Irving v State of Queensland (Queensland Corrective Services)
[2024] QIRC 33
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- Unreported Judgment
- Irving v State of Queensland (Queensland Corrective Services)[2024] QIRC 33
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Irving v State of Queensland (Queensland Corrective Services)[2024] QIRC 33
Irving v State of Queensland (Queensland Corrective Services)[2024] QIRC 33
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Irving v State of Queensland (Queensland Corrective Services) [2024] QIRC 033 |
PARTIES: | Irving, Anthony (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent) |
CASE NO: | PSA/2023/173 |
PROCEEDING: | Public Sector Appeal – Appeal against a discipline finding decision |
DELIVERED ON: | 31 January 2024 |
HEARING DATE: | 31 January 2024 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a disciplinary finding decision – appellant accused of failing to take reasonable steps to ensure the safety and security of a prisoner after they raised concerns regarding another prisoner – appellant accused of failing to activate body-worn camera during an incident – whether the appellant engaged in the conduct subject of the allegations – whether conduct was sufficiently serious to warrant disciplinary action – where the allegations are not substantiated – where the chief executive cannot be reasonably satisfied disciplinary grounds have been established – where the disciplinary finding was unfair and unreasonable – decision appealed against is set aside |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 526B, s 562C Public Sector Act 2022 (Qld), s 91 Code of Conduct for the Queensland Public Service, cl 1.5a Custodial Operations Practice Directive – Body-worn Cameras |
CASES: | Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) |
APPEARANCES: | Mr C Hackett for the appellant. Ms N Smith for the respondent. |
Reasons for Decision (delivered ex tempore)
- Introduction and background
- [1]Mr Anthony Irving is employed by Queensland Corrective Services ('QCS') ('respondent') as a Custodial Correctional Officer at a correctional facility in North Queensland.
- [2]In May 2023, Mr Irving was asked to show cause why a disciplinary finding should not be made against him in respect of two allegations, namely:
- Allegation 1: On 11 December 2021, Mr Irving failed to take reasonable steps to ensure the safety and security of a prisoner ('Prisoner J') after she raised concerns regarding another prisoner ('Prisoner C'); and
- Allegation 2: On 11 December 2021, Mr Irving failed to activate his body-worn camera during an incident, in accordance with the Custodial Operations Practice Directive – Body-worn Cameras ('the Policy').
- [3]Following Mr Irving’s response to the show cause letter, Mr Gary McMahon, Deputy Commissioner, Custodial Operations advised Mr Irving of the findings in relation to the allegations by way of correspondence dated the 31 August 2023. The findings were accompanied by detailed reasons.
- [4]In respect to Allegation 1, the finding was:
On the basis of the substantiated finding in relation to Allegation 1, I have determined that pursuant to section 91(1)(b) of the PS Act, you are guilty of misconduct, that is, inappropriate or improper conduct within the meaning of section 91(5).
- [5]In respect to Allegation 2, the finding was:
On the basis of the substantiated finding in relation to allegation 2, I have determined that pursuant to section 91 (1)(h) of the PS Act, in that (sic) you have contravened without reasonable excuse a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, namely, a standard of conduct applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, namely, clause 3.1 of the Code of Conduct.
- [6]These findings are the decision that Mr Irving now appeals.
- [7]For clarity, the decision letter also foreshadows a number of proposed penalties. These are proposed penalties only and are therefore not the subject of consideration in this review.
- Relevant legislative provisions
- [8]Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides the Commission with jurisdiction to deal with public sector appeals.
- [9]
- [10]Section 562C of the IR Act prescribes the types of orders that the Commission can make. In deciding this appeal, s 562C(1) of the IR Act provides that Commission may:
- (a)confirm the decision appealed against; or
- (b)…; or
- (c)for another appeal - set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
- …
- Submissions
- [11]Following directions issued on the 7 September 2023, the parties filed comprehensive written submissions in this appeal. Additionally, a hearing of the matter was conducted on 31 January 2024 during which each party had the opportunity to answer questions and to make further submissions in relation to the matter.
- [12]All the written submissions have been considered however they will not be summarised in full. The salient parts are referred to later in these reasons.
- [13]While the allegations in this matter arise in closely related factual chain of events, they are allegations that remain quite distinct from each other and warrant careful individual consideration.
- Consideration
Allegation 1
- [14]With respect to Allegation 1, the uncontroversial facts are that during the early part of Mr Irving’s shift on the 11 December 2021, he was informed by Prisoner J that Prisoner C had threatened to 'bash' her. Mr Irving said to Prison J words to the effect of, "Leave it with me".
- [15]Mr Irving then sought out Prisoner C and spoke with her about the threat that had been reported to him. Following his conversation with Prisoner C, Mr Irving determined that there was no threat and took no further steps to address or report a threat that had been reported by Prisoner J.
- [16]It ought to be noted that during his record of interview, Mr Irving identified that the conversation with Prisoner C was in the company of another correctional officer, however, he was unable to recall who that officer was at the time of the interview.[3]
- [17]Given the critical nature of Mr Irving’s account that Prisoner C did not appear to pose a threat, it is more than a little perplexing that those responsible for investigating these allegations did not make more of an effort to identify the other officer. Indeed, the idea of corroboration emerges in the transcript of interview as a distant afterthought to the investigating officer.[4]
- [18]The investigators almost certainly could have had access to e.g., rosters on the day in question, and could have potentially identified the unidentified officer from those records through simple questioning. Further, even in their interviews with the limited number of correctional officers they did interview, the investigators made no attempt whatsoever to identify whether any of them was the officer who spoke to Prisoner C with Mr Irving.
- [19]Given the acknowledged absence of a formal policy to report every threat of violence, the failure to fully explore Mr Irving’s evaluation of Prisoner C’s demeanour by at least even attempting to verify it with other officers who were on the same roster is a troubling oversight.
- [20]As a further aside, there is some dispute about whether Mr Irving informed his supervisor of the relevant events with respect to the threat reported by Prisoner J. The supervisor denies any threat was reported to him by Mr Irving and the decision relies on this as a something of an aggravating factor of Mr Irving’s conduct. But the fact that Mr Irving did not report a threat of violence to his supervisor is not surprising because Mr Irving did not perceive any threat to report. Further, Mr Irving contends that his discussion with the supervisor was not a formal escalation of the report of the threat but rather, it was a mere observation that no action was required. It is therefore equally unsurprising that Mr Irving’s supervisor might not recall such an innocuous discussion.
- [21]In those circumstances it is largely irrelevant what, or if, he said anything to his supervisor about the threat reported to him by Prisoner J.
- [22]Within minutes of Mr Irving’s conversation with Prisoner C, Prisoner C then assaulted Prisoner J, causing injury to her lip requiring three stitches.
- [23]It is the failure by Mr Irving to act on Prisoner J’s report of the threatened assault that the respondent contends is misconduct within the meaning of s 91 of the PS Act. In particular, the respondent contends that Mr Irving was obliged to take reasonable steps to ensure the safety of prisoners pursuant to cl 1.5a of the Code of Conduct for the Queensland Public Service, and further (in accordance with the apparent testimonies of other officers interviewed) it was the 'usual practice' to notify a supervisor if threats come to the attention of a correctional officer.[5]
- [24]Section 91(5) of the PS Act relevantly provides:
misconduct means -
Inappropriate or improper conduct in an official capacity.
- [25]It is noted that the meaning of the term misconduct as it appeared in the Public Service Act 2008 (Qld)[6] used identical terminology to s 91(5) of the PS Act. In Coleman v State of Queensland (Department of Education) ('Coleman')[7], Deputy President Merrell concludes that the definition of misconduct contemplates:
…a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.
(Emphasis added)
- [26]In all the circumstances of this matter, it is impossible to see how the conduct of Mr Irving could rise to the level of conduct contemplated by Deputy President Merrell in Coleman.
- [27]Importantly in this matter, it is acknowledged by the decision maker that the respondent has no formal procedure for dealing with reports of threats.[8] This is nothing short of astonishing when one considers that QCS is responsible for the safe custody of people held in a prison system that includes dangerous and violent individuals.
- [28]While interviews with a handful of Mr Irving’s coworkers purportedly establish what they consider is the 'usual practice', this falls well short of establishing an 'accepted standard' that Mr Irving had departed from, or against which serious negligence can be measured.
- [29]Further, having regard to the records of interview it can plainly be observed that the answers given do not reveal a consistent understanding of a 'usual practice' nor do the answers properly address the scenario confronting Mr Irving.
- [30]Firstly, the questions asked of Mr Irving’s co-workers by the investigator required them to identify their understanding with respect to reporting threats. The questions asked by the investigator always presuppose that the hypothetical threat was credible. There is no questioning about how they first evaluate the threat, or what they should do (if anything) if they consider a threat is not credible.
- [31]Secondly, on the Commission’s perusal of the records of interview, there no clear or consistent understanding evident of any practice known or understood by Mr Irving’s colleagues. It must be observed that there appears to have been little thought applied to the questions posed by the investigators. For a decision that purports to rely on an understanding of 'usual practice' amongst Mr Irving’s co-workers, there is little consistency in the questions about this to his co-workers, and in some cases questions necessary to extract this information are, in one case, entirely omitted.[9]
- [32]The answers given by each of the co-workers interviewed were anything by consistent with an understanding of a 'usual practice' for reporting threats, and even then, they were only given in response to hypotheticals involving credible threats.
- [33]One of the best examples of the absence of understanding is the answers given by Mr Irving’s supervisor, Mr Appleby, in his record of interview on the 11 March 2022.[10] It must be noted here that in reproducing his answers, the Commission is not singling Mr Appleby out for criticism of any sort. As will become apparent later in these reasons, the complete absence of formal policy has left each of Mr Irving’s co-workers (including Mr Appleby) to exercise their own judgment on a case by case basis.
- [34]At the bottom of page 5 of the record of interview, the interviewer says to Mr Appleby words to the effect of:
What happens if a prisoner comes to you and says they feel threatened by another prisoner? What actions do you take?
- [35]In his response, Mr Appleby relevantly says:
…but generally, you try and get the facts before you make a decision, because we have only got a certain amount of space we can move prisoners. So it is often the prisoner will say they feel unsafe because they do not want to be in a unit, or do not want to move to a specific unit because they are comfortable. So we have to explore every allegation before we make decisions.
(Emphasis added)
- [36]Later in the interview Mr Appleby is asked:
Investigator: Okay. And is it something that you deal with immediately or…
….
Mr Appleby: If the prisoner, I think if the prisoner’s body language shows that they’re fearful and…unsafe or nervous then we put them in…their own cell to segregate them…
(Emphasis added)
- [37]Mr Appleby is very plainly alluding to the exercise of the personal evaluation and judgment he applies to a purported threat. Yet the investigator fails to further explore the alternative scenario i.e., what would you do if e.g. the body language of the prisoner revealed them to be relaxed and unconcerned?
- [38]Even Mr Irving’s supervisor is unable to give a clear or consistent description of a 'usual practice' with respect to how threats are dealt with. And the answers he does give are in the context of a presumed credible threat. On the whole, the answers of Mr Appleby appear entirely consistent with the conduct of Mr Irving on the day in question.
- [39]In the absence of any formal policy for reporting threats, or any detailed agreement on a uniformly accepted practice, it can only be concluded that the reality of the situation in this workplace is that the respondent relies on the judgment of its custodial officers to determine the veracity of reported threats before they are required to act on them. This is entirely understandable given that it can be readily anticipated that innumerable, baseless threats of violence must occur on a daily basis in prisons, and a compulsion to report every one of them would produce an enormous burden on staff.
- [40]It would seem on the established facts that Mr Irving did not carelessly or negligently ignore the reported threat. On the contrary, he firstly assured Prisoner J that he was acting on it. He then immediately sought out Prisoner C to discuss the threat with her.
- [41]While discussing the matter with Prisoner C, Mr Irving formed a view that the threat was baseless. His view was not formed casually. His view was founded not just in his observations of the demeanour and language of Prisoner C, but also in the context of his not insubstantial experience as a prison officer, and his knowledge of (amongst other things) prisoners occasionally making false allegations of threats to provoke the exclusion of another prisoner from their particular unit.
- [42]In respect to that last consideration referred to by Mr Irving, it is noted with interest that the respondent’s material includes a document prepared the previous day to the incident in question, by another prisoner officer, about Prisoner J.[11] In that document the other prison officer details interactions with Prisoner J and records details of reported threats. It also records the prisoner officer experiencing the same suspicion expressed by Mr Irving with respect to Prisoner J, namely, doubts about veracity of the threats, and concern that they may be for that exact purpose later contemplated by Mr Irving. The note relevantly records:
…I’m not sure who is telling the truth however Prisoner J appears to not want the other prisoner in the unit with her...
- [43]There is no evidence that would suggest that Mr Irving reached the conclusions that he did on any other basis than pursuant to an exercise of his best judgment in all the circumstances that presented to him at the time. If he had genuinely assessed there was no threat (which is accepted) then it follows, in the absence of any formal policy or direction requiring him to act otherwise, that he would not consider he needed (or was obliged) to report the matter. Further, the respondent has no evidence to contradict the genuineness of the belief Mr Irving contends he had.
- [44]Regard has been had to whether Mr Irving’s conduct might otherwise fall more properly within other grounds for discipline identified in s 91 of the PS Act. Consideration was given to whether his conduct could more properly fall into a category that would be more appropriately dealt with by performance management. But on full reflection, and in the circumstances of the total absence of any formal policy or direction that compelled Mr Irving to have acted differently in this matter, it is concluded that it is unfair to hold Mr Irving to a standard that the respondent itself cannot reliably identify.
- [45]Overall, the evidence reveals that Mr Irving exercised his best judgment and he did so in good faith. The fact that Prisoner C immediately contradicted his judgment does not, of itself, mean that his judgment was flawed or that he acted unreasonably or negligently.
- [46]Further it emerged at the hearing that the earlier documented tensions between Prisoner J and Prisoner C were never communicated to Mr Irving before he commenced his shift. It is noted also that despite a documented report of antagonism between those very prisoners, it appears to have been of insufficient concern to other staff to warrant any intervention. It is particularly unfair and unreasonable to effectively blame Mr Irving for an assault merely because it happened 'on his watch' in the context of a serious policy void, and where a report prepared only the day before was not brought to his attention and went unactioned.
- [47]For these reasons it is concluded that Allegation 1 is not substantiated.
Allegation 2
- [48]The particulars with respect to Allegation 2 are that, within minutes of Mr Irving being assured by Prisoner C she was not a threat to Prisoner J, Prisoner C then assaulted Prisoner J. Upon this assault commencing, Mr Irving and a colleague immediately responded and ultimately separated the prisoners, but not before Prisoner J was injured.
- [49]The finding in respect of Allegation 2 draws its language from s 91(1)(h) of the PS Act which provides:
91 Grounds for discipline
(1) A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has –
…
(h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
…
(Emphasis added)
- [50]It is not controversial that the cl 3.1 of the Code of Conduct meets the definition of 'a relevant standard of conduct'.[12] There is no doubt the Policy was of the type contemplated by cl 3.1(e) of the Code of Conduct. It is not controversial that in responding to the incident Mr Irving failed to activate his body worn camera. He was clearly required to do so by the Policy and as such, he has arguably contravened the Policy.
- [51]In response to the show cause process Mr Irving did not dispute he failed to activate the camera but said, in essence:
- that his failure to do so was unintentional;
- his failure to do so was in some way related to there being no visual or audio reminders for him to activate it;
- that it is easy to forget to activate the body worn camera when experiencing an adrenaline rush as one would be experiencing when attempting to break up a fight between two prisoners; and
- that the incident escalated suddenly and therefore he was focused on responding.
- [52]There is no suggestion that Mr Irving’s failure to activate his body worn camera robbed the respondent of any critical evidence regarding the assault. Further, there is no evidence or allegation that Mr Irving’s failure to activate his body worn camera served to conceal any misconduct on his part. Mr Irving’s explanation for his failure to activate the body worn camera is entirely plausible given the urgent nature of the duties he was performing, and especially given that those duties involved ensuring the safety of a prisoner.
- [53]It is noted that the Policy itself contemplates circumstances where an officer will fail to activate their camera. The policy relevantly provides:
Where a BWC has not been activated, the officer or officers directly involved in the incident must complete an officer report and include the reasons for not activating the camera.
- [54]The fact that the policy contemplates an officer not activating their camera suggests that there will be circumstances where, subject to reasons provided, a failure to activate the camera will not amount to a contravention, or at least mitigate the contravention. Further, it is noted that Mr Irving, in compliance with the Policy, completed a detailed incident report and explained his reasons for failing to activate the camera. This report was completed on the same day as the incident, plainly sets out what occurred, and explains the failure to activate the camera was due to him concentrating on what was happening.[13]
- [55]The finding in this matter is that Mr Irving’s contravention of the Policy was in a way that was 'sufficiently serious' to warrant disciplinary action. Having regard to the circumstances, it is impossible to see how the decision maker might have regarded Mr Irving’s unintentional contravention as 'sufficiently serious' to warrant disciplinary action.
- [56]The language 'sufficiently serious' found at s 91(1)(h) of the PS Act plainly infers that there will be a range of contraventions of a relevant standard of conduct, but that not all will be sufficiently serious to warrant disciplinary action.
- [57]As to what conduct will meet the necessary threshold, the language of s 91(1)(h) invites consideration by the relevant decision maker of the circumstances of each case to evaluate the seriousness (or otherwise) of the contravention. Such evaluation might typically include e.g. the purpose or importance of the policy, the consequences of the particular contravention, and any relevant disciplinary or conduct history of the contravening employee.
- [58]In the absence of any evidence or allegation that Mr Irving’s conduct was something more sinister, or that it produced more serious consequences in respect of the injuries to the prisoners, or that it exposed the respondent to significant liability or other legal consequences, it cannot be fairly concluded that Mr Irving’s conduct was sufficiently serious to warrant disciplinary action. A mere contravention of the Policy does not, of itself, equate to conduct that is sufficiently serious.
- [59]In considering this matter, contemplation was given to whether Mr Irving’s conduct might still warrant some form of intervention in the form of performance management. Contemplation was also given to whether the matter might properly be returned to the decision maker to reconsider the matter for those purposes.
- [60]However, the Commission was informed by Mr Irving’s union advocate at hearing that, in the two years since this incident has occurred, Mr Irving’s employment record remains completely unblemished, and that it was so prior to these incidents also. This submission is not contradicted by the respondent.
- [61]In the circumstances, there is no utility in returning this matter where Mr Irving’s performance has been otherwise wholly meritorious.
- [62]It follows that Allegation 2 is not substantiated.
- Conclusion
- [63]In all of the circumstances of this matter, I find the decision to be unfair and unreasonable.
- Order
- [64]The Commission makes the following order:
- 1.The decision appealed against is set aside; and
- 2.The decision appealed against is substituted with the following decision:
- i.Allegations 1 and 2 are not substantiated.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[2] Industrial Relations Act 2016 (Qld) s 562B(3).
[3] See Respondent’s submissions filed 2 November 2023, Attachment 24, paragraph 66 and 223.
[4] See Respondent’s submissions filed 2 November 2023, Attachment 24, paragraph 222.
[5] Decision letter, page 5, paragraph 3 and page 7, paragraph 11.
[6] Now repealed.
[7] [2020] QIRC 032 at [62].
[8] Decision letter, page 7, paragraph 11.
[9] See Respondent’s submissions filed 2 November 2023, Attachment 15.
[10] See Respondent’s submissions filed 2 November 2023, Attachment 22.
[11] See Respondent’s submissions filed 2 November 2023, Attachment 13.
[12] PS Act, s 91(5).
[13] See Respondent’s submissions filed 2 November 2023, Attachment 23.