 2019 when he was advised about the Scantek ban.[126] He confirmed both he and Mr Brar had consumed a few drinks that night, prior to deciding to go to the police station to make a complaint against Ms Mann.[127]
  4. [142]
    Constable Hommema's evidence-in-chief in relation to Mr Brar's attendance at the Surfers Paradise police station on 6 April 2019, was:
  • He was performing nightshift duties on the evening of 6 April 2019;[128]
  • Mr Brar attended the station with Mr Singh to make an assault complaint;[129]
  • Both Mr Brar and Mr Singh appeared to be intoxicated;[130]
  • He intended to advise Mr Brar he was unable to take a statement due to his level of intoxication and instead would generate a 'street check' so that Mr Brar could make a statement at a later date;[131]
  • That Mr Brar spoke in an arrogant tone, advising 'Mate just put it on QPRIME I'm police', with both Mr Brar and Mr Singh then producing their police identification.
  • He allowed Mr Brar and Mr Singh entry into the station statement room, took out his notebook and started to write down start of shift details, at which point Mr Brar arrogantly said words to the effect, 'mate don’t do that now. Worry about it later. Write the assault details down.'[132]
  • He tolerated the rude behaviour from Mr Brar in circumstances where he was a fellow officer;[133]
  • Mr Brar stated that he wanted QPS to contact the Office of Liquor and Gaming to have the ban removed so he could go out with his wife;[134]
  • Mr Brar stated he had been compliant when asked to leave the club, but the employee [Tara Mann] used unlawful force to remove him;[135]
  • Mr Brar was unwilling to provide a statement;[136] and
  • Constable Hommema's evidence was that he made notes of his conversation with Mr Brar in his police notebook, referencing #K030534 pages 88-90 and 93-95.[137]
  1. [143]
    During cross-examination about events on the evening of 6 April 2019, Constable Hommema confirmed:
  • he had a positive impression of Ms Mann;
  • he did not think Mr Brar was telling the truth when he made the complaint about Ms Mann;
  • he considered there was more to the story;
  • his experience was there was often more to the story when patrons came in to make 'these types of complaints'; and
  • he believed Mr Brar was being rude towards him.[138]
  1. [144]
    Constable Hommema's evidence was that he and another Senior Constable attended the Toybox to investigate the assault complaint the following evening.[139] According to Constable Hommema,[140] he recorded Ms Mann's version of events, on his body worn camera, which included:
  • Ms Mann received a complaint Mr Brar had taken a photo of a staff member but had argued with the staff member and told her to fuck off when she asked Mr Brar to put the phone away;
  • Ms Mann requested Mr Brar put his phone away, which he argued against and spoke over the top of Ms Mann;
  • Mr Brar raised his hand and flicked Ms Mann in the nose, whereafter Ms Mann held Mr Brar's arm and motioned for him to leave the area;[141]
  • Ms Mann stated, 'let’s go', but Mr Brar refused to move, flaying his hands around;
  • After becoming more overt in her direction to Mr Brar to leave the venue he was escorted down the stairs and told to leave;
  • Once outside the venue, Mr Brar accused Ms Mann of assaulting him, to which Ms Mann replied 'you touched me first, fuck off and leave'.[142]

Mr Brar's submissions

  1. [145]
    Mr Brar maintains Constable Hommema prejudged the situation, was influenced by extraneous matters and was of the view he was being told how to do his job, which led to Constable Hommema interpreting Mr Brar's purported assertiveness on the night as arrogance.[143] 
  2. [146]
    QPS submits the Commission should accept the evidence of Constable Hommema in relation to what occurred at the police station on the evening of 6 April 2019, given he:
  • was not affected by alcohol;
  • was equipped to assess whether a person was intoxicated or not; and
  • had nothing to gain by giving hive evidence.[144]

Consideration

  1. [147]
    For the reasons set out at earlier paragraph [75] to [96] I am satisfied that on the evening of 5 April 2019, when spoken to by staff at the Toybox, Mr Brar was argumentative and rude. There is insufficient evidence to conclude his conduct extended to being aggressive.
  2. [148]
    I prefer the evidence of Constable Hommema in relation to the interaction between he and Mr Brar on the evening of 6 April 2019. The contemporaneous notes he recorded during the period were consistent with his evidence during the proceedings. Moreover, unlike Mr Brar, he had not been drinking on the night.
  3. [149]
    On the evidence, I am satisfied, on the balance of probabilities, that Mr Brar presented as arrogant and rude when making his complaint to Constable Hommema about Ms Mann on the evening of 6 April 2019.
  4. [150]
    I do not accept Mr Brar's complaint was motivated by a genuine concern about Ms Mann's contact with him at the Toybox on the evening of 5 April 2019.
  5. [151]
    It is clear that Mr Brar's primary motivation for making a complaint of assault against Ms Mann was to use the complaint, either through the Queensland Police number attributed to the complaint or subsequent police investigations, as a means of having the Scantek ban removed.
  6. [152]
    I am satisfied Mr Brar withdrew his complaint on the advice of his wife and, only after it became clear that the lifting of the ban was an issue that had to be negotiated or resolved between Mr Brar and the venue.   
  7. [153]
    The withdrawal of the complaint did not occur until after police resources were allocated to investigate the assault claim, which extended to Constable Hommema and his colleague utilising time to visit the Toybox and make the necessary inquiries.
  8. [154]
    For those reasons, I consider it was reasonable for AC Pond to conclude Mr Brar utilised police resources to benefit himself in a personal capacity.

Mr Brar exhibited argumentative behaviour during recruit training

  1. [155]
    This issue concerned Mr Brar's responses and conduct when participating in and receiving feedback about several practical assessments involving domestic violence and drug offences under the criminal code, while undertaking recruit training in 2018.
  2. [156]
    It is not in contention that Mr Brar failed the assessments and was subsequently provided with feedback on areas for improvement.[145]
  3. [157]
    The notes accompanying Mr Brar's period of training as a recruit were tendered during the proceedings, but Mr Ryan, the Assessor was not called to give evidence.
  4. [158]
    In the notes, Mr Ryan, observed Mr Brar was argumentative and denied or tried to justify the matters that were raised with him by stating that his facilitator had told him to deal with this issue in a particular way.[146]
  5. [159]
    During the show cause process, it was alleged Mr Brar 'continued to argue with the assessor even after relevant sections were read out' and that he was unwilling to accept feedback.
  6. [160]
    Mr Brar's evidence was that Mr Ryan was known for his dislike of coloured males. He considered Mr Ryan had discriminated against him having regard to his race.[147] 
  7. [161]
    Mr Brar recalled he was shocked when he learnt he failed the assessments. He was of the view Mr Ryan's feedback was negative and delivered in a derogatory manner.[148] He considered that Mr Ryan had labelled his efforts to discuss why he had taken a particular approach as argumentative, when instead he was attempting to have a constructive conversation.[149]
  8. [162]
    Although AC Pond acknowledged Mr Brar's concerns, she concluded that she was unable 'to see any justification of [the claims of discrimination] in [Mr Ryan's] remarks about [Mr Brar's] behaviour during the assessment. She was also of the opinion that Mr Brar's submissions were, to a degree, based on anecdotal evidence from other recruits.[150]

Mr Brar's submission

  1. [163]
    In cross-examination, Mr Brar denied being argumentative whilst agreeing that there were aspects of the feedback he did not accept.[151]

Consideration

  1. [164]
    In the absence of Mr Ryan, who may well have been able to provide more context around his comments in relation to Mr Brar's conduct, the evidence is insufficient for me to conclude, on the balance of probabilities, that Mr Brar was argumentative during the feedback sessions.

Mr Brar provided conflicting versions regarding the incident which casts doubt on the truth of any version he provided.

  1. [165]
    The majority of the conflicting statements identified during the show cause process pertained to Mr Brar's reasons for being on his phone while at the Toybox, against a backdrop where it was alleged he had become aggressive towards the staff member following an incident with his phone.
  2. [166]
    The remaining concerns about 'conflicting versions' related to Mr Brar's comments about Ms Mann making racist remarks on the evening of 5 April 2019, in a subsequent interview, despite not raising the issue during an initial interview with Acting Senior Sergeant Dallas Kowald on 29 May 2019.
  3. [167]
    Mr Brar submits that other than a passing comment in QPS's submissions, nothing has been advanced to support this allegation.

Consideration

  1. [168]
    It is true that there are discrepancies in several of the explanations Mr Brar provided during the internal QPS investigation, about what he was doing on his phone, at the time an employee of the Toybox took issue with his use of the phone, on the evening of 5 April 2019.
  2. [169]
    Similarly, in his initial interview during the internal show cause process, Mr Brar made no mention of racist remarks Ms Mann purportedly made towards he or his friends. The first occasion Mr Brar raised this issue was on 25 November 2019.
  3. [170]
    On the evidence, I accept these inconsistencies may well have influenced AC Pond's views about Mr Brar's credibility and her eventual conclusions as to his suitability to be an Officer.
  4. [171]
    In my view, although the primary focus of AC Pond's deliberations when determining Mr Brar's suitability to continue in his role was the conduct detailed in the allegations set out above, it was not unreasonable for AC Pond to hold some concerns about the inconsistencies that arose during the internal investigation.

Conclusion in relation to Allegation Three

  1. [172]
    Although I consider there is insufficient evidence to determine whether Mr Brar was being argumentative while receiving feedback after failing the practical training exercises, I am satisfied, for the reasons set out above, that it was open to AC Pond to conclude Mr Brar displayed behaviour, attitude and integrity unbecoming of an employee of the QPS.

Other Matters - Objections to Evidence

  1. [173]
    Fifty-two objections were taken by the QPS to passages or photos included within Mr Brar's statutory declaration or content within affidavits of several colleagues with whom he had previously worked or interacted, which included opinion evidence as to his capabilities as a police officer.
  2. [174]
    I have considered all submissions even if I do not address them in these written reasons.
  3. [175]
    It is unnecessary to rule on each individual objection. The basis for many of the objections in Mr Brar's statutory declaration were to relevance. Where evidence is referred to, its relevance is explained. I further note that the Commission is not bound by the rules of evidence and any evidence I have referred to is considered to be of sufficient probity to be admitted.

Was Mr Brar's dismissal harsh, unjust or unreasonable having regard to s 320 of the Act?

  1. [176]
    Mr Brar maintains his dismissal was harsh, unjust and unreasonable.
  2. [177]
    He submits it was unjust because the facts said to justify dismissal, other than the QPRIME access are not made out; and, in any event, the dismissal is disproportionate to the conduct in question, in circumstances where:
  • improper access to QPRIME is admitted, but other police officers who have been disciplined for unauthorised use of QPRIME have been subject to penalties well short of termination of employment; and
  • even if the other allegations are made out, dismissal is a disproportionate response, given:
  1. (a)
    his access to QPRIME did not lead to any benefit accruing;
  2. (b)
    he was charged with the summary offence of accessing QPRIME simplicitor; and not the more serious offence of accessing the database; and gaining or intending to gain a benefit; and
  3. (c)
    he did not access any file other than his own.
  1. [178]
    QPS submits the decision to terminate Mr Brar's employment pursuant to s 5.12(4) of the PSAA was not harsh, unjust or unreasonable. Moreover, the termination was proportionate to Mr Brar's circumstances as a probationary officer, given he:
  • engaged in conduct which brought negative, unwarranted and unnecessary attention to the QPS;
  • committed a criminal offence;
  • demonstrated a lack of insight and responsibility for his actions whilst off duty; and
  • used the complaint process for his own personal advantage, thereby wasting police resources. 
  1. [179]
    Observing that his conduct in relation to the QPRIME incident alone was sufficient to constitute misconduct pursuant to s 1.4 of the PSAA,[152] QPS submits the evidence before the Commission establishes the Applicant's conduct triggered the powers under s 5.12(4) of the PSAA.
  2. [180]
    It is argued Mr Brar's overall conduct demonstrated a lack of judgment and sensible decision making as required by all police officers who often must act and think quickly whilst under pressure.[153]  It is further submitted, that it is essential for public confidence to be upheld in the integrity of police officers for the service to operate effectively.[154]
  3. [181]
    In those circumstances, QPS submits there was sufficient material before AC Pond and in these proceedings to support a conclusion Mr Brar was not a fit and proper person to continue in the role of a police officer.[155]

Notification of reasons for dismissal

  1. [182]
    Mr Brar was served with a decision confirming his dismissal on 8 June 2020. The decision set out the allegations, related particulars, evidence and materials relied on during the investigation, Mr Brar's response and AC Pond's reasons for termination.

Mr Brar's dismissal related to his conduct

  1. [183]
    Mr Brar's dismissal related to his conduct. For reasons set out above, I am satisfied Mr Brar:
  • Engaged in unprofessional personal conduct towards an employee of the Toybox on 5 April 2019;
  • Accessed QPRIME on nine separate occasions, where he was the complainant; and
  • Displayed behaviour, attitude and integrity unbecoming of an employee of the QPS.

Mr Brar was not warned about his conduct

  1. [184]
    At the time of his dismissal Mr Brar was a probationary Constable.  His employment was terminated pursuant to section 5.12(4)(a) of the PSAA.
  2. [185]
    As observed in Nesterowich v Acting Assistant Commissioner Deborah Platz[156] :

… the Commissioner’s power in s 5.12(4) to terminate the employment of an officer on probation is separate and distinct from disciplinary action that may be taken under s 7.4 of the PSA Act.[157]

  1. [186]
    Given the broad discretionary powers available to the Police Commissioner in s 5.12 of the PSAA, the fact he was not warned about his conduct prior to his dismissal is not a circumstance that could contribute to a conclusion his dismissal was unfair, particularly where:
  • Mr Brar was charged and found guilty of a criminal offence in association with his employment; and
  • Mr Brar's conduct, during the period he was a probationary appointee was sufficiently inconsistent with his obligations under the SoP and other relevant policies,  such that dismissal was open to AC Pond without any warning.

Mr Brar was given an opportunity to respond

  1. [187]
    Mr Brar was given an opportunity to respond to the allegations. On or around 24 March 2020, he provided the QPS with submissions in relation to his suitability to continue as an Officer.

Other matters the Commission considers relevant

Was it open to AC Pond to conclude Mr Brar was not suitable to continue as a police officer?

  1. [188]
    Section 5.12(4) provides the Police Commissioner with broad discretion to dismiss a probationary employee. The discretion extends to circumstances where there is a reasonable doubt as to a probationary Officer's capacity to satisfactorily perform the role.
  2. [189]
    The power to terminate is distinguishable from the disciplinary powers in s 7.4 of the PSAA, and s 5.12 has been held to be a '... specific section designed so that the Commissioner can exercise the power and responsibility to 'weed out' officers in respect of whom there is any reasonable doubt as to their fitness for the role'.[158]
  3. [190]
    During the proceedings, Inspector Corey Allen gave evidence in relation to how Mr Brar's circumstances led to a decision to consider his suitability for the role in accordance with s 5.12(4) rather than relying on the disciplinary powers in s 7.4 of the PSAA. He told the Commission:

Because of the judgement and decision-making shown by Mr Brar, you know, a number of times throughout this. So I guess – so, you know, both what happened at the club, the – during the CCTV and the showing of identification at the club showed to me a lack of discretion and judgment, you know, when he was operating independently in particularly. (sic) Then, you know, the subsequent follow-on events of the altercation at the club. Receiving a banning notice is quite significant. They don’t normally go to the effort of that unless, you know, significant things have happened there. His conduct with the other police officer at the front counter of the station when he went to report the assault and then obviously the nine times accessing police information on QPRIME, you know, when we go to great lengths with people that are inducted at the police and serving members that this is a significant concern that’s damaging reputation. It shows very poor judgement. The series of poor decisions and judgement over a period of time, particularly when he’s operating independently. So, first year constables normally work with a supervisor and, you know, they probably help them to make better decisions and make good decisions and make good choices, but this to me, particularly of someone who’s you know, got enough experience and has been in for some time, to that repeatedly shows a degree of unsuitability that’s not palatable for continuing, so a show cause process is definitely preferred to a disciplinary process.[159]

  1. [191]
    I have determined that Mr Brar, through his conduct which is the subject of Allegations One, Two and Three did not comply with the Standard of Practice. He failed to exercise sound judgement or conduct himself responsibly and ethically.
  2. [192]
    I accept QPS' submissions that it was open to the Commissioner, to conclude, pursuant to s 5.12(4) of the PSAA, that Mr Brar did not meet the requirements of the role, and to terminate his employment in circumstances where he was deemed to be unsuitable.

Was the dismissal proportionate to Mr Brar's conduct?

  1. [193]
    Mr Brar has questioned whether his dismissal was proportionate to the disciplinary findings, observing that it was open to AC Pond to determine a lesser penalty.
  2. [194]
    AC Pond's evidence during the proceedings was that Mr Brar had:
  • conducted himself unprofessionally;
  • failed to maintain the highest ethical standards required of a public sector employee and a Queensland Police Officer;
  • made selfish decisions without considering the consequences;
  • abused his position;
  • breached the trust required of QPS Officers; and
  • brought negative attention and reputational harm to the QPS.[160]
  1. [195]
    AC Pond observed the breaches of the SoP had occurred whilst Mr Brar was on probation and in circumstances where he was fully aware his performance in the role was reviewable during the probationary period.[161]
  2. [196]
    She considered that through his actions Mr Brar had demonstrated a total disregard for the QPS, and the values and integrity inherent in being a QPS member, behaving in a manner which suggested he was above those responsibilities.[162]
  3. [197]
    On the evidence, and as touched on earlier I have determined Mr Brar engaged, other than the two exceptions set out earlier, in the conduct which is the subject of Allegations One, Two and Three.
  4. [198]
    In doing so, Mr Brar failed to meet relevant obligations and responsibilities set out in the SoP,[163] and other expectations of the QPS, while he was a probationary constable.
  5. [199]
    For these reasons, Mr Brar's dismissal was not disproportionate to his conduct.

Conclusion

  1. [200]
    The primary issue for determination in this proceeding is whether Mr Brar's dismissal from his position as a probationary Constable of Police, pursuant to section 5.12(4) of the PSAA was harsh, unjust or unreasonable. The dismissal followed an investigation and show cause process, whereafter the QPS concluded he had:
  • In respect of Allegation One, engaged in behaviour and personal conduct that was not befitting of a member of the QPS;
  • In respect of Allegation Two, engaged in behaviour and personal conduct that was inappropriate, unauthorised and unjustified; and
  • In respect of Allegation Three, failed to display behaviour, attitude and integrity expected of an employee of the QPS.[164]
  1. [201]
    AC Pond concluded there were sufficient reasons that had arisen during Mr Brar's probationary period that demonstrated he was not suited to continue in the role. Moreover, that he had engaged in behaviour which was inconsistent and incompatible with QPS values and policies.
  2. [202]
    As stated earlier, the evidence has satisfied me that Mr Brar engaged in the conduct that is the subject of Allegation One, Two and Three, albeit there was insufficient evidence to support the conclusion in Allegation One that he was aggressive towards staff at the Toybox or whether he was argumentative while receiving feedback during recruit training.
  3. [203]
    Mr Brar claims his dismissal is disproportionate to the disciplinary findings. Certainly, had his dismissal been based solely on the events at the Toybox on 5 April 2019 and were he not a probationary employee, then I would most likely have agreed.
  4. [204]
    Regrettably however, he engaged in further conduct that brought him to the attention of QPS and ultimately triggered the powers under section 5.12(4) of the PSAA.
  5. [205]
    Importantly, this is not a case where the Respondent is required to prove misconduct in order to enliven the powers within section 5.12 of the PSAA.
  6. [206]
    The primary reason for the inclusion of section 5.12 in the PSAA is to ensure appointees, either in the first instance or on promotion, are capable of performing to a satisfactory standard.[165] 
  7. [207]
    In Police Service Board v Morris,[166] the High Court stated:

The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers.  Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers.  The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency.[167]

  1. [208]
    The Police Commissioner is entitled to identify, pursuant to s 5.12(4) of the PSAA, first-time probation officers who do not meet the requirements of the role In circumstances where Police Officers wield significant power and influence, it is essential the Police Commissioner is able to identify probationary appointees who are not suited to the position.
  2. [209]
    Although I am profoundly conscious of the study Mr Brar undertook with a view to becoming a police officer and aware of his aspirations to build a career within the QPS, his conduct when considered in its entirety, demonstrated a lack of judgement and poor decision making and a serious disregard for several QPS Standards. I consider this to be the case, even in circumstances where there has been insufficient evidence to reach a conclusion in respect of two of the particulars mentioned earlier.
  3. [210]
    Notably, Mr Brar's inappropriate interaction with Constable Hommema on the evening of 6 April 2019, which also encompassed his decision to file an assault complaint against the Manager of the Toybox, with the primary goal of removing a Scantek ban that prevented him from entering certain licenced premises for twelve months, in combination with his subsequent and repeated access of QPRIME both before and after he withdrew the complaint, despite being aware of the prohibitions around access to police information, was most unsatisfactory.
  4. [211]
    As touched on earlier, Mr Brar maintains, particularly in relation to his improper access of QPRIME, that it was open to the Commissioner to implement a penalty well short of dismissal. Moreover, even if the other allegations are made out, he considers dismissal is a disproportionate response.
  5. [212]
    The difficulty with this approach is that Mr Brar failed to meet relevant obligations and responsibilities set out in the SoP.[168] Mr Brar was a probationary constable at the time this occurred.
  6. [213]
    In particular, Mr Brar's repeated accessing of information within QPRIME was unauthorised and in breach of the SoP and several other Directions from the (then) Police Commissioner. He was also charged and found guilty of a criminal offence relating to his unauthorised access of QPRIME.
  7. [214]
    In those circumstances, I consider it was open to AC Pond to conclude Mr Brar was not suited to continue in the role of probationary Constable. Moreover, the decision to terminate his employment was formed on reasonable grounds.
  8. [215]
    For the same reasons, I am also of the view the decision to terminate Mr Brar's employment was proportionate to his conduct.
  9. [216]
    For all of these reasons, and having regard to the factors in s 320 of the IR Act, I am not satisfied Mr Brar's dismissal was harsh, unjust or unreasonable.
  1. [217]
    Mr Brar's application for reinstatement is dismissed.

Footnotes

[1] QPS' closing submissions filed 11 May 2022, [3].

[2] Ibid.

[3] Police Service and Administration Act 1990 (Qld) s 5.12.

[4] Ibid s 5.12(4)(b)(i).

[5] Exhibit 26.

[6] Industrial Relations Act 2016 (Qld) s 316.

[7] Mr Brar's Statement of Facts and Contentions filed 8 June 2021 [32].

[8] Mr Brar's closing submissions filed 9 June 2022 [37] – [38].

[9] QPS' closing submissions filed 11 May 2022 [2].

[10] Exhibit 1 [35].

[11] Mr Brar's Statement of Facts and Contentions filed 8 June 2021 [18].

[12] Ibid [19].

[13] Ibid [20].

[14] Exhibit 26.

[15] Ibid.

[16] Ibid.

[17] QPS' Form 12A – Employer response to application for reinstatement filed on 6 July 2020, [50] – [56].

[18] Ibid, [20] – [23].

[19] Ibid [27]-[31].

[20] Ibid [34]-[35].

[21] Exhibit 26 [55].

[22] Police Service Administration Act 1990 (Qld) s 5.12.

[23] Ibid ss 5.12(2), 5.12(4)(i).

[24] Ibid s 5.12(4)(ii).

[25] Industrial Relations Act 2016 (Qld) s 316.

[26] Ibid s 320.

[27] Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG.

[28] Bostik (Aust) Pty Ltd v Georgevski (No 1) (1992) 36 FCR 20, 28.

[29] Industrial Relations Act 2016 (Qld) s 320.

[30] T 2-4, ll 30-55; T 2-5, ll 0-15.

[31] Industrial Relations Act 2016 (Qld) s 320(d).

[32] Code of Conduct for the Queensland Public Service, 1 January 2011.

[33] Public Services Act 2008 (Qld) s 188; Public Sector Ethics Act 1994 (Qld) s 11; Code of Conduct for the Queensland Public Service, 1 January 2011.

[34] Exhibit 10.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] T 1-41, ll 1-10.

[40] Exhibit 11.

[41] Ibid, cl 18.

[42] Exhibit 26.

[43] Ibid.

[44] Exhibit 1.

[45] Exhibit 1 [36]-[40].

[46] Exhibit 23; Exhibit 24.

[47] Exhibit 24, 6-7.

[48] Exhibit 23, 5.

[49] Exhibit 1, [40]-[41].

[50] T 1-34, l 15.

[51] T 1-34, ll 25-45.

[52] T 1-35, ll 10-35.

[53] T 1-36, ll 5-10.

[54] T 1-36, l 15.

[55] T 1-36, ll 16-20.

[56] T 1-36, ll 20-25.

[57] T 1-40, ll 30-40.

[58] T 1-41, ll 0-10.

[59] T 1-41, ll 15-17.

[60] T 1-41, ll 25-35.

[61] T 1-44, ll 35-40.

[62] T 1-47, l 25.

[63] T 1-41, ll 25-30.

[64] T 1-47, l 32.

[65] T 1-47, l 34.

[66] T 1-63, ll 1-40.

[67] T 1-47, ll 28-30.

[68] T 1-47, l 38.

[69] T 1-73, ll 30-35.

[70] T 1-74, ll 25-40.

[71] Exhibit 16.

[72] T 1-81, l 45.

[73] T 1-82, ll 1-5.

[74] T 1-85, ll 15-20.

[75] Exhibit 4; Exhibit 5.

[76] Mr Brar's closing submissions filed 9 June 2022 [10] – [15].

[77] T 1-40, ll 28-40; Exhibit 4; Exhibit 5.

[78] Exhibit 4; Exhibit 5.

[79] T 1-41, ll 1-5.

[80] Exhibit 11.

[81] T 1-41, ll 1-10.

[82] Exhibit 19.

[83] Exhibit 14.

[84] Exhibit 10.

[85] T 1-36, l 15.

[86] Mr Brar's closing submissions filed 9 June 2022 [14]-[15].

[87] Exhibit 21.

[88] Exhibit 29.

[89] Exhibit 24; Exhibit 23; T 1-48, ll 20-45.

[90] Exhibit 12.

[91] Exhibit 28 [11].

[92] Exhibit 6, 7.

[93] Exhibit 28 [14].

[94] Exhibit 7.

[95] Ibid.

[96] Exhibit 28.

[97] Exhibit 10, cl 15.

[98] Ibid cl 16.

[99] Exhibit 9, 1.

[100] Exhibit 29, 120-128.

[101] Ibid.

[102] Ibid.

[103] QPS' Form 12A – Employer response to application for reinstatement filed on 6 July 2020.

[104] Exhibit 1 [110].

[105] T 1-57, ll 43-45.

[106] T 1-58, 11 25-35.

[107] Mr Brar's closing submissions filed 9 June 2022, [16]-[17].

[108] Mr Brar's submissions filed 15 October 2021, [14](a).

[109] Exhibit 29, 18 – 19.

[110] QPS’ Form 12A – Employer response to application for reinstatement filed on 6 July 2020, [27] – [39].

[111] Exhibit 29.

[112] Ibid.

[113] Ibid.

[114] Exhibit 22.

[115] Exhibit 1, [99]; T 1-48, ll 10-35.

[116] Exhibit 24, 8.

[117] Ibid [117].

[118] Exhibit 1 [109].

[119] T 1-49, ll 30-35.

[120] T 1-51, ll 10-20.

[121] T 1-50, ll 10-30.

[122] T 1-51, ll 32-42.

[123] T 1-52, l 20.

[124] T 1-48, ll 42-49.

[125] T 1-49, l 36.

[126] T 1-82, ll 5-40.

[127] T 1-83, ll 5-20.

[128] Exhibit 21 [3]-[4].

[129] Ibid [4].

[130] Ibid [5].

[131] Ibid.

[132] Ibid [8].

[133] Ibid [8].

[134] Ibid [9].

[135] Ibid [12].

[136] Ibid

[137] Ibid [14].

[138] T 2-20, l 50.

[139] Ibid [15].

[140] Ibid [16].

[141] Ibid [17], [19](iii).

[142] Ibid [16].

[143] Mr Brar's Closing Submissions filed 9 June 2022 [22].

[144] QPS' closing submissions filed 11 May 2022 [18].

[145] Exhibit 27.

[146] Ibid.

[147] Exhibit 1.

[148] Exhibit 1 [21].

[149] Ibid [22].

[150] Exhibit 26.

[151] T 1-39 to T 1-40.

[152] QPS’ closing submissions filed 11 May 2022, [48].

[153] Ibid [42].

[154] Police Service Board v Morris (1985) 156 CLR 397.

[155] QPS’ closing submissions filed 11 May 2022, [45].

[156] Nesterowich v Acting Assistant Commissioner Deborah Platz [2017] QCAT 139, [3].

[157] Ibid.

[158] Ibid [49].

[159] T 2-12, l 43 to T 2-13, l 15.

[160] Exhibit 26 [18].

[161] Ibid.

[162] Ibid.

[163] Exhibit 10.

[164] Exhibit 26 [54], [56].

[165] Explanatory Notes, Police Service Administration Bill 1990 (Qld) 5.

[166] (1985) 156 CLR 397.

[167] Police Service Board v Morris (1985) 156 CLR 397.

[168] Exhibit 10.

Close

Editorial Notes

  • Published Case Name:

    Brar v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Brar v State of Queensland (Queensland Police Service)

  • MNC:

    [2023] QIRC 142

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    26 May 2023

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
Bostik (Aust) Pty Ltd v Gorgevski (1992) 36 FCR 20
2 citations
Jump To
Cite 1 - (1992) 36 FCR 20
Cite 2 - (1992) 36 FCR 20
Briginshaw v Briginshaw (1938) 60 CLR 335
1 citation
Jump To
Cite 1 - (1938) 60 CLR 335
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Nesterowich v Acting Assistant Commissioner Platz [2017] QCAT 139
1 citation
Jump To
Cite 1 - [2017] QCAT 139
Nesterowich v Platz [2018] QCATA 119
1 citation
Jump To
Cite 1 - [2018] QCATA 119
Police Service Board v Morris & Martin (1985) 156 CLR 397
4 citations
Jump To
Cite 1 - (1985) 156 CLR 397
Cite 2 - (1985) 156 CLR 397
Cite 3 - (1985) 156 CLR 397
Cite 4 - (1985) 156 CLR 397

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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