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Parker v QFES Commissioner

[2020] QSC 370

Parker v QFES Commissioner[2020] QSC 370

SUPREME COURT OF QUEENSLAND

CITATION:

Parker v QFES Commissioner & Anor [2020] QSC 370

PARTIES:

NEIL PARKER

(plaintiff)

v

COMMISSIONER, QUEENSLAND FIRE AND EMERGENCY SERVICES

(first defendant)

MIKE WASSING

(second defendant)

FILE NO/S:

SC No 48 of 2019

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

6 November 2020

DELIVERED AT:

Cairns

HEARING DATE:

3 November 2020;

4 November 2020;

5 November 2020

JUDGE:

Henry J

ORDERS:

  1. It is declared that in failing to afford the plaintiff an opportunity to be heard in relation to his suspension after his notification of it by the letter from the second defendant dated 3 September 2018, the second defendant failed to ensure that the plaintiff’s suspension was effected in accordance with the principles of natural justice as required by s 33 Fire and Emergency Services Act 1990 (Qld).
  2. It is declared that in failing to afford the plaintiff an opportunity to be heard in relation to his suspension before his notification of suspension in each of the letters from the second defendant dated 27 November 2018, 31 January 2019 and 6 February 2019, the second defendant in each instance failed to ensure that each such suspension was effected in accordance with the principles of natural justice as required by s 33 Fire and Emergency Services Act 1990 (Qld).
  3. Liberty to apply on the giving of two business days’ notice.
  4. The parties will file and serve submissions in writing as to costs, not to exceed five pages, within five working days.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the plaintiff was a senior officer in the Rural Fire Service, a branch of the Queensland Fire and Emergency Service (“QFES”) – where the plaintiff was suspended on 3 September 2018 by the second defendant, a delegate of the first defendant, from duties pending the conclusion of a disciplinary process – where subsequently the defendants extended this period of suspension – where the defendants did not hear from the plaintiff in relation to whether he should be suspended or, thereafter, whether the suspension should continue – where the plaintiff was denied access to his work computer and mobile phone preventing him from accessing his emails and diaries – where the plaintiff was denied access to other employees who might have had knowledge of the events the subject of the disciplinary process – whether the defendants denied the plaintiff natural justice by failing to afford him access to material which might have informed his response to the allegations of misconduct – whether determining if natural justice has been afforded would be premature in circumstances where the disciplinary process has not concluded – whether the defendants were under an obligation to afford the plaintiff natural justice when deciding whether or not he should be suspended

INTELLECTUAL PROPERTY – CONFIDENTIAL INFORMATION – OBLIGATION OF CONFIDENTIALITY – where the plaintiff was tasked with performing informing counselling services to a fellow employee, XY – where XY surreptitiously recorded the plaintiff and XY’s telephone conversations – where during these telephone conversations the plaintiff allegedly disclosed confidential information, made rude remarks denigrating his manager and suggested he would corrupt an employee selection panel – where the recordings were brought to the attention of the QFES because of XYs WorkCover claim – where a referral was made by a member of the QFES’ Ethical Standards Unit to the Crime and Corruption Commission – where the Crime and Corruption Commission considered it appropriate the QFES “deal with” the alleged misconduct – whether the QFES’ use of the recordings should be restrained because they constitute unconscionable misuse of confidential information – whether the conversations involved information that was imparted in circumstances importing an equitable obligation of confidence

Crime and Corruption Act 2001 (Qld), s 2, s 15, s 18, s 39, s 43

Fire and Emergency Services Act 1990 (Qld), s 30, s 30A s 32, s 33

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited

Armstrong Strategic Management and Marketing Pty Ltd v Expense Reductions Analysts Group Pty Ltd (2012) 295 ALR 348, cited

Braun v Rushbrook [2020] QSC 268, followed

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited

Coco v AN Clark (Engineers) Ltd [1969] RPC 41, applied

Crown Resorts Ltd v Zantran Pty Ltd (2020) 374 ALR 739, considered

Hamdan v Callanan [2016] 1 Qd R 128, cited

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, considered

Kioa v West (1985) 159 CLR 550, cited

Kitching v Queensland Commissioner of Police & Ors [2010] QSC 303, applied

Longman v The Queen (1989) 168 CLR 79, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, considered

Rucker v Stewart [2014] QCA 32, considered

COUNSEL:

M Jonsson QC for the plaintiff

A Scott for the defendants

SOLICITORS:

Peters Bosel Lawyers for the plaintiff

G R Cooper, Crown Solicitor for the defendants

HIS HONOUR: The plaintiff, Mr Parker, has been suspended on full pay for over two years from his duties as area director for the far northern region of the Rural Fire Service. That service is evidently a branch of the Queensland Fire and Emergency Service, which I will refer to hereafter as “QFES” or the “Service”.

Mr Parker claims injunctive relief against the QFES Commissioner and the Deputy Commissioner, Mike Wassing, who acted as the Commissioner’s delegate in suspending Mr Parker. Mr Parker’s claim was filed on 12 February 2019. A request for trial date was not filed until well over a year later on 8 June 2020 and on 10 June, I listed the hearing, which, in turn, proceeded this week.

Evidence in chief was by affidavit at trial. Some witnesses were cross-examined briefly, with no particular surprises emerging in respect of the largely documentary facts of the case. Most of the hearing time was consumed by the very helpful opening and closing addresses of both counsel, which have been of great assistance in allowing me to narrow and resolve what, in the end result, emerged as the obviously determinative issues. That assistance has also allowed me to decide the case forthwith, delivering these ex tempore reasons, an outcome plainly in the interest of all parties in light of the regrettably long period of Mr Parker’s suspension without any resolution of the disciplinary process which had purportedly been initiated in respect of Mr Parker in conjunction with the suspension.

To remove doubt, no interim orders were made staying the disciplinary process. On the date the claim was filed, Mr Parker’s lawyers sought an undertaking from the defendants’ lawyers to maintain Mr Parker’s employment on suspension from duties on full pay until the finalisation of proceedings on the claim. In their response dated 14 February 2019, the defendants’ lawyers declined to give such an undertaking. The letter referred to a disciplinary process involving three stages which had not yet advanced beyond the first stage, under which it was asserted Mr Parker had been asked to show cause why disciplinary findings should not be made in respect of allegations against him. It was asserted no disciplinary findings had been made and:

“The status quo will remain in place unless a decision is made, after the completion of the remaining steps in the process (i.e. steps 2 and 3), by the decision-maker for disciplinary action to be taken which involves altering the status quo.”

There was no change of the defendants’ position regarding an undertaking until almost one year later, when on 7 February 2020, his lawyers, by letter to Mr Parker’s lawyers, flagged the defendants were prepared to undertake that no further steps in the disciplinary process would be taken until the proceeding was finalised, conditioned on Mr Parker’s lawyers agreeing to a consent order providing for the exchange of affidavit material. This was not the undertaking sought in respect of Mr Parker’s suspension on full pay, although such a suspension has continued to the present.

The defendants’ counsel submitted it is reasonable to infer the defendants had not concluded the disciplinary process by the time of that letter because this proceeding bore upon the legitimacy of the defendants’ actions in the disciplinary process thus far. Be that as it may, the upshot is that Mr Parker has been suspended for such a long time as to make the suspension itself a material form of de facto disciplinary action.

The adverse impact of such a suspension may not be as great as if it had been suspension without pay, but for Mr Parker to be suspended for such a very long period from his calling carries other impacts, including the ongoing insult to a person’s self-worth derived from work and loss of career and other opportunities within the workplace. Here it has also included the embarrassment and prolonged stress of being prevented not only from interacting with his work friends but in having to keep secret from them the inevitably gossip-engendering mystery of why he ceased work in connection with them. It is additionally likely that speculation as to the reason for his prolonged absence from work and eventually an inevitably widespread belief he had been suspended would damage his reputation. There is nothing I can do to cure such adverse consequences but I observe they can, at least, be taken into account in any decision the QFES may finally arrive at and – if it does, in the end, decide to take disciplinary action – in determining what disciplinary action should be taken.

The relief claimed, in summary, sought to restrain the defendants from taking or progressing any further disciplinary action against the plaintiff at all, or alternatively, to restrain them from taking or progressing further disciplinary action using or relying on a show cause notice of 31 January 2019 or on the allegedly confidential information which triggered the chain of events leading to Mr Parker’s suspension. In the end result, argument also focused upon whether there ought be a form of injunctive or declaratory relief in respect of the suspension, in the event I found it was not effected in accordance with the principles of natural justice as required by s 33(1) Fire and Emergency Services Act 1990 (Qld).

I am unpersuaded there ought be a blanket restraint or a restraint regarding the use of the allegedly confidential information. I am, however, persuaded that the suspension and related show cause process was, in ways I will discuss, potentially or actually in breach of the principles of natural justice. The appropriate relief which ought follow from the conclusions I will reach is a topic to which I will return at the conclusion of my reasons.

The allegedly confidential information came into existence and was, in turn, revealed in the following circumstances. In mid-2015, Mr Parker was requested by his then-regional manager, Mr Hazell, to keep an eye on and check in on a fellow employee – who I will, to preserve anonymity, refer to as “XY” – who was experiencing marked stress in connection with workplace and other issues. XY had, evidently, already had some recourse to the Service’s formal support network for stressed employees. However, with XY’s issues apparently continuing, Mr Hazell was concerned about XY’s welfare. He concluded Mr Parker, who was held in high regard by XY, was well-suited to supporting XY by reaching out to XY, eliciting and reinforcing XY’s trust and confidence in him, relating to XY, reassuring XY and sympathising with XY as a support person, albeit not a formally appointed support person.

Mr Parker proceeded to engage with XY from time to time from late 2015 until mid-July 2017. During much of this time, XY was absent from duties on extended personal leave and the communications were by telephone. Mr Parker used his work-issued mobile telephone to contact XY on XY’s personal mobile phone every one to three weeks.

Unbeknown to Mr Parker, XY recorded at least some of the telephone conversations. The means by which XY did so, and whether those means constituted an interception and were thus in breach of s 7 Telecommunications (Interception and Access) Act 1979 (Cth), are unknown. XY was not a witness in this proceeding.

XY made a WorkCover claim in 2017. It was refused and XY evidently applied for a review of that decision to the regulator under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). The information XY submitted to the regulator included XY’s recordings of conversations with Mr Parker. XY evidently thought, misguidedly, that the recordings supported or corroborated XY’s claims of disagreement with XY’s manager, who I will, for the purpose of anonymity, refer to as “AB”.

XY’s recordings were, I infer, necessarily disclosed to the QFES representative who provided a response in the review to the regulator. That representative in turn disclosed the recordings to the executive manager of the Service’s Ethical Standards Unit, Mr Lenz, on 27 June 2018. He allocated the task of considering the recordings to Ms Chetham of the Ethical Standards Unit. Ms Chetham, in due course, further consulted with Mr Lenz.

On 14 August 2018, Mr Lenz notified the Crime and Corruption Commission (“CCC”) in a purported referral of allegations of corrupt conduct, that the recordings submitted to the regulator showed Mr Parker had disclosed confidential information, denigrated his manager AB and stated that he was going to corrupt an employee selection process by loading the selection panel to select a person I will refer to as “LM”. The referral contained some other allegations, but that sufficiently states the core three themes which sparked the Service’s concern.

I pause to acknowledge that Mr Parker’s explanation for his comments about these three topics in the course of his telephone conversations with XY is that he was “actively seeking to encourage and maintain rapport” with XY and, as part of that process, spoke of issues relevant to both of their professional and private lives in “relaxed, informal, and sometimes colourful” language. In short, his position is that what he said on those three topics did not involve nefarious intention or an intention that it would be broadcast to others and rather what he said was said in confidence in the context of trying to encourage and maintain rapport with a co-employee the Service had asked him to support.

I am not here involved in a merits review and it is no part of my role to determine the rights or wrongs of what Mr Parker was recorded saying to XY, although the context in which he said it is relevant to the issue of confidentiality to which I will come.

Mr Lenz’s referral to the CCC contended the identified aspects of the recorded calls supported allegations reasonably suspected as amounting to corrupt conduct. The meaning of “conduct” in s 15 Crime and Corruption Act 2001 (Qld) is broad, going beyond conduct which, if proved, would be a criminal offence, to include conduct which, if proved, would be “a disciplinary breach providing reasonable grounds for terminating a person’s services”.

Mr Lenz’s referral concluded:

“QFES considers that the above allegations require formal investigation and it has the capacity to deal with them. QFES is also considering taking administrative action in relation to Inspector Parker (suspension), however, will await the CCC’s assessment before commencing such action. Accordingly, QFES requests verbal approval to commence dealing with the matter.”

It is tolerably clear the referral was made because of the duty to notify imposed upon public officials by the Crime and Corruption Act, and not because it was seriously anticipated the matter required investigation by the CCC. The CCC was evidently of the same view, for according to an email of 23 August 2018 by Mr Lenz to the second defendant, Mr Wassing, the CCC had advised the allegations were “suitable for QFES to deal with” and, moreover, the CCC did “not require any outcome advice as to how QFES deals with the matter (although they could review it in the yearly audit)”.

If it was correct that what Mr Parker had been recorded saying constituted conduct which, if proved, constituted a disciplinary breach providing reasonable grounds for termination, then apart from QFES’ view that the conduct warranted administrative action, QFES had a statutory responsibility pursuant to s 43 Crime and Corruption Act to “deal with” the information.

The definition of “deal with” in s 2 Crime and Corruption Act includes:

“to investigate the information, to start a disciplinary proceeding, and to take other action, including managerial action to address the complaint in an appropriate way.”

The recorded information was used by the QFES in the ensuing process undertaken in respect of Mr Parker. While other information was also relied on, it is clear the disciplinary process was triggered by the revealing of the recorded information and the information was of ongoing and foundational importance to the process undertaken.

Before dealing with the process which followed and whether it was in breach of the principles of natural justice, it is convenient to now pause and consider the argument that the Service’s use of the recorded information breached an equitable obligation of confidentiality said to attach to the information.

The confidentiality argument is now a narrower one than was foreshadowed in the initial correspondence by Mr Parker’s lawyers with the Service. That correspondence complained, inter alia, that the publication of the recorded private conversations by XY was in breach of s 45 Invasion of Privacy Act 1971 (Qld) and that, for that reason, it should not have been further published to or used by the QFES. That argument was not pursued before me and the confidentiality argument was confined to the alleged breach of an equitable obligation of confidentiality.

The equitable obligation of confidentiality was shortly stated by reference to substantial authority by Allsop CJ in Crown Resorts Ltd v Zantran Pty Ltd (2020) 374 ALR 739 at 745:

“Even in the absence of a contract, equity will grant relief in personam not to disclose or use information other than for the purpose for which it was communicated if the nature of the information and the circumstances in which it was communicated call for that confidence to be respected by reference to notions of conscience.”

The elements required in proof of the obligation were identified by Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47 in a passage cited with approval in New South Wales Court of Appeal cases including Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd (2012) 295 ALR 348. His Honour identified three elements:

“First, the information itself…must ‘have the necessary quality of confidence about it.’ Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

In the present case, it is uncontroversial that the first and third elements are made out. Not so the second element. It must be recalled it was XY who was the party being supported and thus XY, rather than Mr Parker, who had an expectation of confidentiality. To use a parallel example, where a psychologist counsels a client there is an expectation the psychologist will honour the client’s confidences but it is scarcely to be expected by the psychologist that the client is obliged to treat the means and content of the psychologist’s contribution as confidential.

In the present case, moreover, Mr Parker went beyond what was necessary in carrying out the task he had been asked to perform. The remarks he made, which attract this controversy, even if he did think they might help build and maintain rapport, were obviously not essential to the process. The circumstances in which he made the remarks did not import an obligation of confidence. While there was a quality of confidence inherent in the remarks, the circumstances did not call for that confidence to be respected by reference to notions of conscience. It follows the recorded remarks were not protected by the equitable obligation of confidence. That finding is sufficient to dispense with the confidentiality issue.

However, it is well to at least briefly record why, if I had found the circumstances did attract the equitable obligation of confidence, I would, in any event, have concluded it was overcome by an exception to that obligation, namely, the principle that there is no confidence in inequity. In the analysis of that principle by Allsop CJ in Crown Resorts Ltd v Zantran Pty Ltd at 745-747, his Honour identified varying articulations of it, the essential theme of which is that the equitable obligation of confidence ought not protect against disclosure of a criminal or civil wrong or a serious misdeed of public importance. The latter category obviously involves matters of degree, but it would surely apply to disclosure of conduct where, as here, once the disclosure fell into the hands of the QFES, there existed a reasonable suspicion of corrupt conduct which the QFES had a duty to disclose and a duty to deal with – see ss 15, 38, 39 and 43 Crime and Corruption Act.

It is not to the point that, in due course, it may be concluded there has not actually been official misconduct. The aforementioned reasonable suspicion of official misconduct, in my conclusion, amply demonstrates there existed a prospective serious misdeed of such public importance the legislature mandated that it be disclosed. It is unnecessary to extend this analysis, as occurred in argument, to consideration of the principle of legality – as to which, see Hamdan v Callanan [2016] 1 Qd R 128 at 140-141.

The practical effect of the application of the Crime and Corruption Act to the circumstances of this case was to remove the protection of the equitable obligation of confidence if ever it did arise, because the action it necessarily required to be taken conferred upon the disclosed information a quality which placed it within the category of an acknowledged exception to that protection.

Further, whether as a separate pathway to that exception or as part of it, s 37 Public Interest Disclosure Act 2010 also grounds the operation of the exception in providing a person who makes a public interest disclosure does not breach an obligation by way of rule of law requiring the person to maintain confidentiality. Such a public interest disclosure is one made by a public officer about conduct which, if proved, could be corrupt conduct – see ss 13 and 17. The disclosure here by the QFES representative in the WorkCover review to the QFES’ Ethical Standard Unit and its disclosure, in turn, to the CCC was protected by this provision to the extent it was statutorily deemed not to be a breach of the equitable obligation of confidence. At the least, this gave the disclosure the exceptional character discussed above.

Finally, having touched upon the relevant provision of those two Acts, I observe that by the operation of those provisions they further dispense with the notion Mr Parker’s remarks could, in the first place, have imported an expectation that his confidence would be protected by reference to notions of conscience. That is to say, apart from supporting the exception, the provisions are powerful indicators that the equitable obligation of confidence did not arise in the first place. For all of these reasons, I reject the confidentiality argument and decline to restrain Mr Wassing from using the recorded information.

Before next turning to the disciplinary process, to better understand that process, it is useful to first note some relevant provisions of the Fire and Emergency Services Act. Section 30(1) of the Act relevantly provides:

“A fire service officer is liable to disciplinary action upon any of the following grounds shown to the satisfaction of the commissioner to exist—

  1. (b)
    negligence, carelessness or indolence in the discharge of duty;
  1. (c)
    wilful failure to comply, without reasonable excuse, with…an obligation imposed on the officer under—

(ii) a code of conduct…

  1. (f)
    misconduct; …”

Section 30(5) defines “misconduct” as meaning:

“(a)inappropriate or improper conduct in an official capacity; or

  1. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on QFES.”

It warrants emphasis that s 30(1) requires the relevant grounds are “shown to the satisfaction of the commissioner to exist”. Moreover, it contemplates that, when such grounds are shown to that level of satisfaction, the officer “is liable” to disciplinary action. The section does not say “may be liable”, nor is it referring to an earlier investigative or show cause process or stage undertaken prior to the commissioner reaching the point of satisfaction that the officer is liable to disciplinary action.

I emphasise that feature of the plain meaning of the section because it appears that, in the course of the QFES’s purported disciplinary process, it conflated an earlier stage of the process, when suspicion of potential liability to disciplinary action is under consideration, with the stage contemplated by s 30(1), when the grounds for liability to disciplinary action have been shown to the commissioner’s satisfaction to exist.

If all that is occurring is an investigatory phase, during which an officer may be invited to be heard about whether or not the commissioner should be satisfied grounds for liability to disciplinary action have been shown to exist, then it cannot yet be said that the officer “is liable to disciplinary action” as s 30(1) contemplates.

As to what disciplinary action is, s 30A(1) of the Act provides:

“In disciplining a fire service officer, the commissioner may take the action, or order the action to be taken, (disciplinary action) that the commissioner considers reasonable in the circumstances.”

The section goes on to list examples of disciplinary action, including dismissal, reclassification, transfer, salary reduction, monetary penalty and reprimand. The examples listed do not include suspension, although it is conceivable that suspension may serve as a reasonable form of disciplinary action.

It is clear from s 30A(1) and its examples that the term “disciplinary action” does not refer to a process such as the so-called “disciplinary process” earlier mentioned in the letter of the defendants’ lawyers of 7 February 2020. Rather, it refers to a potential end result of such a process, namely, the actual form of discipline to be undertaken. That is, the form of discipline that the commissioner considers reasonable in the circumstances.

The combined effect of ss 30 and 30A is that, if at least one of the grounds listed in s 30(1) is shown to the satisfaction of the commissioner to exist, the officer is liable to disciplinary action which the commissioner considers reasonable in the circumstances.

The Act specifically provides for suspension as a device in its own right. Section 32 relevantly provides:

“(1)Where––

  1. (a)
    it appears on reasonable grounds to the commissioner that a fire service officer is liable to disciplinary action or is suspected of involvement in circumstances such that the proper and efficient discharge of the functions of QFES might be prejudiced, if the officers services are continued; …

the officer may be suspended from duty by the commissioner.

  1. (2)
    A suspension may be lifted at any time by the commissioner …”

It is noteworthy that s 32(1)(a) contains two limbs. The first limb is that it appears on reasonable grounds to the commissioner that the officer is liable to disciplinary action. That is a reference to the same point in time to which s 30(1) refers, namely the point in time where it has been concluded the officer is liable, not merely may be liable, to disciplinary action. The second limb of s 32(1)(a) refers to an earlier stage, namely the stage where an officer is suspected of involvement in circumstances such that the proper and efficient discharge of the functions of the QFES might be prejudiced if the officer’s services are continued.

Regardless of which limb is utilised to suspend an officer, s 33 regulates the process by which suspension must be affected. Section 33 provides:

“(1)Dismissal or suspension must be effected in accordance with this Act and the principles of natural justice.

  1. (2)
    Dismissal or suspension is effected by giving the officer concerned a written notice signed by the commissioner.”

In the present case there was an initial suspension to a given date communicated by a letter from Mr Wassing to Mr Parker. Pursuant to s 27A Acts Interpretation Act, Mr Wassing’s letter to Mr Parker, as the commissioner’s delegate, met s 33(2)’s requirement that the written notice be signed by the commissioner. There were subsequent further such letters by him effecting further written notices of suspension, with the consequence each such effecting of suspension had to have been in accordance with the principles of natural justice. As will be seen, the suspensions were not effected in accordance with the principles of natural justice.

I turn now to the disciplinary process undertaken by QFES after the CCC confirmed around 23 August 2018 that QFES could deal with the matter. Subsequent to that the decision was taken by Mr Wassing to suspend Mr Parker, advising him of the suspension by letter dated 3 September 2018. That letter said, inter alia:

“I have received information concerning allegations about your conduct including:-

  1. (1)
    Between 28 April 2017 and 6 July 2017 you inappropriately disclosed confidential information to [XY] in relation to her return to the workplace after being on extended sick leave, and information about other staff members’ WorkCover claims.
  1. (2)
    Between 1 April 2017 and 30 July 2017, during telephone conversations with [XY], you made a number of inappropriate comments about Regional Manager [AB], including comments which were derogatory and undermining in nature.
  1. (3)
    You, as chair of the selection panel for a Brigade Training and Support Officer role in Cairns, sought to ensure the panel comprised of persons who you believed would support you, in ensuring that [LM] was appointed to the position.”

The letter explained limb two of s 32(1)(a) of the Fire and Emergency Services Act and said:

“On preliminary consideration of the material before me, I reasonably believe that you have been suspected of being involved in circumstances such that the proper and efficient discharge of the functions of QFES might be prejudiced if your services are continued.

Until this matter is resolved, I have decided that you should not remain in your current workplace, as I hold concerns in relation to the risk to QFES should you remain in your position. I have considered all possible alternative duties to which you could be temporarily assigned whilst these allegations are dealt with.

However, due to the nature of your position and its location in Cairns, I have formed a view that no alternative duties are possible at this time. Given the nature of the allegations, I have decided to suspend you from duty on normal remuneration, effective from the date you received this letter.

Your suspension will take effect immediately on receipt of this letter and will remain in place until 30 November 2018, unless otherwise determined.”

It is therefore apparent the suspension was, at least in the first instance, for about three months, until 20 November 2018, subject to determination otherwise. There did not ever follow a decision to shorten that period. To the contrary, it was progressively extended.

The suspension of 3 September 2018 was effected without first giving any warning to Mr Parker that it may occur, let alone giving him an opportunity to be heard before it was effected. It will be recalled s 33(1) obliged Mr Wassing to effect the suspension in accordance with the principles of natural justice. Those principles derive from the common law and are not rigidly prescribed. They oblige decision makers to afford procedural fairness to those whose rights or interests would be adversely affected by the decision under contemplation.

A traditional rule of natural justice, the hearing rule, requires an adjudicator to hear a person before making a decision about that person’s interests – see M Aronson and M Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) [7.20]. No such opportunity to be heard was afforded to Mr Parker before his suspension was effected. This bespeaks a prima facie denial of natural justice.

The requirements of procedural fairness to the affected individual and the exercise of a statutory power, such as suspension, call for consideration not only by reference to the individual’s interests, but also the interests and purposes which the statutory power serves to protect – see Kioa v West (1985) 159 CLR 550 at 585. Given that suspension at least initially serves the purpose of immediately protecting the QFES against an individual given advance warning of potential suspension, interfering with information in the workplace yet to be gathered, it is hardly surprising there exists authority for the proposition that natural justice will seldom demand there be an invitation to the individual to provide explanation or excuse before suspension is imposed – see Rucker v Stewart and Ors [2014] QCA 32. However there seems to be no such authority regarding suspension under s 33(1), which mandates suspension must be effected in accordance with the principles of natural justice.

Where, then, does s 33(1) leave a decision maker in cases where circumstances of urgency or necessity are pressing in warranting suspension without warning and trump the individual’s interests in being heard prior to a suspension? The question is an important one here, for the defendants contend that while the circumstances were not especially urgent – the information being quite dated – necessity nonetheless required the protective step of suspending Mr Parker without forewarning him, lest he interfere with sources of relevant information in the workplace yet to be investigated. That this was a concern is said to be confirmed by directions given in the letter of 3 September 2018, that Mr Parker return all equipment and materials belonging to QFES, that he not return to the workplace or any other QFES site without permission, and that he not discuss the matter with his work colleagues or any person likely to have information relevant to the allegations against him.

It was scarcely necessary to suspend Mr Parker in order to prevent him discussing the matter with work colleagues. Supervision may have removed one venue at which discussion with colleagues could occur, but it did not prevent contact outside the workplace or by telephone or digitally. It no more ensured such discussions could not occur than a bare direction could have. The return of work equipment of investigative relevance such as Mr Parker’s work mobile phone could also be directed without the need for suspension. It may however be accepted that at least a brief insulation of Mr Parker from his workplace via suspension was prudent, to allow for the discovery and securing of relevant documents and emails to safeguard against the at least theoretical risk of them being interfered with.

Plainly a suspension for at least three months, as has occurred here, was not remotely needed for that purpose. Accepting though that it was at least reasonable to suspend for the short period that the process of securing documentary and digital information would require, where did that leave Mr Wassing in how he could comply with s 33(1)? The answer, in my conclusion, is that if those circumstances meant it was not practicable in effecting the suspension for Mr Parker to be afforded the opportunity to be heard prior to it occurring then as a matter of statutory implication the written notice effecting the suspension order under s 33(2) in this instance the letter of 3 September 2018, should have expressly offered him the earliest practicable opportunity to be heard.

In arriving at that conclusion I respectfully adopt the reasoning of Williams J in Braun v Rushbrook & Anor [2020] QSC 268 at [141] and [142], where in reference to a decision to suspend pending an investigation, her Honour observed:

“Circumstances of urgency or necessity may justify an ‘initial’ decision without first affording natural justice provided that the decision is ‘coupled with a notice’ outlining the grounds of the decision and also provided with an opportunity to make representations in relation to the matter. The decision of Heatley v Tasmanian Racing and Gaming Commission [(1977) 137 CLR 487] is an example of this.

In Heatley v Tasmanian Racing and Gaming Commission Aitkin J referred by way of analogy to courts issuing ex parte injunctions that involve an order affecting the rights of defendants without giving them an opportunity to be heard. His Honour recognised ‘that power is of course used sparingly and is always so exercised that the earliest practicable opportunity is given to the defendants to appear before the Court to urge that the order be rescinded’.”

The need, in this case for the s 33(2) written notice, in the form of a letter, to have expressly offered Mr Parker the opportunity to be heard properly after receiving the notice derives from s 33(1)’s requirement on the one hand, that the supervision be “effected” in accordance with the principles of natural justice, and s 33(2)’s requirement, on the other hand, that the suspension be “effected” by giving the written notice. Given that Mr Parker was neither given an opportunity, in advance of suspension, to be heard, or by the written notice effecting the suspension given the opportunity to be heard soon thereafter, the suspension was not “effected” in accordance with the principles of natural justice and thus did not occur in compliance with s 33.

Counsel for the defendants acknowledged in effect that s 33 regulates suspension such that there was not some residual option of suspending other than in compliance with the section. However he emphasised that non-compliance with an implied statutory condition will not necessarily be interpreted as denying legal force and effect to a decision made in breach thereof, a point made by the plurality in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134. The circumstance that it will not, appears to have there been identified by reference to a threshold of materiality. The plurality observed (at 134-5):

“Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition, if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of the ‘possibility of a successful outcome’, or where a decision maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made.” (citations omitted)

The difficulty for the defendants here is the threshold of materiality appears to be low, given that the statutory requirement that the supervision be effected in accordance with the principles of natural justice is a condition of the very exercise of the power. To overcome that, it is effectively contended that the implied requirement here that the written notice should have expressly proffered an opportunity to be heard soon after the notice, involved a threshold of materiality unlikely to be met. If, in any event, Mr Parker was, soon after the giving of the notice, offered an opportunity to be heard as to whether the suspension ought to continue, this would mean there was no practical injustice. As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14, “the concern of procedural fairness is to avoid practical injustice”.

However, what occurred after the giving of the notice was, at best, the proffering of an opportunity to be heard in respect of the allegations attracting the disciplinary process, not an opportunity to be heard as to the suspension. Moreover, as will be seen, the opportunity which was given to be heard in respect of the allegations was arguably not a fair opportunity in that Mr Parker was deprived of access to materials reasonably sought by him, in order to respond in a properly informed way. For both of those reasons it cannot be said there was an absence of practical injustice resulting from the failure to comply with what s 33 required in the context of this case.

In failing to afford Mr Parker an opportunity to be heard in relation to his suspension after it was effected by written notice of 3 September 2018, Mr Wassing thereby failed to ensure the suspension was effected in accordance with the principles of natural justice as required by s 33, thus denying the suspension of legal force and effect. I will deal in due course with the consequence of that finding vis-à-vis what, if any, order should be made regarding it.

Mr Parker heard nothing further from anyone within QFES for the first 24 days after his suspension. Finally on 28 September 2018 he received a telephone call from Ms Chetham to discuss a suitable interview date, during which discussion it was agreed the interview would be conducted on 10 October 2018.

In that discussion Mr Parker requested access to his diaries in Microsoft Outlook on his computer at work, in order to properly prepare for the interview. He was told that would occur. He subsequently received an email confirming Ms Chetham was in the process of arranging access to his work laptop and diary. On 2 October 2018 he emailed Ms Chetham concerning the scheduled interview and requested access to his computer Outlook folders for 16 hours, and access to his diaries for 2017 and 2018. She responded, requesting the reason and purpose for the request. He in turn responded indicating he required access to his diaries and Outlook as he could not defend himself without access to those items. He asserted he wanted to be correct with respect to facts, dates, places and times, and provided assurances he would not access other non-related information on site, and indicated he was happy to be supervised during such an access.

Also on 2 October, Ms Chetham emailed Mr Parker a letter enclosing a fact sheet to him as a so called subject officer which said, inter alia, that attendance at the investigator’s interview was mandatory. It also enclosed a letter from Mr Lenz. That letter enclosed transcripts of the recorded conversations with XY. It repeated the three allegations I have earlier set out from the suspension notice of 3 September 2018 and indicated the forthcoming interview would afford Mr Parker an “opportunity to clarify the issues and respond to the allegations”.

On 3 October, Mr Parker was contacted by Ethical Standards Unit Executive Manager Anthon Trubai and Ms Chetham. He was again questioned as to why he needed access to his computer, Mr Trubai saying, “you do not really need access to your emails at this stage, as the interview is only a preliminary fact-finding chance for you to answer the allegations, there will be plenty of time after the interview”. Mr Parker insisted he did need access to protect his interests and to properly answer the allegations. Mr Trubai indicated he would try to arrange it prior to the scheduled interview.

Ms Chetham subsequently provided a contact within the workplace for the arrangement of access to Mr Parker’s computer and diaries. He made contact with that contact person, and arrangements were made for him to attend at a QFES office on 6 October in order to access his computer. Ms Chetham was alive to these arrangements, indeed on 4 October she confirmed the arrangement that the contact person would provide Mr Parker with access to both diaries he had requested and would also supervise access to his files so that he could print out documents required for the interview. He was informed arrangements had been made to have his work email activated to allow access to occur. In the upshot, the attendance for the aforesaid purpose occurred on 6 October 2018, but was thwarted by an inability to gain access to the computer, despite attempts to gain IT support. The attempts so to do occurred within close proximity to where a major incident was being managed by QFES workers, which was a matter of some embarrassment to Mr Parker. Ultimately he concluded it was not reasonable, after two hours, to prevail further upon the contact person to remain for what had become an apparently futile process, at least on that day. Plans were made to attempt to try again on the evening of Monday 8 October 2018 but evidently that did not occur either.

On 8 October Ms Chetham advised Mr Parker he would get a chance to access his computer after the interview. She disclosed some concern that he might cancel the interview and that she would have to cancel flights and accommodation. Mr Parker felt, in the circumstances, pressured to agree to proceed with the interview and was concerned he may be seen as obstructing the process if he did not.

He therefore agreed if he could not get access to his emails, which in the end result he could not, he would still be available for the interview. In doing so he was relying on the assurance earlier given that the interview was only a preliminary chance for him to answer the allegations and that there would be plenty of time after the interview to gain access to his emails and clarify responses. As to that Ms Chetham said words to the effect of, “we can sort that out at a later stage”.

He attended the scheduled interview with Ms Chetham on 10 October 2018. It took over four hours. He answered all questions to the extent he could without access to his records. In particular he did not have access to his extensive electronic and paper records, emails, calendars, documents and files, his 2015 or 2016 diaries, witnesses, or his mobile telephone records, all of which were, to some extent, of potential relevance in dealing with the allegations presented to him.

Mr Parker heard nothing for some weeks thereafter and, on 31 October 2018, he emailed Ms Chetham for an update. She responded over a fortnight later indicating the investigation report had been sent to Mr Wassing on 14 November 2018. By letter dated 28 November 2018 to Mr Parker, Mr Wassing advised him the evidence collected in the investigation “if accepted by the decision maker on the balance of probabilities, is capable of substantiating” three allegations. The first two cited were the first two quoted earlier. The third was a variant on the third allegation quoted earlier. It no longer alleged Mr Parker had in fact sought to ensure the selection panel was comprised to achieve his aim and rather alleged it was inappropriate and unprofessional for him to have said to XY that he intended to corrupt the selection process to achieve his aim.

The letter stated:

“Section 30 of the Fire and Emergency Services Act 1990 provides that the Commissioner may discipline an employee if they are reasonably satisfied that a discipline ground has been established.

The letter continued:

“You are invited to respond in writing why a disciplinary finding should not be made against you on the grounds indicated above. Your response should provide any explanation you believe is relevant. In providing natural justice to you, no final decision will be made about these allegations until you have had the opportunity to formally respond.

You are required to provide your response marked ‘Private and Confidential’ to me within 14 days from the date of receipt of this letter.”

The letter went on to refer to the suspension of 28 August and stated:

“[P]ursuant to Section 32(1)(a) of the Fire and Emergency Services Act 1990, I advise that as it now appears on reasonable grounds that you may be liable to disciplinary action, I have determined your suspension is to remain in place and be extended to 31 January 2019, unless otherwise determined. All other conditions of the suspension remain unchanged and as notified in letter dated 28 August 2018.”

This indicated a shift in the earlier reliance on the second limb of s 32(1)(a) to the first limb as a ground of suspension, yet that limb requires it to appear the officer “is liable” not “may be liable” to disciplinary action. The language of the notice of suspension reveals Mr Wassing had not found it appeared Mr Parker “is liable”.

It follows this notice of extension of suspension – in its own right another notice purporting to effect suspension pursuant to s 33 – did not effect suspension in accordance with the Fire and Emergency Services Act. The defendants’ answer to this is that there should not be an over-zealous scrutiny of a decision maker’s words – see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – and an apparent error as to a source of power is of no moment, if the requisite power existed – see Kitching & Anor v Queensland Commissioner of Police & Ors [2010] QSC 303 at [54]. The argument in short is that circumstances sufficient to support the suspicion granting the second limb of s 32(1) were present and thus conferred the power to suspend.

I accept that argument. But it only leads to this suspension notice having the same fatal flaw as the notice of 27 November 2018. It was not effected in accordance with the principles of natural justice for the same reasons already explained in respect of the earlier notice. The defendant’s counsel properly concedes that reliance on necessity as an excuse for not first offering an opportunity to be heard, would not by this time be sustainable. Mr Parker could quite safely have been given the opportunity to be heard as to the prospect of the further extension before it occurred. No such opportunity was given.

In the ensuing events there were further requests by Mr Parker to access his computer and mobile phone despite the previous consent for such access on a supervised basis, which regrettably failed to occur before the investigator’s interview. This time there was a mystifying denial of the request.

There was also a denial of the request to be allowed to talk to two employees to discuss the matter on the basis they were named in the investigation report and therefore could be called as witnesses. This refusal is similarly mystifying. This was not a criminal prosecution involving protected or at-risk witnesses. It was a disciplinary process in which the investigation was concluded and so-called witnesses had presumably committed to an account. There was no material risk the process would be compromised by Mr Parker being permitted to discuss the matter with the two witnesses who, what is more, had been identified in Mr Parker’s request as office holders of the Rural Fire Service section of the Together Union.

Against this background it is hardly surprising Mr Parker engaged an employment lawyer who then wrote to Mr Wassing on 6 December 2018 making various complaints, including a failure to properly particularise the allegations, only giving two weeks to respond to proposed findings, denying Mr Parker access to his emails and documents in order for him to respond properly and, despite earlier agreement to allowing such access, in turn denying Mr Parker access to witnesses to gather evidence despite earlier offering to facilitate such access.

There was follow-up correspondence. Eventually, on 31 January 2018, Mr Wassing sent a letter to Mr Parker care of his lawyer. The letter revoked Mr Wassing’s letter of 27 November 2018 and reframed the three allegations with much greater particularity. It went beyond the content of the recordings and referred to the content of certain emails. In each instance the letter again expressed Mr Wassing’s view Mr Parker, “may be liable for disciplinary findings pursuant to section 30 of the Act”, alluding in particular to s 30(1)(b), (c) and (f) and required him to show cause within 14 days why disciplinary findings should not be made against Mr Parker in relation to the allegations.

The letter did assert Mr Wassing had formed no view as to the allegations but the ambiguity involving reliance on s 30 by using the phrase, “may be liable”, was again present in the language used.

Mr Wassing’s letter went on to state:

[I]t appears on reasonable grounds that you may be liable for disciplinary action. For this reason I have determined that your suspension from duty on normal remuneration will continue under s 32(1)(a) of the Act, until the disciplinary process is complete or until otherwise determined. Accordingly, you are hereby suspended from duty on normal remuneration pursuant to s 32(1)(a) of the Act until the disciplinary process is complete or until otherwise determined.

All other conditions of the suspension remain unchanged and as notified in my letter dated 3 September 2018.” (emphasis in original)

For the reasons explained in connection with the earlier notices of suspension, this suspension was not effected in accordance with the principles of natural justice as required by s 33. At no stage was Mr Parker offered the opportunity to be heard as to the prospect of the further suspension.

Mr Parker’s lawyer responded on 4 February 2019 complaining again of the short time given within which to show cause. The letter asked that Mr Parker be permitted to contact eight named witnesses for the purposes of preparing a response to the show cause letter. It also requested Mr Parker be permitted to have access to his emails in order to respond to the allegations, acknowledging Mr Parker was happy for such access to be supervised.

Mr Wassing responded by a letter of 6 February 2019 reiterating a position taken in his earlier letter that any request for access of witnesses or documents be in effect justified with particularity.

He wrote:

“I consider that there is a risk to the integrity of the process if I were to allow Mr Parker (or yourself on his behalf) to approach and speak to any person you say is relevant, particularly in circumstances where you are requesting for Mr Parker to contact eight of his supervisors and/or colleagues. Further, I consider that there is a risk to the integrity of the process if I were to allow Mr Parker to have unlimited access (even if supervised) to his work email account, particularly in circumstances where he has been provided with copies of the emails that have been considered as part of the disciplinary process.”

It is difficult to fathom, based on what has been disclosed, what the risk to the integrity of the process was or what the difficulty was in providing access to work emails if, as Mr Parker has from the jump been happy to occur, the process is supervised.

Mr Wassing continued:

“In the circumstances to assist in my consideration of your request would you please identify:

  • Which of the allegations you say each of the above witnesses has information relevant to, together with a summary of why you consider those witnesses would have information relevant to those allegations;
  • In respect to the request for access to Mr Parker’s emails:
  • -the emails to which Mr Parker seeks access, including details such as the dates (or approximate date range) and to or from whom such emails were sent or received; and
  • -which of the allegations you say the emails are relevant to, together with a summary of why you consider such emails would have information relevant to those allegations.”

The position taken by Mr Wassing exemplified by the above quoted passages is particularly unfortunate. The procedural fairness of having the opportunity to be heard necessarily requires the individual has a genuine opportunity to be heard. It is well established that requires that the individual is given the opportunity of ascertaining the relevant issues and they be informed of the nature and content of the adverse material – see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162. However, the opportunity to be heard may be rendered illusory if the individual is deprived of the ability to gather information in aid of the individual’s response. There is an obvious risk that will occur where the decision-maker prevents the individual searching for information not easily recalled, by imposing the inherently unfair condition that the individual must first specify details pertaining to the information. That unfairness will be especially acute if the agency of the decision-maker has, as here, earlier agreed to allow the individual to engage in such a search without condition other than that the search be supervised. As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 12, expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case.

In the present context events have in one sense overtaken the issue. After that letter, Mr Parker’s claim was filed on 12 February 2019 and on 21 February 2019 Mr Parker’s lawyers endeavoured to protect his position by submitting a response to the show cause letter of 31 January 2019. It included qualifications relating to the difficulty in responding in light of the restricted access to “relevant contextual documents and witnesses”. As earlier discussed, the progression of the process seems to have then drifted to a standstill which persists to the present.

It is finally necessary to mention another aspect of the letter of 6 February 2019. It again effected a suspension, stating:

“As outlined in the Show Cause Notice, after consideration of the material before me, I am satisfied that is appears on reasonable grounds that Mr Parker is liable to disciplinary action and on that basis pursuant to s 32 of the Act I have determined that Mr Parker’s suspension from duty on normal remuneration is to continue.”

This at least dispensed with the language, “may be liable”, and actually said, “is liable”. I understood Mr Parker’s counsel to submit, apart from the natural justice issue, it was not open to Mr Wassing to have concluded Mr Parker was liable to disciplinary action because of the innocuous context in which the recorded remarks were made. As jarring as some of the remarks at first blush appear, the argument is that an ordinary reasonable decision-maker would not be swayed by that potentially emotive quality and would inevitability conclude that as ill-judged as the comments were, in hindsight the purportedly rapport building context in which they were said, the absence of intent that they be broadcast, the implausibility of Mr Parker actually doing what he boasted of, and that the supposably confidential information was of a kind which would have been likely known to XY had XY been at work, all combined to make it impossible for a decision-maker to reach the state of satisfaction required by s 30(1).

It is a bold argument. It may be exposed as unsustainable by accepting, for the sake of argument, the innocuous context urged. Even then, it would surely be open to a decision-maker to conclude Mr Parker had been careless in the exercise of his duties by making the ill-considered remarks in purportedly supporting a stressed workmate. It might not be a very serious ground of disciplinary action but then again it might only warrant a reprimand as a reasonable disciplinary action pursuant to s 30A.

Once it is accepted such states of satisfaction are open, even on the favourable view urged, the argument that it was not open for a decision-maker to conclude Mr Parker is liable to disciplinary action is exposed as unsustainable.

It remains a problem however, that the letter was yet another written notice effecting suspension contrary to s 33(1)’s natural justice requirement. Again no opportunity to be heard as to the prospect of suspension was afforded to Mr Parker in breach of s 33(1).

Counsel for Mr Parker contends the upshot of this chain of events is that I would impose a blanket restraint, restraining the defendants from taking or progressing disciplinary action against Mr Parker in connection with the allegations associated with this case.

The argument, in summary, was that a reasonable opportunity to respond called for access not so much to the detail of the discussions in question but the material relevant to and bearing upon the context in which the discussions occurred. Contemporaneous documents such as emails and the like, it was argued, not only formed part of that context but had the potential to prompt and facilitate a more detailed, nuanced recollection of broad contemporaneous facts and circumstances. With the passage of time, an individual’s recollection of the finer detail of such events will inevitably fade. A considerable period had already passed after the discussions under scrutiny before Mr Parker was actually called upon to explain himself. Given that passage of time, it was submitted the ability of an individual in Mr Parker’s position to access and reference contemporaneous documentary records can be critical to the individual being afforded a fair and reasonable opportunity to be heard. It was submitted it was thus entirely unreasonable to unilaterally condition the availability of access to contemporaneous documentary records by a requirement that the plaintiff first specifically identify the documents sought and the manner in which each was said to be relevant.

It was argued the plaintiff has been denied timely access to information that might have permitted a more detailed and exculpatory response to the defendant’s allegations. Timely access to the records, it was submitted, might have provided to the plaintiff a cue, prompt or explanation for particular statements made by the plaintiff during the course of the impugned discussions or corroboration for an explanation otherwise offered. Such documents, it was said, might also have better explained the context in which statements were made, including contextual facts or circumstances which might serve to lessen the meaning to be imputed to words spoken, the gravity of that meaning, or offered contextual matters which could serve to diminish the standard of apparent wrong doing.

It was contended that by denying timely access to contemporaneous communications and records the defendants have deprived Mr Parker of source material that might have served to alleviate the prejudicial impact of inevitably diminishing memory of events and of contextual facts and circumstances over time. The ultimate contention then was that given the time that has now passed since the occurrence of the discussions under scrutiny and the diminution in recollection inevitably associated with the passage of time there is a real likelihood that procedural fairness is now no longer available to the plaintiff, such that it cannot be said with any confidence that natural justice to the plaintiff remains achievable.

I agree with those submissions save for the culminating argument, that natural justice is no longer achievable. That overstates the position in two senses. Firstly it overstates the degree of disadvantage. I accept of course that it is difficult to identify the degree of disadvantage which the cases recognise must to some extent flow from delay – see for example, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at 474 – just as I accept the ability to overcome the disadvantage is here aggravated by the restrictions on access to materials which may both aid memory and aid in proof of the innocuous context sought to be emphasised in relation to the recorded comments. But, notwithstanding the restrictions, it remains the case that the recordings themselves must inevitability be a helpful and reliable source to use in aid of the recollection of a person who was, after all, a participant in the recorded conversations, just as their content can itself be drawn on to assist in demonstrating the innocuous context allegedly in play.

Secondly, it overlooks that the disadvantage is itself a factor which the decision-maker may yet take into account, in something of a parallel to the way in which in a criminal case a jury may take delay and implied consequential disadvantage into account in deciding the case – see Longman v The Queen (1989) 168 CLR 79.

Mr Parker’s lawyers did submit a response to the show cause notice. The response was substantive, raising important matters for the consideration of the decision-maker. The response also complained of the nature of the disadvantage occasioned by the restrictions imposed on access. That disadvantage would be a matter for the decision-maker to take into account as a matter of procedural fairness to Mr Parker.

The process is incomplete. It would be premature to conclude procedural fairness is, as Mr Parker’s counsel complains, an impossibility, when the disadvantage complained of is itself a matter the decision-maker may yet take into account in Mr Parker’s favour when reaching a determination about disciplinary action. Only when that process has concluded will it be possible to conclude whether, to paraphrase Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578, the decision-making process viewed in its entirety has entailed procedural fairness.

For these reasons I decline the blanket injunctive relief sought. As to whether more confined injunctive relief is appropriate, the remaining focus of concern is the unlawful suspension process.

The argument that one ought wait for the end of the disciplinary process rather than interfere with the status quo rang hollow in respect of the suspension issue. The suspension relates to but is a separate decision-making process from the disciplinary process. The suspension involved decisions already made contrary to law on four separate occasions with the earlier discussed adverse consequences for Mr Parker now lasting over two years. The disadvantage in deploying an injunction and bringing the unlawful suspension to an end is that the logistical detail of effecting that result may be more practically tended to by the defendants than by the court. For that reason the preferable course is to make a declaration in anticipation it will result in appropriate action by the defendants. If it does not, Mr Parker’s interests can be protected by conferring liberty to apply.

In the end result then my orders are:

  1. It is declared that in failing to afford the plaintiff an opportunity to be heard in relation to his suspension after his notification of it by the letter from the second defendant dated 3 September 2018, the second defendant failed to ensure that the plaintiff’s suspension was effected in accordance with the principles of natural justice as required by s 33 Fire and Emergency Services Act 1990 (Qld).
  2. It is declared that in failing to afford the plaintiff an opportunity to be heard in relation to his suspension before his notification of suspension in each of the letters from the second defendant dated 27 November 2018, 31 January 2019 and 6 February 2019, the second defendant in each instance failed to ensure that each such suspension was effected in accordance with the principles of natural justice as required by s 33 Fire and Emergency Services Act 1990 (Qld).
  3. Liberty to apply on the giving of two business days’ notice.
  4. The parties will file and serve submissions in writing as to costs, not to exceed five pages, within five working days.

 

Close

Editorial Notes

  • Published Case Name:

    Parker v QFES Commissioner & Anor

  • Shortened Case Name:

    Parker v QFES Commissioner

  • MNC:

    [2020] QSC 370

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    14 Dec 2020

  • Selected for Reporting:

    Editor's Note

Appeal Status

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