Johnson v State of Queensland (Queensland Corrective Services)
[2024] QIRC 228
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- Unreported Judgment
- Johnson v State of Queensland (Queensland Corrective Services)[2024] QIRC 228
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Johnson v State of Queensland (Queensland Corrective Services)[2024] QIRC 228
Johnson v State of Queensland (Queensland Corrective Services)[2024] QIRC 228
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Johnson v State of Queensland (Queensland Corrective Services) [2024] QIRC 228 |
PARTIES: | Johnson, David (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent) |
CASE NO: | PSA/2023/254 |
PROCEEDING: | Public Sector Appeal – Fair Treatment Decision |
DELIVERED ON: | 16 September 2024 |
MEMBER: | McLennan IC |
HEARD AT: | On the papers |
ORDERS: | Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, I will set the decision aside, and substitute another decision as follows:
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against disciplinary findings – where the appellant was acting in the position of correctional supervisor – where conduct allegations substantiated – where the appellant appeals the decision that the alleged conduct meets the threshold for misconduct – whether the disciplinary finding decision was fair and reasonable |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564 Public Sector Act 2022 (Qld) s 3, s 4, s 90, s 91, s 129, s 131, s 133 Directive 05/23: Discipline cl 7, cl 9, cl 13 Directive 17/20: Workplace investigations cl 6 |
CASES: | Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116 Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170 |
Reasons for Decision
Background
- [1]Mr David Johnson (the Appellant) has been employed by Queensland Corrective Services (QCS) (the Respondent) since 1998.
- [2]At the time of each of the alleged incidents, Mr Johnson was working as an Acting Correctional Supervisor.
- [3]In December 2022, a matter of months prior to the alleged incidents, Mr Johnson was subject of management action. In that separate matter, Acting General Manager Chris Davis conducted mediation between Mr Johnson and Correctional Supervisor Sylvester. While it was considered resolved at local level, the Delegate noted it was relevant to the present case because Mr Johnson had just been reminded of his obligations under the Code of Conduct and was "specifically told by A/GM Davis not to touch people moving forward and to be aware of how you communicate. You were therefore on notice about behaving appropriately in the workplace."[1]
The Disciplinary Process
- [4]A workplace investigation was conducted into various allegations against the Appellant.
- [5]A disciplinary process was then commenced.
Disciplinary Finding Decision
- [6]By letter dated 13 December 2023, the Delegate issued the Disciplinary Finding Decision to 'partially substantiate' three allegations and 'substantiate' the fourth allegation.[2]
Grounds for Discipline
- [7]With respect to Allegations 1, 2 and 3, the Delegate found the Appellant was "guilty of misconduct, namely inappropriate or improper conduct in an official capacity". On that basis, the Delegate decided that grounds for discipline arose pursuant to s 91(1)(b) of the PS Act.
- [8]With respect to Allegation 4, the Delegate found the Appellant had "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action … namely the Code of Conduct." On that basis, the Delegate decided that grounds for discipline arose pursuant to s 91(1)(h) of the PS Act.
Appeal Rights
- [9]The Delegate advised the Appellant that he had the right to appeal to the Queensland Industrial Relations Commission (QIRC), if he believed the Disciplinary Finding Decision was not fair or reasonable.
- [10]The Appellant exercised his right to appeal the "fair treatment decision" in the QIRC.
- [11]Shortly after the Appellant filed this Appeal on 22 December 2023, I issued a Directions Order that stayed the Disciplinary Finding Decision until the determination of this appeal or further order of the Commission.[3]
Appeal Grounds
- [12]The Appellant submitted the following as appeal grounds:
The decision was unfair and unreasonable on the following grounds:
a.The Delegate placed undue weight upon:
- i.The assertions of the complainant in Allegation 3, where the CCTV footage does not, on the balance of probabilities, demonstrate what was wholly alleged.
- ii.The CCTV footage in Allegation 4 which cannot reasonably be relied upon to substantiate the allegation. Conclusions were made on the alleged conduct that cannot objectively be made.
b.Allegations 1, 2 and 3 do not meet the threshold for misconduct.[4]
Outcome sought
Appellant
- [13]
Respondent
- [14]The Respondent asked that the disciplinary finding decision be confirmed, and the appeal be dismissed.[7]
Jurisdiction
- [15]Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act provides that an appeal may be made against "a fair treatment decision". Where a fair treatment decision is defined to be:
… a decision a public sector employee believes is unfair an unreasonable.[8]
- [16]The Appellant has been an employee of the Respondent at all times relevant to this appeal.
- [17]I am satisfied that the fair treatment decision can be appealed.
Timeframe to Appeal
- [18]Section 564(3)(d) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
- [19]The Delegate's decision letter was dated 13 December 2023, and received by the Appellant on 14 December 2023. This appeal was filed on 22 December 2023.
- [20]I am satisfied that the Appeal Notice was filed within the required timeframe of 21 days.
Appeal principles
- [21]Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[9]
- [22]A public service appeal under the IR Act is not by way of rehearing,[10] but involves a review of the decision arrived at and the decision–making process associated therewith.
- [23]Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.
- [24]Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.
What decisions can the Industrial Commissioner make?
- [25]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- confirm the decision appealed against; or
- set the decision aside and substitute another decision; or
- set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Submissions
- [26]The parties filed written submissions in accordance with the Directions Order issued.
- [27]I have carefully considered all submissions and materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.
Relevant provisions of the PS Act
- [28]Section 3 of the PS Act provides:
3 Main purposes of Act
The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.
- [29]Section 4 of the PS Act provides:
4How main purpose is primarily achieved
The main purpose of this Act is to be achieved primarily by —
…
- creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by -
- providing for the key rights, obligations and employment arrangements of public sector employees; and
- maximising employment security and permanency of employment; and
- taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and
- ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and
- ensuring fair and accountable decision-making, including be providing public sector employees with access to fair and independent reviews and appeals; and
- setting a positive performance management framework for public sector employees; and
- fixing principles to guide public sector managers, and the work performance and personal conduct of public sector employees; and
…
- [30]Section 91 of the PS Act relevantly provides as follows (emphasis added):
(1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
…
- been guilty of misconduct; or
…
- contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
- [31]Section 91(5) of the PS Act relevantly provides:
- In this section –
misconduct means -
- inappropriate or improper conduct in an official capacity; or
- …
Example of misconduct –
victimising[11] another public sector employee in the course of the other employee's employment in the public sector
Relevant provisions of the Directive
- [32]Directive 05/23: Discipline (the Directive) relevantly provides (emphasis added):
7.1Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
7.2Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:
a.the seriousness of the employee's personal conduct and/or work performance, and
b.whether the matter should be resolved through management action instead, and
c.whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and
d.whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and
e.whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and
f.if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and
g.whether further information is required to make a decision to commence a disciplinary process, and h. for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.
…
9.3Show cause process for disciplinary finding
a.the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
b.written details of each allegation in clause 9.3(a) must include:
i.the allegation
ii.the particulars of the facts considered by the chief executive for the allegation
iii.the disciplinary ground under section 91 of the Act that applies to the allegation
c.when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation
d.a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence
e.the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension
f.if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
9.4 Decision on grounds (disciplinary finding)
a.the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities
b.the chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding
c. for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established
d. the employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals
e. if the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation f. if the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
9.5 Show cause process for proposed disciplinary action
a.the chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)
b.the chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented
c.the disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act
d.in proposing appropriate and proportionate disciplinary action, the chief executive should consider:
i.the seriousness of the disciplinary finding
ii.the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
iii.whether extenuating or mitigating circumstances applied to the employee’s actions
iv. the employee’s overall work record including previous management interventions and/or disciplinary proceedings
v.the employee’s explanation (if any)
vi.the degree of risk to the health and safety of employees, customers and members of the public
vii.the impact on the employee’s ability to perform the duties of their position
viii.the employee’s potential for modified behaviour in the work unit or elsewhere
ix.the impact a financial penalty may have on the employee
x.the cumulative impact that a reduction in classification and/or pay-point may have on the employee
xi.the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding
e.a show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated
f.the chief executive must provide the employee with a minimum of seven days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
g.if the employee does not respond to a show cause notice on disciplinary action or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.
…
13. Appeals
13.1 A subject employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 131 of the Act.
- [33]The Directive defines relevant terms as follows:
Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: relevance of the evidence to the allegations seriousness of the allegations inherent likelihood or improbability of a particular thing or event occurring gravity of the consequences flowing from a particular finding.
…
Disciplinary ground has the meaning provided for under section 91 of the Act.
…
Misconduct has the meaning provided for under section 91(5) of the Act.
Questions to be Decided
- [34]The question to be decided is:
Was the Delegate's Disciplinary Finding Decision fair and reasonable?
- [35]In particular, the Appellant appeals the following elements of the Delegate's decision:
- With respect to Allegation 1, the Appellant does not contest the Delegate's finding that this allegation is 'partially substantiated'.
However, the Appellant does appeal the Delegate's decision that the conduct "meets the threshold for misconduct".[12]
- With respect to Allegation 2, the Appellant does not contest the Delegate's finding that this allegation is 'partially substantiated'.
However, the Appellant does appeal the Delegate's decision that the conduct "meets the threshold for misconduct".[13]
- With respect to Allegation 3, the Appellant does appeal the Delegate's finding that this allegation is 'partially substantiated'. (The Appellant also appeals the Delegate's decision that the alleged conduct "meets the threshold for misconduct").[14]
- With respect to Allegation 4, the Appellant does appeal the Delegate's finding that this allegation is 'substantiated'.[15] (The Appellant also appeals the Delegate's decision that the alleged conduct "contravened, without reasonable excuse, a relevant standard of conduct … namely the Code of Conduct").[16]
- [36]I note the Appellant's appeal grounds do not include any complaints about procedural fairness.
Summary of Findings
- [37]For the reasons explained below:
- With respect to the 'partially substantiated' Allegation 1,[17] I find that it was not fair and reasonable for the Delegate to determine that the conduct "meets the threshold for misconduct".[18]
- With respect to the 'partially substantiated' Allegation 2,[19] I find that it was not fair and reasonable for the Delegate to determine that the conduct "meets the threshold for misconduct".[20]
- With respect to Allegation 3:[21]
- a)I find that it was fair and reasonable for the Delegate to determine that the allegation is 'partially substantiated'.
- b)I find that it was not fair and reasonable for the Delegate to determine that the conduct "meets the threshold for misconduct".[22]
- With respect to Allegation 4:
- a)I find that it was fair and reasonable for the Delegate to determine that the allegation is 'substantiated'.
- b)I find that it was fair and reasonable for the Delegate to determine that the conduct "contravened, without reasonable excuse, a relevant standard of conduct … namely the Code of Conduct".[23]
- [38]I have detailed my consideration of each of these elements below.
Balance of probabilities
- [39]The Delegate's disciplinary finding decision was made on the 'balance of probabilities'. The wording of Briginshaw v Briginshaw ('Briginshaw')[24] is incorporated into the Directive, and there is no contention that said principle does not apply in this instance.
- [40]The Directive prescribes that:
… For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:
- relevance of the evidence to the allegations
- seriousness of the allegations
- inherent likelihood or improbability of a particular thing or event occurring
- gravity of the consequences flowing from a particular finding.[25]
- [41]In civil matters, the standard of proof is the balance of probabilities.[26] The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed. As explained by Dixon J in Briginshaw:
… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…
(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[27]
- [42]It may also be relevant to consider the evidence that would reasonably be expected to exist if the events alleged did indeed occur. It should be noted that circumstantial evidence is not excluded by Briginshaw or the concept of an 'exactness of proof'. Indeed, it is not unusual even for matters considered on the more onerous criminal standard of proof to be proved entirely with circumstantial evidence. In Chamberlain v The Queen (No 2)[28] Gibbs CJ and Mason J provided:
When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged …[29]
- [43]The question is then whether it was open for the Delegate to be reasonably satisfied of each of the disciplinary findings. That question informs whether the decision was fair and reasonable. It is not a hearing de novo.
Fair and Reasonable
- [44]The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors[30] (emphasis added, citations removed):
The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.
The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.
A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.
The pluarity in Li said:
… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful …
… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker …
… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification. [31]
Could the Delegate be 'reasonably satisfied' that discipline grounds have been established?
- [45]Section 91 of the PS Act prescribes that a chief executive "may discipline the employee if the chief executive is reasonably satisfied the employee has" done the "act or omission" constituting the disciplinary ground.
- [46]In this appeal, the Appellant challenges the disciplinary finding made by the Respondent. A disciplinary finding means a finding that a disciplinary ground exists.[32]
- [47]The disciplinary grounds are set out in s 91(1)(a)-(h) of the PS Act. That includes where the employee has "been guilty of misconduct".[33]
- [48]The consideration of "misconduct" under s 91 of the PS Act is significant in this matter.
- [49]In the case of Ball v State of Queensland (Queensland Corrective Services) ('Ball')[34] O'Connor VP relevantly explained (emphasis added, citations omitted):
[79]Apart from the definition of misconduct in s 187(4), the PS Act does not provide guidance as to what is meant by 'inappropriate' or 'improper' conduct.
[80]In Mathieu v Higgins & Anor, Daubney J was called upon to determine whether the conduct of a Paramedic in the performance of his duties constituted misconduct as defined in s 10(a) of the Queensland Ambulance Service ('QAS') Policy. The term 'misconduct' is defined as 'disgraceful or improper conduct in an official capacity'.
…
[83]Daubney J, in considering s 10(a) of the QAS Policy, was of the view that it is not appropriate to rigidly separate the definition into its component parts; the words 'disgraceful' and 'improper' are included in the definition as alternatives, but nonetheless should not be regarded as wholly independent. Rather, each term should be read as giving colour to the other. His Honour held that:
'[M]isconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.
[84]Daubney J cited, with approval, the reasoning of Kirby P (as his Honour then was) in Pillai v Messiter (No.2) which addressed the meaning of the expression, 'misconduct in a professional respect' in the Medical Practitioners Act 1938 (NSW). Kirby P said:
But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.
- [50]In Ball, O'Connor VP went on to cite with approval Merrell DP's considerations of 'misconduct' in Coleman v State of Queensland (Department of Education)[35] in these terms (emphasis added):
In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[36]
- [51]Merrell DP adopted the same approach in The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service,[37] in which he also held that (emphasis added):
In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies.[38]
Consideration
- [52]With respect to all four allegations, it is important to note that the Delegate did not find that Mr Johnson engaged in sexual harassment.
Allegation 1
ALLEGATION 1
On 28 February 2023 at Woodford Correctional Centre (WFDCC), you:
- a)failed to treat Acting Intelligence Analyst (A/IA) Maryanne Paterson with courtesy and respect; and
- b)harassed A/IA Paterson,
;by approaching her from behind and then raising your right leg to then push your body into her person.
- [53]CCTV footage of the incident showed A/IA Paterson walked up to the door of the MSU Control Room, then waited for the door to be released. Mr Johnson walked "in an unhurried manner" towards her, glanced down "in the direction of her legs, lift up [his] right foot (as if to take another step forward), bend [his] knee and deliberately push [himself] ([his] knee and the lower half of [his] body) into A/IA Paterson." The Delegate rightly rejected Mr Johnson's submissions that the contact was accidental and that he was not expecting A/IA Paterson to stop at the door.[39] The Delegate noted the CCTV footage showed it was clearly intentional. The Delegate determined that Mr Johnson did deliberately push his right knee and lower body into A/IA Paterson.[40]
- [54]The Delegate concluded (emphasis added):
As an acting correctional supervisor, I expect you to be aware of, and model, an appropriate standard of behaviour at all times. I also expect you to be familiar with the QCS leadership competencies and demonstrate those competencies at all times. Pushing your knee and lower body into the side of a female employee, who is in a subordinate position to you, is unprofessional and falls below the standard expected for an employee in a leadership role.
In summary, I find that you failed to treat A/IA Paterson with courtesy and respect by approaching her from behind and then raising your right leg to then push your body into her person.
However, I find that you did not harass A/IA Paterson as there is insufficient evidence to make a finding that your conduct was harassment.[41]
- [55]Essentially, the Delegate found Mr Johnson failed to treat his colleague with respect, but did not harass her.
- [56]The Appellant does not contest the Delegate's finding that this allegation is 'partially substantiated'. The question to be decided is only whether the 'partially substantiated' allegation meets the threshold for misconduct.
- [57]I have carefully viewed the CCTV footage of the incident. It appears to me that Mr Johnson has (inexpertly) attempted to 'dead leg'[42] his colleague, as she waited for the door to be released. The execution of that action, combined with his large statute, caused Mr Johnson's stomach to also collide with A/IA Paterson. An experience that had undeniably left her "shocked and uncomfortable". Though I very much doubt that Mr Johnson intended for the momentum caused by his knee lift to result in his stomach so rapidly following, as it did, thereby also making contact with his colleague's person.
- [58]Given my observations of what I saw on the CCTV footage to have occurred, together with the above criterion of 'misconduct' firmly in mind, I do not agree with the Delegate's conclusion that the Appellant's actions contained in Allegation amount to 'misconduct'. That is because while the 'dead leg' act was certainly "deliberate" and "a departure from accepted standards", I do not agree that the 'stomach contact' was so. With respect to the stomach contact, while that was clearly "a departure from accepted standards" there is insufficient evidence to find that aspect was "deliberate".
- [59]That does not disturb the Delegate's conclusion that Allegation One is "partially substantiated" because I concur with the Delegate that sub-part a) of the allegation is made out and sub-part b) is not made out.
- [60]However, what remains is the consideration of whether or not sub-part a) of the allegation constitutes 'misconduct'. Even if I am wrong about the absence of "deliberateness" with respect to the 'stomach contact', my view remains that the action of a 'dead leg' (and resultant momentum) does not sit at the same degree of seriousness as the other two limbs of the definition of 'misconduct' contained above. That is, I do not believe that Mr Johnson's conduct comfortably co-exists at the same level of wrongdoing as either "serious negligence to the point of indifference" or "an abuse of the privilege and confidence enjoyed by a public service employee".
- [61]In coming to this conclusion, I am also mindful of the observations of Daubney J, cited with approval and further developed by O'Connor VP in Ball. In that earlier case, Daubney J's consideration of the term 'misconduct' included 'disgraceful or improper' conduct in an official capacity. O'Connor VP noted that Daubney J was "of the view that it is not appropriate to rigidly separate the definition into its component parts; the words 'disgraceful' and 'improper' are included in the definition as alternatives, but nonetheless should not be regarded as wholly independent. Rather, each term should be read as giving colour to the other."
- [62]With that in mind, was the conduct contained in sub-part a) of Allegation One 'disgraceful' and 'improper'? Synonyms for 'disgraceful' include "scandalous, dishonourable, reprehensible, appalling" (and more); while 'improper' includes "inappropriate, unfitting, indecorous" (and more). In my view, the conduct was certainly 'improper', but does not go as far as being also 'disgraceful'. While I accept Daubney J considered that 'misconduct' was informed by whether the act was 'disgraceful' or 'improper', it is also the case that they "should not be regarded as wholly independent. Rather, each term should be read as giving colour to the other." Daubney J held that misconduct "contemplates something more than mere incompetence, or a failure to attain the established standards of conduct." Relating those comments to Mr Johnson and the matter at hand, I am of the view that 'misconduct' must be more than mere childish behaviour or a poorly executed attempt at horse play, notwithstanding that it is certainly a failure to attain the established standards of conduct.
- [63]A conservative approach is the appropriate course. That is consistent with the 'balance of probabilities' as defined in the Directive, where the strength of evidence necessary can vary according to the seriousness of the allegations and the gravity of the consequences flowing from a particular finding. It is indisputable that a finding of 'misconduct' is extremely serious. That is underscored here, where the disciplinary action of 'termination of employment' is proposed. The distinction is also important because it is not the only 'grounds for discipline' available to the Delegate, upon her finding that sub-part a) of Allegation One is made out. The Delegate also had the option of s 91(1)(h) of the PS Act available to her, with respect to the conduct.
- [64]For the above reasons, the Delegate's determination that Mr Johnson's conduct (as contained at sub-part a) of Allegation One) constituted 'misconduct' was not fair and reasonable.
- [65]Instead, I find that the appropriate 'grounds for discipline' for the conduct is under s 91(1)(h) of the PS Act – "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action."
Allegation 2
ALLEGATION 2
On 1 March 2023 at WFDCC, you:
- a)failed to treat Human Resources Officer (HRO) Rachel Lawrance with courtesy and respect; and
- b)harassed HRO Lawrance, by leaning across her desk and sticking your finger into HRO Lawrance's ear on two occasions.
- [66]The Delegate stated:
I am satisfied based on the evidence of HRO Lawrance and Roster Officer (RO) Claire Irving that:
…
- HRO Lawrance and RO Irving briefly spoke about a vacancy for the Night Shift Supervisor on the roster for the following evening.
- [Mr Johnson] asked what HRO Lawrance and RO Irving were talking about. HRO Lawrance told [Mr Johnson] that [he] didn't need to know about it.
- [Mr Johnson] approached HRO Lawrance, leaned over the desk towards her, and stated words to the effect of 'Tell me, I need to know.'
- HRO Lawrance replied 'No you don't.'
- You then stuck your finger in HRO Lawrance's right ear.
- HRO Lawrance pulled away and stated words to the effect of 'Ew no, don't do that.'
- You leaned across the desk and stuck your finger in HRO Lawrance's right ear again.
- The following exchange then took place:
HRO Lawrance:No, that's gross, don't.
You:But I need to know that information.
HRO Lawrance:No Dave, you don't, just walk away.
- You did not say anything to HRO Lawrance on either occasion when you made contact with her.
…
… there is direct evidence from HRO Lawrance and corroborative evidence from RO Irving that the date of the incident was 1 March 2023…Both HRO Lawrance and RO Irving sent emails to General Manager Stuart McHaffie about the incident on 1 March 2023 …[43]
- [67]The Delegate concluded (emphasis added):
As an acting correctional supervisor, I expect you to be aware of, and model, an appropriate standard of behaviour at all times. I also expect you to be familiar with the QCS leadership competencies and demonstrate those competencies at all times. Sticking your finger, or pretending to stick your finger, into the ear of a female employee who is in a subordinate position to you is unprofessional and falls below the standard expected for an employee in a leadership role.
In summary, I find that you failed to treat HRO Lawrance with courtesy and respect by leaning across her desk and sticking your finger into her ear on two occasions.
However, I find that you did not harass HRO Lawrance as there is insufficient evidence to make a finding that your conduct was harassment.[44]
- [68]Essentially, the Delegate found Mr Johnson failed to treat his colleague with respect, but did not harass her.
- [69]There is no CCTV footage of this incident filed, though it was corroborated by RO Irving and the Appellant does not contest the Delegate's finding that sub-part a) of Allegation Two is made out.
- [70]Accepting then that Mr Johnson did indeed stick his finger into the ear of his colleague twice, in rapid succession, the question then is whether that conduct meets the threshold for misconduct.
- [71]As at Allegation One above, my view remains that the conduct subject of sub-part a) of Allegation Two does not sit at the same degree of seriousness as the other two limbs of the definition of 'misconduct' contained above. That is, I do not believe that Mr Johnson's conduct comfortably co-exists at the same level of wrongdoing as either "serious negligence to the point of indifference" or "an abuse of the privilege and confidence enjoyed by a public service employee".
- [72]I rely on my consideration of 'misconduct' at [61]-[63] of this Decision, as the reasoning for this conclusion.
- [73]For the above reasons, the Delegate's determination that Mr Johnson's conduct (as contained at sub-part a) of Allegation Two) constituted 'misconduct' was not fair and reasonable.
- [74]Instead, I find that the appropriate 'grounds for discipline' for the conduct is under s 91(1)(h) of the PS Act - "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action."
Allegations 3 and 4
ALLEGATION 3
On 15 May 2023 at WFDCC, you:
- a)failed to treat Custodial Correctional Officer (CCO) Shaun Carling with courtesy and respect; and
- b)harassed CCO Carling, by physically backing your body into the body of CCO Carling.
ALLEGATION 4
On 15 May 2023 at WFDCC, you communicated and behaved in an inappropriate manner while you were standing in the November 4 airlock in N Block with CCO Carling and other staff.
- [75]Here, the Appellant does appeal the Delegate's finding that Allegations 3 and 4 are 'partially substantiated'. The Appellant also appeals the Delegate's decision that the conduct subject of Allegation 3 "meets the threshold for misconduct" – and that the conduct subject of Allegation 4 "contravened, without reasonable excuse, a relevant standard of conduct … namely the Code of Conduct".
Allegation Three (a)
- [76]What occurred was that a prisoner required assistance for a medical issue in the night. A nurse attended to the prisoner. Mr Johnson and CCO Carling walked back towards the N4 airlock, with the nurse pushing a wheelchair. The CCTV footage of the N4 airlock showed that CCO Carling, the nurse with wheelchair, Mr Johnson and another officer were all inside the airlock.
- [77]Based on the evidence of CCO Carling and the CCTV footage, the Delegate found that whilst inside Mr Johnson stood with his back to CCO Carling but very close to him, as CCO Carling continued to hold the door open. The Delegate said that Mr Johnson then "proceeded to push [his] body back into CCO Carling", turned to look at him, then Mr Johnson "moved [his] right hand to the inside of CCO Carling's right thigh, near his groin, and squeezed his leg." The Delegate noted that as the airlock door started to close, CCO Carling moved immediately into the space that had opened up, but that Mr Johnson then "attempted to follow CCO Carling into the space behind the door, pushing against him with [his] body. CCO Carling pushed [him] away with his hand. [Mr Johnson] pushed the door closed and moved back into the middle of the airlock. CCO Carling then turned…with his back to [Mr Johnson]."[45]
- [78]The Delegate stated:
It is clear from the CCTV footage of the incident that there was sufficient room (and time) for you to move into the corner in front of you, behind the officer holding the outer door. The airlock was not that tightly packed that there was nowhere else for you to go. Notwithstanding the size of your body, it was not necessary for you to position yourself so closely to CCO Carling or to follow him into the corner of the airlock when he moved away from you.
I note that you do not address the fact that CCO Carling pushed you away when you followed him behind the door which is evident in the CCTV footage.
…
It makes no sense that if CCO Carling is holding the airlock door, you would reach behind you to find the door but not grab it, and potentially "graze" CCO Carling in the process…The CCTV footage shows that CCO Carling retains hold of the door. You then gesture to CCO Carling to close the door with your right hand before grabbing it yourself and pushing it shut.
I prefer the evidence of CCO Carling that you pushed your body back into him, causing him to press back against the Lexan, turned your head to look at him and then squeezed his leg. This aligns with the next sequence of events in the CCTV footage which sees CCO Carling immediately move away from you into the corner as soon as the door has closed and push you away when you attempt to follow him.[46]
- [79]The Delegate considered that CCO Carling's account was credible as he "provided a consistent version of events", made the complaint about "4 weeks after the incident without reviewing the CCTV footage. His complaint aligned with the events in the footage."[47]
- [80]The Delegate concluded (emphasis added):
As an acting correctional supervisor, I expect you to be aware of, and model, an appropriate standard of behaviour at all times. I also expect you to be familiar with the QCS leadership competencies and demonstrate those competencies at all times. Making unnecessary physical contact with an employee who is in a subordinate position to you is unprofessional and falls below the standard expected for an employee in a leadership role.
In summary, I find that you failed to treat CCO Carling with courtesy and respect by physically backing your body into the body of CCO Carling.
However, I find that you did not harass CCO Carling as there is insufficient evidence to make a finding that your conduct was harassment.[48]
- [81]Essentially, the Delegate found Mr Johnson failed to treat his colleague with respect, but did not harass him.
- [82]Despite the Delegate's positive assessment of CCO Carling's credibility and her consideration that unnecessary contact with the complainant's leg may have occurred, the Delegate stopped short of making a formal finding on that aspect. Significantly, the wording of Allegation Three does not include the matter of the leg contact. In finding sub-part a) of Allegation Three to be made out, the Delegate concluded that Mr Johnson failed to treat his colleague with respect "by physically backing your body into the body of CCO Carling". The parameters set by the wording of the allegation are important.
- [83]In framing the allegation and finding as she did, it is apparent that the Delegate appropriately paid very close regard to the "strength of evidence necessary to establish an allegation on the balance of probabilities", including the seriousness of the allegations and the gravity of the consequences, pursuant to the Directive.
- [84]In his interview with the external investigator, Mr Johnson said he had a 'run in' with CCO Carling in the second half of 2022 about the management of a prisoner in the exercise yard. CCO Carling had not been successful in talking the prisoner down and was reportedly of the view that the officers should "kit up and seek permission to gas him". Mr Johnson said he had "a chat with the prisoner, talked him down, got him back to his cell, and there was no incident." Mr Johnson said that CCO Carling "verbalised he was unhappy" with Mr Johnson's management style at that time."[49]
- [85]In his interview with the external investigator, Mr Johnson acknowledged making bodily contact with CCO Carling while jostling for room in the airlock. He explained that "… he was doing what CCO Carling was doing, getting away from the nurse so that the outer door could be opened. The nurse with the wheelchair was hard up against the outer door. For the [outer] door to turn inwards, she needed to move with the wheelchair. He was doing what CCO Carling was doing, and they just happened to go in the same space."[50] Mr Johnson strongly denied squeezing CCO Carling's thigh, stating that he did not grab his colleague's leg "intentionally or unintentionally as described by CCO Carling, though accepted his hand may have 'grazed' CCO Carling's outer thigh."[51] Mr Johnson's view was that the complaint arose because CCO Carling was "hanging on to issues" from months ago, regarding prisoner management.[52]
- [86]Mr Johnson submitted that the allegation "cannot be substantiated on reasonable grounds" and concluded that "In light of the lack of clear CCTV footage the serious allegation of squeezing CCO Carling's leg has been substantiated on the basis of CCO Carling's evidence alone."[53]
- [87]As earlier noted though, the Delegate did not make any finding on the alleged leg squeeze within her final conclusion. The Delegate instead relied on Mr Johnson "deliberately backing his body into" CCO Carling, as grounds for a finding of 'misconduct' as "a deliberate departure from accepted standards".[54]
- [88]I have carefully viewed the CCTV footage of the incident. It appears to me that Mr Johnson did not unnecessarily or inappropriately back his body into CCO Carling when entering the airlock. It was a tight squeeze across the width of the space, until the door was shut behind Mr Johnson (as the last person to enter). In hindsight, any of the three people already in the airlock could have positioned themselves better, in order to accommodate a fourth person of Mr Johnson's stature. The nurse might have wheeled the chair a bit closer to the front door, and closer to the right side of the space too, to facilitate Mr Johnson's ease of entry - even if that meant the nurse was required to back it up again, in order to exit. The officer closest to the front door could have stood closer to the top left corner of the airlock - and CCO Carling might have moved to the bottom left corner, behind the door, rather than stand at the side of it holding it open. Presumably, Mr Johnson moving through the door could have held it open for himself and then would have had more room to comfortably stand before closing it. None of those things happened though. Instead, the wheelchair was not flush against the right side of the space, CCO Carling stood holding the door open, and CCO Johnson seemed barely able to squeeze between the wheelchair and CCO Carling to enter the airlock. I did not see anything inappropriate on the CCTV footage up to that point.
- [89]However, it is a different matter when the door is closed. The CCTV footage showed CCO Carling then appropriately moving into the available space behind the door - and Mr Johnson then appears to deliberately back his body into him, then turn to say something directed to CCO Carling's back, and round off the interaction by scratching his nose with a raised middle finger (the latter act being subject of Allegation Four).
- [90]At the point where the airlock door closes and CCO Carling moves into the corner behind the door, it is clear from the CCTV footage that Mr Johnson did deliberately back into him. I agree with the Delegate's conclusion that was not accidental. My view is supported by Mr Johnson's apparent comment to CCO Carling's back, immediately prior to the nose scratch with his middle finger. On that basis, I believe the Delegate has correctly found that sub-part a) of Allegation Three has been made out. Again, I stress that the allegation is contained to a finding that Mr Johnson "failed to treat Custodial Correctional Officer (CCO) Shaun Carling with courtesy and respect…by physically backing your body into the body of CCO Carling." The Delegate's decision to sub-part a) of Allegation Three was fair and reasonable.
- [91]Given those express parameters of the Delegate's decision on the allegation, the second question then is whether that conduct meets the threshold for misconduct.
- [92]As at Allegations One and Two above, my view remains that the conduct subject of sub-part a) of Allegation Three does not sit at the same degree of seriousness as the other two limbs of the definition of 'misconduct' contained above. That is, I do not believe that Mr Johnson's conduct comfortably co-exists at the same level of wrongdoing as either "serious negligence to the point of indifference" or "an abuse of the privilege and confidence enjoyed by a public service employee".
- [93]I rely on my consideration of 'misconduct' at [61]- [63] of this Decision, as the reasoning for this conclusion.
- [94]For the above reasons, the Delegate's determination that Mr Johnson's conduct (as contained at sub-part a) of Allegation Three) constituted 'misconduct' was not fair and reasonable.
- [95]Instead, I find that the appropriate 'grounds for discipline' for the conduct is under s 91(1)(h) of the PS Act - "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action."
Allegation Four
- [96]The essence of Mr Johnson's submission was that he was only scratching his nose with his middle finger.
- [97]The Delegate did not accept that suggestion. Neither can I.
- [98]For the reasons concisely put in the decision letter, the Delegate concluded that it was plain to see that Mr Johnson was 'giving the finger' to CCO Carling behind his back – and that in doing so, it appeared Mr Johnson was deriding CCO Carling to an audience on the other side of the glass wall. The Delegate's explanation for her finding was fair and reasonable.
- [99]Mr Johnson's position is that the Respondent ought to have sought evidence from the officer(s) on the other side of the airlock door, who would have had "contextual knowledge of the action, which … would have been a more reliable assessment." Further, that the Respondent's failure to retain all CCTV footage of the alleged incidents causes prejudice to Mr Johnson because "there are a number of camera angles that capture the airlock and likely captured that alleged incidents, and this additional footage might have been exculpatory."[55] With respect to those lines of argument, my view is that the CCTV footage is clear and Mr Johnson's gesture cannot be misunderstood. Even if more CCTV footage was available, I cannot see how that would assist Mr Johnson. I believe it would simply show him making the gesture behind CCO Carling's back, from different angles. That call does not advance Mr Johnson's defence.
- [100]Neither does Mr Johnson's submission that "the decision maker should decide each allegation on its own merits …" In this case, the conduct subject of Allegation Four occurred immediately after the conduct subject of Allegation Three (a) - and the incident was captured on CCTV footage. The Delegate correctly noted that Mr Johnson can be seen backing his body into CCO Carling. That is the context in which Mr Johnson gives the finger to CCO Carling's back immediately afterwards. Those two allegations are inextricably connected. It was fair and reasonable for the Delegate to consider the events as such.
- [101]With respect to Mr Johnson's submission that "in order to make a different determination from an investigation report the decision maker should be able to point to new and significant information …",[56] that is not correct. The Respondent refers to the precise wording of Directive 17/20: Workplace investigations cl 6.7 in support of its position that "There is no obligation for the decision-maker to agree with the investigator's findings …"[57]
- [102]For the conduct subject of Allegation 4, that I have confirmed to be 'substantiated', I support the Delegate's determination that Mr Johnson "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, pursuant to s 91(1)(h) of the Act."
- [103]Both the Delegate's finding, and identification of the grounds for discipline, was fair and reasonable.
- [104]I order accordingly.
Orders
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, I will set the decision aside, and substitute another decision as follows:
- Allegation 1(a) is 'substantiated'. Grounds for discipline arise under s 91(1)(h) of the Public Sector Act 2022.
- Allegation 2(a) is 'substantiated'. Grounds for discipline arise under s 91(1)(h) of the Public Sector Act 2022.
- Allegation 3(a) is 'substantiated'. Grounds for discipline arise under s 91(1)(h) of the Public Sector Act 2022.
- Allegation 4 is 'substantiated'. Grounds for discipline arise under s 91(1)(h) of the Public Sector Act 2022.
Footnotes
[1] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 16.
[2] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023.
[3] Directions Order issued 8 January 2024, 1.
[4] Appeal Notice filed 22 December 2023, Schedule 1, [2].
[5] Ibid [9].
[6] Ibid [2].
[7] Respondent's submissions filed 30 January 2024, [33]-[34].
[8] Public Sector Act 2022 (Qld) s 129.
[9] Industrial Relations Act 2016 (Qld) s 562B(3).
[10] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).
[11] The Macquarie Dictionary defines 'victimise' as:
- to make a victim of.
- to punish unfairly.
- to discipline or punish selectively, especially as a result of an industrial dispute: four men were victimised by management after the strike.
- to treat unfairly, especially in the area of employment, usually on the basis of sexism, racism, etc.
- to dupe, swindle, or cheat: to victimise tourists.
- to slay as or like a sacrificial victim.
[12] Appeal Notice filed 22 December 2023, Schedule 1, [2]b.
[13] Ibid [2]b.
[14] Ibid [2]b.
[15] Ibid [2]b.
[16] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 16.
[17] That is, Allegation One(a).
[18] Appeal Notice filed 22 December 2023, Schedule 1, [2]b.
[19] That is, Allegation Two(a).
[20] Appeal Notice filed 22 December 2023, Schedule 1, [2]b.
[21] That is, Allegation Three(a).
[22] Appeal Notice filed 22 December 2023, Schedule 1, [2]b.
[23] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 16.
[24] (1938) 60 CLR 336.
[25] Directive 05/23: Discipline, 'Definitions'.
[26] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.
[27] Briginshaw v Briginshaw (1938) 60 CLR 336, 363.
[28] (1984) 153 CLR 521.
[29] Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536.
[30] [2019] QSC 170.
[31] Gilmour v Waddell & Ors [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].
[32] Public Sector Act 2022 (Qld) s 90.
[33] Ibid s 91(1)(b).
[34] [2021] QIRC 116.
[35] [2020] QIRC 032.
[36] Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116 [86], citing Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 13 [62].
[37] [2020] QIRC 067.
[38] Ibid [36].
[39] After working with QCS, that particular submission was quite nonsensical. Mr Johnson would have well understood how the doors worked by then.
[40] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 7.
[41] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 7.
[42] Verb, informal, 'dead leg' is to "give (someone) a numbing blow to the upper leg with one's knee"; a form of prank more common amongst school students.
[43] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 7-8.
[44] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 11.
[45] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 12-13.
[46] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 13-14.
[47] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 14.
[48] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 11.
[49] Final Report prepared by Ashdale, 9-10.
[50] Ibid 10.
[51] Ibid 12.
[52] Ibid.
[53] Appellant's submissions filed 23 January 2023, [9], [17].
[54] Correspondence from Deputy Commissioner Ursula Roeder, Community Corrections and Specialist Operations to Acting Correctional Supervisor David Johnson dated 13 December 2023, 15.
[55] Appellant's submissions filed 23 January 2024, [27].
[56] Ibid [24].
[57] Respondent's submissions filed 30 January 2023 [24].