Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services)
[2018] QIRC 119
•14 September 2018
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ball v State of Queensland (Department of Justice and Attorney‑General, Queensland Corrective Services) [2018] QIRC 119 |
PARTIES: | Ball, Frederick v State of Queensland (Department of Justice and Attorney‑General, Queensland Corrective Services) |
CASE NO: | TD/2017/10 |
PROCEEDING: | Application for Reinstatement |
DELIVERED ON: | 14 September 2018 |
HEARING DATES: | 27 March 2017 |
| HEARD AT: | Brisbane |
MEMBER: | Thompson IC |
ORDER: | The Application is refused. |
| CATCHWORDS: | INDUSTRIAL LAW ‑ APPLICATION FOR REINSTATEMENT ‑ Termination of employment ‑ Dismissal ‑ Witness evidence ‑ Inspections - Lengthy proceedings - 25 days of hearing - Allegations - Disciplinary process - Investigation Report - Delegated decision maker - Alleged collusion, contrived, fabricated evidence - Witness credibility - Disciplinary record - Allegations relevant to conduct engaged in by Applicant were reasonably open to be substantiated by the decision maker - Disciplinary process undertaken compliant with legislative and policy procedures - Applicant afforded procedural fairness and natural justice at all times - Penalty of termination warranted in circumstances where conduct constituted significant breaches of procedures, policy and statutory obligations - Termination decision not harsh, unjust or unreasonable - Application refused. |
| CASES: | Industrial Relations Act 1999, s73, s 78, s 79 White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 41 Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914 Nicolson v Heaven and Earth Gallery (1994) 57 IR 50 Liddle v Lembke (1994) 127 ALR 3422 Green v Emergency Services Telecommunication Authority [2014] VSCA 207 |
| APPEARANCES: | Ms S. Moody of Counsel, originally instructed by Hall Payne Lawyers, then directly instructed by the Applicant. Dr M. Spry of Counsel, instructed by Crown Law, for the Respondent. |
Decision
Background
On 9 February 2017 Frederick Ball (Ball) lodged with the Industrial Registrar an application for reinstatement as a consequence of his employment being terminated on 19 January 2017 by the State of Queensland (Department of Justice and Attorney‑General, Queensland Corrective Services)(Corrective Services).
The termination of Ball's employment was said to be harsh, unjust and unreasonable for reasons that included:
Harsh: ‑ consequences of his personal economic situation;
-penalty of dismissal was disproportionate to the gravity of the conduct in question;
-loss of employment would cause significant hardship;
-the age of Ball (63 years) limits his employment prospects;
-because Ball had not been provided with training as to his obligations;
Harsh and unjust ‑ because the penalty of dismissal was not invoked consistently for behaviour of this nature
Unjust‑ Ball not guilty of some or all alleged conduct and/or contravention of the Code of Conduct for the Queensland Public Service (Code of Conduct); and
Unreasonable ‑ in the event the allegations were substantiated.
Further the termination was unfair within the meaning of s 73(1)(a) of the Industrial Relations Act 1999 for reasons including:
·no valid reason as Ball had not acted as alleged in all circumstances complained of;
·he had not been given a warning about the misconduct and/or breaches of the Code of Conduct prior to dismissal;
·not given the opportunity to address the alleged behaviour; and
·not given a fair go all round.
In correspondence (dated 5 July 2016) under the signature of Kerrith McDermott (McDermott) Deputy Commissioner, information was provided to Ball regarding an investigation report prepared by the Ethical Standards Unit (ESU) (dated 23 May 2016) in terms of the following alleged conduct:
1.Between 18 January 2016 and 25 February 2016, you were derelict in the performance of your duties.
2.On 29 January 2016, without authority, you inappropriately secured prisoners in their cells.
3.On 8 February 2016, you inappropriately interfered with a police investigation.
4.On 24 February 2016, you failed to demonstrate a high standard of workplace behaviour and personal conduct in your communications and interactions with staff.
5.Between 18 January 2016 and 25 February 2016, you communicated and behaved in an inappropriate manner towards prisoners at Woodford Correctional Centre (WCC).
The Investigator had concluded that Allegations 1, 2 and 5 were capable of being substantiated however there was insufficient evidence to substantiate Allegations 3 and 4. McDermott advised that no further action would be taken in relation to Allegations 3 and 4 and further that having considered the report there was insufficient evidence to substantiate incidents 2 and 6 in Allegation 1.
There was a requirement for Ball to show cause why he should not be disciplined in relation to the following reframed allegations:
Allegation 1
That between 18 January 2016 and 25 February 2016, you were derelict in the performance of duties, namely on:
(a) the afternoon of 19 January 2016, you were asleep on two occasions whilst seated at the officer's station desk inside N3 Unit;
(b) 29 January 2016, during the officers' afternoon meal break, you were asleep in a chair the in the walkway around the Tardis, facing the Lexan window of the N3 Unit, when you should have been maintaining prisoner observations;
(c) 2 February 2016, you were asleep whilst seated at the officers' station desk inside the N3 Unit; and
(d) 24 February 2016, you were asleep on six occasions whilst seated at the officers' station desk and rostered as the P Movement Control officer.
Allegation 2
That on 29 January 2016, without authority, you inappropriately secured prisoners in their cells.
Allegation 3
That between 18 January 2016 and 25 February 2016, you communicated and behaved in an inappropriate manner towards prisoners at WCC, in particular on:
(a) 19 January 2016;
(b) 29 January 2016; and
(c) 8 February 2016.
Each of the allegations were particularised in some detail identifying in general terms the dates and locations where the conduct was alleged to have occurred and the section of the Public Service Act 2008 (PS Act) relied upon by Corrective Services in their consideration of the disciplinary action. Those sections were identified as:
·s 187(1)(b) of the PS Act
·s 187(4)(a) of the PS Act
Alternatively
·s 187(1)(a) of the PS Act
·s 187(1)(f)(ii) of the PS Act.
Enclosed with the correspondence were the following documents which had been considered by McDermott to this point:
·Investigation Report dated 23 May 2016 (including attachments);
·Chapter 6 of the PS Act; and
·Code of Conduct.
Fourteen days from the receipt of the correspondence were given to Ball to formally respond to the allegations to show cause why he should not be disciplined.
The correspondence also confirmed that the suspension of Ball on normal remuneration pursuant to s 189 of the PS Act would continue until such time as the disciplinary process on foot was completed or otherwise notified.
In correspondence (dated 31 August 2016) Ball provided a lengthy and detailed response to the allegations that had been levelled against him in which he denied Allegations 1(a), (b) and (c); Allegation 2 and Allegations 3(a), (b) and (c). In respect of Allegation 1(d) he sought further material prior to providing a response.
On 24 October 2016 correspondence was forwarded to Ball from McDermott (of some 39 pages) in which each of his responses were addressed and having considered all of the material available including his responses that on the balance of probabilities, the following allegations were substantiated:
·Allegations 1(a), (b), (c) and (d);
·Allegation 2; and
·Allegations 3(a), (b) and (c).
On the basis of the findings in relation to the allegations it had been determined that Ball was liable for disciplinary action pursuant to s 188 of the PS Act identifying a number of penalties that could be considered in the circumstances including:
·termination of employment;
·reduction of classification level and a consequential change of duties;
·transfer or redeployment to other public service employment;
·forfeiture or deferment of a remuneration increment or increase;
·reduction of remuneration level;
·imposition of a monetary penalty;
·if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments; and/or
·a reprimand.
The penalty currently being given serious consideration was the termination of his employment.
A period of seven days from the receipt of the penalty show cause letter was given to Ball in which he was required to show cause why the penalty of termination should not be imposed.
On 14 November 2016 a response to the show cause notice on penalty was forwarded to McDermott in which Ball argued that the proposed penalty of termination was "very severe" and would have a long‑term, significant and far reaching detrimental effect on himself and immediate family. Other issues addressed in the correspondence included:
·seriousness of substantiated allegations;
·financial stress and hardship;
·degree of risk to health and safety;
·impact of offence on ability to perform duties;
·impact on public and client confidence in the agency;
·overall work record; and
·extenuating or mitigating circumstances.
In terms of an alternate penalty he proposed that a less severe penalty from the range available under s 188(1) of the Act be considered due to the impact the termination of employment would have on him and his family.
In correspondence (dated 19 January 2017) under the signature of McDermott advice was given to Ball that upon careful consideration of the submissions he had made with respect to the proposed penalty of termination that in the circumstances there was no longer trust and confidence in his ability to perform the requirements of his role as a Custodial Correctional Officer (CCO) and for him to comply with the applicable policies, procedures and statutory requirements. Ball's conduct was inconsistent with a CCO's obligations and nothing less than the termination of his employment would adequately reflect the seriousness of his conduct.
Accordingly the penalty of termination (effective 19 January 2017) was imposed.
Evidence
In the course of the course of the proceedings evidence was provided by 16 witnesses.
The Commission, in deciding to precis the evidence of the witnesses and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
The witnesses for the Applicant were:
·Ball;
·Robert Hay (Hay);
·Robert Nicolia (Nicolia);
·Dr Antony Shea (Dr Shea); and
·William Ash (Ash).
The witnesses for the Respondent were:
·Adele Juffs (Juffs);
·Alan Tilly (Tilly);
·Mitchell Gray (Gray);
·Jason Beaumont (Beaumont);
·Colin Potter (Potter);
·Timothy Harries (Harries);
·Stuart Crichton (Crichton);
·Peta Tyquin (Tyquin);
·David Henderson (Henderson);
·Brian Bracher (Bracher); and
·McDermott.
Inspections
The parties attended the WCC on Wednesday 7 February 2018 for the purposes of inspecting certain locations within the prison that had been the subject of evidence in the proceedings. The areas visited were:
·vehicle entry lock;
·N3 block ‑ Tardis and exercise yards;
·N3 block officer's station, officer's kitchen and prisoner's common area; and
·P Movement station.
Applicant
Ball
First Affidavit
Ball had a varied employment history prior to becoming a CCO in or around May 2006 that included an apprenticeship as a Diesel Mechanic, Soldier in the United Kingdom, Security Officer and Owner/Operator of a heavy haulage business in Queensland.
In these proceedings he tendered three affidavits:
·Exhibit 1 ‑ 394 paragraphs plus attachments;
·Exhibit 2 ‑ 320 paragraphs plus attachments; and
·Exhibit 7 ‑ eight paragraphs.
WCC
WCC is a high security prison with a capacity of 988 male prisoners. WCC is situated 100 kilometres north of Brisbane. The structure of the prison includes a number of various high security areas known as units and blocks which are staffed by CCOs involved in the general running of the prison. Duties include:
·movement control;
·letting prisoners in and out of units;
·monitoring units;
·organising industries moves; and
·bin and education runs.
Immediately prior to termination Ball was employed at Level QCO1.9 and was covered by an Award, Certified Agreement and various policies and procedures including a Code of Conduct which Ball could not recall receiving training on. At the time of termination Ball had medical conditions related to arthritis in the neck and sensitive eyes that required the wearing of tinted glasses. The medical conditions were said to have some impact on how he performed his employment tasks.
Ball gave detailed evidence in respect of work activities in the prison that included:
·muster;
·cell access;
·officers desk (N3 Unit, N Block);
·Tardis (N Block); and
·Tardis (P Block).
Further his evidence went to:
·prisoner numbers;
·noise levels;
·Alpha Officer;
·Bravo Officer;
·log book;
·cell doors;
·noise and activity in and around Tardis;
·exercise yard;
·timing of duties in Tardis;
·sitting in chair;
·communicating with prisoners in the exercise yard;
·lighting;
·other sections of the Tardis;
·position descriptions; and
·daily routine.
On Tuesday 19 January 2016 he was rostered to work a day shift in the N3 Unit of N Block with Harries who was responsible for log book entries on that day. In or around mid to late January he had a minor altercation with Crichton who had responded to a prisoner in an angry tone of voice, saying words to the effect "go away fuckwit not interested" to a prisoner which prompted Ball to admonish him although he did not write him up as he considered it was his job to help newer officers such as Crichton.
On 29 January 2016 and 2 February 2016 he was again rostered on with Crichton in N Block and N3 Unit where they alternated in the roles of Alpha and Bravo Officer. In the course of 2 February 2016 he concluded Crichton was being "very lazy" and Ball had on a number of times reminded him about the performance of his duties. According to Ball's evidence in which he provided a detailed account of all activities undertaken by Crichton and himself, the shift was uncontroversial.
On Wednesday 24 February 2016 he was rostered to work with Gray in P Block where he acted as the Movement Control Officer and Gray the Movement Support Officer. It was likely he was absent from that location all morning as he would have been involved in training.
On 8 March 2016 Ball was advised he was being suspended pending an investigation and on 22 March 2016 he was interviewed by Terry Verrall (Verrall) Ethics Consultant, ESU and another person regarding allegations made against him by CCOs Crichton, Harries, Gray and Michael Wheeler (Wheeler). A transcript of the interview was later provided to him which Ball argued did not accurately reflect what he had said in the interview and Verrall had repeatedly spoke over him, interrupted him to the point where he lost his train of thought. Further complicating matters at the time was that he was being treated for severe depression arising out of his suspension which required him to take anti‑depressant medication and there were issues with the health of his wife. Verrall had not been informed about the anti‑depressant medication as Ball was embarrassed and felt it was none of his business.
An investigation report was subsequently prepared by Verrall (dated 23 May 2016) which resulted in the Deputy Commissioner (McDermott) on 5 July 2016 issuing a show cause letter requiring a response to five allegation of misconduct. Ball gave evidence of seeking further material from the employer and of his actions in responding firstly to the allegations and subsequently on 24 October 2016 being required to respond on the issue of penalty. On 19 January 2017 he was advised in correspondence authored by McDermott that his employment was being terminated with immediate effect.
There were 17 pages of evidence in Ball's affidavit [Exhibit 1] that substantially recorded firstly his denial of all allegations against him and of his version of events the subject of the allegations.
Allegation 1(a) ‑ Complainant Harries
The allegations that he was asleep and that prisoners were ridiculing him were unlikely to have occurred for reasons that included:
·majority of prisoners respected him and he had not been the object of mocking;
·the location of the prisoners in respect to the officer's desk made it unlikely that Harries would have known what the prisoners were talking about or pointing at; and
·the prisoners would not have been able to see his face from their location if he had bent over sitting at the Alpha station of the officer's desk.
Harries' story that he observed prisoners laughing and pointing at him was said to be false and the allegation was absolutely improbable because it was likely he was resting his chin in his left hand because of his neck arthritis and Harries from his position would have been unlikely to see his face. Additionally his glasses would have through their tint responded to the fluorescent lighting and the sun coming in through the Lexan windows blocking his eyes from view. Further the claim by Harries that he deliberately banged the desk to wake him was denied and the allegation for reasons unknown to Ball had been manufactured.
Allegation 1(b) ‑ Complainant Crichton
The allegation that he had been asleep had been fabricated by Crichton as it would have been impossible for him to see Ball's face or eyes from the position in which he was said to be standing let alone conclude he was asleep. A question arose that if he was asleep (which he denied) the conduct had occurred in his break time. The allegation that Crichton was alerted to him being asleep by prisoners in the exercise yard banging on the Lexan window, laughing and pointing at him was highly improbable because of the distance between Ball and the prisoners and the tint on his glasses that would prevent his eyes being viewed. Ball also denied the allegation he had made a rude gesture to the prisoners and went back to sleep but if had made a gesture it would have been to draw a "B" in the air for "breach".
Allegation 1(c) ‑ Complainant Crichton
This allegation was in response to a further claim by Crichton that Ball had fallen asleep on 2 February 2016 when Ball had been rostered on as Bravo Officer and Crichton as the Alpha Officer. The allegation was Ball on being asleep had prompted behaviour by a prisoner that indicated he was asleep and he only awoke when Crichton had acted. This allegation was said to have been manufactured by Crichton and he further denied that the prisoner in question had been kept waiting as alleged.
Allegation 1(d) ‑ Complainant Gray
Ball denied the allegation that on six occasions on 24 February 2016 whilst rostered for duties as the Movement Control Officer in P Block for periods between 30 seconds and two minutes he was asleep on the job. If the complainant had been sitting at his desk he could not have possibly seen Ball's face or eyes to know if he was asleep and he denied that Gray had "nudged" him on occasions to wake him up. It would not have been possible for him to have adequately performed the role of Movement Control Officer if he had been constantly nodding off as the tasks to be performed were extremely regimented in terms of time.
Allegation 2(a) ‑ Complainant Crichton
On 29 January 2016 he was Alpha Officer at the N3 Unit and Crichton was the Bravo Officer conceding that in the course of undertaking his duties on that day he would have kept prisoners waiting during cell access however that was an everyday occurrence at WCC. The practice adopted by him was to open cell doors one at a time and according to Ball an accepted custom and practice. He denied having kept prisoners waiting deliberately or for any period that was excessive in the circumstances.
The allegation asserted that Crichton had asked Ball if it was his intention to breach the prisoners he had locked in their cell to which Ball had responded by swearing. Ball denied the conversation had occurred saying it would have been apparent to Crichton that these prisoners were in their cells on a voluntary basis. The allegation that he had trapped a prisoner's fingers in his cell door was denied and in relation to practice of "timeout" where a prisoner goes to their cell voluntarily or are given a choice of having a timeout or being breached was well accepted at WCC and he frequently had cause to offer prisoners that choice sometimes at the direction of Supervisors.
Allegation 3(a) ‑ Complainant Harries
Ball denied allegations that he had spoken to a prisoner inappropriately on 19 January 2016 using the words "resident racist" or "resident old man", and in responding to requests from the prisoners he said words to the effect "no, you're pissing me off, if you ask me again I'm going to lock you up". On failing to grant prisoners access to their cells because of a medical condition shortly before or during muster it was his custom and practice to send the prisoner to medical later because he could not grant cell access at muster. In terms of granting cell access it is completely at the discretion of an Officer and a situation could arise where some requests are granted and some are rejected.
Allegation 3(b) ‑ Complainant Crichton
On 29 January 2016 he recalled saying words to the effect "what are you still doing here you old bitch" to a prisoner however they were said in a good natured fashion and he sometimes engaged in banter with that prisoner. The prisoner had told him to "fuck off" which he accepted as banter and not as an insult. Whilst there is a strong custom and practice of permitting swearing in the workplace Ball said it was not his custom and practice to swear at people, denying allegations he had told prisoners to "fuck off". On the other hand he said it was commonplace for Crichton to swear or behave inappropriately towards prisoners.
Complainants
The complainants Harries, Crichton and Gray were said by Ball to be work friends who frequently had coffee together outside of work and socialised away from work. In 2015 Ball in his role as trainer/assessor had refused to sign off on Crichton's Certificate III because he had not met the requirements for certification.
Remedy
Ball sought reinstatement to his former position and compensation for loss of income.
Second Affidavit
The second affidavit of Ball was filed in response to affidavits from witnesses appearing on behalf of Corrective Services which related to incidents that had occurred prior to his dismissal.
Chronology
1 August 2013 ‑ a file note attached to Henderson's affidavit was titled "Detrimental File Note" and whilst signed by Ball he did not know what the previously mentioned words meant. He disputed the file note was an accurate account but accepted Henderson had told him at the end of the meeting his performance would be monitored for a period of six months. Ball provided evidence about three matters mentioned in the file note challenging the evidence on the issues of:
·going on the floor by himself leaving the station door open;
·electronic cell access on lock away not ensuring of prisoner's health and wellbeing; and
·incorrect musters.
14 December 2013 ‑ a file not attached to Henderson's affidavit referred to a dispute between Ball and CCOs Prudence Cotton (Cotton) and Michael Hill (Hill) where there was a complaint he had deliberately not let the two CCOs into the officers station in a timely fashion. Ball denied the allegation and gave evidence of not having been given a copy of the complaint.
Late December 2013/January 2014 ‑ he was required by the WCC General Manager to provide a report on the interactions with Cotton and Hill but was not asked to respond to specific allegations.
24 February 2014 ‑ correspondence was received from McDermott advising she had chosen not to initiate "formal disciplinary proceedings" but instead issue him with a "formal warning to ensure that you are clearly aware of my [her] expectations of your conduct into the future". He was upset at being issued a formal warning without ever being given natural justice as required in the PS Act.
Early March 2014 ‑ transferred to Secure One by the General Manager as part of the disciplinary action over the Cotton matter.
24 March 2014 ‑ a file note attached to Juffs' affidavit about a meeting between Ball and Juffs which reflected the content of a discussion with Juffs which Ball evidenced he found "very threatening" at the time. He recalled being very upset about receiving a formal warning from ESU which he knew nothing about. He denied having said "bullshit" to Juffs as he would not swear in front of a woman.
12 April 2014 ‑ an email from Blair McLean (McLean) to Potter was challenged by Ball in respect of content which included the wording "He [Ball] appeared to take note although still blaming others for his predicament".
14 April 2014 ‑ an email from Potter to the HR Manager was challenged by Ball as not accurately reflecting their conversation. He recalled Potter's tone and words were threatening and demeaning.
29 April 2014 ‑ a file note attached to Juffs' affidavit was challenged by Ball on the basis it did not detail all of the relevant facts about the incident which involved sending a prisoner to medical without calling first. Another incident alleged to have occurred related to a Code Yellow which Ball had responded to however he had no recollection of having responded, yet alone responded too slowly. He was unaware of the alleged conduct.
24 September 2014 ‑ Juffs in her affidavit referred to an alleged incident on this date where Ball had refused to let a group of prisoners out of N Block to attend industries. Ball's evidence went in detail to the process involved in releasing prisoners as the Movement Control Officer. On this day he observed a group of prisoners standing by the airlock waiting to be let out of the unit. As the Trade Instructors had already gone he told them it was "too late". About 10 minutes later McLean rang him and in an angry tone accused him of not letting the prisoners out and directed him to do so. McLean later attended upon Movement Control and verbally yelled at Ball in front of other officers. After being directed to attend McLean's office and being the subject of an onslaught of abuse he became distressed and decided to go home after speaking to Juffs.
8 to 10 October 2014 ‑ Ball denied allegations raised by Gray (8 October 2014 incident) and had no recall of meeting with Potter (10 October 2014) to discuss a number of incidents alleged to have occurred on 24 September 2014 and 8 October 2014 which were also denied by Ball. On reading Potter's file note it was stated it was the first he had ever heard of some allegations.
23 October 2014 ‑ on this date there was a Code Yellow which Ball had participated in and during which he entered the N3 Unit at a time (approximately 90 seconds) when he had possession of keys that should have been outside of the unit. This had occurred because a fellow staff member CCO Dolan "didn't know what to do" leaving Ball with a "terrible dilemma" in that he had to make the decision to enter the unit with the keys to aid in securing the immediate safety of other officers. He was given a verbal reprimand by Juffs which included her yelling at him words to the effect of "what the fucking hell were you doing going into the unit with the keys". Ball admitted that he was aware the procedure precluded taking keys into the unit. He denied the allegation he had sought to blame Dolan who had panicked and failed to follow his direction and relied on the fact there had been no formal investigation into the incident.
29 October 2014 ‑ on this date Ball conducted a "removal of clothing" search of four prisoners at a time when he believed he had the authority to conduct the search pursuant to a long‑standing custom and practice at WCC however the Department had amended its "delegations of authority" (unknown to Ball) without providing any training.
21 November 2014 ‑ Ball was alleged to have used the word "crim" in relation to prisoners but had no recall of the incident. The term "crim" was commonly used by managers and officers alike.
20 December 2014 ‑ Ball's wife had a medical condition which required him to provide a high level of care and had resulted in management at the WCC being informed he may have needed time off.
January 2015 ‑ Ball was placed on the Front Run by the WCC General Manager (Scott Collins) whilst an ESU investigation was to be conducted which Ball took to be a punishment. He was unable to work the 5.00 am to 5.00 pm shift hours due to his wife's illness and worked 6.00 am to 6.00 pm which resulted in him not being allowed to rotate through the various posts. According to Ball no other officer had been refused the opportunity to rotate through each and every post they were qualified to perform. In the 11 months he was required to process between 15 and 25 vehicles on an average day which included walking beside the truck to its destination.
20 March 2015 ‑ Ball had become so stressed by this time that he emailed the ESU Investigator stating:
Just a quick line to see where the investigation is at as it has been 5 months so far, perhaps if I offered to lose a pay point for 6 months as punishment maybe that will speed things up as the stress is starting to get to me, so if you can help I would appreciate the help.
He was informed in a return email that day the investigation had been completed yet he was required to wait another three months before he was requested to respond to the allegations arising out of the report.
May 2015 ‑ Ball was directed to attend a meeting at the Deputy General Manager's Office where he was informed that a complaint had been made that he had smoked on duty and ridden on the back of the bread truck. Ball denied the smoking allegation as it was "clearly false" but admitted he had ridden on the back of the truck which he denied was unsafe due to the design of the truck. The reason for riding on the back of the truck was due to feeling exhausted, noting he had permanent damage to his heart muscle as a result of a previous heart attack which meant he became exhausted more easily.
7 July 2015 ‑ he was directed to respond to the following allegations:
(a) Allegation 1 ‑ 'It is alleged that on 29 October 2014 you conducted a [ROCS] on (4) prisoners without the requisite authority whilst on duty at [WCC]';
(b) Allegation 2 ‑ 'It is alleged that on 29 October 2014 you conducted a [ROCS] on four (4) prisoners without a second officer present';
(c) Allegation 3 ‑ 'It is alleged that you failed to make timely records of ROC searches conducted on prisoners at [WCC] on 29 October 2014';
(d) Allegation 4 ‑ 'It is alleged that on 3 November 2014 whilst on duty at Woodford Correctional Centre you attempted to make an inaccurate recording in relation to a ROC conducted on 4 prisoners on 29 October 2014';
(e) Allegation 5 ‑ 'It is alleged that on the 21 November 2014 you attempted to procure CCO Ebbelink to make an inaccurate report in relation to a ROC search on four prisoners on 29 October 2014'.
In mid to late July 2015 he responded to the allegations in which he stated the following:
Allegation 1 ‑ admitted he had conducted search without supervisor's authority but had been unaware of the new direction having not seen the document relating to the changes after the incident.
Allegation 2 ‑ denied allegation.
Allegation 3 ‑ admitted he had not made a record of the ROCS due to other duties preventing him from making an immediate record and he simply forgot.
Allegation 4 ‑ denied allegation.
Allegation 5 ‑ denied allegation.
2 September 2015 ‑ advised allegations 1 to 3 and 5 substantiated with further advice received on 23 September 2015 that pursuant to s 188(1) of the PS Act he was to be docked one pay point for a period of 12 months, required to undertake refresher training and given a final warning that stated:
…should substantiated allegations arise again concerning the Removal of Clothing searches, [my] continued employment with Queensland Corrective Services may be in jeopardy.
29 October 2015 ‑ there was correspondence from McDermott regarding an incident in or around May 2015 where he had ridden on the back of a truck. The letter explicitly stated that formal disciplinary action would not be pursued but nonetheless he was informed he would be given a formal warning not to ride on the back of the truck or any other moving vehicle and should it be substantiated he had failed to comply with the direction a formal disciplinary would be initiated. A copy of the letter was to be placed upon his departmental employee file and "may" have been taken into consideration should there be future disciplinary proceedings. Ball denied ever seeing this correspondence prior to these proceedings.
November 2015 ‑ Ball was advised he was to be taken off the Front Run and returned to the Blocks as the investigation into the ROCS incident was complete. Ball requested not to be sent to N Block because he would become a target but was subsequently rostered to N Block.
November 2015 to early 2016 ‑ Ball lost 30 kilograms in weight and remembered feeling exhausted all the time.
8 March 2016 ‑ suspended from work that led to his termination and experienced severe depression as a result.
Health Matters
In February 2011 he suffered a heart attack returning to work in March 2011. In 2013 he had a heart operation and later in August 2016 was diagnosed with Stage 3 bowel cancer requiring another operation.
Affidavit of Potter
Ball disagreed with a number of assertions contained in Potter's affidavit that included:
·issues around timeouts ‑ custom and practice;
·Potter at no time challenged him over timeouts;
·never had conversations about his practices and conduct around a number of incidents; and
·was never aware of ESU investigation around the Cotton matter and recalls no conversation on this with Potter.
Affidavit of Juffs
Ball denied a range of incidents identified by Juffs as having never occurred or incorrect. These included:
·sending prisoners to medical;
·code yellow outside detention area;
·movement control issues;
·locking prisoners in cells without authority;
·allegations about being asleep at work in late 2015 to early 2016;
·Juffs having found him dozing off during shifts;
·left staff waiting at doors for long periods;
·slow at opening door as Movement Control Officer;
·had not been well respected by prisoners;
·failed to follow directions; and
·conduct unsafe whilst working in Secure One.
Affidavit of Henderson
Ball found Henderson's allegations and comments to be extremely hurtful, challenging a multitude of Henderson's evidence which included the denial of a significant number of allegations that included:
·making decisions above his capacity;
·moved out of his area due to incompetence or poor decision making;
·danger to himself and everyone around him;
·complaints from staff around falling asleep on the job;
·incompetent to return to WCC;
·denying conduct even when witnessed by Henderson; and
·timeout process.
Affidavit of McDermott
The claim by McDermott regarding Ball on possible reinstatement as not performing his duties ethically, honestly and in accordance with the obligations of a CCO was denied. Ball committed to the Code of Conduct.
Affidavit of Harries
The allegation of Harries that he spoke inappropriately to a prisoner and having threatened to "lock up" prisoners was denied.
Affidavit of Crichton
Allegations of any improper conduct as alleged by Crichton were denied with suggestions that his position set out in his affidavit was different to Crichton's previous positions.
Reinstatement
As a result of his dismissal he had been suffering ongoing depression for which he is being medicated. If reinstated he would like to return to N Block or as a training instructor and would do everything in his power to comply with his obligations as a CCO and would be willing to undertake Code of Conduct training.
Third Affidavit
Ball provided a third affidavit as a consequence of a visit to Dr Shea on 30 June 2017. The consultation related to a number of ongoing health issues and the medication provided for his condition.
Ball evidenced he did not discuss anything to do with his reinstatement trial however at one point Dr Shea said words to the effect "Is this about you hitting a prisoner?" to which Ball replied "no, that's not what happened, it's about misconduct". The conversation moved on from there to issues about his health.
In addition to the evidence contained within affidavits tendered in the proceedings Ball also gave further evidence‑in‑chief in the course of the proceedings in response to Crichton's affidavit. In respect of that evidence, he denied:
·smoking contrary to policy;
·using inappropriate language towards prisoners;
·trapping a prisoners fingers in a cell door;
·being unaware of a prisoner making threats towards him (Crichton's evidence). This particular prisoner seldom approached newer officers and had been known to Ball for seven years during which time he had never complained to him;
·allegations he was asleep on the job in N Block in January/February 2016;
·winding up prisoners (because to do so was very dangerous);
·giving prisoners the finger; and
·Crichton had never raised concerns about feeling unsafe working with him.
Ball gave evidence also that he was required to assess Crichton's Certificate III qualification which he said was not up to standard and he had sent it on to another assessor but doubted Crichton would have received any documentation that identified him as the trainer assessor.
In response to the affidavit of Harries he denied allegations that:
·he would wind up prisoners;
·that he did the "nodding dog" i.e. "nodding off" at work;
·leaving his post unattended; and
·denied entitlements and access to certain prisoners and not others.
Other evidence given in response to Harries went to Ball's tinted glasses, not being startled by loud noise due to his military training and a CCO making a complaint would not hinder their career.
In response to the affidavit of Gray he denied allegations that:
·he answered the phone inappropriately in P Movement Control;
·telling Gray that supervisors were chasing him because he had fallen asleep in the unit;
·telling Gray he had fallen asleep at work;
·telling Gray he did not want to be at WCC anymore;
·leaving people purposely left in airlocks on 24 February 2016;
·having been given written direction about responding to exit and entry;
·he ignored calls by Gray to open doors in a timely manner; and
·sitting at the desk with both palms on his forehead.
In response to Bracher's affidavit he denied:
·ever having a negative attitude towards his job or the WCC;
·sleeping in the Tardis walkway on 19 January 2016; and
·that safety was not a priority for him whilst at work.
Cross‑examination
The cross‑examination process undertaken by Ball was extensive commencing on the afternoon of 27 June 2017 and concluding on 29 June 2017. For the purpose of this decision all of the relevant transcript has been considered with limited content reproduced in the body of the decision.
Under cross‑examination Ball denied having previously seen a warning letter written by McDermott about an incident in May 2015 when he had ridden on the back of a truck [Transcript p. 4‑5], arguing that the reliance on this disciplinary letter by McDermott was unfair because she was relying on something he knew nothing about [Transcript p. 4‑7]. On witnesses called by Ball in these proceedings he identified Hay as his support person throughout the disciplinary process and still be concerned for his [Ball's] welfare after his termination [Transcript p. 4‑11]. In respect of Nicolia he was also a CCO who Ball last worked with around 2013/2014 [Transcript p. 4‑12]. In the interview conducted by Verrall on 22 March 2016 Ball's evidence was that the conduct of the interview was correct and he had answered questions put to him truthfully [Transcript p. 4‑13]. He told Verrall he had been sent to the Front Run because he was under investigation but always believed it was as a punishment although he withheld that from Verrall [Transcript p. 4‑15]. Ball accepted that WCC was a maximum security prison that was "always a dangerous place" where CCOs must at all times be alert which included not sleeping on the job [Transcript p. 4‑15]. Allegations of sleeping on the job were viewed as serious with Ball expecting such conduct to bring a "severe penalty" [Transcript p. 4‑16]. Correspondence (dated 14 November 2016] in the form of a show cause response where Ball submitted sleeping on duty was not of a serious nature was said by Ball to be a "typo" and he had not changed his position as suggested [Transcript p. 4‑17]. In terms of the show cause this evidence was:
·sleeping was a serious offence;
·swearing at a prisoner was not a serious offence; and
·securing prisoners inappropriately never happened [Transcript p. 4‑18].
On the failure to provide any evidence to McDermott in the show cause process about his medical condition of having been diagnosed with and operated on for cancer as extenuating or mitigating circumstances the evidence was that he was a "private person…she didn't need to know" [Transcript p. 4‑21]. Ball later advanced his reasoning for not disclosing his bowel cancer in the response to McDermott because it may have been a "sympathy call" [Transcript p. 4‑27]. In the period between late December 2015 and 8 March 2016 he conceded he was tired at work but if he had been extremely tired or exhausted he would have had a "sickie" [Transcript p. 4‑33]. He evidenced he could "possibly" have been exhausted at the time in question despite saying at paragraph 244 of his affidavit that "I remember feeling exhausted all the time" [Transcript p. 4‑35]. On escorting a prisoner he accepted he had said to the prisoner "your best bet is to shut the fuck up and not say anything to anyone" [Transcript p. 4‑42]. At the time of making the comment he had instructed the prisoner on several occasions to cease talking but denied he was either exasperated or annoyed [Transcript pp. 4‑43 to 4‑45] however in response to the allegations about the same incident "Finally, exasperated, I stated to him" [Transcript p. 4‑44]. Whilst he had no rapport with the prisoner he swore at, Ball did not accept his comment was inappropriate despite having criticised Crichton for using similar words, because he had "quietly told him to shut the fuck up" [Transcript p. 4‑45].
If reinstated Ball would go back to N Block even though in November 2015 he had said he did not want to go back because he felt he would become a target because officers had been caught out lying in an investigation about him [Transcript p. 4‑47] as they did not want him back in N Block [Transcript p. 4‑50]. He would however if reinstated work anywhere in the jail [Transcript p. 4‑50]. Ball agreed that officers must have trust and confidence in each other and even though fellow officers had lied in their reports he would continue to work professionally with them [Transcript p. 4‑51]. He had been harassed in N Block when he returned from the Front Run but he was not a person who gets intimidated by threats [Transcript p. 4‑51]. Ball had some issues with Managers at WCC being too soft on prisoners and he was not a person who would "brown nose" management [Transcript p. 4‑56]. Ball relied upon the "old school" approach to manage his unit at WCC [Transcript p. 4‑57]. On his return to N Block there had been harassment from other officers who said things such as "we'll give you three weeks before you get caught" [Transcript p. 4‑59].
Ball held the view that Harries, Crichton and Gray had colluded in relation to the allegations against him on the basis that he had refused to sign off Crichton's Certificate III because he had not met the requirements [Transcript p. 4‑62]. Ball had no recollection of talking to Crichton about not having signed off on his Certificate III [Transcript p. 4‑65]. Ball accepted his allegation that Crichton had conspired and colluded with others against him was a serious allegation to make [Transcript p. 4‑70]. The suggestion that Gray had colluded and fabricated allegations was also conceded as being a serious allegation to have been made by him [Transcript p. 4‑72]. Ball was unable to provide an explanation why Gray who he hardly knew would fabricate allegations against him [Transcript p. 4‑74]. He believed Harries, Crichton and Gray had met at the academy and were friends outside of work [Transcript p. 4‑76].
Ball did not accept that as an accredited Workplace Health and Safety representative he had failed in his duty to mention his problems with arthritis in his neck that required him to wear a brace at home but did not wear it at work for fear of becoming a target by prisoners [Transcript p. 4‑86]. There was significant questioning around Ball's activities on 24 February 2016 when he was rostered as the P Movement Control officer with Ball denying allegations made by Gray that he was asleep and at times he rested his hands on his head [Transcript p. 4‑101]. Ball denied further allegations by Gray on that day regarding his telephone manner and purposely leaving prisoners in the airlocks and at doors [Transcript p. 4‑107]. Ball did not accept that on 24 February 2016 he had his head down on at least six occasions as if he was asleep or that ten or more occasions Gray had to either raise his voice or nudge him to get Ball's attention [Transcript p. 5‑7]. Ball had no recollection of visiting the doctor in late 2015 as a result of having injured his right shoulder and neck [Transcript p. 5‑9]. Ball accepted that in the period between December 2015 and 8 March 2016 he attended upon Dr Shea on numerous occasions without raising the issue of neck pain [Transcript pp. 5‑19 and 5‑20] but on 14 April 2016 had raised the issue because "he may have tripped" and jarred his neck [Transcript p. 5‑21]. Ball had no recall of attendances at a physiotherapist after 31 December 2015 for treatment of his neck condition [Transcript p. 5‑25]. Other attendances upon his medical practice in November 2015 where he reported neck and shoulder conditions were not able to be recalled by Ball [Transcript p. 5‑26]. Clinical notes indicated that between 31 December 2015 and 14 April 2016 Ball had no need to seek physiotherapy or medical treatment for his neck [Transcript p. 5‑27].
Ball acknowledged that Juffs had been one of his supervisors from March 2014 until his suspension in 2016 and during that time had raised issues with his conduct and performance [Transcript p. 5‑34]. Those issues included:
·sending a prisoner to the medical unit without first calling the medical unit [Transcript p. 5‑37];
·being advised (along with others) that movement control support officer was to watch officers in the unit and not sit and chat [Transcript p. 5‑38];
·use of computer [Transcript p. 5‑39];
·refusing to allow prisoners to attend industry [Transcript p. 5‑39]; and
·making decisions he was not supposed to make [Transcript p. 5‑40].
Ball denied that Juffs had spoken to him in late 2015 and early 2016 about falling asleep on the job and of Juffs having found him dozing off during his shift [Transcript p. 5‑41]. Ball denied making gestures to prisoners with his fingers other than making a "B" which stood for breach as "the only word that the prisoners know in jail ‑ a B stands for breach" [Transcript p. 5‑43]. Usually he would give prisoners two "options" before breaching them [Transcript p. 5‑43]. Ball stated it was common practice to put prisoners in their cells to calm down rather than be breached [Transcript p. 5‑45]. Ball would breach prisoners for a minor infraction of the rules but would not necessarily breach them if they were offensive towards him [Transcript p. 5‑47]. Ball never said anything to Juffs about his neck hurting, arthritis in the neck or that he had a problem sitting for periods of time [Transcript p. 5‑47]. He claimed that whilst in N3 he would experience glare from the station desk that bounced off the polished concrete in the exercise yard, coming through the Lexan window onto the floor in the common room [Transcript p. 5‑48].
Ball did not accept prisoners were laughing at him but had seen something written such as "Up on Rick's whiteboard, he's got so‑and‑so" referring to prisoners having to double up in single cells [Transcript p. 5‑51] also refuting that the prisoners could have been laughing at him for being asleep because he had never been asleep [Transcript p. 5‑51]. Photographs of the N3 unit were shown to Ball in relation to allegations he had been asleep on duty on 19 January 2016 with Ball denying he was asleep, that Harries had been making noises to wake him and in being asleep left Harries, in essence, in an area with 40 or 50 prisoners by himself. Ball's evidence was that if the roles had been reversed he would have called a code or phoned a supervisor and had Harries removed from the unit. Ball was critical of Harries in that he had not followed the direction from the college and reported to his supervisor [Transcript pp. 5‑60 to 5‑63]. Ball was taken to a previous interview where he was asked questions about problems with Crichton at which time he stated "Look if I had an issue with an officer, I would go up and fucking tell them I had a problem" [Transcript p. 5‑64]. Further he had previously stated that to "dob" on your mates was the wrong thing to do [Transcript p. 5‑65]. Ball said he would report anyone who fell asleep on duty [Transcript p. 5‑66]. Ball further denied other allegations made by Harries in that he wound up prisoners, in one case saying "He is pissing me off, I'm going to lock him in his cell for the rest of the day" [Transcript p. 5‑67]. Ball accepted it could have been a possibility that he treated a group of four prisoners wanting to go back into their cells, differently by approving two and not the others [Transcript p. 5‑69]. Ball did not accept his actions had been completely wrong and dangerous [Transcript p. 5‑70]. Ball denied on 29 January 2016 he was asleep in a chair in the walkway around the Tardis [Transcript p. 5‑74] and even if he was asleep it could have occurred during his break time [Transcript p. 5‑75]. The only direction regarding meal breaks is that an officer must remain on the premises inside the jail [Transcript p. 5‑78]. Whilst there is no direction, there is an obligation of the returning officer to return from his meal break and relieve the next officer. Until such time as this obligation is filled you do not wander [Transcript p. 5‑91].
Ball accepted that he had in the show cause process and these proceedings been given the full opportunity to respond to the allegations made against him [Transcript p. 6‑2]. In respect of the allegations containing some differences Ball still held the view that "in some of their evidence maybe" they had colluded [Transcript p. 6‑3]. Ball denied allegations that prisoners were banging on glass due to him being asleep and that when they ran away he would drop off to sleep again [Transcript p. 6‑3]. On the "B" signs he would make at prisoners Ball was accused of making it up as he had never raised this previously to which he accepted this was the first time it had been raised but he had not made it up [Transcript p. 6‑6]. Ball held the view that a number of persons including Harries, Beaumont, Crichton, Bracher, Gray and Juffs had fabricated evidence against him [Transcript p. 6‑8]. Ball towards the end of cross‑examination again denied the allegations that had been levelled against him that included:
·slamming the door on a prisoner [Transcript p. 6‑9]; and
·calling a prisoner an "old bitch" [Transcript p. 6‑10].
Ball denied that his allegation about Crichton's exchange with a prisoner had been made up to excuse his own wrong doing [Transcript p. 6‑12]. On a matter where Henderson had told Ball he had seen him enter prison units by himself, he denied it giving evidence "how did he see me do it? He's a manager" [Transcript p. 6‑12]. Henderson was also fabricating evidence against him [Transcript p. 6‑13]. Ball was seeking reinstatement and did not accept he was guilty of any of the allegations stating that he had "been doing the job for 11 years better than most, not as good as others" [Transcript p. 6‑14]. If reinstated he gave an undertaking to read the Code of Conduct which had changed four or five times [Transcript p. 6‑14].
Re‑examination
Ball confirmed he had not been given a warning about previous misconduct and/or breaches of the Code of Conduct prior to dismissal. On the show cause responses to the allegation and penalty he was assisted by Hay and were approved by him although due to his state of mind at the time and medication he missed a few things or would have made changes. On the allegations he gave evidence that as they related to sleeping on duty they were serious allegations, as was securing prisoners inappropriately in their prison cells. In terms of the practice of timeouts he did not see that as an inappropriate practice and at times Juffs had instructed prisoners be locked up for the day. The practice was accepted and recognised within WCC.
His relocation to the Front Run was viewed by him as a punishment because of the hours worked and the inability to be rotated through various roles. It was also unfair because he was the subject of micromanagement. After the Front Run he was sent back to N Block against his wishes where he became a target as he had thought he would. He ended up feeling threatened due to the actions of Juffs, Blair McLean (McLean) and by a small group of officers. In his evidence about looking exhausted he believed it was because he had lost 30 kilograms but it did not mean he felt exhausted. At the time he did not feel physically exhausted and had no problem doing his job. On his role in escorting a prisoner to the detention units (DU) and having told the prisoner to "shut the fuck up" he reaffirmed his previous evidence of having not raised his voice at that time. He had only sworn at the prisoner because he had rejected his three or four requests to not speak to prisoners. Swearing was common speech at WCC with a lot of the new‑generation officers but not so with the older generation. If reinstated he would be prepared to work wherever the management required him to work. The non‑wearing of the neck brace at work had not put himself or colleagues in danger.
On the letter (dated 29 October 2015) of warning, Ball denied having prior to this matter ever seeing the letter and the signature purported to be his was not. Ball recalled having a conversation with Juffs about his wife's illness but had never spoken to Gray about his personal life. Ball denied all allegations about having slept whilst on duty and had Juffs found him asleep it would have gone straight to the ESU as it was a serious offence. On the incident around the Tardis area when Crichton returned from his break Ball had expected him to return to his post and not walk to the back of the Tardis to have "a little talk to his friend". Ball had refused to let prisoners out of a secure area because their escort had gone and he ended up at a meeting over the incident with McLean who behaved in a threatening manner which had upset him. Ball denied having ever made racist comments to a prisoner. In the case of prisoners who are involved in a minor infraction of the rules he would generally give them a chance rather than breach them.
On Day 10 of hearing Ball was recalled to give further evidence relating to a visit to Dr Shea on Friday 30 June 2017 at a time when he was still in the process of giving his primary evidence in the proceedings. He evidenced that due to feeling unwell the previous day he consulted with Dr Shea regarding his ongoing depression and his medication for that condition. In the course of the consultation he had not discussed any aspect of the trial beyond that it was taking a very long time and he was feeling "very stressed by it". In an affidavit [Exhibit 7] tendered by Ball he stated at paragraph 6:
At one point, in the middle of our discussion, Dr Shea said to me words to the effect of, 'Is this about you hitting a prisoner?' I can't recall Dr Shea's exact words, but I do recall he raised the topic. I then said something to the effect of, 'no, that's not what happened, it's about misconduct'.
Ball gave further evidence regarding a meeting with Tilly in or around November 2015 regarding Ball's desire not to return to N Block however he denied that Tilly had at that meeting given him a warning letter or that he had signed receipt of such letter.
Under cross‑examination he reiterated his earlier evidence of not receiving the warning letter on 4 November 2015 or having signed that letter [Transcript p. 10‑38]. Prison logs confirmed on 4 November 2015 he was present inside the jail but he again stated he had not signed the warning letter [Transcript p. 10‑39]. Ball conceded when he visited Dr Shea on 30 June 2017 he understood he was still under cross‑examination and was aware that Dr Shea was to be a witness in these proceedings [Transcript p. 10‑43]. Dr Shea had brought up the issue and all he had done was to tell him it was misconduct [Transcript p. 10‑43]. On inconsistencies with Ball's previous evidence regarding contact with the witness Hay whilst Ball was under oath and evidence about his discussion with Dr Shea it was Ball's evidence the Commission ought to accept both versions of his evidence [Transcript p. 10‑48]. Ball denied he was being evasive in the giving of his evidence and that medication had affected his answers [Transcript p. 10‑50].
In assessing the demeanour of the three witnesses pursuant to the same criteria utilised in respect of Ball's evidence it would be my view they presented as superior witnesses of credit when measured against Ball and more likely than not their evidence was evidence upon which the Commission could reasonably rely.
Beaumont and Bracher
Beaumont gave his evidence-in-chief by way of affidavit and in the course of cross‑examination agreed with propositions put to him that he may not have been sure about having observed Ball asleep however indicating it was highly unlikely that as suggested Ball had been rearranging himself in his seat.
Bracher
Bracher's evidence-in-chief was through his affidavit and in the course of cross-examination he was unsure of the date when he was said to have witnessed Ball asleep and of not being 100 per cent confident of Ball having been asleep.
Beaumont and Bracher
Their evidence when considered overall was neither helpful in corroborating the evidence of a complainant or assisting Ball with regards to the denial of the allegations.
Other Witnesses
Applicant's Witnesses
Other witness evidence on behalf of Ball was given by:
·Hay;
·Nicolia;
·Dr Shea; and
·Ash.
Hay
There was a degree of controversy around the evidence-in-chief of Hay as it related to the failure to provide an affidavit that led to his evidence-in-chief being given orally. There was a "cloud" over the version offered by Hay on why an affidavit had not been provided however for the purposes of the record the Commission is prepared to accept that the failure for affidavits to be tendered by both Hay and Nicolia was as a result of a misunderstanding between the witnesses and the solicitors acting for Ball.
Hay's evidence focused on the assistance he gave to Ball during the show cause process including examples of where he had influenced some of Ball's responses. He also gave an amount of opinion evidence about some of the allegations levelled against Ball without having any direct involvement in any of the incidents. Hay endorsed the competency and professional conduct of Ball in the undertaking of his CCO duties, having worked with and having supervised Ball.
Nicolia
His evidence went to the general manner in which CCOs undertook their duties at WCC. In the course of cross-examination he denied having ever sworn at another officer but then conceded he had received a warning letter for that exact offence.
Dr Shea
Dr Shea gave evidence about medical treatments provided to Ball prior to and after the termination of his employment. Also evidence was given about an exchange with Ball on 30 June 2017 and with solicitors acting for Ball in June and July 2017.
Ash
Ash had been the solicitor acting for Ball prior to the commencement of the proceedings and ceased to act in that capacity shortly after the commencement of the proceedings. His evidence generally went to his conduct as a solicitor and engaging with Ball and witnesses for the Applicant.
Applicant's Witnesses
The Commission had no major concerns regarding the evidence of Hay, Nicolia and Ash as it pertained to credibility with much of their evidence going to the periphery of the application. In the case of Dr Shea there were no concerns regarding the medical evidence however as mentioned earlier in the decision there was in the view of the Commission a level of concern about his evidence of the 30 June 2017 discussion with Ball.
Respondent's Witnesses
Other witness evidence on behalf of the Respondent was given by:
·Juffs;
·Tilly;
·Potter;
·Henderson;
·McDermott; and
·Tyquin.
None of these witnesses provided evidence that related directly to the incidents that led to the allegations being levelled against Ball.
Juffs
Evidence from Juffs in the main dealt with issues regarding concerns with Ball in respect of performance and conduct that had arisen whilst he had worked under her control. Additionally issue was taken with a number of assertions made by Ball regarding both his conduct and operations at the WCC. In the course of cross-examination Juffs had admitted that on one occasion she had made an assumption regarding the failure of Ball to comply with a direction that had not been made in a fair and impartial way.
Juffs had also received complaints from CCOs about the conduct of Ball in relation to his work activities and based on those reports believed there were potential risks to safety and security.
Overall the evidence of Juffs in the course of cross-examination remained undisturbed with her presentation and demeanour not of a nature to raise any flags.
Tilly
Tilly gave evidence regarding some matters of discipline relating to Ball and in particular that he had handed Ball a warning letter on 4 November 2015. Tilly's memory of this meeting was not precise and he was aware of Ball disputing that he had signed for the letter on the day.
Tilly's evidence was not unimportant with regards to a collateral issue in this case, regarding the warning letter, however on his own admission his recall was less than precise.
Potter
Potter's evidence related to practices and procedures in place at WCC which went to "time outs" and of Ball's resistance to the implementation of change in this area. He also evidenced that Ball had been involved in a number of incidents between 14 April 2014 and 7 October 2014 in respect of questionable conduct and of another incident on 29 October 2014 regarding a removal of clothing search. Potter accepted that some of his evidence regarding a lack of respect for Ball by his peers had been based on hearsay.
The Commission did not form the impression that Potter was an untruthful witness or that he was not a witness of credit.
Henderson
The Commission had earlier accepted that evidence from Henderson regarding Ball's practice of denying all allegations was reasonable and as such it was safe for the Commission to rely upon that evidence when assessing the credibility aspect of Ball's evidence in these proceedings.
McDermott
McDermott as the decision maker was a key witness for the Respondent in the proceedings and in providing an affidavit of evidence attached the material that had been part of her considerations in the substantiation of the allegations and imposing of a penalty in the form of termination of Ball's employment.
McDermott presented as a reliable witness who in the course of cross-examination conceded that she had relied heavily upon the investigation report in forming her position on substantiating the allegations against Ball but at the same time did not consider Ball had advanced credible arguments in respect of certain responses.
Tyquin
Tyquin, an Acting Senior Lawyer with Crown Law, gave limited evidence in terms of an unsuccessful search for an email not disclosed in the proceedings.
Respondent's Witnesses
In respect of these witnesses giving evidence on behalf of the Respondent there were no major concerns regarding their presentation as witnesses, truthfulness of their evidence or the manner they approached the cross-examination facet of their evidence.
Overall Credibility
Having assessed the evidence of each of the witnesses in the proceedings, taking into account both the written and oral aspects of such evidence, I find that of the substantive witnesses it was only Ball whose credibility was of question and in such circumstances the Commission would overwhelmingly prefer the evidence of the other witnesses to that of Ball in areas where there was a conflict in the evidence.
Disciplinary Record
In the course of the proceedings there was evidence from witnesses for the Respondent that related to alleged conduct engaged in by Ball that had been dealt with in the workplace by both formal and informal means, insinuating that there was a pattern of behaviour causative of concern to the employer.
More to the point however was the response to the show cause notice on penalty (dated 14 November 2016) by Ball in which he requested the decision maker to take into account the following, in respect of his overall work record when deciding what penalty to impose.
My overall work record, up until recent events has generally been a positive one. I have committed myself to performing my duties in a positive manner, I underwent training to become a Trainer and Workplace Assessor and was accepted as such by the management of this centre. I was an active member of the Woodford Fire Team and was a member of this team that competed successfully for several years in the annual Queensland Fire and Emergency Services Games, where the Woodford Team won several awards which attracted positive media comment.
In the letter of termination (dated 19 January 2017) the decision maker recorded the following with regards to Ball's disciplinary history with the employer:
· I note your submission that your overall work record has generally been a positive one. While I note that you have over 10 years of service with Queensland Corrective Services, you do not have a clear disciplinary history. I not the following previous disciplinary matters:
-In February 2014, you were issued with a formal warning in relation to your conduct on 14 December 2013 in respect to unreasonably delaying officers' entry into the N8/9 Officer's Station.
-In September 2015, you were issued with a reprimand, a reduction of one pay point (from CO1-9 to CO1-8) and a final warning, as well as being directed to undertake relevant refresher training, as a result of substantiated allegations against you regarding inappropriate, unauthorised removal of clothing searches.
-In October 2015, you were issued with a formal warning in respect to an allegation that you had been observed riding on the back of a truck whilst on duty.
· In light of your continued failure to acknowledge the seriousness of your conduct, and your recent disciplinary history, I am of the view that you are likely to engage in similar conduct in the future. Further, I am concerned that you have engaged in a pattern of behaviour that does not meet the standard of conduct required by QCS. I have therefore lost trust and confidence in your ability to carry out your role as a CCO and, in particular to act approximately towards other prisoners.
Clearly the position advanced by Ball was that his overall work record was a positive one yet in the preceding two years there had been three matters that resulted in the issuing of some form of disciplinary action albeit not taken necessarily pursuant to the PS Act which poses questions with respect to the truthfulness of argument advanced by Ball across a range of matters.
Note: The Commission acknowledges the disputation between the parties regarding the receipt or otherwise of the formal warning letter relating to the October 2015 incident however is satisfied on the evidence before the proceedings that Ball had been observed riding on the back of a truck whilst on duty that was contrary to policy and procedures.
Findings
On consideration of the evidence, material and submissions before the proceedings pursuant to the requisite standard of proof the Commission finds that:
·the allegations relevant to the conduct engaged in by Ball (as outlined in Allegations 1, 2 and 3) were reasonably open to be substantiated by the decision maker;
·the disciplinary process undertaken by the decision maker was at all times compliant with the legislative and policy procedures with Ball being afforded procedural fairness and natural justice at all times;
·the penalty of the termination of Ball's employment was warranted in circumstances where his conduct constituted significant breaches of procedures, policy, and statutory obligations that relate to a CCO undertaking their required duties of work; and
·the decision to terminate Ball's employment effective from 19 January 2017 was not harsh, unjust or unreasonable.
The application for reinstatement is refused.
Costs
I make no order as to costs.
I order accordingly.
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