Jose v Assistant Commissioner Michael James Condon - [2013] QCAT 515

CITATION:

Jose v Assistant Commissioner Michael James Condon [2013] QCAT 515

PARTIES:	Mr Gabriel Raymond James Jose (Applicant)
v
Assistant Commissioner Michael James Condon (Respondent)

APPLICATION NUMBER:

OCR132-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Margaret McLennan, Member

DELIVERED ON:

1 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Gabriel Raymond James Jose has leave to withdraw his application for a review of the substantiation of the matter of misconduct.

2. The sanction imposed by Assistant Commissioner Michael James Condon dated 14 May 2013 is set aside. The following sanction is imposed:

a) Senior Constable Gabriel Raymond James Jose be reduced from pay point 2.9 to 2.1 for a period of twelve (12) months commencing 14 May 2013.

b) After that period of twelve (12) months Senior Constable Gabriel Raymond James Jose progress back to pay point 2.9 following confirmation being received by the Assistant Commissioner South-Eastern Region of:

(i.) Successful completion of his Performance Planning and Assessment for the period 14 May 2013 to 13 May 2014;

(ii.) Presentation of himself for an assessment by Queensland Police Service (QPS) Safety and Wellbeing Branch by 13 May 2014;

(iii.) Senior Constable Gabriel Raymond James Jose having undertaken any counselling or other program recommended by the QPS Safety and Wellbeing Branch by 13 May 2014.

c) If 3(b) (i), (ii) and (iii) not be completed by 13 May 2014, then progression to 2.9 shall occur as soon thereafter as confirmation of the outstanding condition is received by the Assistant Commissioner.

3. Publication of the names and any personal particular of the two juveniles, the juveniles’ stepfather and the complainant driver is prohibited.

4. Publication of any incidental third party name or particulars logged on 21 April 2013 on DDO logs; District Office activity logs or Compass Report Summary is prohibited

5. Any person who has access to the file of material in this case is prohibited from publishing the information contained in 4. and 5. of this order.

CATCHWORDS:

Disciplinary proceedings – Police

Police Service Administration Act 1990 -
Police Powers and Responsibilities Act 2000 (Qld)
Police Service (Discipline) Regulations 1990

Medical Board of Australia v Martin [2013] QCAT 376
Aldrich v Ross (2001) 2 QdR 235
Hardcastle v Commissioner of Police (1984) 53 ALR 593
Queensland Police Service v Compton (No 2) [2011] QCATA 246

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr S Zillman, counsel, instructed by Mr Adrian Braithwaite, solicitor, Gilshenan & Luton

RESPONDENT:

Mr S McLeod, counsel, instructed by Ms Melissa Cable, Queensland Police Service Solicitors

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

On 2 July 2013 Gabriel Raymond James Jose (the applicant) lodged an application in the Queensland Civil and Administrative Tribunal (the tribunal) seeking review of a decision made on 14 May 2013 by Assistant Commissioner Michael James Condon (the respondent). The application was in relation to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCAT 515
Decision Date: 1 October 2013

CaseChat Overview and Summary

Gabriel Raymond James Jose, a police officer, sought review of a disciplinary decision made by Assistant Commissioner Michael James Condon. The dispute centred on misconduct allegations involving Jose's handling of a situation with two juvenile offenders. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issues for the tribunal were whether the sanction imposed by the Assistant Commissioner was just and whether it complied with relevant disciplinary procedures. The tribunal had to consider the evidence presented and determine if the disciplinary action was proportionate and appropriate given the circumstances of the misconduct.

The tribunal found that the sanction imposed by Assistant Commissioner Condon was excessive and not justified by the evidence. The tribunal set aside the original sanction and imposed a reduced sanction, which included a reduction in pay for twelve months, contingent upon Jose meeting certain conditions related to his performance and wellbeing. The tribunal also imposed restrictions on the publication of certain personal information to protect the privacy of individuals involved in the case.

The tribunal's final orders included granting Jose leave to withdraw his application for review, setting aside the original sanction, imposing a reduced sanction, and prohibiting the publication of specific personal information. The decision provided clear guidance on the appropriate disciplinary action in similar future cases.

Orders

Orders of the court

1. Gabriel Raymond James Jose has leave to withdraw his application for a review of the substantiation of the matter of misconduct.

2. The sanction imposed by Assistant Commissioner Michael James Condon dated 14 May 2013 is set aside. The following sanction is imposed:

a) Senior Constable Gabriel Raymond James Jose be reduced from pay point 2.9 to 2.1 for a period of twelve (12) months commencing 14 May 2013.

(i.) Successful completion of his Performance Planning and Assessment for the period 14 May 2013 to 13 May 2014;

(ii.) Presentation of himself for an assessment by Queensland Police Service (QPS) Safety and Wellbeing Branch by 13 May 2014;

(iii.) Senior Constable Gabriel Raymond James Jose having undertaken any counselling or other program recommended by the QPS Safety and Wellbeing Branch by 13 May 2014.

3. Publication of the names and any personal particular of the two juveniles, the juveniles’ stepfather and the complainant driver is prohibited.

4. Publication of any incidental third party name or particulars logged on 21 April 2013 on DDO logs; District Office activity logs or Compass Report Summary is prohibited

5. Any person who has access to the file of material in this case is prohibited from publishing the information contained in 4. and 5. of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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