Kennedy v Stewart, Deputy Commissioner
[2011] QCAT 124
•31 March 2011
| CITATION: | Kennedy v Stewart, Deputy Commissioner [2011] QCAT 124 |
| PARTIES: | Bryan George Kennedy |
| v | |
| Deputy Commissioner Ian Stewart |
| APPLICATION NUMBER: | OCR36-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra Deane, Member |
| DELIVERED ON: | 31 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] That the operation of the decisions of the respondent dated 16 March 2011 to dismiss the applicant from the Queensland Police Service be stayed pending the hearing of this proceeding. |
| CATCHWORDS : | Application for stay Queensland Civil and Administrative Tribunal Act 2009, s 22 Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Background
An application has been made by the applicant to review decisions made on 16 March 2011 by Deputy Commissioner (Regional Operations) Ian Duncan Stewart (“the respondent”) in relation to a disciplinary hearing conducted under the Police Service Administration Act 1990 which commenced on 3 September 2010.
The respondent delivered his findings and reasons on 16 March 2011 that the following disciplinary Matters of misconduct against Senior Sergeant Bryan George Kennedy (“the applicant”) were substantiated:
Matter One
That between the 15th day of April 2008 and the 24th day of January 2009 at Mt Isa or elsewhere your conduct was improper in that you:
dishonestly gained the benefit of “Trailblaza” portable camping fridge the property of the Mount Isa Police Citizens Youth Club.
[Section 1.4 of the Police Service Administration Act 1990 and s. 9(1) (f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
Investigations have identified that a “Trailblaza” portable camping fridge was donated by Margaret Emily Albeiz for the assistance of the Mount Isa Police Citizens Youth Club. The investigations have identified you:
utilised the said “Trailblaza” portable camping fridge at your (former) residence in Mt Isa;
transported this property from Mount Isa to your (subsequent) residence in Rockhampton; and
dishonestly applied to your own use the said “Trailblaza” portable camping fridge.
Matter Two
That between the 10th day of December 2007 and the 18th day of December 2007 at Doomadgee or elsewhere your conduct did not meet the standard of conduct the community reasonably expects of a police officer in that you:
(a)whilst the (acting) Officer in Charge of Doomadgee Police Station facilitated the transfer of alcohol into a community subject to an Alcohol Management Plan in a manner specifically designed to circumvent the purpose of the alcohol restrictions.
[Section 1.4 of the Police Service Administration Act 1990 and s. 9(1) (f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
Investigations have identified that:
you were acting in the capacity of Senior Sergeant, Officer in Charge of Doomadgee Police Station;
at the time, the Alcohol Management Plan allowed only three cartons of beer per person to be brought into the Doomadgee community;
you facilitated the transfer of twenty (20) cartons of beer into the restricted zone three cartons at a time; and
you instructed subordinate officers to undertake that process.
Matter Three (Direction Notice signed 5 August 2010)
That between the 10th day of December 2007 and the 18th day of December 2007 at Doomadgee your conduct was improper in that you:
(a)inappropriately allowed a civilian to have possession of official Queensland Police Service accoutrements.
[Section 1.4 of the Police Service Administration Act 1990 and s. 9(1) (f) of the Police Service (Discipline) Regulations 1990]
Further and better particulars
Investigations have identified that:
you were acting in the capacity of Senior Sergeant, Officer in Charge of Doomadgee Police Station;
you were in attendance at the Doomadgee Police Recreation Club in a social capacity;
Kirra White, (then) a civilian employed at the Mt Isa Police Citizens Youth Club, was also in attendance, in your presence, and was dressed in your uniform;
Kirra White also had possession of an official Queensland Police Service accoutrement belt containing a Glock 22 Service firearm and ammunition, ASP Service Baton, OC spray and handcuffs; and
you failed in your responsibilities pursuant to the Weapons Act 1990, QPS Administration Manual, Operational Procedures Manual, Human Resource Management Manual and Code of Conduct.
The respondent found the Matters to be substantiated and that the Matters amounted to misconduct. The respondent ordered that the applicant be dismissed and that the sanctions were to take effect immediately.
The applicant has filed a further application seeking a stay of the decisions under review.
Legislation
Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) and section 219G of the Crime and Misconduct Act 2001 confer jurisdiction on the Tribunal to review the decisions made by the respondent.
Section 22 of the QCAT Act provides that the Tribunal can make an order to stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made by the decision-maker and having regard to the public interest.
Submissions and Evidence
Both the applicant and the respondent submit that the Tribunal in considering a stay order is required to form a positive view that the order is “desirable”.
The Tribunal is referred to Belz v Assistant Commissioner Paul Wilson [2010] QCAT 595 and to Elliott v Queensland Building Services Authority [2010] QCAT 180. In those decisions the Tribunal accepted submissions that “desirable” in the context of section 22 of the QCAT Act “denotes a positive aspiration or something worthy of achievement”.
The applicant submits that the Tribunal should find it desirable to stay the respondent’s decisions in light of the following:
The applicant will suffer extreme hardship should a determination be made not to stay the decision of the respondent.
The impact on the applicant outweighs the interests of the Queensland Police Service and the public generally.
[10] Should an order not be made, the applicant submits that:
a.he will suffer extreme financial hardship given that it may take some 6 to 12 months for the Tribunal to review the decisions. He has provided some documentary evidence as to his financial position.
b.his prospects of obtaining meaningful employment would be slim. He is 44, has been a member of the Queensland Police Service since leaving school and has no other skills, qualifications or experience. He contends that employers may be reluctant to employ him in circumstances where he may return to work for the Queensland Police Service should the Tribunal ultimately decide the review application in his favour.
[11] The applicant submits that the public confidence in the Queensland Police Service will not be adversely affected by a stay as he was allowed to work for a lengthy period while investigations were conducted and was permitted to relieve at higher ranks.
[12] He also submits that his performance appraisals for 2008/2009 and 2009/2010 show that overall his performance met or exceeded the standards expected and that he exceeded a number of individual key performance indicators. The applicant has provided a copy of the 2009/2010 appraisal.
[13] The Tribunal is referred to Craddock v Chief Executive, Department of Employment, Economic Development and Innovation [2010] QCAT 229 where the Tribunal found that the cancellation of the applicant’s licence (even if the decision were stayed) would act as a warning to ensure the applicant did not put the public at risk pending the hearing of the review application.
[14] The applicant submits that the applicant’s dismissal will also ensure that the applicant does not put the public at risk if a stay is granted.
[15] The respondent opposes the application for a stay.
[16] The respondent has referred the Tribunal to the Queensland Police Service Human Resource Management Manual, in particular the purpose of discipline at 18.1.1:
Maintain public confidence in the Service;
Maintain the self esteem of members of the Service;
Maintain confidence in the ability of the Service to fulfil its statutory functions;
Maintain proper standards of conduct for members of the Service (by specific and general deterrence principles);
Maintain the efficiency of the Service; and
Protect the reputation of the Service.
[17] The respondent submits that the misconduct found to be substantiated is “of a serious nature, and one which does not display proper standards of conduct expected of police officers and one which could be referred to as disgraceful, improper or unbecoming of a police officer”. Further it is contended that the matters are at a level of dishonesty and misconduct that is serious and incompatible with the standard of behaviour expected by the community.
Discussion and Decision
[18] The Tribunal is required to have regard to how the applicant’s interests will be affected in the event that a stay of the decisions is not made.
[19] I accept that the applicant would be likely to suffer significant financial hardship and find it difficult to obtain alternative employment pending determination of the review application.
[20] The Tribunal is required to have regard to the submissions of the decision-maker and have regard to the public interest.
[21] The respondent opposes the stay and submits that the applicant’s conduct would be considered unacceptable by the community and this outweighs any personal interests argued by the applicant.
[22] On the available evidence, it is appears that the applicant has been a valued employee and has been allowed to continue to perform his duties and those of higher ranks whilst the disciplinary investigations and proceedings were undertaken.
[23] In these circumstances I accept the applicant’s submission that the public confidence in the Queensland Police Service will not be unduly adversely affected by a stay given the length of time which has elapsed from the time that these conduct issues came to the attention of the respondent’s office.
[24] I accept that the applicant’s dismissal will act as a warning to ensure that the applicant does not put the public at risk if a stay is granted.
[25] I also accept the applicant’s submission that it is open to the respondent to require the applicant to undertake employment in a ‘non-operational role’. This may assist to mitigate concerns the respondent has in relation to the public interest.
[26] Having regard to all of the issues raised by the applicant and the submissions made by the respondent I am satisfied that it is desirable to make an order to stay the operation of the decisions under review.
[27] The application for a stay is therefore allowed.
Order
[28] That the operation of the decisions of the respondent dated 16 March 2011 to dismiss the applicant from the Queensland Police Service be stayed pending the hearing of this proceeding.
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