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CITE

Unreported Judgment

Patterson v State of Queensland (Queensland Corrective Services) (No. 2)[2024] QIRC 287Pratt IC
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Patterson v State of Queensland (Queensland Corrective Services) (No. 2)[2024] QIRC 287

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Patterson v State of Queensland (Queensland Corrective Services) (No. 2) [2024] QIRC 287
PARTIES:	Patterson, Gail Appellant v State of Queensland (Queensland Corrective Services) Respondent
CASE NO:	PSA/2024/47
PROCEEDING:	Public Sector Appeal – Disciplinary Decision
DELIVERED ON:	6 December 2024
MEMBER:	Pratt IC
HEARD AT:	On the papers
ORDERS:	The orders contained in paragraph [123] of these reasons for decision.
CATCHWORDS:	INDUSTRIAL LAW – APPEAL – PUBLIC SECTOR PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a disciplinary action decision – appeal against a disciplinary finding decision – appeal against disciplinary action decision lodged within 21-day limitation period – appeal against the disciplinary finding decision lodged out of time – whether extension of time should be granted – extension of time allowed – consideration of the connection between disciplinary action and disciplinary finding decisions – consideration of the prospects of success generally – consideration of the prospects of success with respect to the disciplinary finding decision – where the appeal of the disciplinary finding decision is allowed – where the appeal of the disciplinary finding decision is set aside and substituted – held that the Appellant did not engage in misconduct pursuant to s 91(1)(b) of the Public Sector Act 2022 – where the appeal of the disciplinary action decision is allowed – where the disciplinary action decision is set aside – where it is held that no disciplinary action be imposed – appeal allowed
LEGISLATION:	Acts Interpretation Act 1954 (Qld) s 38 Corrective Services Act 2006 (Qld) s 143 Industrial Relations Act 2016 (Qld) ss 562B, 564 Public Sector Act 2022 (Qld) ss 91, 129, 131, 132
CASES:	Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330 Briginshaw v Briginshaw [1938] HCA 34 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Cahill v State of New South Wales (Department of Community Services) (No. 4) [2008] NSWIRComm 201 Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16 Coleman v State of Queensland (Department of Education) [2020] QIRC 32. Condon v State of Queensland (Queensland Health) [2023] QIRC 23 Cullen v State of Queensland (Queensland Health) [2021] QIRC 258 Gibson v State of Queensland (Queensland Health) [2024] QIRC 90 Gurdler v State of Queensland (Queensland Health) [2024] QIRC 213 Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 Magor v State of Queensland (Queensland Corrective Services) [2022] QIRC 35 Mathieu v Higgins [2008] QSC 209 O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283 Pflaum v State of Queensland (Department of Education) [2024] QIRC 50 Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Stacey v State of Queensland (Department of Education) [2024] QIRC 220

Reasons for Decision

About this matter

[1]
This is a public sector appeal pursuant to s 130 of the Public Sector Act 2022 (Qld) ('PS Act') by Ms Gail Patterson ('Appellant') against a decision to impose discipline ('Disciplinary Action Decision'). A jurisdictional issue arises in this appeal which seeks to disturb an earlier decision finding that the Appellant engaged in misconduct. An appeal of that earlier decision would be well outside the 21-day time period allowed for appeals of this nature to be filed.

Relevant background

[2]
The Appellant has been employed by Queensland Corrective Services ('QCS') at Brisbane Correctional Centre ('BCC') since 1997. She holds the role of Correctional Supervisor (GS3.4) and has done since 2003.

[3]
On 14 January 2023 there was an incident requiring a response by the Appellant ('Incident') involving a prisoner ('Prisoner'). A subsequent investigation resulted in a decision dated 8 December 2023, which relevantly found that the Appellant's response to the Incident constituted 'misconduct' as it was an unreasonable use of force in the circumstances ('Finding Decision').

[4]
A show cause process ensued and on 26 February 2024, the Respondent issued a decision to impose disciplinary action ('Disciplinary Action Decision'). The discipline imposed comprised demoting the Appellant out of management and into the role of Custodial Correctional Officer (GS2.4) for 18 months (at a cost to the Appellant of around $20,000) and requiring the Appellant to attend Tactical Options Response – Use of Force and Maybo training. The Disciplinary Action Decision is entirely based on the Finding Decision that the Appellant engaged in misconduct within the meaning of that term as it appears in s 91(1) (b) of the PS Act.

[5]
Through her appeal of the Disciplinary Action Decision, the Appellant actually seeks to appeal the earlier Finding Decision as well. That raises a jurisdictional issue in the sense that appeals of such decisions must be lodged within 21 days of, in this case, the employee being given the relevant decision. An appeal of the Disciplinary Action Decision was lodged within time. But any appeal embedded within that application that seeks to overturn the earlier Finding Decision has not been filed within the 21-day limitation period.

Issues to be resolved

[6]
The issues to be resolved are:

Should the Appellant be allowed extra time to appeal the Finding Decision?

If so, was that Finding Decision fair and reasonable?

Was the Disciplinary Action Decision fair and reasonable?

[7]
Before addressing those issues, it is necessary to set out the nature of the incident that gave rise to the Finding Decision and the Disciplinary Action Decision.

The 'Incident'

[8]
The Incident involved an attempt by the Appellant to subdue the Prisoner by spraying the Prisoner's face with a chemical agent called MK IV (i.e. capsicum spray) on 14 January 2023 at the BCC. A key finding was that at the time, the Prisoner was ground stabilised and was being restrained down by several other officers.

[9]
Earlier on the day of the Incident, the Prisoner had been placed in a prone position, in restraints, on a mattress on the floor of his cell and was under watch by an officer posted outside the cell. The Prisoner's movement was restrained in several ways. His ankles were shackled and his wrists were held by handcuffs that were secured in front of his torso by a short chain linked to a "body belt", which is a large belt fitted to the waist.

[10]
These restraints were imposed because, earlier that day, the Prisoner had engaged in acts of self-harm (as well as violence directed at officers). Specifically, attempting to chew off one of his own fingers resulting in 'Code Blue' alerts being called. The Prisoner had earlier caused himself some harm and his wounds had been dressed. There were, in fact, three Code Blue alerts called that day in relation to the Prisoner and this repeated self-harming behaviour. The Incident occurred during the third Code Blue alert.
[11]
Whilst under watch in the above circumstances, the Prisoner managed to wriggle the body belt up his torso so that he could again reach his fingers with his teeth. He began to self-harm and this prompted the third Code Blue alert. That was attended by several officers, including the Appellant who was the supervisor on scene.

[12]
The cell mounted camera footage is without sound. It is not a continuous motion footage, however, it does provide time stamping and some indication of what occurred. It was considered by the Respondent as part of its decision-making process. So too was the footage from the cameras worn by various officers attending the Code Blue alert.

[13]
The cell wall camera footage shows that an officer entered the cell, quickly followed by another and then the Appellant. The first officer immediately went to the Prisoner's left side, knelt down and controlled the Prisoner's hands. The second officer knelt at the Prisoner's head and held the Prisoner's head. It is clear that the Prisoner was struggling. The Appellant moved into position at the Prisoner's feet and stood with both of her feet, apparently on the chain running between the cuffs fitted to the Prisoner's ankles.

[14]
In my view, the footage displays that the Prisoner continued to wriggle and struggle during this time. A fourth officer entered the cell about 20 seconds later, attempted to put on a glove, left briefly and came back with more gloves, knelt beside the Prisoner and assisted with restraining the Prisoner's hands. About 20 seconds later, the Appellant spoke into her radio, maintaining her position at the Prisoner's feet. In less than a minute, two more officers entered the cell and one of them took over control of the Prisoner's feet allowing the Appellant to step back and again speak into her radio. Within the next 20 seconds, the Prisoner managed to turn partly onto his side and the officers attempted to control him whilst he wriggled.

[15]
At about this point, the Appellant resumed her position at the Prisoner's ankles. In the following minute, an officer handed two blankets to another officer who was kneeling over the Prisoner who appears to have ceased struggling. About a minute and a half later, however, the Prisoner resumed struggling and wriggling. So much so that the Appellant, who was still standing on the chain between the ankle cuffs, lost her balance slightly and was steadied by other officers standing close by. Two more officers entered the cell and assisted with restraining the Prisoner. About 20 seconds later, the Appellant removed a red canister from her belt and stepped towards the prisoner's head. About 23 seconds later, the Appellant deployed some of the contents of the canister towards the Prisoner's face.

[16]
The body worn camera footage reveals verbal exchanges that were taking place. Whilst each relevant officer's camera was activated at slightly different points in time, there is consistent overlap in the footage. I have set out a summary below from [17] to [34] of below.

[17]
As the officer who opened the door to the Prisoner's cell does so, the Appellant can be heard saying "Come on Bradley". Another female officer at the door of the cell said "Bradley, seriously?" and the Appellant instructed "Just go in". At this point in time, the Prisoner was laying on the cell floor mattress and his fingers were in his mouth. Blood can be seen on bandages and bedding. The officer who opened the cell door immediately went to the Prisoner's side and knelt down beside him, restraining the Prisoner's hands. As she approached the Prisoner, that officer said "Bradley, I want you to stop. I want you to stop. I want you to stop."

[18]
Once the officer was by the Prisoner's side and restraining his hands she said "I need you to stop. C'mon man, enough." At that time, the first officer was immediately followed into the cell by a male officer and the Appellant. The male officer went to the Prisoner’s head and knelt down to restrain the Prisoner’s head. The Appellant then said "Bradley! What the hell's going on!" The first officer then said to the Prisoner "It's not just about your mum, is it? Is it? Brad? Brad? …Don’t resit me bud." The Prisoner then began weeping. The officer beside him called for gloves. Two other officers arrived to assist. The female officer continued to hold the Prisoner's arms down at around his chest against his body. Meanwhile the male officer continued to hold down the Prisoner’s head.

[19]
At that point in time the Appellant can be heard asking another officer "… have you got those other…" to which the officer replied "Yeah, but I don't know how to use them". The Appellant asked "Ahh, Toby?" And the officer responded, "He might, yeah". The investigation materials reveal that this was a reference to what is referred to as a "high-risk body belt". This is a different form of restraint device to the standard "body belt", which the Prisoner was wearing at this time. The Control and Restraint Manual does not provide instructions for how to use the high-risk body belt, however, the standard body belt is included in that manual.

[20]
The body worn camera footage shows that the Prisoner continued to struggle and can be heard in the footage grunting and breathing heavily whilst he attempted to move his arms, which were being held down by the officers. The first of the officers to arrive was relieved by another, who held the Prisoner’s hands away from his mouth while that first officer put on some rubber gloves. That first officer then took over restraining the prisoner's wrists and others assisted. Whilst that was occurring one of the officers said, "Stop resisting Brad." The Appellant then said, "Brad, cut it out pal. Seriously, you don’t want a 50-year old fat woman laying all over the top of you, okay, hey?"

[21]
The Prisoner continued to breathe heavily, and grunted, apparently continuing to struggle. The Appellant said, "I'm on his cuffs. He can't do anything." One of the officers then followed by saying, "He can't do anything". The officer holding down the Prisoner's head said, "You done yet? You done? You not done yet." The Appellant then said, "He can't move because I'm on his cuffs". This was a reference to the position that the Appellant had taken up standing on the chain linking the two ankle cuffs worn by the Prisoner to secure the Prisoner's legs which has been canvassed at paragraph [13] of these reasons.

[22]
Again, the Prisoner can be heard and seen in some of the footage, grunting and breathing heavily. Since the Prisoner was not wearing a shirt, it is readily apparent from the footage that the Prisoner was attempting to overpower the officers and pull his hands towards his mouth. For example, it can be seen that the Prisoner’s upper arm muscles are flexed as he grunts and breathes heavily. There is some movement of the Prisoner’s hands but the officers maintain control and prevent the hands from reaching the Prisoner's mouth.

[23]
An officer then said, "Just relax Brad". The Appellant then asked the Prisoner, "Brad, what else is going on, mate?" The Prisoner replied, "Just want some water". The Appellant then said "You want some water. But you keep chewing your finger." The Prisoner said in response, "Hmm" and the Appellant asked, "Why?" The Prisoner's response was, "Because I want it off". The Appellant then said "Ok, chewing it off is not going to do anything for you pal, okay?"

[24]
The Appellant is then heard asking another officer, Custodial Correctional Officer ('CCO') Brown, "Where is Toby?" The response from CCO Brown was "He's in the mess. It's a long run, what do you need?" The Appellant asked CCO Brown "Do you know how to put that other body belt on, the high-risk one?" CCO Brown said, "I did a long time ago but it's been a while".

[25]
It is apparent from the footage that at about this point, the Prisoner again tried, in earnest, to pull his hands towards his mouth. The Appellant said, "Brad, stop! Mate, you can't do anything!" The Prisoner continued to struggle and another officer said "Brad, just relax mate. Relax. Just calm down. Take some breaths. Deep breaths. Deep breaths, that's it. Good man. Good man. Deep breaths. Take some breaths, calm down. Good. Can you breathe ok? Good."

[26]
The Prisoner appeared to indeed calm down and was not breathing as heavily or apparently fighting to move his hands toward his mouth. The officer who had encouraged the Prisoner to calm down attempted to engage with him further and asked, "Is there anything else going on that you want to tell us?" The Prisoner was able to slightly nod his head from side to side and the officer confirmed that the answer was "No". The Prisoner then said, "I just want some water." To that the officer replied, "You want some water, all right. Well, we can't do that right now, can we? If we stop playing these games, we might be able to".

[27]
It is at this point in time where the prisoner took a couple of deep breaths and then renewed his efforts in attempting to break free of the grip the officers had and bring his hands to his mouth. Another officer said, "Don't resist. Don't resist. If you need us to adjust or something, just talk to us." The Prisoner can be seen to be straining his arms again to the point where they are a quivering against the force of those restraining him from pulling his hands towards his mouth. The Appellant said "Brad, stop it! Cut it out pal! Stop it! You cannot do anything!"

[28]
The Prisoner responded, "Hmm? Can't I?" The Appellant then asked the Prisoner "Do you want to be gassed? Do you want to be gassed?" The Prisoner replied, "I don't think you have the balls to do it". The Appellant asked "Huh?" and the Prisoner responded, "I don't think you have the guts to do it". The Appellant can then be heard to say, "All right." The Prisoner continued to struggle and breathe heavily in attempting to pull his hands towards his mouth. He then said loudly "Just fucken do it!" The Prisoner continued to attempt to bring his hands and mouth together for approximately another 15 seconds when the Appellant, who had removed the chemical spray canister from her belt, approached the Prisoner and said, "Guys, I'm gonna gas him. Gas, gas, gas" and deployed the chemical agent to the Prisoner's face.

[29]
The Prisoner was then subdued, coughed profusely and gave up attempting to chew off his finger. He was kept in restraints for a time and provided with a shower in the cell, some water to drink and rinse his face as well as and towels, and a second shower after being moved outdoors for a while and attended to by medical staff.

[30]
The Appellant remained in control of the situation and monitored the Prisoner as he recovered. First, the Prisoner was assisted into the shower within his cell. One officer assisting the Prisoner said to him, "You good? You good? You good?" to which the Prisoner replied "I’m good". The officer then asked "Do ya want some fresh air?" and the Prisoner replied "Yes please". The officer then said "Yeah? We’ll get you out into the yard. Don’t fucken fight, you hear it? Don’t, don’t resist. We’re going to get you out, we’re going to get you out."

[31]
The Prisoner was then assisted to move from the shower in his cell out to an outdoor area to sit down. The Appellant remained close by and continued to monitor the Prisoner's wellbeing, as did several other officers. The Appellant asked the Prisoner "Brad, how you doing?" to which the Prisoner replied "I'm burning". The Appellant confirmed "Hey? Your burning? To which the Prisoner replied "yeah". The Appellant then said "All right. You had enough?", to which the Prisoner said something that cannot be made out. The Appellant said "You have?" and the Prisoner replied "Yeah, truce." Another officer said "Truce?" and the Prisoner replied "Truce".

[32]
The Prisoner was given towels to assist with the effects of the chemical agent and approximately a minute later the Appellant asked the Prisoner if he wanted some water. The Prisoner replied "Yes please". There is a pause of approximately 6 seconds and the Appellant said "Do not dare me to do stuff. Right. Stand him up" The Prisoner was then assisted to his feet by the officers assisting him as medial staff approached and were shown, by the Appellant, the Prisoner's injuries.

[33]
The Prisoner then sat down again for a while in the outside area and was subsequently moved, with the assistance of the officers, back to a cell for a shower. Upon reaching the cell the Appellant instructed the officers, "Right, just turn him around for a second please?" The Appellant than spoke to the Prisoner, "Right, Bradley? We're going to be taking this off so you can have a shower. Is that welcoming?" The Prisoner replied, "Yeah" and the Appellant said "Right. Behave yourself." To which the Prisoner Replied "Yeah". The Appellant followed with "D'you understand?" and the Prisoner again said "Yeah". The Appellant then said, "All right." and moved away to allow other officers to assist with removing the Prisoner's body belt, then the ankle restraints.

[34]
As the ankle restraints were being removed, an officer advised the Prisoner "Now Bradley, this is your opportunity to relax and not go any further with this. We've got a fresh shower here, fresh clothes, fresh bedding. And from here, if you are to continue with the self-harm we'll put you in a high risk body belt, which is a lot more uncomfortable and you won't be able to move at all, okay? And you'll be wearing a helmet too. And its super restrictive; uncomfortable; claustrophobic; it's awful; it'd probably be worse than the gas. We're going to get you out of this, so you can make your own decisions. You can have a shower, and ..." The Appellant then added, "All right. And gas is plentiful. So do not do this again mate, okay?" The Prisoner was moved to his shower and then left alone and secured in his cell.

Relevant law

Relevant legislation regarding limitation period

[35]
Section 564 of the Industrial Relations Act 2016 (Qld) says:

An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.

However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.

In this section—

"appeal period" , for an appeal against a decision to an industrial tribunal, means the period within 21 days after—

if the decision is given at a hearing—the announcement of the decision at the hearing; or

if the decision is given through the registrar—the release of the decision; or

if the decision is a promotion decision—the decision is publicly notified under the Public Sector Act 2022 ; or

if, under another Act, the decision is given in another way—the decision is given in the other way.

Relevant legislation regarding public service appeals

[36]
Section 562B of the IR Act says:

This section applies to a public service appeal made to the commission.

The commission must decide the appeal by reviewing the decision appealed against.

The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

For an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022 , the commission—

must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but

may allow other evidence to be taken into account if the commission considers it appropriate.

[37]
Section 91 of the Public Sector Act 2022 (Qld) ('PS Act') says:

A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or

been guilty of misconduct; or

been absent from duty without approved leave and without reasonable excuse; or

contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or

used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee’s employment or secondment by, in response to the requirement—

failing to disclose a serious disciplinary action; or

giving false or misleading information; or

contravened, without reasonable excuse, a provision of—

this Act, other than section 39 or 40 ; or

another Act that applies to the employee in relation to the employee’s employment; or

contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

A disciplinary ground arises when the act or omission constituting the ground is done or made.

Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) , a public sector employee under section 94 or a person under section 95 .

To remove any doubt, it is declared that 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.

In this section—

"misconduct" means—

inappropriate or improper conduct in an official capacity; or

inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

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

"relevant standard of conduct" —

for a public sector employee, means—

a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994 ; and

for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13 (1) —includes a code of practice under section 41 of that Act; and

for a public sector employee who is a fire service officer under the Fire and Emergency Services Act 1990 —includes a code of practice under section 7B of that Act.

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

Relevant legal principles - generally

[38]
In summary, appeals of this nature are by way of a review of the relevant decision, not a re-hearing. In other words, the role of the reviewing jurisdiction is supervisory, not substitutionary.^[1] The Commission must decide whether the relevant decision was fair and reasonable. That task is to be carried out with regard to the information and evidence available to the decision-maker at the relevant time, although regard can be had to other material if appropriate.

[39]
In Colebourne v State of Queensland (Queensland Police Service) (No 2) ('Colebourne'),^[2] his Honour, Merrell DP, concluded that the term "fair and reasonable" should be construed within the ordinary meaning of the phrase as used in the context of section 562B of the IR Act.^[3] His Honour noted that assessing whether a decision was "fair and reasonable" is not an assessment of whether the decision was unreasonable only by reference to the legal standard and not by reference to the factual merits of the decision.^[4] His Honour observed that assessing whether a decision was "fair and reasonable" instead permits a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.^[5]

[40]
In Hunt v State of Queensland (Department of Agriculture and Fisheries) ('Hunt'),^[6] his Honour, O'Connor VP, observed that a decision is unfair where the decision has caused a practical injustice.^[7] His Honour cited Kiefel, Bell and Keane JJ's favourable view of Gleeson CJ's observations in Lam that "[t]he ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed."^[8]

[41]
With respect to s 91 of the PS Act, His Honour, Merrell DP, held in Coleman v State of Queensland (Department of Education) ('Coleman')^[9] that misconduct meant "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".^[10]

Relevant cases - multiple decisions within appeals

[42]
In O'Hearn v State of Queensland (Queensland Health)('O'Hearn'),^[11] Power IC considered the situation where conduct findings were challenged as part of an appeal of a later decision imposing disciplinary action. In that case, a separate appeal of the disciplinary finding decision would have been out of time but for the fact that that challenge was part of the appeal of the decision imposing discipline. Power IC considered ss 129 and 131 of the PS Act and determined that being able to appeal a disciplinary finding as a fair treatment decision did not preclude one from appealing those findings as part of an appeal of the decision imposing discipline.^[12] Power IC went on to relevantly find:

[39] In a practical sense, an appeal of the decision on disciplinary action necessarily requires an assessment of whether the disciplinary findings were fair and reasonable in circumstances where it is alleged that such findings were otherwise. It is also necessary to consider the findings when determining the proportionality of disciplinary action.

[43]
In Borkowski v State of Queensland (Queensland Corrective Services),^[13] his Honour, Merrell DP, considered an appeal of a disciplinary action decision which included challenges to the earlier disciplinary finding decisions. His Honour did not deal with the question as to whether the earlier disciplinary finding decisions were out of time as the issue appears not to have been ventilated by the parties in that matter.

[44]
In Condon v State of Queensland (Queensland Health),^[14] McLennan IC dealt with an appeal of a disciplinary action decision that included challenges to the disciplinary finding decision given several months prior. McLennan IC held that any appeal of the disciplinary finding decision was about 4 months out of time. Applying the relevant test as to whether to extend time, McLennan IC determined not to exercise that discretion and decided only the appeal on the disciplinary action decision. In that case, McLennan IC found there to be a lack of explanation for the delay and was unable to adequately assess the merit of the matter.

[45]
The issue is not settled, however. In Pflaum v State of Queensland (Department of Education) ('Pflaum'),^[15] for example, McLennan IC considered appeals brought as one action against both a disciplinary finding decision and a disciplinary action decision. In that matter, the disciplinary finding decision was issued several months before the separate decision on disciplinary action. In between the two decisions there was a show cause process. As part of the disciplinary finding decision in Pflaum, the appellant was advised he could lodge an appeal within 21 days of receipt of the disciplinary finding decision. No such appeal was lodged. McLennan IC determined that the part of the appeal dealing with the disciplinary finding decision was out of time. That is even though it was brought as part of the appeal against the disciplinary action decision; the latter being within the 21-day timeframe set by s 564(3) of the IR Act. Considering that prospects of the matter were not clear cut, McLennan IC determined there to be an inadequate explanation for the delay in filing the appeal of the finding decision and declined to grant an extension of time.^[16]

[46]
In Gibson v State of Queensland (Queensland Health) (No. 1) ('Gibson'),^[17] in a similar situation, Pidgeon IC dealt with an appeal brought on the disciplinary action but which included challenges to an earlier disciplinary finding decision. In that matter, Pidgeon IC determined that the earlier decision was separately appealable and considered an application to extend time in order to hear it. Being a public service appeal, the Commission was able to form a view of merits of the appeal. Pidgeon IC relevantly noted there was a lack of particulars given to the appellant about exactly what sort of discipline he was facing, which indicated that the appeal should be heard and that the case was not without merit to the extent that would support the refusal of an extension of time.^[18]

[47]
In Radanovic v State of Queensland (Department of Education) ('Radanovic'),^[19]Dwyer IC relevantly found that an employee who fails to challenge the previous decision that they are liable to disciplinary action may not later revisit that finding as a basis for challenging the penalty subsequently imposed by a separate, subsequent decision. Dwyer IC observed that there may be a need to examine the preceding finding, for example, to evaluate whether the appeal penalty is excessive. However, the fundamental finding of conduct liable disciplinary action cannot be disturbed in such circumstances.^[20]

Relevant cases – the test for extensions of time applications

[48]
The test for whether the Commission should exercise the discretion to grant an extension of time pursuant to s 564(3) of the IR Act is well settled. It was set out by his Honour, Merrell DP, in Cullen v State of Queensland (Queensland Health)('Cullen'):^[21]

Length of the delay;
The explanation for the delay;
The hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred;
The prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
The conduct of the defendant in the litigation.

[49]
In Cullen, his Honour also set out some lodestars taken from the judgement of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen:^[22]

special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the granting of an extension;
the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and
considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.

The relevant decisions under appeal

The Finding Decision

[50]
The Finding Decision was issued on 8 December 2023. In it, the decision-maker, Deputy Commissioner of Custodial Operations, Mr Gary McCahon ('Mr McCahon'), set out some background, the relevant allegation and a description of some of the Incident that I have set out above from [8] to [35]. The Finding Decision included advice to the Appellant that she was entitled to appeal that decision by way of a fair treatment appeal.

[51]
Mr McCahon also advised the Appellant about the 21-day time limit for any appeal, referring to s 131(1)(d) of the PS Act, saying that the Queensland Industrial Relations Commission Industrial Registry could provide further information about public sector appeal procedures (providing the relevant website address and phone numbers).

[52]
The key finding was that the Appellant used force that was not reasonably necessary against the Prisoner by deploying a chemical agent while the Prisoner was restrained and ground stabilised. The initial allegation that the Prisoner was not warned prior to the use of the chemical agent was withdrawn. No doubt that was because the body worn camera footage revealed, conclusively, that the Appellant did in fact warn the Prisoner very clearly, twice in quick succession …"Do you want to be gassed?".

[53]
Setting out the Appellant's submissions, Mr McCahon appropriately identified that the relevant standard of proof was the balance of probabilities described in the Public Sector Commission Directive Discipline 05/23 ('Directive 05/23') and that it drew from the elements of the case in Briginshaw.^[23] He observed that whilst the Corrective Services Act 2006 ('CS Act') permitted the use of force that was reasonably necessary to restrain a prisoner who is harming him/herself or attempting to do so, the force must be proportionate to the conduct or threat posed by the prisoner.

[54]
Mr McCahon also identified that the Custodial Operations Practice Directive – Use of Force ('COPD') required the Appellant to consider the most appropriate option for a safe and effective outcome to ensure only a reasonable amount of force, justified by law, was used to affect a lawful purpose.

[55]
Mr McCahon had regard to the above-mentioned footage. On the basis of the footage and the statements given during the investigation, Mr McCahon concluded that the Appellant's use of a chemical agent on the Prisoner was not reasonably necessary in the circumstances and was therefore in breach of s 143 of the CS Act and s 8 of the COPD. Mr McCahon's reasons include (in summary):

The finding that at the time the chemical agent was deployed, the Prisoner was ground stabilised and being adequately physically controlled by multiple offices. Mr McCahon concluded that it was evident from the body worn camera footage that the Prisoner was unable to harm himself or the offices that were present in his cell at the time the chemical agent was deployed.

The finding that there was a reasonable alternative to deploying the chemical agent in the form of using the high-risk body belt, which the Appellant did not wait for after requesting it to be procured.

Rejecting the submission that the Appellant reasonably believed the Prisoner was not going to stop self-harming (noting three code blue alerts had been called that day in relation to the Prisoner) on the basis of the above-mentioned circumstances; specifically, that the Prisoner was adequately prevented from harming himself by the multiple offices who were restraining him at the time.

The finding that during the Appellant's recorded interview, after having witnessed the body worn camera footage, the Appellant admitted that part of why she deployed the chemical agent was because she was provoked by the Prisoner; in particular, having regard to that part of the body worn camera footage that depicted the Appellant as saying, "Do not dare me to do stuff" and "Gas is plentiful, so do not do this again mate, okay?"

[56]
Mr McCahon relied on what he described as the Appellant, during her interview, conceding that she was aware that chemical agents must not be used against persons who are physically restrained or otherwise under control. I have thoroughly reviewed that transcript and, in my view, there is no such concession. The Appellant denies she ever made such a concession. What the Appellant did concede in that interview was that in the circumstances, the use of the chemical agent: "wasn't reasonably necessary", although the Appellant was not able to say, and nor could her interviewers, what was the better option in the circumstances.

[57]
Concluding that the Appellant's use of the chemical agent was not reasonably necessary, Mr McCahon formulated his reasons around the often cited statement of Daubney J in Mathieu v Higgins ('Mathieu'),^[24] which was cited and followed in Coleman by his Honour, Merrell DP, and has been followed numerously since. In Mathieu, Daubney J, citing President Kirby's (as his Honour then was) findings in Pillia v Messiter (No 2),^[25] set out how misconduct was expressly separated from other forms of sub-optimal workplace behaviour such as carelessness, incompetence or inefficiency, and that there needed to be something more than mere incompetence, or a failure to attain the established standards of conduct before an act or omission rose to the level of 'misconduct'. To this end, his Honour, Daubney J concluded:

…'misconduct', as used in the relevant 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.

[58]
Mr McCahon found that the Appellant's conduct was both a deliberate departure from accepted standards and an abuse of the privilege and confidence enjoyed by QCS officers. As to the first element, a deliberate departure from accepted standards, there are two parts. First, the deliberate act, and second, the departure from accepted standards.

[59]
In this case, Mr McCahon has obviously concluded (correctly in my view) that the act of discharging the chemical agent was a deliberate one in the sense that it was not accidental. The Appellant deliberately removed the canister from its belt-worn position and took several steps to move into a position more proximate to the Prisoner's head and issued a warning to the Prisoner. The Appellant leaned down with the canister outstretched towards the Prisoner's face and called a further warning heralding the pending deployment of the chemical agent, then deployed the chemical agent.

The Disciplinary Action Decision

[60]
The Disciplinary Action Decision was also made by Mr McCahon. It set out a history of the disciplinary proceedings and referred to the abovementioned 8 December 2023 Finding Decision. Mr McCahon reiterated his finding that the Appellant was guilty of misconduct under s 91(1)(b) being "inappropriate or improper conduct in an official capacity that reflects seriously and adversely on the [QCS]."

[61]
Mr McCahon outlined the Appellant's submissions. I have summarised those submissions, as they were outlined by Mr McCahon, as follows:

The 'heat of the moment' submissions

The use of force was not reasonably necessary in retrospect, as there were other uses of force that could have been used. However, the Appellant argued that serious and genuine consideration should have been given to the inevitability that officers will occasionally make decisions in the heat of the moment that, in retrospect, are not the best decisions. The Appellant also argued that the conduct must be "judged through the lens of having been made in a matter of seconds whilst in a heightened emotional state, rather than critiqued with the benefit of hindsight." The Appellant also noted how this situation was "clearly a one-off" event in her otherwise exemplary 21 years of service. The Appellant also noted that she had never worked in a high-dependent unit before.

The 'reasonable and necessary' submissions

The Appellant acknowledged the legislative and procedural requirements that corrective services officers can only use force that is reasonable in the circumstances and that is necessary and proportionate to the seriousness of the circumstances.

As to the high-risk body belt being a reasonable alternative to the use of the chemical agent, the Appellant argued that she never received formal training on how to use high-risk body belts. Further to this point, the Appellant also argued that the use of high-risk body belts is not part of mandatory training for CCOs, and that it would be unfair to punish the Appellant for not using a high-risk body belt when neither the Appellant, nor other CCOs on hand at the time, were properly trained in how to use that piece of equipment.

The Appellant concluded that "the entire situation could have been avoided" had she and other CCOs been trained in how to use the high-risk body belt. The Appellant also said that she may have been subject to disciplinary action had she used the high-risk body belt without the necessary training and consequently injured the Prisoner.

The Appellant also contradicts another officer's evidence and says that she did not instruct that officer to get a high-risk body belt to use on the prisoner. On my assessment, I note at this point that no such direction can be heard on any of the body worn camera footage. The Appellant insisted that neither she nor any other officer present were adequately qualified to use the high-risk body belt, and so the use of the high-risk body belt was not a reasonable option in the circumstances.

The Appellant also argued that it was necessary to use the chemical spray. While the Prisoner was not actively self-harming, he was clearly attempting to by fighting against the efforts of officers who were keeping his hands from reaching his mouth. This, combined with the Appellant's observations that the other officers were beginning to tire, meant that some further action was needed. Had the Appellant thought that the high-risk body belt was a viable option at the time, she said that it may have been the next step deployed. However, for the reasons explained above, the Appellant had ruled that option out.

The Appellant argued that the Prisoner could only be stopped from harming himself by the application of force and that he was clearly warned about the potential for having to resort to using the chemical agent.

The 'lack of spite or malice' submissions

The Appellant argued that she was not motivated to use the chemical agent out of spite. The Appellant added that the conduct "cannot be construed as anything but… an instinctive decision made under immensely stressful conditions, after other avenues had been explored, and found to be unsuitable." In support of this argument, the Appellant said that she was not being spiteful as she had considered using other alternative lower levels of force. The Appellant acknowledged that the Prisoner's provoking comments did affect her decision-making. However, the Appellant maintains that the use of the chemical agent was not retaliatory, but rather, because the Prisoner himself had made it abundantly clear that it was the only reasonable method of force available at the time to prevent further attempts at self-harm.

The Appellant also vehemently refuted any suggestion that she acted with malice towards the Prisoner. Conceding that she was at her 'wits end' due to the profound emotional and psychological impact that the Prisoner's behaviour had on her, the Appellant also noted having been exposed to repeated similar dealings with the Prisoner.

The 'mitigating factors' submissions

The Appellant argued that the above circumstances should be considered as mitigating against the proposed penalty. As well, the Appellant argued as mitigation her lengthy and good history as a corrections officer and the fact that the Prisoner was a very difficult one, who had caused himself to be sprayed with the same chemical agent several times after the Incident.

The 'disproportionate discipline' submissions

The Appellant also submitted that her conduct did not meet the definition of misconduct and so the proposed disciplinary action was disproportionate to the wrongdoing. In support of this, the Appellant stated:

there were no reasonable alternative measures available, as the high-risk body belt was not a viable option;

the Appellant had turned her mind to other possible options, and ruled them out as not viable, before deploying the chemical agent;

the Incident was extremely stressful, which impacted her decision-making;

the Prisoner was noncompliant with directions and continued to be aggressive towards staff and resisted restraint, including continued attempts to bite one of his own fingers off; and

previous attempts to mechanically and physically restrain the Prisoner were ineffective.

The Appellant said that, in light of these factors, the decision to demote her to such an extent, and for so long, was wholly disproportionate to any offending and so that decision was harsh, unjust and unreasonable.

The Appellant said that the demotion effectively constituted a dismissal, due to the significant reduction in remuneration and duties. Consequently, the Appellant said that to effectively dismiss her would be disproportionate to any wrongdoing.

The Appellant did, however, concede that her decision-making on the day was not up to par when it was her job to effectively make the right decision. Consequently, the Appellant submitted as an alternative punishment:

a reduction in pay point classification from GS3.4 to GS3.3 for a period of 12 months;

a direction to attend Tactical Options Response – Use of Force and Maybo training; and

a direction to attend Mental Health Response training.

Other submissions

The Appellant said that it was worth noting that more needs to be done to assist staff in how to help the Prisoner and other prisoners who have significant mental health issues.

The Appellant also cites Whitfield v Primo Foods [2021] FWC 2729 for the point that effectively dismissing her for a 'single foolish act' made in the heat of the moment, under stress, would expose QCS to an unfair dismissal claim.

[62]
Mr McCahon then outlined the factors that he had regard to in reaching the decision on the disciplinary action to be taken. I have summarised these factors as follows:

The use of chemical agent not reasonable or necessary, and made with poor judgment

Mr McCahon found that the Appellant used a chemical agent on the Prisoner when the Prisoner was adequately restrained, and so the Prisoner was no longer a danger to himself, the Appellant, or anyone else present. Consequently, Mr McCahon concluded that the use of a chemical agent was not warranted. This weighed against the Appellant.

Mr McCahon noted that the CS Act and COPD together authorise the use of force only in specific circumstances, only in a proportionate way, and only in an appropriate and safe manner. Mr McCahon concluded that the Appellant's use of the chemical spray on the prisoner was not reasonably necessary because there were other options available, and thus the use of the chemical agent was not consistent with the CS Act and the COPD. Mr McCahon held this to be a serious error in judgment.

The lack of contrition

Mr McCahon concluded that the Appellant's submissions that there was no reasonable alternative to deploying the chemical agent displayed a lack of contrition or genuine understanding that the use of force was not reasonably necessary. Mr McCahon was not satisfied that the Appellant would have, but for this disciplinary process, reflected on the seriousness of her actions. This weighed against the Appellant in Mr McCahon's view.

Mr McCahon also noted an inconsistency in the Appellant's submissions - conceding on the one hand that the use of force was not reasonably necessary, but at the same time arguing that there was no reasonable alternative. Mr McCahon noted the Appellant's submissions that she had turned her mind to other options, that the stress of the situation impacted the Appellant's decision-making, and that the prior attempts to restrain the Prisoner were ineffective. Mr McCahon was not satisfied that the Appellant genuinely accepted that she made an error in judgment or that the Appellant learned from the experience.

The Appellant's experience

Mr McCahon considered that the Appellant was an experienced public sector employee, as she had been with QCS since 1997 and employed as a Correctional Supervisor since 2008. Consequently, as an experienced officer and supervisor with training, Mr McCahon expected the Appellant to perform her duties with a high degree of responsibility and authority. Holding that the Appellant failed to respond appropriately to the Incident weighed against the Appellant in Mr McCahon's assessment.

Mr McCahon rejected the submission that because it was a 'heat of the moment' decision, made in a stressful situation, this meant that it was inevitable that officers might occasionally use unnecessary force on prisoners. Mr McCahon highlighted that QCS, through the correctional officers and supervisors employed at the correctional facilities, owed a duty of care to prisoners and can only use force where it does not breach the procedural and legislative requirements.

Provocation by the Prisoner

Mr McCahon noted that the Appellant was an experienced correctional supervisor and went on to observe that the Appellant said that she was "at her wits end", had no assistance, and that her decision-making was affected by the Prisoner's remarks. Mr McCahon also noted that the Prisoner had taunted the Appellant. That is a reference to the abovementioned exchange where, when the Appellant warned the Prisoner (twice in quick succession), "Do you want to be gassed", the Prisoner responded first with, "I don’t think you have the balls to do it". After the Appellant said "Huh?" the Prisoner replied, "I don’t think you have the guts to do it". Shortly after that the Appellant said "Right." And the Prisoner called out loudly not long after "Just fucken do it!" The chemical agent was deployed soon after that.

Mr McCahon also heavily weighed the Appellant's later remark to the Prisoner, "Do not dare me to do stuff." (although the full context of that comment was not discussed or set out). Mr McCahon thus inferred that there was a degree of provocation by the Prisoner and that the Appellant succumbed to that provocation where she should not have. Mr McCahon also formed the view that this was more serious because, at the relevant time, the danger of self-harm was being controlled because the Prisoner was being adequately restrained.

Prior disciplinary history

Mr McCahon noted that the Appellant had no previous history in relation to the use of force, but did note that the Appellant was subject to disciplinary action and management respectively on two prior occasions for making derogatory comments. Mr McCahon noted that the circumstances of the two prior incidents were not similar to the Incident.

Mitigating factors

Mr McCahon acknowledged that the Incident was stressful for all those involved, including the Appellant. However, Mr McCahon did not consider that the stress of the Incident outweighed the seriousness of the conduct and the standard expected of a custodial supervisor.

Consideration of alternative penalties

Mr McCahon considered the alternative penalties that the Appellant proposed as mentioned above. He had specific regard to the submission that an indefinite demotion would be wholly disproportionate to the wrongdoing. Mr McCahon seems to have agreed with this submission but noted his lack of confidence in the Appellant's ability as a correctional supervisor. In light of this, Mr McCahon decided to make the demotion a temporary one, 18 months only, rather than permanent.

[63]
Mr McCahon concluded that, for the Appellant's breach of s 91(1)(b) of the PS Act, he should impose the following discipline under ss 92 and 93 of the PS Act:

A demotion from the position of Correctional Supervisor (GS3.4) to Custodial Correctional Officer (GS2.4) for a period of 18 months; and

A direction that the Appellant attend Tactical Options Response – Use of Force and Maybo training.

This appeal

Appellant's appeal notice

[64]
The Appellant repeats many of the above arguments. Accepting that her "use of force was, in retrospect, not the most reasonable way to respond to the incident", the Appellant argues the above mitigating factors were not considered leading to disproportionality between discipline and any wrongdoing. In essence, her submission is that the Finding Decision, and the Disciplinary Action Decision, were both not fair or reasonable. I summarise her arguments in respect of this as follows:

Finding Decision submissions

[65]
The Appellant submits that her conduct did not rise to the standard of misconduct, that is - a "deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of privilege and confidence enjoyed by a public service employee." The Appellant said that the Respondent did not consider a number of salient features explained below.

Mitigating factors - The Appellant relied on s 143(1) of the CS Act, as well as the COPD. The submission here is that the effect of these provisions is to authorise the use of reasonable force where it is necessary and proportionate in the circumstances. The Appellant submits that her actions were reasonable, necessary and proportionate enough to warrant the use of the chemical agent, which could not therefore constitute misconduct.

The high-risk body belt - Under this heading the Appellant reiterated that she had not received training on the use of high-risk body belts. She also reiterated that no officers on scene were appropriately trained in using the high-risk body belt. The Appellant had asked one officer (CCO Brown) whether he knew how to use the high-risk body belt but that officer replied that he had not done so for a long time. In these circumstances, the Appellant argued that she believed the use of the high-risk body belt on the Prisoner was not a viable option to prevent further self-harm. The Appellant supports that submission by pointing to the fact that there was very little mandatory training or reaccreditation for the high-risk body belts and that high-risk body belts were removed from the BCC shortly after the incident due to a lack of training and qualifications around using them. Consequently, the Appellant submitted, it was grossly unfair and unreasonable to find that there was a reasonable alternative to deploying the chemical agent, being the high-risk body belt.

No malice or spite – The Appellant argued that the fact that she paused to consider and ask others about other options such as the high-risk body belt demonstrated that the use of the chemical agent was not a spiteful decision, nor an abuse of privilege. The Appellant concedes that her decision-making was affected by the stress of the situation and the aggression of the Prisoner, but rejects any notion that she acted with malice when deploying the chemical agent. The Appellant says that if the Prisoner was compliant and effectively restrained then it would have been open to the decision-maker to find that she acted out of malice but that was not the case here. Altogether, the Appellant rejects the Respondent's finding that that she acted out of spite or out of malice.

Deployment of the chemical agent necessary – The Appellant also addressed the Respondent's finding that use of the chemical agent was not necessary because the Prisoner was adequately restrained at the relevant time. The Appellant argued that chemical agents can be used in certain circumstances, such as to subdue a prisoner or to prevent or stop any disturbance in which there exists a threat of bodily harm. The Appellant also argued that the Prisoner was resisting the officer's efforts to keep his hands from reaching his mouth and that the body belt was ineffective in doing so. Further, the Appellant argued that on her assessment, the staff were becoming fatigued, and the Prisoner's size, strength and aggression impacted on her decision-making. The Appellant considered using the high-risk body belt but concluded that it was not feasible. It was only in these circumstances that the Appellant believed the best option to prevent further injury to the Prisoner and staff was to use the chemical agent.

Proportionality of the conduct to the penalty – The Appellant repeated the above-mentioned submissions that her conduct was not such that it amounted to misconduct.

The Appellant has been inadequately supported - The Appellant further submitted that the Prisoner had significant mental health issues that the Appellant was not trained to deal with, noting that she could not access professional counselling services because those services cannot be accessed on weekends.

Disciplinary Action Decision submissions

[66]
The Appellant essentially argues that the penalty is harsh, unjust and unreasonable. The Appellant says that, in light of the mitigation factors outlined above, effectively dismissing her for conduct that falls short of misconduct is disproportionate. The Appellant says that the reduction in remuneration from the demotion would cause her to lose approximately $20,000 over the 18 month period. She also submits that a demotion would cause damage to her self-identity and reputation.

Respondent's Submissions

[67]
In respect of the Appellant's submissions as to the finding of misconduct, the Respondent submits that officers are only permitted to use force that is reasonably necessary to restrain a prisoner who is harming himself, and only if the officer reasonably believes the act or omission cannot be stopped in another way, and gives a clear warning. The Respondent also submits that the COPD provides that the force being used must be the "minimum necessary for the least amount of time to resolve the situation." Altogether, the use of force must be authorised, reasonable in the prevailing circumstances and proportionate to the subject's conduct and the threats posed by that conduct. The Respondent submits that chemical agents must not be used against persons physically restrained or otherwise under control.

[68]
The Respondent submits that the Appellant concedes that it was open to Mr McCahon to find some form of wrong-doing. The Respondent observes that Mr McCahon made several key findings of fact, which I summarise as:

At the time the Appellant sprayed the Prisoner with the chemical agent, the Prisoner was adequately restrained by multiple officers (with others on hand to take over if needed) and that the Prisoner was not able to harm himself;

The Appellant had asked another officer to obtain a high-risk body belt but did not wait for the other officer to return;

The Appellant determined to use the chemical agent partially in response to being provoked;

The Appellant said, "Guys, I'm gonna gas him." In response to being provoked and only four seconds elapsed between the Appellant saying this and then spraying the Prisoner;

During the decontamination period, the Appellant said to the Prisoner, "Do not dare me to do stuff" and later, "…gas is plentiful, so do not do this again…";

The Prisoner was severely affected by the chemical agent; and

Three other officers involved in restraining the Prisoner gave evidence during the investigation that said that they had the Prisoner under control.

[69]
The Respondent also points out that the chemical agent is classified as a weapon under the Weapons Act 1990. The Respondent also notes that the examples of situations justifying the use of gas include:

gaining entry into an area controlled by prisoners;

clearing an area of rioting prisoners;

preventing prisoners gaining control of an area; and

situation use of force options when all other attempts to resolve a situation using lesser levels of force have failed.

[70]
The Respondent argued that Mr McCahon rightly rejected the Appellant's submission that the use of force was genuinely necessary to control the situation. Instead, the Respondent submits that it was open for Mr McCahon to conclude that the Appellant sprayed a vulnerable prisoner in response to provocation while the prisoner was ground stabilised and restrained by a body belt, hand and ankle cuffs, and approximately five officers with others standing by. The Respondent also submits that the five CCOs were also affected by the chemical agent.

[71]
Still on the point of the challenge to the misconduct finding, the Respondent also submitted that the definition of misconduct in s 91(5) of the PS Act relevantly includes improper or inappropriate conduct in an official capacity. The Respondent argues that Mr McCahon had regard to his Honour, Merrell DP's decision in Coleman v State of Queensland (Department of Education)^[26] – that the definition contemplated 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.^[27] The submission is that it was open for Mr McCahon to conclude that the Appellant's conduct was a deliberate departure from accepted standards and was an abuse of the privilege and confidence enjoyed by a public service employee.

[72]
As to the Disciplinary Action Decision, the Respondent submits that the purpose of discipline is to protect the public, uphold ethical standards within public sector entities, and to promote and maintain public confidence in the public sector. In determining the appropriate discipline, the Respondent submits that Mr McCahon had regard to factors set out in the Public Sector Commission Discipline Directive 05/23, including:

The seriousness of the conduct and the disciplinary finding;

The Appellant's experience and the expectation that she would perform her duties with a high degree or responsibility and authority;

That prisoners are in the care of QCS and that the Appellant's conduct caused harm to one of them;

The lack of insight demonstrated by the Appellant;

The Appellant's prior disciplinary history; and

The mitigating factors raised by the Appellant.

[73]
The Respondent also notes that a correctional supervisor is the most senior officer "on the ground" at a correctional centre on weekends and at night, and good judgment under pressure is essential. The Respondent submits that it was open to Mr McCahon to conclude that he no longer held the required trust in the Appellant. The key reasons for the conclusion as to a loss of trust were the finding that the Appellant had engaged in misconduct and her responses to that finding.

[74]
The Respondent further highlighted that the Appellant admitted during the investigation and in her responses to being "at her wits end", overwhelmed and that the Prisoner was "egging" her on. The Respondent says that it was open to Mr McCahon to conclude that a person is not suited to the supervisory role if they cannot undertake their duties in a professional manner while managing a stressful situation. The Respondent also submitted that it was a relevant consideration by Mr McCahon that the Appellant had previously engaged in unacceptable exchanges with prisoners after being provoked. They included telling a prisoner, "Shut the fuck up"; "What did you say cumstain"; and "You need to learn to shut the fuck up". The Respondent submits that that history, too, was something to consider when Mr McCahon was deciding whether the Appellant ought to be removed from her supervisory role for a time.

[75]
The Respondent submits that Mr McCahon considered the Appellant's arguments on mitigating circumstances. The proof of that consideration is, the Respondent says, visible in the outcome. The demotion was originally proposed to be a permanent one. After considering those submissions and arguments with respect to mitigating circumstances therein, Mr McCahon took a less severe option and limited the demotion to 18 months.

[76]
As to the argument that the temporary demotion "would amount to a dismissal", the Respondent submits that the argument fundamentally misunderstands the public sector discipline framework. This is because, the Respondent submits, that the framework provides for the situation where an officer is not conducting themselves appropriately at their current pay point or rank. In those circumstances, the framework provides that it is entirely appropriate that they be demoted to the rank at which they can undertake duties. The Respondent also submits that the temporary demotion will enable the Appellant to improve her professionalism and develop greater resilience before returning to a supervisory role.

Appellant's submissions in reply

[77]
In reply, the Appellant reiterated her submissions on the Finding Decision and Disciplinary Action Decision. The Appellant argued that the Respondent failed to address her submissions about staff not being adequately trained (or at all) in the use of the high-risk body belt. The Appellant also submits that her actions were not a deliberate departure from accepted standards, nor seriously negligent to the point of indifference or an abuse of the privilege and confidence she enjoys as a public service employee.

[78]
Specifically as to the Disciplinary Action Decision, the Appellant submits that the claimed loss of trust is belied by the fact that the Appellant was left in her supervisory role for 4 weeks after the Incident. Several submissions in reply under this heading were also restatements of earlier arguments that I have referred to earlier in these reasons.

The application for extension of time to appeal the Finding Decision

Is the Finding Decision part of the Disciplinary Action Decision?

[79]
As to whether the two decisions are separate, I have some concerns. I can readily see how a finding that a person has misconducted themselves is a fair treatment decision subject to appeal, on its own, and thus the 21-day time limit applies. But it is also part of a disciplinary process that has, at that time, not resolved or crystallised into a decision on what discipline will be imposed. Such a finding is fundamentally part of a disciplinary decision (perhaps made months later). Hence, it is difficult to ignore a finding of misconduct, for example, when considering the fairness and reasonableness of the actual discipline imposed. As noted above, there are differing views set out in the cases.

[80]
I acknowledge that the Disciplinary Action Decision is very closely related to the Finding Decision. But the two are separate and distinct in time. The action decision can be issued at the same time as the finding decision, or very soon after.^[28] But in the majority of cases, the finding decision comes first, usually by a significant time. The employee is often invited to show cause as to the potential action decision. That was the case here. Section 132 of the PS Act sets out those decisions that Parliament has determined cannot be appealed. At sub-s (4)(b), Parliament has expressly prohibited appeals of fair treatment decisions relating to the disciplinary process set out in Chapter 3, Part 8, Division 3 of the PS Act but for one category – that being a finding under s 91 that a disciplinary ground exists. Such an appeal right is subject to the general time limitation set by s 564(3) of the IR Act. I have trouble accepting that, for the purposes of when an appeal of the Finding Decision needed to be filed, that decision is effectively embedded within, or part of, the Disciplinary Action Decision to such an extent that the former could therefore be appealed, possibly months out of time, as part of an appeal against the latter. At least in regard to the facts of this case, I prefer the view that the Finding Decision was a separate and appealable decision in its own right, and that the rule as to doing so within 21-days unless an extension is granted applies to it.

[81]
That does not, however, address the issue that arises when considering the fairness or reasonableness of disciplinary action in a vacuum, so to speak. If a finding decision has not been appealed, depending on the case itself, it may be very difficult to avoid addressing any flaws in that process when considering how fair or reasonable the disciplinary decision was. The above cases demonstrate that tension in this area of the law.

[82]
On that basis, I invited the parties to address me on whether an extension of time application (for the Finding Decision) should be granted. I called the matter on for mention on 6 September 2024 and invited the parties to address the Commission with written submissions on that point. I have considered those submissions in detail.

The extension of time application – consideration

[83]
As to the length of the delay, the Finding Decision was issued on 8 December 2023. Excluding 8 December 2023 itself, 21 days takes the filing date to 29 December 2023. However, the Commission was not open to accept filing that day. The operative effect of s 38 of the Acts Interpretation Act 1954 means that, because the Commission was closed that day (and up until 2 January 2024), the limitation period for filing an appeal of the Finding Decision elapsed on 2 January 2024.^[29] If I were to accept that the Appellant impliedly sought an extension of time to appeal that decision by filing her appeal on 18 March 2024, which I do, then the length of the delay would be approximately two and a half months (2 months and 16 days). That is significantly out of time in my view.

[84]
As to an explanation for the delay, whilst the Appellant was in the process of obtaining legal advice at various times, she says she was not represented when the Finding Decision was issued. The Appellant does not say that it was a failing of her representatives to advise her that she needed to appeal the Finding Decision or seek extra time to do so. Accordingly, there seems to be no argument as to a representative error.

[85]
Instead, the Appellant argues that she was unaware at the time that she only had 21-days to appeal the Finding Decision. That can only mean that the Appellant failed to read, or did read but did not appreciate, the Finding Decision itself. That decision expressly set out within its terms that there was a 21 day time limit to appeal that decision and provided information on how to find out more.

[86]
The Appellant argues that due to her mental state at the time of receiving the Finding Decision, she had difficulty understanding her situation. As best I can understand the Appellant's submissions on this point, it is that she was overwhelmed and chose to focus on the show cause process, rather than appeal the Finding Decision, and perhaps did not appreciate that she had appeal rights at the time. Accordingly, I find that is a misunderstanding and a desire to focus on the show cause process rather than choose to appeal the Finding Decision.

[87]
It is clear that there will be significant hardship to the Appellant if she is not granted additional time. Her cause of action would be statute barred. That degree of hardship night seemly be lessened where an appellant has obviously poor or dismal prospects of success for whatever reason. Conversely, the hardship to an appellant would be particularly significant if there appear to be good prospects of an appeal.

[88]
The Respondent has already put on arguments in response to those appeal points concerning the Finding Decision. In those circumstances, I do not see there is any great prejudice to the Respondent in circumstances where it has already chosen to address the arguments in full, rather than take the jurisdictional point and argue that it should not have to mount a defence.

[89]
It is clear that the Appellant has not sat idly by while the relevant time period ran out. She has actively engaged herself in the process. At no point in time has the Appellant ever accepted the finding as to misconduct either. Rather, at all relevant times, the Appellant has actively challenged that finding.

[90]
Whilst special circumstances need not be shown by an appellant, whether there is an acceptable explanation for the delay is relevant. So too the need for it be fair and equitable in the circumstances to extend time. That seems to me to include the possibility that if an assessment of the merits of the relevant substantive matter can be done such that it reveals that an injustice would arise should an extension of time be refused, that would weigh towards exercising the discretion to extend time. Thus, it is relevant to assess the merits of the substantive application and take those into account when considering whether an extension of time should be granted.

The assessment of prospects of success generally

[91]
Ordinarily, when courts and tribunals consider prospects of success when deciding whether to grant an extension of time, there is little in the way of material before the member. If it is a trial on key issues of fact, usually no such trial has occurred when an extension of time application is considered. In the vast majority of such cases, it is rare to gain more than a very preliminary view of prospects and little weight can be attributed to it. The best the member might be able to see in such cases is perhaps an obviously insurmountable flaw at one end of the scale, rising up to an arguable case should asserted facts come up to proof at trial. Thus, the exercise of weighing prospects often leans towards being able to, if possible, conclude whether there are poor prospects. Where such a conclusion can safely reached, that would normally weigh against granting an extension of time. As his Honour, President Hall, observed in the oft-cited Bruce Anthony Piggott v State of Queensland:^[30]

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.

[92]
However, this is public service appeal. It is to be decided on the papers on the basis of whether the relevant decisions were fair and reasonable. The parties have presented their cases in full. All of their supporting material is before the Commission at the time when the Commission is asked to weigh up prospects as part of assessing whether to extend time. Where the Commission can safely see that a case has poor prospects, that would weigh against granting an extension of time. But what of cases where the parties have presented all of their arguments and supporting material and a finding might be open that an application has excellent prospects? For perhaps obvious reasons, there is a dearth of caselaw on such a situation. However, it seems to me that where it can safely be concluded that an appellant's case can be assessed as having good or better prospects of success, that should weigh (but is not determinative) in favour of granting an extension of time. In my view, given the beneficial nature of the relevant provisions of both the PS Act and the IR Act, and having regard to the purposes of ensuring an independent review of relevant decisions as to whether they are fair and reasonable, such a finding of good prospects, if it can be safely made in a case, must weigh towards granting an extension of time.

Prospects of success – Finding Decision

[93]
Mr McCahon noted in this case that the relevant "standard" was that within the COPD and s 143 of the CS Act. The key conclusion was that it was not reasonably necessary to use the chemical agent because there was a more appropriate option – using the high-risk body belt. That conclusion included that the COPD, and s 143 of the CS Act, had been departed from. However, there was a significant error in Mr McCahon's reasoning within this part of the Finding Decision. It was within a fundamentally important finding of fact.

[94]
It is clear on the evidence that was before Mr McCahon that the Appellant did consider using the high-risk body belt. The evidence is that she first asked others on scene whether anyone knew how to use it and then whether a particular officer who might be able to use it could be located. She was told that that person was a good distance away. It is clear on the evidence that the Appellant herself did not know how to use the high-risk body belt and neither did any of the other relevant officers on scene. As the Appellant points out, it can be seen from the body worn camera footage that when she asked a particular officer (CCO Brown) whether he knew how to use a high-risk body belt, the officer responded, "I did, a long time ago. But it's been a while".

[95]
In my view, that officer's evidence in interview may have led Mr McCahon into the error. In interview, the officer said at one point (my emphasis added), "I said to her I've done it once in training and I'm sure I can work it out." The body worn camera footage reveals no such reassuring comment as, "I'm sure I can work it out". Rather, the response to the Appellant's inquiry at the critical time was the abovementioned expression of doubt as to whether CCO Brown would be able to recall how to use the high-risk body belt - "I did, a long time ago. But it's been a while". That was the response that the Appellant acted on. At a later point in his recorded interview, CCO Brown gave evidence much closer to that which is cited above from the body worn camera footage. Mr McCahon did not deal with the inconsistency in CCO Brown's evidence.

[96]
However, the body worn camera footage is very clear. On the evidence, the only possible conclusion that could solidly be reached was that the Appellant had a reasonable basis for ruling out using the high-risk body belt. Therefore, I do not consider that it was open on the evidence for Mr McCahon to conclude in the Finding Decision that the Appellant knew CCO Brown was able to deploy the high-risk body belt and decided not to wait for him to go and get it – that she should have waited for CCO Brown to return with the high-risk body belt. As well, the Appellant denies she directed CCO Brown to retrieve the high-risk body belt as Mr McCahon found she had. On my assessment of the footage, no such direction was given. CCO Brown did not give evidence that he was so directed either.

[97]
Further, whilst it was open to Mr McCahon to conclude that the Prisoner was ground stabilised by several officers at the relevant time, it was not open to conclude that the Prisoner was no longer at risk of self-harm. Section 143(1)(e) of the CS Act relevantly permits use of force that is reasonably necessary to restrain not just a prisoner who is self-harming, but also one who is attempting to or preparing to self-harm. The footage reveals ongoing attempts by the Prisoner, expending great effort attempting to self-harm. He tried several times to overcome those officers who were holding his hands away from his mouth. He also made a clear statement that he intended to continue to self-harm. As noted above, this was the third occasion that day and all other efforts to prevent self-harm had failed. No personnel on scene were able to confidently use the high-risk body belt. The Appellant knew that at the critical time because she asked the officers present as part of the process she went through in attempting to prevent the Prisoner from succeeding in his stated objective - biting off one of his own fingers.

[98]
True, there were other officers close by in reserve. Mr McCahon weighed that fact heavily and found that the evidence was that the officers who were actively holding the Prisoner's arms and head, resisting the Prisoner's repeated efforts to get his hands to his mouth, were confident that they had the Prisoner under control. In my view, such a conclusion is infected with hindsight. The evidence was that the Appellant surmised at the relevant time that the officers holding the Prisoner were starting to fatigue. Whilst she did not ask them, that was a deduction the Appellant made at the time based on her observations. Mr McCahon concluded that there was no immediate risk that the Prisoner might overcome those officers holding his fingers away from his mouth but he did so based on what the officers later reported in the investigation they thought as to their ability to hold on for an unspecified time. These findings by Mr McCahon were a primary basis upon which he concluded that deploying the chemical agent was not reasonably necessary to prevent self-harm (or ongoing attempts at self-harm) and therefore an unreasonable use of force. However, as I have noted above, the error in that conclusion was substantial. The evidence was that using the high-risk body belt was considered and validly ruled out as a viable option by the Appellant at the relevant time. Mr McCahon also overlooked the stated effect of s 143(1)(e), which includes reasonable use of force to restrain a prisoner who is preparing to or attempting to self-harm.

[99]
On my assessment of the evidence, it was not open to Mr McCahon to conclude that the Appellant's conduct was a departure from accepted standards. It was not a reasonable option for the Appellant to have waited for an officer who knew how to use the high-risk body belt to come onto the scene with it. That misconstrues the facts. No such officer was on scene. The Appellant did consider using the high-risk body belt as an option. She asked if anyone on scene knew how to use it and she received only doubt or silence in response. Meanwhile, the Prisoner was actively fighting three officers in an attempt to reach his mouth with his fingers, stating that his intention was to bite off one of his fingers, which he had already achieved some success in carrying out earlier that day. Three times that day this and other violent behaviour had occurred. Aside from not being factually correct, it is also unfair of the Respondent to expect the Appellant to have tried to use the high-risk body belt in circumstances where it is not something the Respondent has trained the Appellant in and not something that any other staff on scene that day were competent in using.

An abuse of privilege and confidence enjoyed by a public service employee

[100]
It is less clear how Mr McCahon came to the conclusion that the Appellant's conduct was "an abuse of privilege and confidence enjoyed by a public service employee". What the "privilege" was and how it was abused were stated as, "…and an abuse of the privilege and confidentiality enjoyed by QCS officers, in that the chemical agent is classified as a weapon and not permitted to be carried or used by the general public".

[101]
Mr McCahon mentioned the Appellant's interview with the Ethical Standards Group but did not expressly set out the abovementioned admissions by the Appellant that the Prisoner "pushed [her] buttons" and that she was at her "wits end". Mr McCahon did state that he found the Appellant deployed the chemical agent because the Prisoner provoked her, however. Mr McCahon refers to the Appellant's words had with the Prisoner in the form of "Right, you had enough?", then later, "Do not dare me to do stuff" and later still, "Gas is plentiful, so do not do this again mate, okay?"

[102]
Mr McCahon seems to have concluded that the Appellant's privilege was the possession of a weapon, the chemical agent, that the general public cannot use or carry. It appears that Mr McCahon concluded that the abuse of that privilege was the use of the chemical agent in a way that was deliberate departure from accepted standards. Those standards were stated to be s 143 of the CS Act and s 8 of the COPD. Section 8 of the COPD says:

8. Chemical Agents

Use of chemical agents must be authorised by the Chief Superintendent of the corrective services facility.

An operational quantity of oleoresin capsicum (OC) may be forward deployed in a secure corrective services facility (excluding Brisbane Women's Correctional Centre and the Princess Alexandra Hospital Secure Unit (PAHSU)). The quantity of OC and the storage location is to be determined by the Chief Superintendent.

Use of forward deployment chemical agents must be authorised by a Correctional Supervisor or more senior officer, who must then provide immediate advice to the Chief Superintendent, Superintendent, or Duty Manager following deployment.

All chemical agents must be stored in the controlled temperate environment of a secure storage container (temporary weapon safe) and in accordance with manufacture's specifications. Refer Appendix SSE14 Chemical Agents Operational Requirements.

The Chief Superintendent (or nominee) must authorise the use of chemical agents.

[103]
As can be seen, s 8 of the COPD says nothing at all about what constitutes reasonable use of the chemical agent. Sections 4, 5 and 6 of the COPD do. They echo the abovementioned s 143 of the CS Act. It is difficult to see how any reliance on s 8 could have been had. The submissions of the Respondent do not explain this reliance.

[104]
It is clear that the primary reliance under this element of the misconduct finding was, again, the finding that the use of the chemical agent in the circumstances was a departure from the accepted standards of conduct. As above, that relied on the erroneous conclusion that using the high-risk body belt, or waiting for someone who knew how to use it to arrive on scene with it, was a reasonable alternative to using the chemical agent.

[105]
It may be that the right to carry and use the chemical agent, something that most people are not lawfully able to do, comprises a "privilege" for certain public servants. But it is the use of that weapon being found as unreasonable in the circumstances that founded this conclusion that there was an abuse of the privilege and confidentiality enjoyed by QCS officers. I have found that this was not a conclusion that was open on the facts. It follows that I also find this conclusion to not have been open to Mr McCahon based on my assessment of the evidence.

[106]
Mr McCahon also concluded that the Appellant deployed the chemical agent due, perhaps in part, although it is not clear, to being provoked. The key facts upon which that conclusion is based are the comments mentioned above to the Prisoner after the chemical agent was deployed. On my assessment of the video footage, the statements were not made quickly.

[107]
For instance, the comment "Do not dare me to do stuff" was not said immediately following the deployment of OC spray. It was some time after that, and during the recovery process, contextualised as part of a discussion about securing assurances from the Prisoner that he was no longer intending to self-harm. So too the remark about "Gas is plentiful". It followed on from another officer's lengthy explanation to the Prisoner, immediately before releasing the Prisoner in order to shower, that the high-risk body belt as something that was unpleasant – a deterrent potentially. The Appellant's remark appears to me to have been aimed at dissuading the Prisoner from engaging in a fourth attempt that day to self-harm. I do not accept the finding that the remarks were evidence that the Appellant was provoked to use the chemical agent. I do not consider that finding was open to the decision-maker on the evidence.

[108]
True, the Appellant conceded under some pressure that the deployment of the chemical agent as being not reasonable. However, for the forgoing reasons, I do not accept that concession to have been properly made. If anything, it signals a great deal of contrition and regret that resolving the situation required the use of such force in the circumstances. The Appellant also reflected that a further possible option escaped her attention. That was to simply wait. To keep hold of the Prisoner and wait it out. That option, however, is purely speculative and was one that even the Respondent had not considered.

[109]
It follows that I conclude the Appellant's prospects of appealing the Finding Decision were very good. I have set out that process above. I have little difficulty in concluding that the Finding Decision was not fair and reasonable. That is because it was based on errors in finding fundamental facts. There was no sound basis to conclude misconduct.

[110]
On my assessment of the authorities, this is a rare case. I am in the rare position to be able make a detailed assessment of the merit of the substantive matter the subject of an extension of time application. As well, I am in the rare position of being able to conclude that prospects of that substantive matter are so good that it leads me to conclude that refusing to allow extra time would give rise to an injustice. Whilst there is not a reasonable explanation for the delay, there is far greater prejudice to the Appellant than the Respondent in refusing to extend time. So much so that refusing to extend time would give rise to an injustice where a clearly meritorious appeal would otherwise not be heard.

[111]
Accordingly, I grant leave to extend time for an appeal of the Finding Decision. For the forgoing reasons, I find that the Finding Decision was not fair and reasonable.

Substitute decision – Finding Decision

[112]
In the circumstances of the Incident, it is difficult to think of an alternative course of action that the Appellant should have taken. The Respondent wrongly concluded that she should have waited for an officer experienced in using the high-risk body belt to turn up and deploy that piece of equipment. The Appellant suggested that one alternative course of action might have been to simply wait out the Prisoner. As I have noted above, however, that is pure speculation with the benefit of hindsight. It is a demonstration of remorse and self-reflection but I do not think it would be fair and reasonable to expect that course of action would have prevented the Prisoner from attempting to self-harm. There is no telling how long waiting it out might have taken and whether it would have effectively prevented the Prisoner from attempting to self-harm or declaring an intention to self-harm.

[113]
I accept the Appellant's submissions that this was an extremely challenging situation that she and others were responding to. Nowhere in the evidence is there support for a better resolution to the risk that the Prisoner would succeed in his attempts at chewing off a finger than the course the Appellant ended up taking. I hasten to add that this case is a very different one to that considered in Magor v State of Queensland (Queensland Corrective Services)('Magor').^[31] In Magor, Hartigan IC (as her Honour then was) considered a public service appeal by a prison officer who had been found guilty of misconduct in the form of spraying a chemical agent directly at a prisoner's face where the prisoner was being held down and under control by officers. The fundamental difference is that in Magor, the prisoner was not attempting to self-harm, had at the relevant time complied with directions to lay down and had placed his hands behind his head. After he thus complied, and was then held down by three guards, the appellant in Magor deployed the chemical agent at close range to the prisoner's face. Those facts are nothing like the facts in this case.

[114]
Hence, I substitute the Finding Decision with one simply finding that the Appellant did not engage in misconduct pursuant to s 91(1)(b) of the PS Act on 14 January 2023 and did not, on that day at BCC, use force that was not reasonably necessary against the Prisoner by deploying a chemical agent whilst the Prisoner was restrained and ground stabilised.

Disciplinary Action Decision

[115]
The Finding Decision was the underpinning for the Disciplinary Action Decision. It follows from my conclusion that the Finding Decision be set aside that the foundation of the Disciplinary Action Decision falls away. That latter decision, predicated upon the former, cannot stand as fair and reasonable in the circumstances.

[116]
Even if I were wrong about extending time or finding that it was not open to conclude misconduct in the circumstances, I do not agree that it was open to find the Appellant failed to exhibit any contrition or remorse. That was a key finding by Mr McCahon giving rise to the conclusion that it was appropriate to discipline the Appellant in the manner decided.

[117]
In Cahill v State of New South Wales (Department of Community Services) (No 4),^[32] his Honour, President Boland, considered what actually constitutes contrition. His Honour relevantly said that there must be evidence that the relevant person has accepted responsibility for their actions and also that they have acknowledged any injury, loss or damage caused by those actions.

[118]
Throughout the investigation, and in her submissions in the show cause process and in this appeal, the Appellant has demonstrated that she accepts responsibility for the Incident and the impact it had on the Prisoner and other officers. The Appellant numerously expressed regret and speculated about how she might have handled the response better despite being unable to produce any alternative ways to handle the Incident. The Respondent was in error with the finding as to what better approach it felt should have been taken.

[119]
On my assessment, the Respondent confused the Appellant's articulating a defence with a lack of remorse or contrition. The Appellant acknowledged and expressed contrition and remorse not just verbally but through her conduct during this entire process. For that reason, I would find that it was not open to conclude that the Appellant should be removed from a managerial role because she failed to show remorse or contrition. It is a difficult thing to approach openly the task of analysing an incident such as this with a view to understanding how it might have been handled better and whether any disciplinary action is warranted. The Appellant approached that process as one would expect any manager acting with integrity would do. She was open, co-operative, sincere in her expressions of remorse whilst still arguing her case in defence, which was her right. Even if the Appellant thought there was a degree of conduct that warranted some form of discipline, which I have found not to be the case, any discipline could not be based fairly upon conclusions that there was no remorse, contrition or failure to act with integrity at all relevant times.

Conclusions

[120]
The Finding Decision is, in this case, separately identifiable and subject to appeal as a fair treatment decision. It was filed significantly out of time. Whilst the explanation for the delay is lacking, the prospects of the substantive matter are overwhelmingly good. So much so that an injustice would result if time were not extended in this case. Accordingly, I grant extra time for the Finding Decision to be filed.

[121]
I find that it was not open to conclude that the Appellant engaged in misconduct pursuant to s 91(1)(b) of the PS Act because that conclusion was based on findings of fact that were not open to be drawn on the evidence. I allow the appeal of the Finding Decision.

[122]
It follows that I allow the appeal of the Disciplinary Action Decision because without the Finding Decision, its foundations fall away. Even if I have erred in my conclusions about the Finding Decision or the extension of time, the Disciplinary Action Decision was not fair and reasonable because it was based on conclusions as to remorse and conduct that were not open to be drawn.

[123]
It is on this basis that I make the following orders:

Orders

Time be extended for the Appellant to file an appeal of the 8 December 2023 decision finding that the Appellant engaged in misconduct pursuant to section 91(1)(b) of the Public Sector Act 2022 on 14 January 2023 by using force that was not reasonably necessary against the Prisoner ('Finding Decision').

The appeal of the Finding Decision is allowed.

The Finding Decision is set aside and substituted with a decision that the Appellant did not engage in misconduct pursuant to section 91(1)(b) of the Public Sector Act 2022 on 14 January 2023 and did not, on that day at Brisbane Correctional Centre, use force that was not reasonably necessary against the Prisoner.

The appeal of the decision imposing discipline dated 26 February 2024 ('Disciplinary Action Decision') is allowed.

The Disciplinary Action Decision is set aside and substituted for a decision that no disciplinary action be imposed.

Footnotes

[1] As put by his Honour Martin SJA in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2, [8], albeit in a different statutory context.

[2] [2022] QIRC 16 ('Colebourne').

[3] Ibid [25], citing Pope v Lawler [1996] FCA 1446.

[4] Colebourne (n _) [21]-[22].

[5] Ibid [23], citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland Dalton J, 10 October 2018) regarding the former equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[6] [2022] QIRC 162 ('Hunt').

[7] Ibid [79], citing Wirth v Mackay HHS & Anor [2016] QSC 39.

[8] Hunt (n _) [82]-[83], [85], citing Minister for Immigration and Border Protection v WZARH [2015] (2015) 256 CLR 326, [35]-[36], [57], [61]; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1.

[9] [2020] QIRC 32.

[10] Ibid [62], considering the equivalent predecessor provision under the Public Service Act 2008 (Qld), s 187(4).

[11] [2023] QIRC 283.

[12] Ibid, [38].

[13] [2021] QIRC 330

[14] [2023] QIRC 023.

[15] [2024] QIRC 50.

[16] Ibid, [49].

[17] [2024] QIRC 90.

[18] Ibid, [63].

[19] [2024] QIRC 225, [18].

[20] Referring to findings in the matter of Stacey v State of Queensland (Department of Education) [2024] QIRC 220.

[21] [2021] QIRC 258, [15] citing Ulowski v Miller (1968) SASR 277, 280.

[22] [1984] FCA 176.

[23] Briginshaw v Briginshaw [1938] HCA 34.

[24] [2008] QSC 209.

[25] (1989) 16 NSWLR 197.

[26] [2020] QIRC 32 ('Coleman')

[27] Ibid [62].

[28] See for example Gurdler v State of Queensland (Queensland Health) [2024] QIRC 213, at [15], where the two decisions were issued at the same time in relation to an employee who had resigned.

[29] See my discussion of the operative effect of s 38(2) of the Acts Interpretation Act 1954 (Qld) in Lu v State of Queensland (Queensland Health) [2024] QIRC 31, [19]-[21].

[30] [2010] ICQ 35, [6].

[31] [2022] QIRC 35.

[32] [2008] NSWIRComm 201, [62]-[63].

Editorial Notes

Published Case Name:
Patterson v State of Queensland (Queensland Corrective Services) (No. 2)
Shortened Case Name:
Patterson v State of Queensland (Queensland Corrective Services) (No. 2)
MNC:
[2024] QIRC 287
Court:
QIRC
Judge(s):
Pratt IC
Date:
06 Dec 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Borkowski v State of Queensland (Queensland Corrective Services)	[2021] QIRC 330	2 citations Jump To Cite 1 - [2021] QIRC 330 Cite 2 - [2021] QIRC 330
Briginshaw v Briginshaw	View on:JADE(1938) HCA 34	2 citations Jump To Cite 1 - (1938) HCA 34 Cite 2 - (1938) HCA 34
Cahill v State of New South Wales (Department of Community Services) (No. 4)	[2008] NSWIRComm 201	2 citations Jump To Cite 1 - [2008] NSWIRComm 201 Cite 2 - [2008] NSWIRComm 201
Colebourne v State of Queensland (Queensland Police Service) (No. 2)	[2022] QIRC 16	2 citations Jump To Cite 1 - [2022] QIRC 16 Cite 2 - [2022] QIRC 16
Coleman v State of Queensland (Department of Education)	[2020] QIRC 32	3 citations Jump To Cite 1 - [2020] QIRC 32 Cite 2 - [2020] QIRC 32 Cite 3 - [2020] QIRC 32
Condon v State of Queensland (Queensland Health)	[2023] QIRC 23	2 citations Jump To Cite 1 - [2023] QIRC 23 Cite 2 - [2023] QIRC 23
Cullen v State of Queensland (Queensland Health)	[2021] QIRC 258	2 citations Jump To Cite 1 - [2021] QIRC 258 Cite 2 - [2021] QIRC 258
Gibson v State of Queensland (Queensland Health)	[2024] QIRC 90	2 citations Jump To Cite 1 - [2024] QIRC 90 Cite 2 - [2024] QIRC 90
Gurdler v State of Queensland (Queensland Health)	[2024] QIRC 213	2 citations Jump To Cite 1 - [2024] QIRC 213 Cite 2 - [2024] QIRC 213
Hunt v State of Queensland (Department of Agriculture and Fisheries)	[2022] QIRC 162	2 citations Jump To Cite 1 - [2022] QIRC 162 Cite 2 - [2022] QIRC 162
Hunter Valley Developments Pty Ltd v Cohen	View on:JADE(1984) FCA 176	2 citations Jump To Cite 1 - (1984) FCA 176 Cite 2 - (1984) FCA 176
Johnston v Commissioner of Police	[2024] QSC 2	2 citations Jump To Cite 1 - [2024] QSC 2 Cite 2 - [2024] QSC 2
Lu v State of Queensland (Queensland Health)	[2024] QIRC 31	1 citation Jump To Cite 1 - [2024] QIRC 31
Magor v State of Queensland (Queensland Corrective Services)	[2022] QIRC 35	2 citations Jump To Cite 1 - [2022] QIRC 35 Cite 2 - [2022] QIRC 35
Mathieu v Higgins	[2008] QSC 209	2 citations Jump To Cite 1 - [2008] QSC 209 Cite 2 - [2008] QSC 209
Minister for Immigration and Border Protection v WZARH	View on:JADE(2015) 256 CLR 326	1 citation Jump To Cite 1 - (2015) 256 CLR 326
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam	View on:JADE(2003) 214 CLR 1	1 citation Jump To Cite 1 - (2003) 214 CLR 1
O'Hearn v State of Queensland (Queensland Health)	[2023] QIRC 283	2 citations Jump To Cite 1 - [2023] QIRC 283 Cite 2 - [2023] QIRC 283
Pflaum v State of Queensland (Department of Education)	[2024] QIRC 50	2 citations Jump To Cite 1 - [2024] QIRC 50 Cite 2 - [2024] QIRC 50
Piggott v State of Queensland	[2010] ICQ 35	2 citations Jump To Cite 1 - [2010] ICQ 35 Cite 2 - [2010] ICQ 35
Pillai v Messiter (No.2)	View on:NSWLR(1989) 16 NSW LR 197	2 citations Jump To Cite 1 - (1989) 16 NSW LR 197 Cite 2 - (1989) 16 NSW LR 197
Pope v Lawler	View on:JADE[1996] FCA 1446	1 citation Jump To Cite 1 - [1996] FCA 1446
Radanovic v State of Queensland (Department of Education)	[2024] QIRC 225	2 citations Jump To Cite 1 - [2024] QIRC 225 Cite 2 - [2024] QIRC 225
Stacey v State of Queensland (Department of Education)	[2024] QIRC 220	2 citations Jump To Cite 1 - [2024] QIRC 220 Cite 2 - [2024] QIRC 220
Ulowski v Miller	[1968] SASR 277	1 citation Jump To Cite 1 - [1968] SASR 277
Whitfield v Primo Foods	View on:JADE[2021] FWC 2729	1 citation Jump To Cite 1 - [2021] FWC 2729
Wirth v Mackay Hospital and Health Service	[2016] QSC 39	1 citation Jump To Cite 1 - [2016] QSC 39

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Dau v State of Queensland (Department of Education)	[2025] QIRC 82	2 citations
Vaughan v State of Queensland (Department of Education)	[2025] QIRC 75	1 citation
Wearne v State of Queensland (Department of Education)	[2025] QIRC 87	2 citations

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Patterson v State of Queensland (Queensland Corrective Services) (No. 2)[2024] QIRC 287