McKenzie v Deputy Commissioner Linford - [2021] QCAT 175

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McKenzie v Deputy Commissioner Linford & Anor [2021] QCAT 175

PARTIES: WILLIAM McKENZIE

(applicant)

v

DEPUTY COMMISSIONER TRACY LINFORD

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO:

OCR064-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

12 May 2021

HEARING DATE:

3 March 2021

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.   The decision made by Deputy Commissioner Tracy Linford on 31 January 2020 is set aside, and the following decision is substituted.

2.   William McKenzie is:

(a)    reduced in rank from senior sergeant pay-point 4.5 to sergeant pay-point 3.1 from 31 January 2020 until 30 January 2021;

(b)   progressed to the rank of sergeant pay-point 3.7 from 31 January 2021 until 30 July 2021; and

(c)    returned to the rank of senior sergeant pay-point 4.5 from 31 July 2021.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where police officer breached rules and fatigue management guidelines, disobeyed directions, submitted false information, and failed to report misconduct – whether permanent demotion appropriate

Police Service Administration Act 1990 (Qld), s 1.4, s 7.1, s 7.2, s 7.4, s 7.34

Aldrich v Ross [2001] 2 Qd R 235

Re Bowen [1996] 2 Qd R 8
Crime and Corruption Commission v Acting Deputy Commissioner Barron & Anor [2015] QCAT 96
Deputy Commissioner Stewart v Dark [2012] QCA 228
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
Newman v Deputy Commissioner Linford APM & Anor (No 2) [2020] QCAT 328

The Queen on the application of Darren Williams v Police Appeals Tribunal & Anor [2016] EWHC 2708 (Admin)

APPEARANCES & REPRESENTATION:

Applicant:

C R Gnech of Gnech and Associates

First respondent:

I P Fraser, Senior Legal Officer, Queensland Police Service

Second respondent:

Z Valeska, Principal Legal Officer, Crime and Corruption Commission

REASONS FOR DECISION

Introduction

William McKenzie is a police officer in the Queensland Police Service. I will refer to him as Mr McKenzie, rather than by his rank as would normally be preferable. This is because he has held different ranks at relevant times. Further, the point of controversy in this matter is whether he should retain the rank of senior sergeant.
He seeks review by the tribunal of the disciplinary sanction imposed by Deputy Commissioner Linford on 31 January 2020 for misconduct committed in the period 23 May 2014 to 27 August 2015. The sanction imposed by the Deputy Commissioner was a reduction in rank from senior sergeant pay-point 4.3 to sergeant pay-point 3.1, and then a progression to sergeant pay-point 3.7 after 12 months.
Pay-points 3.1 and 3.7 are respectively the lowest and highest pay-points in the rank of sergeant.
The Deputy Commissioner noted in her reasons that Mr McKenzie had progressed to senior sergeant pay-point 4.5 on 10 May 2017, but was currently at senior sergeant pay-point 4.3. This was said to flow from a tribunal order restoring Mr McKenzie to that rank and pay-point. It is not apparent, however, why he was not restored…

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: [2021] QCAT 175
Decision Date

CaseChat Overview and Summary

William McKenzie, a police officer, sought review of a disciplinary sanction imposed by Deputy Commissioner Tracy Linford for misconduct committed between 23 May 2014 and 27 August 2015. The sanction imposed by the Deputy Commissioner was a reduction in rank from senior sergeant pay-point 4.3 to sergeant pay-point 3.1, and then a progression to sergeant pay-point 3.7 after 12 months. McKenzie argued that the ‘permanent’ demotion in rank was excessive. The Crime and Corruption Commission and the Deputy Commissioner submitted that the decision of the Deputy Commissioner should be confirmed by the tribunal. The tribunal considered the misconduct, which did not meet the standard of conduct that the community reasonably expects of a police officer. The tribunal considered the nature of the misconduct, mental health and personal pressures, other conduct during McKenzie’s career, and the impact of demotion. The tribunal concluded that the sanction imposed by the Deputy Commissioner was excessive. It set aside the decision of the Deputy Commissioner, and substituted a decision reducing McKenzie in rank from senior sergeant pay-point 4.5 to sergeant pay-point 3.1 for 12 months from 31 January 2020, followed by a progression to sergeant pay-point 3.7 for six months from 31 January 2021, followed by a return to senior sergeant pay-point 4.5 from 31 July 2021.

Orders