Patterson v State of Queensland (Queensland Corrective Services) (No. 2)
[2024] QIRC 287
•6 December 2024
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Patterson v State of Queensland (Queensland Corrective Services) (No. 2) [2024] QIRC 287 |
PARTIES: | Patterson, Gail v State of Queensland (Queensland Corrective Services) Respondent |
CASE NO: | PSA/2024/47 |
PROCEEDING: | Public Sector Appeal – Disciplinary Decision |
DELIVERED ON: | 6 December 2024 |
MEMBER: HEARD AT: | Pratt IC On the papers |
ORDERS: | The orders contained in paragraph [123] of these reasons for decision. |
| CATCHWORDS: | INDUSTRIAL LAW – APPEAL – PUBLIC SECTOR PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a disciplinary action decision – appeal against a disciplinary finding decision – appeal against disciplinary action decision lodged within 21-day limitation period – appeal against the disciplinary finding decision lodged out of time – whether extension of time should be granted – extension of time allowed – consideration of the connection between disciplinary action and disciplinary finding decisions – consideration of the prospects of success generally – consideration of the prospects of success with respect to the disciplinary finding decision – where the appeal of the disciplinary finding decision is allowed – where the appeal of the disciplinary finding decision is set aside and substituted – held that the Appellant did not engage in misconduct pursuant to s 91(1)(b) of the Public Sector Act 2022 – where the appeal of the disciplinary action decision is allowed – where the disciplinary action decision is set aside – where it is held that no disciplinary action be imposed – appeal allowed |
| LEGISLATION: | Acts Interpretation Act 1954 (Qld) s 38 |
CASES: | Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Cahill v State of New South Wales (Department of Community Services) (No. 4) [2008] NSWIRComm 201 |
Reasons for Decision
About this matter
This is a public sector appeal pursuant to s 130 of the Public Sector Act 2022 (Qld) ('PS Act') by Ms Gail Patterson ('Appellant') against a decision to impose discipline ('Disciplinary Action Decision'). A jurisdictional issue arises in this appeal which seeks to disturb an earlier decision finding that the Appellant engaged in misconduct. An appeal of that earlier decision would be well outside the 21-day time period allowed for appeals of this nature to be filed.
Relevant background
The Appellant has been employed by Queensland Corrective Services ('QCS') at Brisbane Correctional Centre ('BCC') since 1997. She holds the role of Correctional Supervisor (GS3.4) and has done since 2003.
On 14 January 2023 there was an incident requiring a response by the Appellant ('Incident') involving a prisoner ('Prisoner'). A subsequent investigation resulted in a decision dated 8 December 2023, which relevantly found that the Appellant's response to the Incident constituted 'misconduct' as it was an unreasonable use of force in the circumstances ('Finding Decision').
A show cause process ensued and on 26 February 2024, the Respondent issued a decision to impose disciplinary action ('Disciplinary Action Decision'). The discipline imposed comprised demoting the Appellant out of management and into the role of Custodial Correctional Officer (GS2.4) for 18 months (at a cost to the Appellant of around $20,000) and requiring the Appellant to attend Tactical Options Response – Use of Force and Maybo training. The Disciplinary Action Decision is entirely based on the Finding Decision that the Appellant engaged in misconduct within the meaning of that term as it appears in s 91(1) (b) of the PS Act.
Through her appeal of the Disciplinary Action Decision, the Appellant actually seeks to appeal the earlier Finding Decision as well. That raises a jurisdictional issue in the sense that appeals of such decisions must be lodged within 21 days of, in this case, the employee being given the relevant decision. An appeal of the Disciplinary Action Decision was lodged within time. But any appeal embedded within that application that seeks to overturn the earlier Finding Decision has not been filed within the 21-day limitation period.
Issues to be resolved
The issues to be resolved are:
(a)Should the Appellant be allowed extra time to appeal the Finding Decision?
(b)If so, was that Finding Decision fair and reasonable?
(c)Was the Disciplinary Action Decision fair and reasonable?
Before addressing those issues, it is necessary to set out the nature of the incident that gave rise to the Finding Decision and the Disciplinary Action Decision.
The 'Incident'
The Incident involved an attempt by the Appellant to subdue the Prisoner by spraying the Prisoner's face with a chemical agent called MK IV (i.e. capsicum spray) on 14 January 2023 at the BCC. A key finding was that at the time, the Prisoner was ground stabilised and was being restrained down by several other officers.
Earlier on the day of the Incident, the Prisoner had been placed in a prone position, in restraints, on a mattress on the floor of his cell and was under watch by an officer posted outside the cell. The Prisoner's movement was restrained in several ways. His ankles were shackled and his wrists were held by handcuffs that were secured in front of his torso by a short chain linked to a "body belt", which is a large belt fitted to the waist.
These restraints were imposed because, earlier that day, the Prisoner had engaged in acts of self-harm (as well as violence directed at officers). Specifically, attempting to chew off one of his own fingers resulting in 'Code Blue' alerts being called. The Prisoner had earlier caused himself some harm and his wounds had been dressed. There were, in fact, three Code Blue alerts called that day in relation to the Prisoner and this repeated self-harming behaviour. The Incident occurred during the third Code Blue alert.
Whilst under watch in the above circumstances, the Prisoner managed to wriggle the body belt up his torso so that he could again reach his fingers with his teeth. He began to self-harm and this prompted the third Code Blue alert. That was attended by several officers, including the Appellant who was the supervisor on scene.
The cell mounted camera footage is without sound. It is not a continuous motion footage, however, it does provide time stamping and some indication of what occurred. It was considered by the Respondent as part of its decision-making process. So too was the footage from the cameras worn by various officers attending the Code Blue alert.
The cell wall camera footage shows that an officer entered the cell, quickly followed by another and then the Appellant. The first officer immediately went to the Prisoner's left side, knelt down and controlled the Prisoner's hands. The second officer knelt at the Prisoner's head and held the Prisoner's head. It is clear that the Prisoner was struggling. The Appellant moved into position at the Prisoner's feet and stood with both of her feet, apparently on the chain running between the cuffs fitted to the Prisoner's ankles.
In my view, the footage displays that the Prisoner continued to wriggle and struggle during this time. A fourth officer entered the cell about 20 seconds later, attempted to put on a glove, left briefly and came back with more gloves, knelt beside the Prisoner and assisted with restraining the Prisoner's hands. About 20 seconds later, the Appellant spoke into her radio, maintaining her position at the Prisoner's feet. In less than a minute, two more officers entered the cell and one of them took over control of the Prisoner's feet allowing the Appellant to step back and again speak into her radio. Within the next 20 seconds, the Prisoner managed to turn partly onto his side and the officers attempted to control him whilst he wriggled.
At about this point, the Appellant resumed her position at the Prisoner's ankles. In the following minute, an officer handed two blankets to another officer who was kneeling over the Prisoner who appears to have ceased struggling. About a minute and a half later, however, the Prisoner resumed struggling and wriggling. So much so that the Appellant, who was still standing on the chain between the ankle cuffs, lost her balance slightly and was steadied by other officers standing close by. Two more officers entered the cell and assisted with restraining the Prisoner. About 20 seconds later, the Appellant removed a red canister from her belt and stepped towards the prisoner's head. About 23 seconds later, the Appellant deployed some of the contents of the canister towards the Prisoner's face.
The body worn camera footage reveals verbal exchanges that were taking place. Whilst each relevant officer's camera was activated at slightly different points in time, there is consistent overlap in the footage. I have set out a summary below from [17] to [34] of below.
As the officer who opened the door to the Prisoner's cell does so, the Appellant can be heard saying "Come on Bradley". Another female officer at the door of the cell said "Bradley, seriously?" and the Appellant instructed "Just go in". At this point in time, the Prisoner was laying on the cell floor mattress and his fingers were in his mouth. Blood can be seen on bandages and bedding. The officer who opened the cell door immediately went to the Prisoner's side and knelt down beside him, restraining the Prisoner's hands. As she approached the Prisoner, that officer said "Bradley, I want you to stop. I want you to stop. I want you to stop."
Once the officer was by the Prisoner's side and restraining his hands she said "I need you to stop. C'mon man, enough." At that time, the first officer was immediately followed into the cell by a male officer and the Appellant. The male officer went to the Prisoner’s head and knelt down to restrain the Prisoner’s head. The Appellant then said "Bradley! What the hell's going on!" The first officer then said to the Prisoner "It's not just about your mum, is it? Is it? Brad? Brad? …Don’t resit me bud." The Prisoner then began weeping. The officer beside him called for gloves. Two other officers arrived to assist. The female officer continued to hold the Prisoner's arms down at around his chest against his body. Meanwhile the male officer continued to hold down the Prisoner’s head.
At that point in time the Appellant can be heard asking another officer "… have you got those other…" to which the officer replied "Yeah, but I don't know how to use them". The Appellant asked "Ahh, Toby?" And the officer responded, "He might, yeah". The investigation materials reveal that this was a reference to what is referred to as a "high-risk body belt". This is a different form of restraint device to the standard "body belt", which the Prisoner was wearing at this time. The Control and Restraint Manual does not provide instructions for how to use the high-risk body belt, however, the standard body belt is included in that manual.
The body worn camera footage shows that the Prisoner continued to struggle and can be heard in the footage grunting and breathing heavily whilst he attempted to move his arms, which were being held down by the officers. The first of the officers to arrive was relieved by another, who held the Prisoner’s hands away from his mouth while that first officer put on some rubber gloves. That first officer then took over restraining the prisoner's wrists and others assisted. Whilst that was occurring one of the officers said, "Stop resisting Brad." The Appellant then said, "Brad, cut it out pal. Seriously, you don’t want a 50-year old fat woman laying all over the top of you, okay, hey?"
The Prisoner continued to breathe heavily, and grunted, apparently continuing to struggle. The Appellant said, "I'm on his cuffs. He can't do anything." One of the officers then followed by saying, "He can't do anything". The officer holding down the Prisoner's head said, "You done yet? You done? You not done yet." The Appellant then said, "He can't move because I'm on his cuffs". This was a reference to the position that the Appellant had taken up standing on the chain linking the two ankle cuffs worn by the Prisoner to secure the Prisoner's legs which has been canvassed at paragraph [13] of these reasons.
Again, the Prisoner can be heard and seen in some of the footage, grunting and breathing heavily. Since the Prisoner was not wearing a shirt, it is readily apparent from the footage that the Prisoner was attempting to overpower the officers and pull his hands towards his mouth. For example, it can be seen that the Prisoner’s upper arm muscles are flexed as he grunts and breathes heavily. There is some movement of the Prisoner’s hands but the officers maintain control and prevent the hands from reaching the Prisoner's mouth.
An officer then said, "Just relax Brad". The Appellant then asked the Prisoner, "Brad, what else is going on, mate?" The Prisoner replied, "Just want some water". The Appellant then said "You want some water. But you keep chewing your finger." The Prisoner said in response, "Hmm" and the Appellant asked, "Why?" The Prisoner's response was, "Because I want it off". The Appellant then said "Ok, chewing it off is not going to do anything for you pal, okay?"
The Appellant is then heard asking another officer, Custodial Correctional Officer ('CCO') Brown, "Where is Toby?" The response from CCO Brown was "He's in the mess. It's a long run, what do you need?" The Appellant asked CCO Brown "Do you know how to put that other body belt on, the high-risk one?" CCO Brown said, "I did a long time ago but it's been a while".
It is apparent from the footage that at about this point, the Prisoner again tried, in earnest, to pull his hands towards his mouth. The Appellant said, "Brad, stop! Mate, you can't do anything!" The Prisoner continued to struggle and another officer said "Brad, just relax mate. Relax. Just calm down. Take some breaths. Deep breaths. Deep breaths, that's it. Good man. Good man. Deep breaths. Take some breaths, calm down. Good. Can you breathe ok? Good."
The Prisoner appeared to indeed calm down and was not breathing as heavily or apparently fighting to move his hands toward his mouth. The officer who had encouraged the Prisoner to calm down attempted to engage with him further and asked, "Is there anything else going on that you want to tell us?" The Prisoner was able to slightly nod his head from side to side and the officer confirmed that the answer was "No". The Prisoner then said, "I just want some water." To that the officer replied, "You want some water, all right. Well, we can't do that right now, can we? If we stop playing these games, we might be able to".
It is at this point in time where the prisoner took a couple of deep breaths and then renewed his efforts in attempting to break free of the grip the officers had and bring his hands to his mouth. Another officer said, "Don't resist. Don't resist. If you need us to adjust or something, just talk to us." The Prisoner can be seen to be straining his arms again to the point where they are a quivering against the force of those restraining him from pulling his hands towards his mouth. The Appellant said "Brad, stop it! Cut it out pal! Stop it! You cannot do anything!"
The Prisoner responded, "Hmm? Can't I?" The Appellant then asked the Prisoner "Do you want to be gassed? Do you want to be gassed?" The Prisoner replied, "I don't think you have the balls to do it". The Appellant asked "Huh?" and the Prisoner responded, "I don't think you have the guts to do it". The Appellant can then be heard to say, "All right." The Prisoner continued to struggle and breathe heavily in attempting to pull his hands towards his mouth. He then said loudly "Just fucken do it!" The Prisoner continued to attempt to bring his hands and mouth together for approximately another 15 seconds when the Appellant, who had removed the chemical spray canister from her belt, approached the Prisoner and said, "Guys, I'm gonna gas him. Gas, gas, gas" and deployed the chemical agent to the Prisoner's face.
The Prisoner was then subdued, coughed profusely and gave up attempting to chew off his finger. He was kept in restraints for a time and provided with a shower in the cell, some water to drink and rinse his face as well as and towels, and a second shower after being moved outdoors for a while and attended to by medical staff.
The Appellant remained in control of the situation and monitored the Prisoner as he recovered. First, the Prisoner was assisted into the shower within his cell. One officer assisting the Prisoner said to him, "You good? You good? You good?" to which the Prisoner replied "I’m good". The officer then asked "Do ya want some fresh air?" and the Prisoner replied "Yes please". The officer then said "Yeah? We’ll get you out into the yard. Don’t fucken fight, you hear it? Don’t, don’t resist. We’re going to get you out, we’re going to get you out."
The Prisoner was then assisted to move from the shower in his cell out to an outdoor area to sit down. The Appellant remained close by and continued to monitor the Prisoner's wellbeing, as did several other officers. The Appellant asked the Prisoner "Brad, how you doing?" to which the Prisoner replied "I'm burning". The Appellant confirmed "Hey? Your burning? To which the Prisoner replied "yeah". The Appellant then said "All right. You had enough?", to which the Prisoner said something that cannot be made out. The Appellant said "You have?" and the Prisoner replied "Yeah, truce." Another officer said "Truce?" and the Prisoner replied "Truce".
The Prisoner was given towels to assist with the effects of the chemical agent and approximately a minute later the Appellant asked the Prisoner if he wanted some water. The Prisoner replied "Yes please". There is a pause of approximately 6 seconds and the Appellant said "Do not dare me to do stuff. Right. Stand him up" The Prisoner was then assisted to his feet by the officers assisting him as medial staff approached and were shown, by the Appellant, the Prisoner's injuries.
The Prisoner then sat down again for a while in the outside area and was subsequently moved, with the assistance of the officers, back to a cell for a shower. Upon reaching the cell the Appellant instructed the officers, "Right, just turn him around for a second please?" The Appellant than spoke to the Prisoner, "Right, Bradley? We're going to be taking this off so you can have a shower. Is that welcoming?" The Prisoner replied, "Yeah" and the Appellant said "Right. Behave yourself." To which the Prisoner Replied "Yeah". The Appellant followed with "D'you understand?" and the Prisoner again said "Yeah". The Appellant then said, "All right." and moved away to allow other officers to assist with removing the Prisoner's body belt, then the ankle restraints.
As the ankle restraints were being removed, an officer advised the Prisoner "Now Bradley, this is your opportunity to relax and not go any further with this. We've got a fresh shower here, fresh clothes, fresh bedding. And from here, if you are to continue with the self-harm we'll put you in a high risk body belt, which is a lot more uncomfortable and you won't be able to move at all, okay? And you'll be wearing a helmet too. And its super restrictive; uncomfortable; claustrophobic; it's awful; it'd probably be worse than the gas. We're going to get you out of this, so you can make your own decisions. You can have a shower, and ..." The Appellant then added, "All right. And gas is plentiful. So do not do this again mate, okay?" The Prisoner was moved to his shower and then left alone and secured in his cell.
Relevant law
Relevant legislation regarding limitation period
Section 564 of the Industrial Relations Act 2016 (Qld) says:
(1) An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
(2) However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
(3) In this section—
"appeal period" , for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
(a) if the decision is given at a hearing—the announcement of the decision at the hearing; or
(b) if the decision is given through the registrar—the release of the decision; or
(c) if the decision is a promotion decision—the decision is publicly notified under the Public Sector Act 2022 ; or
(d) if, under another Act, the decision is given in another way—the decision is given in the other way.
Relevant legislation regarding public service appeals
Section 562B of the IR Act says:
(1) This section applies to a public service appeal made to the commission.
(2) The commission must decide the appeal by reviewing the decision appealed against.
(3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
(4) For an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022 , the commission—
(a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
(b) may allow other evidence to be taken into account if the commission considers it appropriate.
Section 91 of the Public Sector Act 2022 (Qld) ('PS Act') says:
(1) A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
(a) engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
(b) been guilty of misconduct; or
(c) been absent from duty without approved leave and without reasonable excuse; or
(d) contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
(e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
(f) contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee’s employment or secondment by, in response to the requirement—
(i) failing to disclose a serious disciplinary action; or
(ii) giving false or misleading information; or
(g) contravened, without reasonable excuse, a provision of—
(i) this Act, other than section 39 or 40 ; or
(ii) another Act that applies to the employee in relation to the employee’s employment; or
(h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.
(3) Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) , a public sector employee under section 94 or a person under section 95 .
(4) To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee’s work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.
(5) In this section—
"misconduct" means—
(a) inappropriate or improper conduct in an official capacity; or
(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.
Example of misconduct—
victimising another public sector employee in the course of the other employee’s employment in the public sector"relevant standard of conduct" —
(a) for a public sector employee, means—
(i) a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
(ii) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994 ; and
(b) for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13 (1) —includes a code of practice under section 41 of that Act; and
(c) for a public sector employee who is a fire service officer under the Fire and Emergency Services Act 1990 —includes a code of practice under section 7B of that Act.
"responsible person" , for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law.
Relevant legal principles - generally
In summary, appeals of this nature are by way of a review of the relevant decision, not a re-hearing. In other words, the role of the reviewing jurisdiction is supervisory, not substitutionary.[1] The Commission must decide whether the relevant decision was fair and reasonable. That task is to be carried out with regard to the information and evidence available to the decision-maker at the relevant time, although regard can be had to other material if appropriate.
[1] As put by his Honour Martin SJA in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2, [8], albeit in a different statutory context.
In Colebourne v State of Queensland (Queensland Police Service) (No 2) ('Colebourne'),[2] his Honour, Merrell DP, concluded that the term "fair and reasonable" should be construed within the ordinary meaning of the phrase as used in the context of section 562B of the IR Act.[3] His Honour noted that assessing whether a decision was "fair and reasonable" is not an assessment of whether the decision was unreasonable only by reference to the legal standard and not by reference to the factual merits of the decision.[4] His Honour observed that assessing whether a decision was "fair and reasonable" instead permits a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.[5]
[2] [2022] QIRC 16 ('Colebourne').
[3] Ibid [25], citing Pope v Lawler [1996] FCA 1446.
[4] Colebourne (n _) [21]-[22].
[5] Ibid [23], citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland Dalton J, 10 October 2018) regarding the former equivalent provisions in s 201 of the Public Service Act 2008 (Qld).
In Hunt v State of Queensland (Department of Agriculture and Fisheries) ('Hunt'),[6] his Honour, O'Connor VP, observed that a decision is unfair where the decision has caused a practical injustice.[7] His Honour cited Kiefel, Bell and Keane JJ's favourable view of Gleeson CJ's observations in Lam that "[t]he ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed."[8]
[6] [2022] QIRC 162 ('Hunt').
[7] Ibid [79], citing Wirth v Mackay HHS & Anor [2016] QSC 39.
[8] Hunt (n _) [82]-[83], [85], citing Minister for Immigration and Border Protection v WZARH [2015] (2015) 256 CLR 326, [35]-[36], [57], [61]; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1.
With respect to s 91 of the PS Act, His Honour, Merrell DP, held in Coleman v State of Queensland (Department of Education) ('Coleman')[9] that misconduct meant "a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee".[10]
[9] [2020] QIRC 32.
[10] Ibid [62], considering the equivalent predecessor provision under the Public Service Act 2008 (Qld), s 187(4).
Relevant cases - multiple decisions within appeals
In O'Hearn v State of Queensland (Queensland Health) ('O'Hearn'),[11] Power IC considered the situation where conduct findings were challenged as part of an appeal of a later decision imposing disciplinary action. In that case, a separate appeal of the disciplinary finding decision would have been out of time but for the fact that that challenge was part of the appeal of the decision imposing discipline. Power IC considered ss 129 and 131 of the PS Act and determined that being able to appeal a disciplinary finding as a fair treatment decision did not preclude one from appealing those findings as part of an appeal of the decision imposing discipline.[12] Power IC went on to relevantly find:
[39] In a practical sense, an appeal of the decision on disciplinary action necessarily requires an assessment of whether the disciplinary findings were fair and reasonable in circumstances where it is alleged that such findings were otherwise. It is also necessary to consider the findings when determining the proportionality of disciplinary action.
[11] [2023] QIRC 283.
[12] Ibid, [38].
In Borkowski v State of Queensland (Queensland Corrective Services),[13] his Honour, Merrell DP, considered an appeal of a disciplinary action decision which included challenges to the earlier disciplinary finding decisions. His Honour did not deal with the question as to whether the earlier disciplinary finding decisions were out of time as the issue appears not to have been ventilated by the parties in that matter.
[13] [2021] QIRC 330
In Condon v State of Queensland (Queensland Health),[14] McLennan IC dealt with an appeal of a disciplinary action decision that included challenges to the disciplinary finding decision given several months prior. McLennan IC held that any appeal of the disciplinary finding decision was about 4 months out of time. Applying the relevant test as to whether to extend time, McLennan IC determined not to exercise that discretion and decided only the appeal on the disciplinary action decision. In that case, McLennan IC found there to be a lack of explanation for the delay and was unable to adequately assess the merit of the matter.
[14] [2023] QIRC 023.
The issue is not settled, however. In Pflaum v State of Queensland (Department of Education) ('Pflaum'), [15] for example, McLennan IC considered appeals brought as one action against both a disciplinary finding decision and a disciplinary action decision. In that matter, the disciplinary finding decision was issued several months before the separate decision on disciplinary action. In between the two decisions there was a show cause process. As part of the disciplinary finding decision in Pflaum, the appellant was advised he could lodge an appeal within 21 days of receipt of the disciplinary finding decision. No such appeal was lodged. McLennan IC determined that the part of the appeal dealing with the disciplinary finding decision was out of time. That is even though it was brought as part of the appeal against the disciplinary action decision; the latter being within the 21-day timeframe set by s 564(3) of the IR Act. Considering that prospects of the matter were not clear cut, McLennan IC determined there to be an inadequate explanation for the delay in filing the appeal of the finding decision and declined to grant an extension of time.[16]
[15] [2024] QIRC 50.
[16] Ibid, [49].
In Gibson v State of Queensland (Queensland Health) (No. 1) ('Gibson'), [17] in a similar situation, Pidgeon IC dealt with an appeal brought on the disciplinary action but which included challenges to an earlier disciplinary finding decision. In that matter, Pidgeon IC determined that the earlier decision was separately appealable and considered an application to extend time in order to hear it. Being a public service appeal, the Commission was able to form a view of merits of the appeal. Pidgeon IC relevantly noted there was a lack of particulars given to the appellant about exactly what sort of discipline he was facing, which indicated that the appeal should be heard and that the case was not without merit to the extent that would support the refusal of an extension of time.[18]
[17] [2024] QIRC 90.
[18] Ibid, [63].
In Radanovic v State of Queensland (Department of Education) ('Radanovic'),[19] Dwyer IC relevantly found that an employee who fails to challenge the previous decision that they are liable to disciplinary action may not later revisit that finding as a basis for challenging the penalty subsequently imposed by a separate, subsequent decision. Dwyer IC observed that there may be a need to examine the preceding finding, for example, to evaluate whether the appeal penalty is excessive. However, the fundamental finding of conduct liable disciplinary action cannot be disturbed in such circumstances.[20]
[19] [2024] QIRC 225, [18].
[20] Referring to findings in the matter of Stacey v State of Queensland (Department of Education) [2024] QIRC 220.
Relevant cases – the test for extensions of time applications
The test for whether the Commission should exercise the discretion to grant an extension of time pursuant to s 564(3) of the IR Act is well settled. It was set out by his Honour, Merrell DP, in Cullen v State of Queensland (Queensland Health) ('Cullen'):[21]
(a) Length of the delay;
(b) The explanation for the delay;
(c) The hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred;
(d) The prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
(e) The conduct of the defendant in the litigation.
[21] [2021] QIRC 258, [15] citing Ulowski v Miller (1968) SASR 277, 280.
In Cullen, his Honour also set out some lodestars taken from the judgement of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen:[22]
(a) special circumstances need not be shown, but an applicant for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
(b) action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
(c) any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the granting of an extension;
(d) the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and
(e) considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.
The relevant decisions under appeal
[22] [1984] FCA 176.
The Finding Decision
The Finding Decision was issued on 8 December 2023. In it, the decision-maker, Deputy Commissioner of Custodial Operations, Mr Gary McCahon ('Mr McCahon'), set out some background, the relevant allegation and a description of some of the Incident that I have set out above from [8] to [35]. The Finding Decision included advice to the Appellant that she was entitled to appeal that decision by way of a fair treatment appeal.
Mr McCahon also advised the Appellant about the 21-day time limit for any appeal, referring to s 131(1)(d) of the PS Act, saying that the Queensland Industrial Relations Commission Industrial Registry could provide further information about public sector appeal procedures (providing the relevant website address and phone numbers).
The key finding was that the Appellant used force that was not reasonably necessary against the Prisoner by deploying a chemical agent while the Prisoner was restrained and ground stabilised. The initial allegation that the Prisoner was not warned prior to the use of the chemical agent was withdrawn. No doubt that was because the body worn camera footage revealed, conclusively, that the Appellant did in fact warn the Prisoner very clearly, twice in quick succession …"Do you want to be gassed?".
Setting out the Appellant's submissions, Mr McCahon appropriately identified that the relevant standard of proof was the balance of probabilities described in the Public Sector Commission Directive Discipline 05/23 ('Directive 05/23') and that it drew from the elements of the case in Briginshaw.[23] He observed that whilst the Corrective Services Act2006 ('CS Act') permitted the use of force that was reasonably necessary to restrain a prisoner who is harming him/herself or attempting to do so, the force must be proportionate to the conduct or threat posed by the prisoner.
[23] Briginshaw v Briginshaw [1938] HCA 34.
Mr McCahon also identified that the Custodial Operations Practice Directive – Use of Force ('COPD') required the Appellant to consider the most appropriate option for a safe and effective outcome to ensure only a reasonable amount of force, justified by law, was used to affect a lawful purpose.
Mr McCahon had regard to the above-mentioned footage. On the basis of the footage and the statements given during the investigation, Mr McCahon concluded that the Appellant's use of a chemical agent on the Prisoner was not reasonably necessary in the circumstances and was therefore in breach of s 143 of the CS Act and s 8 of the COPD. Mr McCahon's reasons include (in summary):
(a)The finding that at the time the chemical agent was deployed, the Prisoner was ground stabilised and being adequately physically controlled by multiple offices. Mr McCahon concluded that it was evident from the body worn camera footage that the Prisoner was unable to harm himself or the offices that were present in his cell at the time the chemical agent was deployed.
(b)The finding that there was a reasonable alternative to deploying the chemical agent in the form of using the high-risk body belt, which the Appellant did not wait for after requesting it to be procured.
(c)Rejecting the submission that the Appellant reasonably believed the Prisoner was not going to stop self-harming (noting three code blue alerts had been called that day in relation to the Prisoner) on the basis of the above-mentioned circumstances; specifically, that the Prisoner was adequately prevented from harming himself by the multiple offices who were restraining him at the time.
(d)The finding that during the Appellant's recorded interview, after having witnessed the body worn camera footage, the Appellant admitted that part of why she deployed the chemical agent was because she was provoked by the Prisoner; in particular, having regard to that part of the body worn camera footage that depicted the Appellant as saying, "Do not dare me to do stuff" and "Gas is plentiful, so do not do this again mate, okay?"
Mr McCahon relied on what he described as the Appellant, during her interview, conceding that she was aware that chemical agents must not be used against persons who are physically restrained or otherwise under control. I have thoroughly reviewed that transcript and, in my view, there is no such concession. The Appellant denies she ever made such a concession. What the Appellant did concede in that interview was that in the circumstances, the use of the chemical agent: "wasn't reasonably necessary", although the Appellant was not able to say, and nor could her interviewers, what was the better option in the circumstances.
Concluding that the Appellant's use of the chemical agent was not reasonably necessary, Mr McCahon formulated his reasons around the often cited statement of Daubney J in Mathieu v Higgins ('Mathieu'),[24] which was cited and followed in Coleman by his Honour, Merrell DP, and has been followed numerously since. In Mathieu, Daubney J, citing President Kirby's (as his Honour then was) findings in Pillia v Messiter (No 2),[25] set out how misconduct was expressly separated from other forms of sub-optimal workplace behaviour such as carelessness, incompetence or inefficiency, and that there needed to be something more than mere incompetence, or a failure to attain the established standards of conduct before an act or omission rose to the level of 'misconduct'. To this end, his Honour, Daubney J concluded:
…'misconduct', as used in the relevant policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.
[24] [2008] QSC 209.
[25] (1989) 16 NSWLR 197.
Mr McCahon found that the Appellant's conduct was both a deliberate departure from accepted standards and an abuse of the privilege and confidence enjoyed by QCS officers. As to the first element, a deliberate departure from accepted standards, there are two parts. First, the deliberate act, and second, the departure from accepted standards.
In this case, Mr McCahon has obviously concluded (correctly in my view) that the act of discharging the chemical agent was a deliberate one in the sense that it was not accidental. The Appellant deliberately removed the canister from its belt-worn position and took several steps to move into a position more proximate to the Prisoner's head and issued a warning to the Prisoner. The Appellant leaned down with the canister outstretched towards the Prisoner's face and called a further warning heralding the pending deployment of the chemical agent, then deployed the chemical agent.
The Disciplinary Action Decision
The Disciplinary Action Decision was also made by Mr McCahon. It set out a history of the disciplinary proceedings and referred to the abovementioned 8 December 2023 Finding Decision. Mr McCahon reiterated his finding that the Appellant was guilty of misconduct under s 91(1)(b) being "inappropriate or improper conduct in an official capacity that reflects seriously and adversely on the [QCS]."
Mr McCahon outlined the Appellant's submissions. I have summarised those submissions, as they were outlined by Mr McCahon, as follows:
The 'heat of the moment' submissions
1.The use of force was not reasonably necessary in retrospect, as there were other uses of force that could have been used. However, the Appellant argued that serious and genuine consideration should have been given to the inevitability that officers will occasionally make decisions in the heat of the moment that, in retrospect, are not the best decisions. The Appellant also argued that the conduct must be "judged through the lens of having been made in a matter of seconds whilst in a heightened emotional state, rather than critiqued with the benefit of hindsight." The Appellant also noted how this situation was "clearly a one-off" event in her otherwise exemplary 21 years of service. The Appellant also noted that she had never worked in a high-dependent unit before.
The 'reasonable and necessary' submissions
2.The Appellant acknowledged the legislative and procedural requirements that corrective services officers can only use force that is reasonable in the circumstances and that is necessary and proportionate to the seriousness of the circumstances.
3.As to the high-risk body belt being a reasonable alternative to the use of the chemical agent, the Appellant argued that she never received formal training on how to use high-risk body belts. Further to this point, the Appellant also argued that the use of high-risk body belts is not part of mandatory training for CCOs, and that it would be unfair to punish the Appellant for not using a high-risk body belt when neither the Appellant, nor other CCOs on hand at the time, were properly trained in how to use that piece of equipment.
4.The Appellant concluded that "the entire situation could have been avoided" had she and other CCOs been trained in how to use the high-risk body belt. The Appellant also said that she may have been subject to disciplinary action had she used the high-risk body belt without the necessary training and consequently injured the Prisoner.
5.The Appellant also contradicts another officer's evidence and says that she did not instruct that officer to get a high-risk body belt to use on the prisoner. On my assessment, I note at this point that no such direction can be heard on any of the body worn camera footage. The Appellant insisted that neither she nor any other officer present were adequately qualified to use the high-risk body belt, and so the use of the high-risk body belt was not a reasonable option in the circumstances.
6.The Appellant also argued that it was necessary to use the chemical spray. While the Prisoner was not actively self-harming, he was clearly attempting to by fighting against the efforts of officers who were keeping his hands from reaching his mouth. This, combined with the Appellant's observations that the other officers were beginning to tire, meant that some further action was needed. Had the Appellant thought that the high-risk body belt was a viable option at the time, she said that it may have been the next step deployed. However, for the reasons explained above, the Appellant had ruled that option out.
7.The Appellant argued that the Prisoner could only be stopped from harming himself by the application of force and that he was clearly warned about the potential for having to resort to using the chemical agent.
The 'lack of spite or malice' submissions
8.The Appellant argued that she was not motivated to use the chemical agent out of spite. The Appellant added that the conduct "cannot be construed as anything but… an instinctive decision made under immensely stressful conditions, after other avenues had been explored, and found to be unsuitable." In support of this argument, the Appellant said that she was not being spiteful as she had considered using other alternative lower levels of force. The Appellant acknowledged that the Prisoner's provoking comments did affect her decision-making. However, the Appellant maintains that the use of the chemical agent was not retaliatory, but rather, because the Prisoner himself had made it abundantly clear that it was the only reasonable method of force available at the time to prevent further attempts at self-harm.
9.The Appellant also vehemently refuted any suggestion that she acted with malice towards the Prisoner. Conceding that she was at her 'wits end' due to the profound emotional and psychological impact that the Prisoner's behaviour had on her, the Appellant also noted having been exposed to repeated similar dealings with the Prisoner.
The 'mitigating factors' submissions
10.The Appellant argued that the above circumstances should be considered as mitigating against the proposed penalty. As well, the Appellant argued as mitigation her lengthy and good history as a corrections officer and the fact that the Prisoner was a very difficult one, who had caused himself to be sprayed with the same chemical agent several times after the Incident.
The 'disproportionate discipline' submissions
11.The Appellant also submitted that her conduct did not meet the definition of misconduct and so the proposed disciplinary action was disproportionate to the wrongdoing. In support of this, the Appellant stated:
a. there were no reasonable alternative measures available, as the high-risk body belt was not a viable option;
b. the Appellant had turned her mind to other possible options, and ruled them out as not viable, before deploying the chemical agent;
c. the Incident was extremely stressful, which impacted her decision-making;
d. the Prisoner was noncompliant with directions and continued to be aggressive towards staff and resisted restraint, including continued attempts to bite one of his own fingers off; and
e. previous attempts to mechanically and physically restrain the Prisoner were ineffective.
12.The Appellant said that, in light of these factors, the decision to demote her to such an extent, and for so long, was wholly disproportionate to any offending and so that decision was harsh, unjust and unreasonable.
13.The Appellant said that the demotion effectively constituted a dismissal, due to the significant reduction in remuneration and duties. Consequently, the Appellant said that to effectively dismiss her would be disproportionate to any wrongdoing.
14.The Appellant did, however, concede that her decision-making on the day was not up to par when it was her job to effectively make the right decision. Consequently, the Appellant submitted as an alternative punishment:
a. a reduction in pay point classification from GS3.4 to GS3.3 for a period of 12 months;
b. a direction to attend Tactical Options Response – Use of Force and Maybo training; and
c. a direction to attend Mental Health Response training.
Other submissions
15.The Appellant said that it was worth noting that more needs to be done to assist staff in how to help the Prisoner and other prisoners who have significant mental health issues.
16.The Appellant also cites Whitfield v Primo Foods [2021] FWC 2729 for the point that effectively dismissing her for a 'single foolish act' made in the heat of the moment, under stress, would expose QCS to an unfair dismissal claim.
Mr McCahon then outlined the factors that he had regard to in reaching the decision on the disciplinary action to be taken. I have summarised these factors as follows:
The use of chemical agent not reasonable or necessary, and made with poor judgment
1.Mr McCahon found that the Appellant used a chemical agent on the Prisoner when the Prisoner was adequately restrained, and so the Prisoner was no longer a danger to himself, the Appellant, or anyone else present. Consequently, Mr McCahon concluded that the use of a chemical agent was not warranted. This weighed against the Appellant.
2.Mr McCahon noted that the CS Act and COPD together authorise the use of force only in specific circumstances, only in a proportionate way, and only in an appropriate and safe manner. Mr McCahon concluded that the Appellant's use of the chemical spray on the prisoner was not reasonably necessary because there were other options available, and thus the use of the chemical agent was not consistent with the CS Act and the COPD. Mr McCahon held this to be a serious error in judgment.
The lack of contrition
3.Mr McCahon concluded that the Appellant's submissions that there was no reasonable alternative to deploying the chemical agent displayed a lack of contrition or genuine understanding that the use of force was not reasonably necessary. Mr McCahon was not satisfied that the Appellant would have, but for this disciplinary process, reflected on the seriousness of her actions. This weighed against the Appellant in Mr McCahon's view.
4.Mr McCahon also noted an inconsistency in the Appellant's submissions - conceding on the one hand that the use of force was not reasonably necessary, but at the same time arguing that there was no reasonable alternative. Mr McCahon noted the Appellant's submissions that she had turned her mind to other options, that the stress of the situation impacted the Appellant's decision-making, and that the prior attempts to restrain the Prisoner were ineffective. Mr McCahon was not satisfied that the Appellant genuinely accepted that she made an error in judgment or that the Appellant learned from the experience.
The Appellant's experience
5.Mr McCahon considered that the Appellant was an experienced public sector employee, as she had been with QCS since 1997 and employed as a Correctional Supervisor since 2008. Consequently, as an experienced officer and supervisor with training, Mr McCahon expected the Appellant to perform her duties with a high degree of responsibility and authority. Holding that the Appellant failed to respond appropriately to the Incident weighed against the Appellant in Mr McCahon's assessment.
6.Mr McCahon rejected the submission that because it was a 'heat of the moment' decision, made in a stressful situation, this meant that it was inevitable that officers might occasionally use unnecessary force on prisoners. Mr McCahon highlighted that QCS, through the correctional officers and supervisors employed at the correctional facilities, owed a duty of care to prisoners and can only use force where it does not breach the procedural and legislative requirements.
Provocation by the Prisoner
7.Mr McCahon noted that the Appellant was an experienced correctional supervisor and went on to observe that the Appellant said that she was "at her wits end", had no assistance, and that her decision-making was affected by the Prisoner's remarks. Mr McCahon also noted that the Prisoner had taunted the Appellant. That is a reference to the abovementioned exchange where, when the Appellant warned the Prisoner (twice in quick succession), "Do you want to be gassed", the Prisoner responded first with, "I don’t think you have the balls to do it". After the Appellant said "Huh?" the Prisoner replied, "I don’t think you have the guts to do it". Shortly after that the Appellant said "Right." And the Prisoner called out loudly not long after "Just fucken do it!" The chemical agent was deployed soon after that.
8.Mr McCahon also heavily weighed the Appellant's later remark to the Prisoner, "Do not dare me to do stuff." (although the full context of that comment was not discussed or set out). Mr McCahon thus inferred that there was a degree of provocation by the Prisoner and that the Appellant succumbed to that provocation where she should not have. Mr McCahon also formed the view that this was more serious because, at the relevant time, the danger of self-harm was being controlled because the Prisoner was being adequately restrained.
Prior disciplinary history
9.Mr McCahon noted that the Appellant had no previous history in relation to the use of force, but did note that the Appellant was subject to disciplinary action and management respectively on two prior occasions for making derogatory comments. Mr McCahon noted that the circumstances of the two prior incidents were not similar to the Incident.
Mitigating factors
10.Mr McCahon acknowledged that the Incident was stressful for all those involved, including the Appellant. However, Mr McCahon did not consider that the stress of the Incident outweighed the seriousness of the conduct and the standard expected of a custodial supervisor.
Consideration of alternative penalties
11.Mr McCahon considered the alternative penalties that the Appellant proposed as mentioned above. He had specific regard to the submission that an indefinite demotion would be wholly disproportionate to the wrongdoing. Mr McCahon seems to have agreed with this submission but noted his lack of confidence in the Appellant's ability as a correctional supervisor. In light of this, Mr McCahon decided to make the demotion a temporary one, 18 months only, rather than permanent.
Mr McCahon concluded that, for the Appellant's breach of s 91(1)(b) of the PS Act, he should impose the following discipline under ss 92 and 93 of the PS Act:
1.A demotion from the position of Correctional Supervisor (GS3.4) to Custodial Correctional Officer (GS2.4) for a period of 18 months; and
2.A direction that the Appellant attend Tactical Options Response – Use of Force and Maybo training.
This appeal
Appellant's appeal notice
The Appellant repeats many of the above arguments. Accepting that her "use of force was, in retrospect, not the most reasonable way to respond to the incident", the Appellant argues the above mitigating factors were not considered leading to disproportionality between discipline and any wrongdoing. In essence, her submission is that the Finding Decision, and the Disciplinary Action Decision, were both not fair or reasonable. I summarise her arguments in respect of this as follows:
Finding Decision submissions
The Appellant submits that her conduct did not rise to the standard of misconduct, that is - a "deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of privilege and confidence enjoyed by a public service employee." The Appellant said that the Respondent did not consider a number of salient features explained below.
(a)Mitigating factors - The Appellant relied on s 143(1) of the CS Act, as well as the COPD. The submission here is that the effect of these provisions is to authorise the use of reasonable force where it is necessary and proportionate in the circumstances. The Appellant submits that her actions were reasonable, necessary and proportionate enough to warrant the use of the chemical agent, which could not therefore constitute misconduct.
(b)The high-risk body belt - Under this heading the Appellant reiterated that she had not received training on the use of high-risk body belts. She also reiterated that no officers on scene were appropriately trained in using the high-risk body belt. The Appellant had asked one officer (CCO Brown) whether he knew how to use the high-risk body belt but that officer replied that he had not done so for a long time. In these circumstances, the Appellant argued that she believed the use of the high-risk body belt on the Prisoner was not a viable option to prevent further self-harm. The Appellant supports that submission by pointing to the fact that there was very little mandatory training or reaccreditation for the high-risk body belts and that high-risk body belts were removed from the BCC shortly after the incident due to a lack of training and qualifications around using them. Consequently, the Appellant submitted, it was grossly unfair and unreasonable to find that there was a reasonable alternative to deploying the chemical agent, being the high-risk body belt.
(c)No malice or spite – The Appellant argued that the fact that she paused to consider and ask others about other options such as the high-risk body belt demonstrated that the use of the chemical agent was not a spiteful decision, nor an abuse of privilege. The Appellant concedes that her decision-making was affected by the stress of the situation and the aggression of the Prisoner, but rejects any notion that she acted with malice when deploying the chemical agent. The Appellant says that if the Prisoner was compliant and effectively restrained then it would have been open to the decision-maker to find that she acted out of malice but that was not the case here. Altogether, the Appellant rejects the Respondent's finding that that she acted out of spite or out of malice.
It is on this basis that I make the following orders:
Orders
1.Time be extended for the Appellant to file an appeal of the 8 December 2023 decision finding that the Appellant engaged in misconduct pursuant to section 91(1)(b) of the Public Sector Act 2022 on 14 January 2023 by using force that was not reasonably necessary against the Prisoner ('Finding Decision').
2.The appeal of the Finding Decision is allowed.
3.The Finding Decision is set aside and substituted with a decision that the Appellant did not engage in misconduct pursuant to section 91(1)(b) of the Public Sector Act 2022 on 14 January 2023 and did not, on that day at Brisbane Correctional Centre, use force that was not reasonably necessary against the Prisoner.
4.The appeal of the decision imposing discipline dated 26 February 2024 ('Disciplinary Action Decision') is allowed.
5.The Disciplinary Action Decision is set aside and substituted for a decision that no disciplinary action be imposed.
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