VG v Deputy Commissioner Barnett

[2013] QCAT 449

CITATION: VG v Deputy Commissioner Barnett [2013] QCAT 449

PARTIES:	Mr VG (Applicant)
v
Deputy Commissioner Ross Barnett (Respondent)

APPLICATION NUMBER: OCR360-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: 6 June 2013

HEARD AT: Brisbane

DECISION OF: Joanne Browne, Member

DELIVERED ON: 22 August 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The respondent’s decision made on 18 October 2012 to impose a sanction on Mr G being a demotion in rank from Inspector paypoint 5.3 to Senior Sergeant paypoint 4.4 is confirmed.

CATCHWORDS:

OCCUPATIONAL REGULATION – POLICE OFFICER – MISCONDUCT – whether sanction excessive – where conduct involved workplace harassment and lying – where subject officer was a senior member of the QPS – where evidence of remorse and good character – whether evidence of insight as to the serious nature of the conduct

Crime and Misconduct Act 2000, ss 219A, 219B, 219BA, 219C
Police Service Administration Act 1990, ss 1.3, 1.4, 7.2(1)
Queensland Civil and Administrative Tribunal Act 2009, ss 17, 24, 66

Aldrich v Ross [2001] 2 Qd R 235, cited
Re Bowen [1996] 2 Qd R 8, cited
Crime and Misconduct Commission v Assistant Commissioner Barnett and Eaton [2011] QCAT 161, cited
Crime and Misconduct Commission v McLennen & Ors [2008] QSC 023, cited
Deputy Commissioner Stewart v Dark [2012] QCA 228, applied
Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82, cited
Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66, cited
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309, cited
Murray v Deputy Commissioner Stewart [2011] QCAT 583, cited
Ottaway v Commissioner of Police (Unreported, Queensland Civil and Administrative Tribunal, Member Richards, 15 March 2013), cited
Queensland Police Service v Compton (No 2) [2011] QCATA 246, cited
Wadham v Deputy Commissioner Stewart [2010] QCAT 578, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr VG, self represented

RESPONDENT: Deputy Commissioner Ross Barnett represented by Ms Belinda Wadley, solicitor, of the Office of the Queensland Police Service Solicitor

REASONS FOR DECISION

1. Mr G has over 27 years of service in the Queensland Police Service (QPS). He was sworn in as a police officer on 4 July 1986 and promoted to Inspector on 4 May 2009. He has been awarded a QPS Award and a National Service Medal in recognition of his ethical and diligent service to the QPS.

2. In November 2011 Mr G was working in the Inspectorate and Evaluation Branch (IEB), Ethical Standards Command (ESC), Brisbane. He was responsible for conducting station inspections and ensuring administrative compliance with appropriate QPS procedures. He was, however, to be transferred to another region and his last day in Brisbane was 3 November 2011.

3. On the morning of 4 November 2011 Inspector B who was also working in the ESC, Brisbane found a can of dog food with a note stating “enjoy” on his desk.

4. A disciplinary investigation followed including interviews, under direction, of senior officers in Brisbane.[1]

   [1]A failure to participate in a directed interview is grounds for disciplinary action under s 9(1)(c) of the Police Service (Discipline) Regulations 1990.

5. During the directed interview on 4 November 2011 Mr G denied any knowledge of the can of dog food; and on 4 and 6 November 2011 made contact with other senior officers of the QPS about the investigation despite a direction being made, on 4 November 2011, to not discuss the investigation with other officers.

6. On 7 November 2011 Mr G admitted to placing the can of dog food with a note onto Inspector B’s desk, lying during the disciplinary interview on 4 November 2011; and speaking to other officers about the investigation.

7. On 8 November 2011 Mr G was stood down from duties and his transfer to another region was cancelled as a result of the disciplinary investigation.

8. On 11 July 2012 a direction to attend a discipline hearing in relation to 3 charges concerning conduct on 3 November 2011 (matter 1), 4 November 2011 (matter 2); and between 3 and 6 November 2011 (matter 3) was issued to Mr G.

9. Mr G accepted the conduct and made submissions in relation to the charges and the sanction to be imposed.

10. On 18 October 2012 Deputy Commissioner Barnett determined that the conduct amounts to misconduct; and that Mr G be demoted in rank from Inspector paypoint 5.3 to Senior Sergeant paypoint 4.4 in relation to matters 1 and 3. In relation to matter 2, Mr G was to be demoted in rank from Inspector paypoint 5.3 to Sergeant paypoint 3.5 to be suspended for a period of 24 months on the condition that Mr G does not commit any further acts of misconduct within that period and he be demoted in rank from Inspector paypoint 5.3 to Senior Sergeant paypoint 4.4.

11. Mr G seeks a review of the sanction imposed on the 3 matters that is a demotion from Inspector paypoint 5.3 to Senior Sergeant paypoint 4.4. Mr G contends that the sanction imposed is excessive, punitive in nature and that Deputy Commissioner Barnett failed to fully consider all of the mitigating circumstances and the overall effect of the sanction.

12. The conduct is serious and Mr G admits that he has embarrassed the QPS and understands the need for a sanction to be imposed as a general deterrence to other officers from engaging in similar conduct. Mr G submits, however, that the sanction imposed has been an “over-reaction” by the QPS.[2]

    [2]Applicant’s Submissions, dated 19 February 2013, p 35

The conduct to be sanctioned

Matter 1 – On 3 November 2011 Mr G inappropriately placed a can of dog food, with a note attached stating ‘enjoy’, onto the desk of Inspector B in his office at ESC.

1. It is accepted that Mr G and Inspector B had, in the weeks leading up to the conduct, a number of workplace disagreements.

2. Mr G stated during a directed interview on 4 November 2011 that he thought it was “poor” that following a conversation between himself and Inspector B, during which time Mr G stated the issue between them had been “finalised”, that Inspector B would then “run and tattle-tale to the Superintendent”.[3]

   [3]        Transcript of Interview on 4 November 2011, section 21 material, p 105.

3. Mr G gave an explanation for the conduct during the directed interview on 7 November 2011:

   It was just a brain snap, just a moment of madness that…Oh it was based on [Inspector B] being a tattle-tail [sic], yeah.[4]

   Matter 2 – On 4 November 2011 Mr G was untruthful and/or did not completely answer all questions directed to him during a disciplinary interview with a superior officer.

   [4]        Transcript of Interview on 7 November 2011, section 21 material, p 27.

4. Mr G had been out with colleagues (other senior members of the QPS) the evening before, on 3 November 2011, to celebrate his transfer to another region.

5. Mr G along with members of the QPS with whom he had been drinking, participated in a directed interview on 4 November 2011 in relation to the can of dog food being left on Inspector B’s desk.

6. Mr G denied any knowledge of who was responsible for the conduct stating that he had seen “it” (the can) there yesterday (on 3 November 2011) at 4.00 pm and that he had picked the item up to “have a look at it”. The reason given for picking up the can was “curiosity”.[5]

   [5]        Transcript of Interview on 4 November 2011, section 21 material, pp 81, 107.

7. Mr G also stated that in his opinion the act of putting the can of dog food on someone’s desk was “an offensive type of slur”.[6]

   [6]        Ibid, p 83.

8. Mr G was questioned about why he did not dispose of the can the day before when he had first found it and he replied: “I didn’t think it was any of my business to, to get involved in that”.[7]

   [7]        Ibid, p 106.

9. Mr G suggested during the directed interview that it was Inspector B himself who had placed the can of dog food onto his own desk in an “attempt to make [Mr G] look like [he] did it”.[8]

   [8]        Ibid, p 91.

10. Mr G was directed during the interview to tell the truth and that this was an “opportunity” for him to “resolve the matter”. He was informed that other people who had been drinking with him the previous evening had been interviewed. He was directed to not have any contact with anybody and discuss what he had been interviewed about and the answers provided by him.[9]

    Matter 3 – Between 3 and 6 November 2011 Mr G contravened a lawful direction given by a superior officer by contacting and having a conversation with Acting Inspector A and Inspector R, whilst off duty, who he knew were witnesses in the matter.

    [9]        Ibid, pp 86,110.

11. Mr G did not follow the direction given to him by the investigating officer on 4 November 2011.

12. On the evening of 4 November 2011 Mr G telephoned Acting Inspector A, who had been drinking with him on the evening of 3 November 2011, from a public phone and asked for his address. He told Inspector A that he wanted to give him a Christmas card.[10]

    [10]        Transcript of Interview on 7 November 2011, section 21 material, p152.

13. Mr G knew Acting Inspector A had been interviewed and his reason for visiting him at his home on 4 November 2011 was that he “did not want anyone else to get…themselves into trouble”.[11]

    [11]        Ibid, p 154.

14. Acting Inspector A was the subject of disciplinary proceedings as a result of this matter.

15. Mr G attended Acting Inspector A’s private residence and told the Inspector that he had been interviewed and he did not recall anything that had been discussed (on 3 November 2011).[12] Mr G stated during the interview on 7 November 2011:

    …my concern was not to, it certainly wasn’t conspiring to concoct a story as such, it was just to let him know what I had said. I was very nervous about it I, I got it across what I had said and you know, you know that, that was my objective, it wasn’t to cook up a fake story or anything.[13]

    [12]        Ibid, p 158.

    [13]        Ibid, pp 158-159.

16. Mr G was questioned during the interview about why he used a public phone to call the Acting Inspector and whether this was to avoid a “record of [him] contacting [the Acting Inspector] which would lead to the proof of the disobey [sic] a direction”. Mr G answered “yes”.[14]

    [14]        Ibid, p 163.

17. On 6 November 2011 Mr G visited Inspector R, who also had been drinking with him on the evening of 3 November 2011. He drove approximately 140 kilometres from Brisbane to a camping site to speak to the Inspector about the investigation and the alleged conduct.

18. Mr G told Inspector R that he had been questioned about conversations between him and “various parties” and that he had “told ‘em I don’t recall” and that Inspector R should “say whatever [he] want[s]” adding “if you don’t remember ‘em then you know you don’t remember ‘em”.[15]

    [15]        Ibid, p 185.

19. Mr G gave an explanation as to why he contacted Inspector R, stating: “to make sure that no-one else got into trouble for trying to cover up for me”.[16]

    [16]        Ibid, p 188.

20. On 7 November 2011 Mr G was reinterviewed and he admitted to leaving the can of dog food on Inspector B’s desk, at about 4.00 pm, prior to going out drinking with colleagues on 3 November 2011.[17]

    [17]        Ibid, p 124.

21. Mr G also admitted to being untruthful in the interview on 4 November 2011; and speaking to Acting Inspector B and Inspector R.

22. Mr G was questioned about his “untruthfulness” and the fact that he had disobeyed directions in that he was “compounding the whole event”. Mr G stated:

    Yeah. Absolutely, that’s why I’m telling you, I’m telling you today I knew I was going to get reinterviewed Monday [7 November 2011] and I’m telling you everything that I know. And there are some things that I can’t remember from the conversations on Thursday night so I can’t tell you what they were.[18]

    [18]        Ibid, pp 170-171.

Insight and remorse into the conduct

1. There is evidence before me that demonstrates Mr G’s remorse for his actions: a full admission for the conduct was made and he has, during the disciplinary interview on 7 November 2011, expressed “regret” for his actions.

2. Mr G states during the disciplinary interview on 7 November 2011 that “at some point” on 4 November 2011 he made the decision that he “needed to fess up” and that he “didn’t want anyone else caught in the, in the storm”.[19]

   [19]        Ibid, p 190.

3. When Mr G was questioned, on 7 November 2011, about the interview conducted on 4 November 2011 and what was his “intent of the untruthfulness on Friday during the course of [his] discipline interview”, he stated: “I just panicked”.[20]

   [20]        Ibid, p 199.

4. Mr G further states in the disciplinary interview about his denial of the conduct on 4 November 2011:

   It’s probably the most stupid thing I’ve ever done and I’ve done some stupid things. And I’ve said before even on the night I, I thought that was probably a stupid thing to do and I was actually going to go back and get it and some other things happened that distracted me and I just, and had, had a lot to drink as well and I thought and I yep I regret doing it, I regret after my brain snap in doing it not following through and fixing it which was just you know inadvertent not even – I just yeah.[21]

   [21]        Ibid, p 200.

5. Mr G’s evidence that he was “going to go back and get it [the can of dog food]” on 4 November 2011 but he was distracted by “other things” being a reference to issues relating to his family, is not consistent with his actions on 4 and 6 November 2011.

6. Mr G lied about the conduct on 4 November 2011 and then contacted a senior officer, firstly by using a public telephone, then visiting the senior officer at his home; and on 6 November 2011 he contacted another senior officer after being directed not to discuss the investigation with anybody.

7. Mr G was questioned on 7 November 2011 about whether he had raised the issue of having a “headache or [sic] hangover” with officers during the interview on 4 November 2011. Mr G answered “No”. When further asked why he did not “tell the truth on Friday [4 November 2011]”, Mr G replied: “I was scared”.[22]

   [22]        Ibid, p 139.

8. For the purposes of reviewing the sanction, I accept that Mr G has admitted to the conduct on 7 November 2011 and cooperated with the QPS in relation to the disciplinary investigation; and the decision by the QPS to cancel his transfer to another region.

9. Deputy Commissioner Barnett has acknowledged Mr G’s early admission during the disciplinary hearing as “saving time and resources”.[23] He has also acknowledged Mr G’s “acceptance of the conduct alleged” in his written reasons in determining the sanction to be imposed.[24]

   [23]        Transcript of disciplinary hearing on 18 October 2011, Section 21 material, p 98.

   [24]        Notice of formal finding, Section 21 material, p 114.

10. There are several character references before me that attest to Mr G’s good character generally and his “genuine remorse and obvious disappointment with his actions”.[25] Several of the references have been prepared by senior members of the QPS and refer to Mr G’s “enthusiasm” and “commitment” to his duties as a member of the QPS.[26]

    [25]        Section 21 material, p 42.

    [26]        Ibid, p 36.

11. The references provided by Mr G that attest to his good character and dedication to the QPS were acknowledged by Deputy Commissioner Barnett in determining sanction.[27] Deputy Commissioner Barnett states that he “[himself] can in fact attest to [Mr G] qualities in that regard from [his] own experience”.[28]

    [27]        Notice of formal finding, Section 21 material, p 124.

    [28]        Ibid, p 124.

12. Mr G submits that he prepared letters of apology for his conduct that were given to Inspector B, the Superintendent in charge of the Investigations Branch and the Assistant Commissioner, ESC.

13. There is no evidence before me, in the section 21 material, of any letters of apology. I accept, however, that Mr G made an apology for his conduct on the basis that Ms Wadley acting on behalf of the respondent has not, either in written or oral submissions made at the hearing, taken any issue with Mr G’s submission that an apology for his actions was given.

Personal circumstances relevant to the misconduct

1. There is, in the section 21 material, a detailed summary prepared by Mr G about his work and personal stressors leading up to the conduct; and a psychologist’s report relevant to rehabilitation and a previous workplace incident.[29]

   [29]        Exhibits marked “One” and “Three”, section 21 material, pp 52, 78.

2. The psychologist’s report confirms that Mr G recommenced sessions and undertook a course of consultation/treatment after the conduct. The report makes reference to Mr G returning to regular therapy to “review and learn strategies to improve his psychological resilience and coping”.[30] 

   [30]        Ibid, p 52.

3. Deputy Commissioner Barnett has acknowledged, in his reasons, the material provided by Mr G in relation to his personal and workplace stressors; and the psychologist’s report. Deputy Commissioner Barnett states:

   I have given careful consideration to your submissions contained within exhibits one and three concerning your state of mind and the stressors from your family situation. I acknowledge that your personal circumstances at the time have affected your behaviour and do provide some mitigation for these matters.[31]

   [31]        Notice of formal finding, section 21 material, p 125.

4. Prior to the conduct on 3 November 2011, Mr G had been preparing to move away from Brisbane to commence duties in another region on or about 14 November 2011. Mr G was under considerable pressure at work “to perform” as a result of relieving in higher duties as the Acting Superintendent from 19 September 2011 to 30 October 2011, and was in “workplace conflict” with another senior officer, the subject of the complaint concerning the workplace incident on 3 November 2011.

5. Other events took place leading up to the conduct which were beyond Mr G’s control: Mr G’s older brother became terminally ill and later passed away in December 2011; and he had to make arrangements for his children to live with his ex-wife, prior to moving away to the region, until the end of the school year at which time his children would join him.

6. Mr G makes reference to his personal circumstances, relevant to his conduct on 4 November 2011, during the disciplinary interview on 7 November 2011:

   Well it doesn’t change the fact of what I did, it changes I guess it’s relevant to the fact that I can only tell you in my mind that I changed my mind and I had a honest and genuine intention of coming back and getting rid of the can of dog food and probably that’s you know I probably belted myself a bit harder than I should have that night yeah I wasn’t really in a position to do anything except get in a cab and go home and yeah I just forgot basically because I was so…anyway um and that’s about it.[32]

   [32]        Transcript of interview on 7 November 2011, section 21 material, p 214.

7. Mr G, in written and oral submissions, refers me to a previous workplace incident in 2002 for which he was awarded compensation for stress and had been attending counselling sessions with his treating psychologist until 2004. He submits that the prior workplace incident “exacerbated personal vulnerabilities”; and that this incident was known to the QPS.

8. Notwithstanding the previous workplace incident (in the QPS), Mr G did perform his duties to a “standard” which ultimately resulted in his promotion to the rank of Inspector in 2009.

9. There is no evidence before me in relation to the 2002 workplace incident. There is reference to a previous incident in the psychologist’s report contained in the section 21 material. The psychologist’s report refers to Mr G receiving treatment “in the past” for a psychological injury - anxiety and mood disorders; and this has made Mr G vulnerable to “psychological reactivity” in circumstances of stress. The reports states:

   At the time Mr G was involved in the work-related incidents culminating in his current investigation, he was under stress suggesting this predisposition to psychological reactivity and sensitivity has likely contributed to [him] unnecessarily personalising work-related situations relevant to the current investigation, and behaving impulsively and in an out-of-character manner.[33]

   [33]        Section 21 material, p 52.

1. Mr G concedes that Deputy Commissioner Barnett, in determining sanction, has acknowledged his personal circumstances but argues that sufficient weight has not been attached to these factors as mitigating circumstances.

2. Mr G refers to an earlier decision of the Appeal Tribunal in Queensland Police Service v Compton (No 2)[34] and submits that the sanction imposed needs to take into full account his individual circumstances.

   [34] [2011] QCATA 246.

3. The decision in Compton (No 2) can be distinguished from Mr G’s circumstances. In Compton (No 2) the police officer responsible for the conviction of a drink driving offence with an alcohol reading of 0.235% was a junior member of the QPS with less than 3 years service.

4. The Appeal Tribunal made findings (on appeal) that the learned member had properly considered the “extraordinary”[35] circumstances relating to the junior officer’s personal circumstances at the time and that the officer had a degree of insight into his misconduct.

   [35] Ibid, at [21].

5. The Appeal Tribunal considered that these “factors” were to be properly balanced against the requirements of deterrence and the purpose of disciplinary proceedings.[36] The Appeal Tribunal found that “any sanction had to reflect appropriate disapproval”.[37]

   [36] Ibid, at [25].

   [37] Ibid, at [25].

Effect on salary and submissions on sanction

1. Mr G was stood down from his duties as an Inspector on 8 November 2011 for 11.5 months. He lost his transfer to another region and did not challenge the decision of the QPS to cancel his transfer.

2. Mr G submits that he has been “displaced” from his family home as a result of the conduct because of a tenancy agreement in place prior to the cancellation of his transfer. He also submits that he lost the opportunity to relocate his family away from an environment which he considers to be “stressful”.

3. I accept Mr G’s submission that there is a significant financial impact as a result of the demotion in rank and paypoint deductions. The demotion to Senior Sergeant is significant and with it attracts an element of “disgrace”.[38]

   [38]        McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309, at [49].

4. There is a monetary penalty of $28,000 in the first year and for every year thereafter. Mr G refers the Tribunal to the calculation of the overall impact in the paypoint demotion calculated to the retirement age of 60 years as imposing a potential cumulative penalty of $616,000.

5. There is also the issue of a defined benefit payable through Mr G’s superannuation should he retire as an Inspector at the age of 60 years. Mr G, in written submissions, also raises the issue of retirement based on the assumption that he would have progressed within the QPS to a more senior position such as Assistant Commissioner in which case he would not be subject to mandatory retirement at age 60 years.

6. Mr G will not be automatically entitled to return to the position of Inspector. This appointment involves a lengthy selection process and is based on merit and recommendations made by senior members of the QPS.

7. Deputy Commissioner Barnett has considered the effect on Mr G’s salary in his reasons. He states:

   The monetary effect of reducing your salary to senior sergeant paypoint 4.4 will be $27975 in the first year… I also acknowledge that if you do not regain the rank of Inspector before you retire from the service there will be a significant negative effect on your superannuation payment.

   The three sanctions I have ordered have a clear monetary effect on you. Whilst a monetary penalty may act as both a specific and general deterrent against this type of conduct, the primary intent of these sanctions is not to cause you a financial detriment. The sanctions are based on my concerns about your ability to fulfil the role of Inspector in a manner which maintains confidence in the ability of the QPS to fulfil all of its statutory functions.[39]

   [39]        Notice of formal findings, section 21 material, p 129.

8. The Tribunal cannot predict with any certainty whether Mr G will be successful in attaining a promotion to Inspector at some future time. It is therefore difficult to calculate with any certainty the overall financial impact of the sanction imposed.

9. Mr G argues that it is unlikely he will be given the opportunity to work in the rank of Inspector again on the basis that the QPS has taken a certain “view” about him as a result of his conduct and the disciplinary matter.

10. There is no evidence before me to support Mr G’s submission that he has no prospects of promotion within the QPS. The decision to promote Mr G to the position of Inspector is a matter for senior members of the QPS and he is able to apply, as all officers holding the rank of senior sergeant may do, for the position of Inspector.

11. The position of Senior Sergeant at paypoint 4.4 is a very senior position in the QPS. Mr G is also able to apply, should one become available, for an officer in charge position attracting paypoint 4.5 (as a Senior Sergeant).

12. In determining the appropriate sanction I must consider whether the sanction which has been imposed was “too great”.[40] Mr G invites me to consider other possible sanctions including a temporary demotion followed by a period of suspension subject to the completion of satisfactory performance, to enable him to return to the position of Inspector.

    [40] Ibid, at [50].

13. I am not satisfied that this is a matter where a temporary demotion and/or suspension is appropriate.

14. Mr G has failed to uphold the high ethical standards expected of him, as an Inspector, within the workplace; and in participating in a QPS investigative process. This goes to the very heart of the “purpose” of disciplinary proceedings as set out in s 219A of the Crime and Misconduct Act 2001 and in the QPS Human Resource Manual.[41] The purpose of disciplinary proceedings is to:

    ·   maintain public confidence in the QPS;

    ·   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.

    [41]        Queensland Police Service Human Resource Manual, s 18.1.1.

15. The sanction to be imposed by this Tribunal (on review) must take into consideration the purpose of disciplinary proceedings and the seriousness of the conduct and all relevant mitigating circumstances.[42]

    [42]See Queensland Police Service v Compton (No 2) [2011] QCATA 246 and Crime and Misconduct Commission v McLennen & Ors [2008] QSC 023.

Other factors

1. I accept Mr G’s submission that this matter has caused him “great professional and public shame”.[43] I also accept that being stood down from his duties has been “completely demoralising” for him.

   [43]        Applicant’s Submissions, p 17.

2. Mr G refers me to an earlier decision of this Tribunal in Murray v Deputy Commissioner Stewart[44]. That decision involved misconduct of a senior officer and the Tribunal found that there was evidence of “genuine remorse” and that the officer had a commendable period of service and had been publicly shamed as a result of the incident.

   [44] [2011] QCAT 583.

3. The decision in Murray can be distinguished from the present matter. It involved a very different type of conduct – the officer sanctioned was one of a group of officers involved in a series of “streaking” incidents around a police bus. The subject officer was off duty at the time of the conduct and highly intoxicated.

4. Mr G’s conduct involved workplace harassment against another senior officer and further conduct, lying and disobeying a direction.

5. Mr G also refers to the period of suspension during the finalisation of the disciplinary process and the issue of delay which he submits was not considered by the Deputy Commissioner.

6. Mr G argues that he was not given the opportunity to participate in the QPS Administrative Consensual Discipline Process (ACDP) which would have resulted in an early resolution of the matter. He argues that the investigative process was “unfairly influenced” by the Assistant Commissioner to achieve a certain outcome (demotion in rank) and he has not been afforded the opportunity to have (in effect) a fair and impartial disciplinary process.

7. In the written submissions prepared on behalf of the respondent, it is submitted that this is a matter where consideration of the evidence rather than a prepared summary of the facts (as would happen in the ACDP process) was appropriate in view of the sanction being considered.

8. I accept the respondent’s submission on the basis that the QPS is responsible for managing and implementing a disciplinary process for its members. The time taken to finalise that process is a matter for the QPS. The QPS should, however, in the interests of procedural fairness and in maintaining confidence in the QPS disciplinary process, take all reasonable steps to avoid any inordinate delay in investigating the conduct and proceeding to a disciplinary hearing.

9. In conducting a review, it is open to the Tribunal to form its own view about the evidence before it and can take an “entirely different factual perspective” to that of the original decision maker, Deputy Commissioner.[45]

   [45]Crime and Misconduct Commission v Assistant Commissioner Barnett & Anor [2011] QCAT 161, at [19].

10. There is no evidence before me to indicate that there has been an unreasonable delay in the disciplinary process and that it has been unfairly “influenced” in some way to achieve a certain outcome. Mr G has admitted to the conduct and has been given the opportunity to make submissions.

11. In relation to the issue of delay, there is now, on one view, evidence before me, since the conduct took place, relevant to rehabilitation and Mr G’s commitment to his duties as a police officer. During the period of suspension Mr G was given an opportunity to perform administrative duties at the Traffic Support Branch. He completed the “tasks” assigned to him and this has demonstrated his commitment to the QPS as a senior officer relevant to the mitigating factors of rehabilitation and remorse.

12. The Deputy Commissioner has acknowledged, in his reasons, the value of Mr G to the QPS. He states:

    …I acknowledge that you are a very good police officer which abilities are valued by both the QPS and the public…[46]

    [46]        Notice of formal finding misconduct, section 21 material, p 125.

13. Mr G also refers to the media attention in relation to his conduct – publications in the Courier Mail and the commercial news networks and the on-line response relating to comments posted on the QPS Facebook internet site. Some of the Facebook comments were included in the section 21 material and in Mr G’s submissions.

14. It would be reasonable to expect that Mr G’s conduct would attract attention outside the QPS because of the nature of the conduct and the fact that it involved a senior member of the QPS and it took place in the ESC, Brisbane.

15. I accept that the “attention” has caused Mr G embarrassment both within the QPS and with his family and friends. I do not accept, however, that the community would expect the QPS to not investigate such conduct. I would expect that any reasonable member of the community would expect a senior officer of the QPS to not engage in workplace harassment, to not lie and to not disobey a direction issued by a senior investigating officer.

Fresh evidence

1. Mr G relies on evidence that was not before Deputy Commissioner Barnett having been given leave to adduce fresh evidence at the hearing. The evidence is a letter from the QPS dated 8 November 2012.[47] Mr G argues that one can reasonably draw an inference from reading the letter that he has little or no prospects of promotion within the QPS. This submission is relevant to the issues relating to the financial impact of the sanction imposed, in that Mr G argues he is unlikely to progress to the position of Inspector again.

   [47]        Exhibit “3”.

2. I have read the letter and respectfully do not agree that an inference can be drawn (from reading the letter) that Mr G has no prospects within the QPS. I accept the submissions made at the hearing by Ms Wadley that the letter relates to a request to transfer made by Mr G. The final sentence of the letter states: “I would like to wish you every success in your new position”.

The applicability of Aldrich v Ross – the respondent’s approach to sanction

1. It is well recognised in earlier decisions of this Tribunal that the “approach” to be taken on review is set out in the decision of Aldrich v Ross.[48]  That is, to give “considerable respect” to the view of the original decision maker.

   [48] [2001] 2 Qd R 235, at 257.

2. It has also been established that this Tribunal is “now the vehicle by which a public perspective is brought to bear” along with a “concern for police operational needs”.[49] In circumstances where the Tribunal reaches a different view to that of the original decision maker, it has a “duty” to act in accordance with its own views.[50]

   [49]        McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309, at [42].

   [50]        Murray v Deputy Commissioner Stewart [2011] QCAT 583, at [40].

3. Deputy Commissioner Barnett has, in his reasons, acknowledged Mr G’s personal circumstances and in determining the appropriate sanction has made reference to the seriousness of the conduct, his position in the QPS and the cumulative effect of all of the 3 charges. He states:

   …Your position as an Inspector within ESC at the time of the conduct weighs heavily on my mind. There is a need for a general deterrence and to ensure that senior officers who are part of ESC are seen to be subject to the same, if not higher standards, as those expected of other members of the service. I am also mindful of the cumulative effect of these matters. After leaving the can of dog food of [sic] Inspector B’s desk, you have aggravated the matter by subsequently lying in your interview and disobeying [a senior officer’s] direction…[51]

   [51]        Notice of formal finding misconduct, section 21 material, p 125.

Comparable decisions

1. In determining the appropriate sanction, I have been referred to many earlier decisions of this Tribunal and the former Misconduct Tribunal.[52]

   [52]Aldrich v Ross [2000] 2 Qd R 235; Vann v McGibbon Misconduct Tribunal TA 4 of 2001; CMC v Stretton Misconduct Tribunal OJ 2 of 2002, CMC v Conder and Thompson Misconduct Tribunal TA 6 of 2006; Wadham v Deputy Commissioner Stewart [2010] QCAT 578; Re Bowen [1996] 2 Qd R 8; Kennedy v Deputy Commissioner Stewart [2012] QCAT 66; McKenzie v Acting Commissioner Wright [2011] QCATA 309; Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82.

2. Ms Wadley on behalf of the respondent refers me to the decision in Wadham v Deputy Commissioner Ian Stewart.[53]

   [53] [2010] QCAT 578.

3. The decision in Wadham involved misconduct by a senior constable who inappropriately utilised QPS social funds, inappropriately accessed the QPS computer system and knowingly provided false and misleading information to the QPS to gain an advantage, progression within the workforce. The subject officer was dismissed from the QPS.

4. Mr G also refers me to several decisions relevant to the extent to which mitigating factors should be considered in determining the appropriate sanction. I have already considered some of the decisions in my reasons. Further relevant decisions are set out below:

   (a)McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 – this decision is relevant to the overall effect of a demotion on a police officer’s salary. Mr McKenzie was involved in an off-duty incident with another police officer with whom he had previously been having an intimate relationship. Mr McKenzie was found to have used excessive and inappropriate force (during the incident) resulting in injures to the other officer. Mr McKenzie’s sanction was reduced (on appeal) from sergeant paypoint 3.5 to Senior Constable 2.9 for a period of 1 year.

   (b)Kennedy v Deputy Commissioner Ian Stewart [2012] QCAT 66 – involved dishonesty in using a portable camping fridge that was the property of the Mount Isa Police Citizens Youth Club for more than 6 months. The Tribunal (on review) set aside the sanction of dismissal and imposed on the sergeant a sanction of 6 months suspension.

   (c)Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 – a senior constable was involved in off duty conduct during which he used his police badge to gain entry to a hotel and he was involved in a “scuffle” with police. He was demoted from Senior Constable 3.5 to 2.9 for 12 months.

   (d)Ottaway v Commissioner of Police (Unreported, Queensland Civil and Administrative Tribunal, Member Richards, 15 March 2013) - this involved misconduct by a senior sergeant in warning a sergeant that a complaint of sexual harassment had been made against the sergeant and also of the identity of the complainant. The subject officer was demoted to sergeant with conditions. The officer reviewed the decision to this Tribunal and the learned member observed that a higher sanction was open, given that the conduct “was in direct contravention of that progress that the Queensland Police Service had made” in regard to the “trust reposed” in the service.[54] The officer was granted leave by the Tribunal to withdraw the application, the learned member having expressed a view that a higher sanction was warranted.

   (e)Re Bowen [1996] 2 Qd R 8 - the subject officer was demoted 2 ranks from Inspector to Sergeant. The conduct involved the disclosure of confidential information about a complaint to another officer and lying on 3 occasions over a prolonged period of time.

   [54]Ottaway v Commissioner of Police (Unreported, Queensland Civil and Administrative Tribunal, Member Richards, 15 March 2013), p 4.

5. The conduct to be sanctioned by this Tribunal involves workplace harassment, lying and disobeying a direction. Although some of the decisions considered involve elements of dishonesty, none of the decisions before me involve workplace harassment by a senior member of the QPS. The decisions referred to can therefore be distinguished from the present conduct to be sanctioned.

Tribunal findings

1. I find that Mr G’s conduct on 3 and 4 November 2011 and his off-duty conduct on 4 and 7 November 2011 is misconduct for the purposes of the Police Service Administration Act 1990.[55] His conduct is “disgraceful, improper or unbecoming an officer” and is otherwise such that it “does not meet the standard the community reasonably expects of a police officer”.[56]

   [55]        Police Service Administration Act 1990, s 1.4.

   [56] Ibid, s 1.4.

2. The conduct to be sanctioned is serious and involves workplace harassment in relation to another senior member of the QPS. There is further conduct that involves lying and a disregard for directions given by senior officers during an investigation.

3. In determining sanction I have carefully considered Mr G’s lengthy written submissions (approx. 40 pages long) and the submissions made by him at the hearing.

4. I have considered the effect that the sanction will have on Mr G’s salary as a result of the demotion in rank.  I am satisfied that Mr G is entitled, as are all serving members of the QPS, to apply for any senior position within the QPS on the basis that there is no evidence before me to show that he has little or no prospects of promotion as a result of his conduct concerning the subject disciplinary proceedings.

5. Mr G admitted to the conduct on 7 November 2011. I draw no adverse finding from the fact that the admission was made (in full) during a directed interview.

6. I accept that Mr G’s conduct took place in the background of personal stress and work related stress; and I accept that he had been involved in an earlier incident (in 2002) and this may have clouded his judgment and his ability to manage workplace stress taking place at the time of his conduct.

1. I accept that the conduct was out of character for Mr G and he is otherwise committed to his duties and is well respected as a police officer.

2. I am satisfied that Mr G has demonstrated insight into his behaviour by undertaking counselling. I am not satisfied, however, that Mr G has demonstrated insight into the seriousness of his conduct.

3. I do not accept that the disciplinary matter concerning Mr G’s conduct has been an “over reaction” by the QPS and that the community would think that the action taken by the QPS in investigating the conduct is a waste of tax payer funds.

4. I agree with the submissions advanced on behalf of the respondent that the integrity of the QPS is of paramount importance and the public must have confidence in its officers to fulfil its statutory functions.

5. Mr G was at the time of the conduct a senior member of the QPS. The position of Inspector attracts senior duties and also brings with it an expectation to maintain a high standard of integrity and respect being a standard upon which junior members of the QPS may model themselves.

6. A member of the QPS is expected to be truthful at all times. This would include during times of personal stress and temptation as held by the Court of Appeal in the decision of Deputy Commissioner Stewart v Dark.[57] Justice Muir said:

   The great majority of people behave with propriety and integrity in the absence of stress, adversity or temptation. However, it is often when a person is tested by such conditions and circumstances that his character is fully revealed. Police officers are commonly placed in situations of considerable stress and may also be subjected to strong temptation from time to time. The expectation of the QPS and the public is that officers will resist any such temptation and will continue to behave with due propriety regardless of stress.

   [57] [2012] QCA 228, at [35].

7. In determining the appropriateness of sanction I am mindful that the review process is one which brings the public perspective to bear. I am satisfied that Mr G’s conduct is not of a standard that the community would expect of a police officer in his position.

8. The appropriate sanction in considering the nature of the conduct and all of the mitigating circumstances, is a demotion in rank from Inspector paypoint 5.3 to Senior Sergeant paypoint 4.4. In relation to matter 2, Mr G’s demotion from Inspector paypoint 5.3 to Sergeant paypoint 3.5 is suspended for 24 months on certain conditions as stated by Deputy Commissioner Barnett. The decision of Deputy Commissioner Barnett in relation to matters 1, 2 and 3 is therefore confirmed.

Non-publication order

1. The Tribunal may make an order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 on its own initiative if it considers the order is necessary on certain grounds set out under s 66(2). This includes whether to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or for any other reason in the interests of justice.

2. The Tribunal, by order 12 March 2013, prohibited, under s 66(2)(d) of the QCAT Act, the publication of Mr G’s name, any personal details of Mr G including the names of the schools Mr G’s children attend and the names of any staff member of those schools.

3. Pursuant to s 66(2)(d) of the QCAT Act, the Tribunal also prohibits the publication of the names of the complainant, Inspector B referred to in matter 1 and the names of the witnesses, Acting Inspector A and Inspector R referred to in matter 3.