Weaver v State of Queensland (Queensland Corrective Services)
[2021] QIRC 413
•6 December 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Weaver v State of Queensland (Queensland Corrective Services) [2021] QIRC 413 |
PARTIES: | Weaver, Paul v State of Queensland (Queensland Corrective Services) |
CASE NO: | TD/2020/81 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 6 December 2021 |
| HEARING DATES: | 23-25 June 2021 inclusive |
MEMBER: HEARD AT: | McLennan IC Brisbane |
ORDERS: | 1. Pursuant to s 321(2) of the Industrial Relations Act 2016 (Qld), Mr Weaver is to be reinstated to his former position on conditions at least as favourable as the conditions on which he was employed immediately before dismissal. 2. Pursuant to s 321(4)(a) of the Industrial Relations Act 2016 (Qld), Mr Weaver’s continuity of employment shall be maintained between the date his dismissal took effect on 5 August 2020 and the date of reinstatement (the relevant period). 3. (a) Pursuant to s 321(4)(b), (c) of the Industrial Relations Act 2016 (Qld), the Respondent shall pay to Mr Weaver: i. the remuneration lost, or likely to have been lost, by Mr Weaver because of the dismissal in the relevant period; Less: ii. the monies earnt by Mr Weaver in the relevant period; and iii. the monies paid by the Respondent to Mr Weaver, by way of notice upon the termination of his employment; and iv. any monies paid by the Respondent to Mr Weaver for any accrued entitlements upon the termination of his employment (provided those accrued entitlements are now to be reinstated). (b) The gross amount shall be taxed according to Australian Law. (c) Should the parties, within 21 days of date of reinstatement, be unable to agree on the amount of remuneration lost, either party has liberty to notify the Registrar and I will list the matter for further Directions to determine the amount of remuneration lost. 4. Mr Weaver is to be reinstated within 22 days of the release of the date of this Order. |
| CATCHWORDS: | INDUSTRIAL LAW - OTHER MATTERS - APPLICATION FOR REINSTATEMENT - unfair dismissal - where the applicant was asleep on duty - whether the applicant engaged in the conduct subject of the allegations - whether conduct gave rise to fair and reasonable disciplinary finding - whether the applicant's behaviour amounts to dereliction of duty - whether the applicant's behaviour amounts to misconduct - consideration of procedural fairness - whether the termination of employment was harsh, unjust or unreasonable – whether there was a loss of trust and confidence – order for reinstatement |
LEGISLATION: CASES: | Evidence Act 1977 (Qld) s 7 Industrial Relations Act 2016 (Qld) s 316, Public Service Act 2008 (Qld) s 187, s 188 Antony Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226 Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116 Barclay v Nylex Corporation Pty Ltd [2003] AIRC 593 Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne & Frew v Australian Airlines Ltd [1995] 185 CLR 410 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Gilmour v Waddell & Ors [2019] QSC 170 Gold Coast District Health Service v Walker (2001) 168 QGIG 258 Guymer v Workers' Compensation Regulator [2018] ICQ 009 Hargreaves and Local Government Standards Panel [2008] WASAT 300 Jones v Dunkel (1959) 101 CLR 298 Kioa v West (1985) 159 CLR 550 Laegal v Scenic Rim Regional Council [2018] QIRC 136 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 123 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Power v Torres Strait Island Regional Council [2011] ICQ 7 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 RHG Mortgage Ltd v Ianni [2015] NSWCA 56 Shane Joseph Farrell AND Q-COMP [2013] QIRC 19 Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914 The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067 White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041 |
| APPEARANCES: | Mr J Sibley, solicitor, Sibley Lawyers with Mr J McDonald, solicitor, Sibley Lawyers for the Applicant. Dr M J Brooks of counsel instructed by Ms N Smith, Crown Law for the Respondent. |
Reasons for Decision
Background
Mr Paul Weaver (the Applicant) is a 57 year old[1] gentleman, married to wife Michelle and caring for three teenage stepdaughters.[2]
[1] T 1-7, l 29.
[2] Exhibit 1, 438 [8].
Proud of his family's history working within law enforcement and correctional services,[3] Mr Weaver too commenced employment with the State of Queensland (Respondent) as a Custodial Correctional Officer (CCO), Queensland Corrective Services (QCS) on 31 March 2014.[4]
[3] Ibid 439 [24].
[4] T 1-7, l 33; Respondent's Closing Submissions filed 15 November 2021, 1.
Initially stationed at Woodford Correctional Centre (WCC) for two years, Mr Weaver subsequently served at Borallon Training and Correctional Centre (BTCC).[5]
[5] T 1-7, ll 34-40.
After only a few months at BTCC, Mr Weaver progressed to the role of Acting Correctional Supervisor (ACS). He performed that supervisory function when required to do so throughout the following two years; otherwise continuing work in a CCO capacity.[6]
[6] T 1-7, ll 41-45; Respondent's Closing Submissions filed 15 November 2021, 1.
Mr Weaver found his role rewarding,[7] sometimes also accepting overtime shifts working as a CCO at other locations, including at the Princess Alexandra Hospital Secure Unit (PAHSU).[8]
[7] Exhibit 1, 439 [24].
[8] T 1-8, ll 4–6.
Mr Weaver had made diligent endeavours to advance in his career with QCS. He outlined those efforts at the Hearing:
Mr Weaver:At that stage[9] I'd done my cert 3, I'd done my cert 4. I think I may have also done the trainer and assessor assessment by then. I was on the roster committee at Borallon. I was on the workplace health and safety committee. I think around this time also I may have attended the academy[10] for a couple of days for a leadership-type training session that they'd run for a couple of days.[11]
Mr Weaver further contributed as a Violence Prevention Committee Representative[12] and was a point of reference for colleagues on policy and procedure matters, prisoner management issues and the like.[13]
[9] "At that stage" refers to the date of the first alleged incident - 10 October 2018.
[10] T 1-21, l 27; That is, the Queensland Corrective Services Academy.
[11] Ibid ll 20-24.
[12] Affidavit of Mr Weaver filed 21 August 2020, 5 [46].
[13] Exhibit 1, 440 [29].
Mr Weaver sometimes carried a copy of the Corrective Services Act2006 (Qld) in his work bag, explaining that:
Mr Weaver:I just have an interest in reading the part of the legislation as part of the acting supervisor's role. It was always handy to know some of the technical parts of stuff. I would have it in my work bag to read with me, depending on where I was.[14]
[14] T 1-21, ll 14-17.
Having performed the role of ACS for some time, Mr Weaver aspired to be ultimately appointed to the substantive position of Correctional Supervisor.[15]
[15] Ibid ll 33-45.
However, allegations that Mr Weaver was sleeping on duty torpedoed his career trajectory. Those allegations pertained to incidents at the PAHSU on 10 October 2018 and 15 October 2018, and again at BTCC on 28 January 2019.[16]
[16] Affidavit of Mr Weaver filed 21 August 2020, 3 [6].
An Ethical Standards Group (ESG) investigation was launched and found three 'unfit for duty' allegations to be substantiated.
More than a year had elapsed after the third alleged incident when Mr Weaver was put on paid suspension. A show cause process then ensued.
Mr Weaver advised both the ESG investigator[17] and QCS[18] about the nature of the undiagnosed and untreated medical condition he suffered from at the time of the three incidents, the steps he had taken to remedy its impact on his ability to perform his role and emphasised the unintentional nature of the alleged 'misconduct'.[19]
[17] During the investigation interview; Affidavit of Mr Weaver filed 21 August 2020, 5 [36]-[37].
[18] In Mr Weaver's responses to the two Show Cause Notices dated 29 February 2020 and 21 May 2020; Affidavit of Mr Weaver filed 21 August 2020, 5 [36]-[37].
[19] Affidavit of Mr Weaver filed 21 August 2020, 3 [12].
Nonetheless, that show cause process finally culminated in the termination of Mr Weaver's employment on 5 August 2020.
Mr Weaver challenges that decision, on the grounds that the termination of his employment was harsh, unjust and unreasonable. He filed his application for reinstatement on 21 August 2020.
The primary remedy Mr Weaver seeks is reinstatement, so he can continue to serve the community through his work with QCS.[20]
[20] Applicant's Statement of Facts and Contentions filed 10 November 2020, 9 [4].
Questions to be decided
The matters to be considered in determining Mr Weaver's application are:
·whether Mr Weaver engaged in the conduct subject of Allegation 1;
·whether Mr Weaver engaged in the conduct subject of Allegation 2;
·whether Mr Weaver engaged in the conduct subject of Allegation 3;
·whether the conduct gave rise to a disciplinary finding that was fair and reasonable;
·whether the alleged conduct constitutes 'misconduct' within the meaning of s 187(1)(b) of the Public Service Act 2008 (Qld) (PS Act);
·whether Mr Weaver was afforded procedural fairness as per the considerations mandated by s 320 of the Industrial Relations Act 2016 (Qld) (IR Act);
·consideration of other relevant matters mandated by s 320 of the IR Act;
·whether the termination was harsh, unjust or unreasonable; and
·whether reinstatement is impracticable or otherwise inappropriate.
Legislative scheme and legal framework
Harsh, unjust or unreasonable
Section 316 of the IR Act says that a dismissal is unfair if it is harsh, unjust or unreasonable. The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.[21]
[21] Laegal v Scenic Rim Regional Council [2018] QIRC 136, 17 [63]-[65].
In Byrne & Frew v Australian Airlines Ltd, McHugh and Gummow JJ explained that (emphasis added):
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[22]
[22] [1995] 185 CLR 410, 465.
Section 320 of the IR Act sets out the matters to be considered by the Commission in hearing an application under s 317 (emphasis added):
320 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider –
(a) whether the employee was notified of the reason for dismissal; and
(b) whether the dismissal related to –
(i)the operational requirements of the employer's undertaking, establishment or service; or
(ii)the employee's conduct, capacity or performance; and
(c) if the dismissal relates to the employee's conduct, capacity or performance –
(i)whether the employee had been warned about the conduct, capacity or performance; or
(ii)whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
(d) any other matters the commission considers relevant.
In Laegal v Scenic Rim Regional Council,[23] O'Connor DP (as the Vice President then was) cited with approval the following extract from Chief Commissioner Hall's (as his Honour then was) decision from Stark v P&O Resorts (Heron Island) (emphasis added):
Where…an application…is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess where it should intervene to protect the application against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, be held immune from interference by the Commission….[24]
[23] [2018] QIRC 136, 18 [66].
[24] (1993) 144 QGIG 914, 916.
Misconduct
Section 187 of the PS Act relevantly provides (emphasis added):
187 Grounds for Discipline
(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has-
…
(b) been guilty of misconduct; or
…
(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.
…
(4) 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 service.
Example of misconduct-
victimising another public service employee in the course of the other employee's employment in the public service.
The consideration of "misconduct" under s 187(4)(a) of the PS Act is central to this matter.
In the recent case of Ball v State of Queensland (Queensland Corrective Services) ('Ball'), O'Connor VP relevantly explained (emphasis added, citations omitted):[25]
[25] [2021] QIRC 116, 18 [79]-[84].
[79]Apart from the definition of misconduct in s 187(4), the PS Act does not provide guidance as to what is meant by 'inappropriate' or 'improper' conduct.
[80]In Mathieu v Higgins & Anor, Daubney J was called upon to determine whether the conduct of a Paramedic in the performance of his duties constituted misconduct as defined in s 10(a) of the Queensland Ambulance Service ('QAS') Policy. The term 'misconduct' is defined as 'disgraceful or improper conduct in an official capacity'.
…
[83]Daubney J, in considering s10(a) of the QAS Policy, was of the view that it is not appropriate to rigidly separate the definition into its component parts; the words 'disgraceful' and 'improper' are included in the definition as alternatives, but nonetheless should not be regarded as wholly independent. Rather, each term should be read as giving colour to the other. His Honour held that:
'[M]isconduct', as used in the 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.
[84]Daubney J cited, with approval, the reasoning of Kirby P (as his Honour then was) in Pillai v Messiter (No.2) which addressed the meaning of the expression, 'misconduct in a professional respect' in the Medical Practitioners Act 1938 (NSW). Kirby P said:
But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.
In Ball,[26] O'Connor VP went on to cite with approval Merrell DP's considerations of 'misconduct' in Coleman v State of Queensland (Department of Education)[27] in these terms (emphasis added):
In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates 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.[28]
[26] [2021] QIRC 116, 19 [86].
[27] [2020] QIRC 032, 13 [62].
[28] Ibid.
Merrell DP adopted the same approach in The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service, in which he also held that (emphasis added):
In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies.[29]
[29] [2020] QIRC 067, 11 [36].
Whether or not the Commission can be satisfied that 'misconduct' occurred is a separate question to whether or not the dismissal was harsh, unjust or unreasonable and thence whether Mr Weaver is entitled to a remedy under the IR Act.[30]
[30] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 15 [71].
When disciplinary action is authorised
If a disciplinary ground is established, disciplinary action may be taken under s 188(1) of the PS Act (emphasis added):
188 Disciplinary action that may be taken against a public service employee
(1) In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.
Examples of disciplinary action –
·termination of employment
·reduction of classification level and a consequential change of duties
·transfer or redeployment to other public service employment
·forfeiture or deferment of a remuneration increment or increase
·reduction of remuneration level
·imposition of a monetary penalty
·if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
·a reprimand
One of the examples of disciplinary action listed in s 188(1) is termination of employment. However, should it be found that Mr Weaver's dismissal was not authorised by the PS Act, a conclusion that the dismissal was unjust within the meaning of the IR Act may follow.[31]
[31] Ibid.
Onus of proof
The onus is on Mr Weaver to demonstrate that his dismissal was unfair.[32]
[32] Gold Coast District Health Service v Walker (2001) 168 QGIG 258, 259.
However, it is for the Respondent to establish that the disciplinary allegations against the Applicant are capable of being substantiated on the balance of probabilities, and that if substantiated, that the Applicant's actions satisfy the definition of misconduct.[33]
[33] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 14 [69]; The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067, 12 [39]; O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 123, 5 [13]; T 1-6, ll 15–18.
Standard of proof
In Ball,[34] O'Connor VP observed that:
In Stark v P & O Resorts (Heron Island), Chief Commissioner Hall (as his Honour then was) considered the appropriate standard of proof to be applied in an unfair dismissal case. He wrote:
For myself, I would add, though it is not a proposition which is necessary to the decision in this matter, that whomsoever it is who the ultimate onus of proof in an unfair dismissal case, on a grave allegation of criminal misconduct the onus must inevitably shift to the proponent of the allegation and, equally inevitably, the higher onus described in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and M v M (1988) 166 CLR 69 at 76 to 77 must be applied, compare Byrne and Another v Australian Airlines Ltd. (1992) 192 per Hill J.[35]
Whilst it is correct that the standard of proof to be applied is on the balance of probabilities, it is not, in my view, correct for the Applicant to submit that the nature of the allegations is such that this is a case which requires a reversal of the onus.
[34] [2021] QIRC 116, 6 [17]-[18].
[35] [1993] 144 QGIG 914, 916.
Witnesses
The following witnesses were called by the Applicant:
·Mr Paul Weaver, the Applicant himself;
·Dr Lee, Consultant Physician in Respiratory and Sleep Medicine;
·Dr Kumar, General Practitioner; and
·Mr Raymond Perry, Custodial Correctional Officer, Borallon Training and Correctional Centre.
The following witnesses were called by the Respondent:
·Mr Albert Singh, Custodial Correctional Officer, Escort and Security Branch;
·Ms Marilyn Cook, Custodial Correctional Supervisor, Brisbane Women's Correctional Centre;
·Mr Scott Krueger, Custodial Correctional Supervisor, Escort and Security Branch;
·Ms Samantha Sheahan, Custodial Correctional Officer, Borallon Training and Correctional Centre;
·Ms Jennifer Watts, Custodial Correctional Supervisor, Borallon Training and Correctional Centre;
·Mr Peter Henderson, General Manager, Brisbane Correctional Centre, Queensland Corrective Services;
·Mr Alan Houchin, Deputy General Manager Superintendent, Arthur Gorrie Correctional Centre;
·Mr Kim Papalia, Assistant Commissioner, Professional Standards and Governance, Queensland Corrective Services; and
·Mr Peter Shaddock, Assistant Commissioner, Central Northern Region Command, Queensland Corrective Services.
What is the relevance of Jones v Dunkel[36] to this matter?
[36] (1959) 101 CLR 298.
The Respondent proposed that the Commission should draw a Jones v Dunkel inference, with respect to the Applicant's failure to call Mrs Michelle Weaver and Mr Michael Speck to give evidence at the Hearing.[37]
[37] Respondent's Closing Submissions filed 15 November 2021, 7 [55], 9 [69].
Mrs Michelle Weaver
The Respondent submitted that:
…there is evidence which supports a finding that the applicant was aware of his tendency to fall asleep. Thus the applicant accepted in cross-examination that his wife told CCO Singh that he 'tends to doze off.' The Commission will recall the applicant's wife was on the list of witnesses to be called by the applicant, but ultimately did not give evidence. It follows the Commission should draw a Jones v Dunkel inference and conclude the applicant's wife would have confirmed that comment had she been called.[38]
[38] Ibid 7 [55].
It is true that Mrs Weaver was to be called as a witness for the Applicant's case. Mrs Weaver appeared on the Applicant's List of Witnesses filed on 15 January 2021; however I note that she was not on the initial Applicant's List of Witnesses that was filed on 8 December 2020. Her name also appeared on the draft Trial Plan prepared by the parties' representatives and filed on 11 June 2021.
On Day 1 of the Hearing, Mr Sibley advised that Mrs Weaver would not now be called to give evidence. No explanation for that change was offered by Mr Sibley though neither did I ask him for an explanation.
Dr Brooks indicated that change was also news to the Respondent. She said:
Dr Brooks:I think we might want to cross-examine Ms Weaver - Mrs Weaver. So we expected her to appear…[39]
…
Dr Brooks:…So we certainly weren't alerted to the fact that she would no longer be giving evidence. Yeah, I'll take some instructions in the break and see how we feel about that.[40]
[39] T 1-79, ll 41-42.
[40] T 1-80, ll 3-5.
The Respondent then gave consideration to the matter of Mrs Weaver over an adjournment break.
I was advised upon resumption of the Hearing that neither party required Mrs Weaver's evidence. The matter seemed to have been settled between the representatives to both their satisfaction, in these terms:
Mr Sibley: Commissioner, returning to the discussions before the break –
Commissioner: Mrs Weaver and her –
Mr Sibley:We're not calling Mrs Weaver. I understand there's no issue with that.
Dr Brooks:We don't need to cross-examine, Ms Weaver.
Commissioner: Okay.
Dr Brooks:Apologies. I had low blood sugar, I think, pre lunch.
Commissioner: No, that's all right. Okay. So Mrs Weaver, don't worry about that.
Mr Sibley:Ms Weaver is to the side.
Commissioner: Yes.[41]
[41] T 1-85, ll 40-47; T 1-86, ll 1-10.
I consider that the Respondent waived their opportunity to question Mrs Weaver in the exchange reproduced above.
Though the rules of evidence do not strictly apply,[42] it has been said that:
The Evidence Act 1977 deals with the competency and compellability of spouses in criminal and civil proceedings. Section 7(2) of the Act applies in civil proceedings and provides that a husband or wife of a person who is a party to a proceeding, or on whose behalf a proceeding is brought or defended, is both competent and compellable to give evidence for any of the parties to the proceeding.[43]
[42] Industrial Relations Act 2016 (Qld) s 531(2).
[43] Office of the Queensland Parliamentary Counsel, 'Principles of good legislation: OQPC guide to FLPs' (2013) 1, 10 [27].
At [35] above, I outlined that the Respondent submitted that "…the applicant accepted in cross-examination that his wife told CCO Singh that he 'tends to doze off'" and that Mrs Weaver's evidence would be relevant to whether "the applicant was aware of his tendency to fall asleep". However, my review of the transcript does not reveal that Mr Weaver accepted his wife made that comment to CCO Singh,[44] the exchange instead was:
Dr Brooks:And I suggest to you that at that point she says "Can you keep an eye on him because he tends to doze off", or words along those lines. Do you accept that it's possible she said that to him?
Mr Weaver:It's possible. I don't recall it being said.[45]
[44] Applicant's Reply Submissions, 6 December 2021, 4 [26].
[45] T 2-89, ll 1-4.
The Applicant's closing submissions did not address me as to the relevance of Jones v Dunkel to this matter, with respect to any potential witness not called to give evidence. However, the Respondent's closing submissions did so, with respect to both Mrs Weaver and Mr Speck, in the terms I have reproduced in this section of my Decision.
I have considered that an adverse inference should not be drawn against Mr Weaver in circumstances where he did not call Mrs Weaver as a witness, in accordance with the rule in Jones v Dunkel.[46] This rule operates where there is an unexplained failure by a party to give evidence. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party. However, unless the appropriate circumstances are present, the Commission will not be bound to draw the adverse inference. Moreover, where the inference is drawn, the rule cannot be used to fill gaps in the evidence or to connect conjecture into suspicion.[47] Importantly, such an inference "cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure".[48] The question of whether any such inference should be drawn in the circumstances is best answered after considering all the other evidence in the matter.
[46] Jones v Dunkel (1959) 101 CLR 298.
[47] J D Heydon AC, Cross on Evidence (LexisNexis, 10th ed, 2014) [1215].
[48] Jones v Dunkel (1959) 101 CLR 298, 320-321.
This Commission is empowered to depart from rigid application of the rules of evidence by s 531 of the IR Act, though only in particular circumstances such as to allow the recall of witnesses where the rule in Browne v Dunn is concerned.[49] In this instance, where both parties were represented, I see no reason for a departure from the rule in Jones v Dunkel on the basis of s 531.
[49] Power v Torres Strait Island Regional Council [2011] ICQ 7, cited in Guymer v Workers' Compensation Regulator [2018] ICQ 009.
Deputy President O'Connor, as he then was, summarised the relevant principles in Shane Joseph Farrell AND Q-COMP, as follows (citations omitted):[50]
The principle in Jones v Dunkel at its most fundamental is usually understood as an inference that can arise against a party who elects not to adduce evidence on a matter in issue.
Windeyer J, at 320 to 321, embraced the notion of "fear of exposure" on the part of the party who fails to call the witness, quoting Wigmore on Evidence:
"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party."
In Manly Council v Byrne & Anor, Campbell J cited the joint judgment of Gibbs A-CJ, Stephen, Mason and Aickin JJ in the High Court's decision in Brandi v Mingot to support the proposition that:
"Insofar as the passage from Wigmore approved the drawing of an inference that a witness if called would have exposed facts unfavourable to the party who failed to call that witness, it is not the law in Australia. . . [L]ater cases confirm that the fullest extent of the inference which can be drawn is that the evidence which was not called would not have helped the party who failed to call the witness" and at paragraph 51:
"Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn."
[50] [2013] QIRC 19, 6 [51]-[53]; See also White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041.
The principles in applying the rule in Jones v Dunkel were succinctly reiterated in RHG Mortgage Ltd v Ianni.[51] In that case, the New South Wales Court of Appeal held that the circumstances for drawing a Jones v Dunkel inference are found where an uncalled witness is a person presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to that party. The three conditions to be applied are: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained. In that case, the Court of Appeal found that an adverse inference was open, as the witness would have been expected to be called and his evidence would have elucidated the matter, and his absence from the proceeding was unexplained.[52]
[51] [2015] NSWCA 56, cited in White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041, 22 [74].
[52] RHG Mortgage Ltd v Ianni [2015] NSWCA 56, [76]; See also Jones v Dunkel [1959] 101 CLR 298, 320-321.
Mr Sibley gave no explanation to me as to why Mrs Weaver was no longer to be called – however there was clearly a conversation between he and Dr Brooks about the matter in the adjournment, the agreed outcome of which was reported to me upon resumption of the Hearing.
The Applicant made no submission that a Jones v Dunkel adverse inference should not be drawn, or indeed is not open to be drawn either at the Hearing or in the subsequent closing submissions.
Mrs Weaver is the Applicant's wife and as such is considered to be in Mr Weaver's camp. There has been no suggestion that the couple are not on good terms.
However, Mrs Weaver is also currently employed by QCS. In that capacity, she was party to an alleged exchange with CCO Singh in which she was said to refer to Mr Weaver's propensity to doze off. CCO Singh's recount of that conversation alone was later relied upon, in part, to terminate Mr Weaver's employment.
In my view, it was open to either party to have called Mrs Weaver as a witness; although the Applicant's witness list indicated that he was to do so.
I note that the Respondent did express that they may have wished to cross-examine her, and considered their position in the Hearing adjournment. However, I also note that QCS did not interview Mrs Weaver or require her to submit an Officer's Report regarding the 10 October 2018 incident. Instead they chose to solely rely on CCO Singh's account of what was said.
Given Mr Weaver's current employment situation, he had indicated that Mrs Weaver "is still working so she was able to – she – she was still to do what she needed to do…" with respect to the care and support of their three daughters.[53] In my view the combination of undertaking work as a CCO that is itself inherently risky, financial pressure and the strain of supporting her husband through a Hearing with very high-stakes for her family's future may have weighed too heavily upon Mrs Weaver.
[53] T 2-73, ll 27-28.
As such, I do not draw an adverse inference against Mr Weaver as a result of Mrs Weaver not being called as a witness in these proceedings. Neither can I draw a positive inference about what her testimony may have been. The influence is neutral.
Mr Michael Speck
The Respondent submitted that "reinstatement is not appropriate because there has been a justifiable loss of trust and confidence" with respect to several factors. Those included Mr Weaver's written response provided at interview with the ESG Investigator on 6 September 2019, in which he relayed:
…that Prisoner [X] had told him on 28 January 2019 that he 'knew' CCO Watts. This was not correct. The applicant's written response indicates the applicant was prepared to make serious allegations against his co-workers, with no real evidence, to discredit them. The applicant gave evidence that he prepared the document with Michael Speck…While the applicant said in 'hindsight the letter could well have been better articulated' but that he was 'frustrated'…Mr Speck was not called by the applicant to give evidence about the extent to which he prepared the written response. It follows the Commission should draw a Jones v Dunkel inference and conclude Mr Speck would confirm the contents of the written response was based on information, including information about his co-workers without any basis or foundation, that came from the applicant.[54]
[54] Respondent's Closing Submissions filed 15 November 2021, 9 [67], [69].
In circumstances where Mr Weaver accepted that "…it's not the case that you don't agree with any of those points in that letter",[55] notwithstanding he would have perhaps been more circumspect if not for his frustration, I don't consider the failure to call Mr Speck as a witness to be of any great significance.
[55] T 2-91, ll 10-11.
I consider that Mr Speck's contribution to the questions to be decided at the Hearing of this matter would be tangential at best. Very little turns on the extent of Mr Speck's involvement in the preparation of the letter presented by Mr Weaver to the ESG Investigator in my view.
As such, I do not draw an adverse inference against Mr Weaver as a result of Mr Speck not being called as a witness in these proceedings. Neither can I draw a positive inference about what his testimony may have been.
The influence is neutral.
Evidence and submissions
In a Directions Order dated 20 August 2021, written closing submissions were directed in the order Applicant – Respondent – Applicant (in reply, on issues of law only).
The Applicant's written closing submissions were filed on 8 October 2021.
The Respondent's written closing submissions were filed on 15 November 2021. An attachment titled "Table summary of CCTV footage" was also submitted.
The Applicant's reply submissions were filed on 6 December 2021.
The evidence of the witnesses and exhibits tendered at the Hearing, together with the written closing submissions (and attachment) filed by the parties and their Statements of Facts and Contentions, were all considered in this Decision. I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided.
Question 1: Whether Mr Weaver engaged in the conduct subject of Allegation 1
Allegation 1
The first allegation against Mr Weaver was (emphasis added):
That on 10 October 2018 you were derelict in the performance of your duties, when you were required to be alert and performing constant observations of a prisoner at the Princess Alexander Hospital Secure Unit.[56]
[56] Exhibit 1, 442.
The Show Cause Notice – Liability for Disciplinary Findings (SCN-LDF) issued to Mr Weaver explained the problem with the alleged conduct as:
Your actions on 10 October 2018 including closing your eyes, dozing and/or being asleep for short periods of time, placed yourself, your fellow officers, the prisoner and the public at risk.
Your actions also created a potential security risk in that you were in no condition to respond to an emergency had the situation required for it.[57]
[57] Ibid 367-368.
The SCN-LDF advised Mr Weaver that he may be liable to disciplinary action on the following basis (emphasis added):
(a)Pursuant to s 187(1)(b) of the Act, in that you have been guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).
Alternatively,
(b)Pursuant to s 187(1)(a) of the Act, in that you have performed your duties carelessly, incompetently or inefficiently.
Alternatively,
(c)Pursuant to s 187(1)(f)(ii) of the Act, in that you have contravened, without reasonable excuse, a standard of conduct applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, namely the Code of Conduct for the Queensland Public Service (the Code)…[58]
[58] Ibid 368.
The Show Cause Notice – Decision on Disciplinary Action (SCN-DDA) issued to Mr Weaver finally concluded that (emphasis added):
In respect to Allegations 1, 2 and 3, pursuant to section 187(1)(b) of the Public Service Act 2008 (the Act), you are guilty of misconduct, namely inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).[59]
[59] Ibid 442.
It is noted that the allegation investigated by the ESG was earlier cast as (emphasis added):
That on 20 October 2018 you were not fit for duty at your post at the Princess Alexander Hospital Secure Unit.[60]
[60] Ibid 366.
Nature of the shift on 10 October 2018
Mr Weaver was working an overtime shift of 12 hour duration, 6 am to 6 pm.[61]
[61] Exhibit 1, 367; Respondent's Closing Submission filed 15 November 2021, 1 [3].
The CCO duties he was required to perform was "constant open door observations of a prisoner who had been self harming".[62] This involved "monitoring the prisoner to ensure his safety, and maintain the security of the PAHSU (where the prisoner was located)."[63]
[62] Exhibit 1, 367.
[63] Ibid.
Mr Weaver and CCO Singh were the pair of Officers assigned to perform the duties with respect to that particular prisoner for that shift. They were "located at the doorway of room 20, and were seated in two armchairs."[64]
[64] Ibid.
Mr Weaver had assessed his own fitness for duty prior to commencement of the shift.[65]
[65] T 1-11, ll 41-44; T1-12, ll 1-5.
Was Mr Weaver "awake and alert" and "performing constant observations" of a prisoner?
It is not disputed that Mr Weaver had more than likely succumbed to microsleeps on 10 October 2018. Mr Weaver "accepts that he was more than likely asleep or dozing for brief moments on the relevant dates." [66]
[66] Applicant's Statement of Facts and Contentions filed 10 November 2020, 5 [3.1].
Dr Lee's medical evidence was that people suffering from untreated Severe Obstructive Sleep Apnoea (SOSA) commonly fall asleep for brief periods:
It is common for people to fall asleep briefly in untreated obstructive sleep apnoea.[67]
[67] T 1-39, ll 32-33.
Dr Lee stated that it would only be a matter of minutes[68] and that:
…if people have very light sleep, transition sleep for 30 seconds or a minute, they may not know that they have actually fallen asleep at that time.[69]
[68] T 1-40, l 17.
[69] Ibid ll 15-16.
The Applicant submits that the video footage shows Mr Weaver's microsleeps occurred for "very brief periods…best described as the head dropping and immediately startling awake."[70]
[70] Applicant's Closing Submissions filed 8 October 2021, 3 [17].
The Respondent noted that the video footage showed Mr Weaver to be not moving at 6.33.52 am, 6.34.40 am, 8.43.57.48 am, 1.08.15.77 pm, 1.08.50 pm and 2.44 pm. Mr Weaver did not recall being asleep and was not aware that he had been asleep at those times, though he did accept that it were possible he may have succumbed to microsleep at various times.[71]
[71] Respondent's Closing Submissions filed 15 November 2021, 2 [11]; Respondent's Table Summary of CCTV Footage filed 15 November 2021; T 1-23, l 37; T 1-25, l 14; T 1-49, l 5; T 2-8, l 7; T 2-28, l 24; T 1-49, l 5.
With respect to the 6.33.52 am time stamp, Mr Weaver concluded:
I don't recall being asleep at that time. I – I guess from the footage, its difficult to tell. I'm not moving but – … you know, I could well be. I might have had a microsleep… But I don't – look, I don't recall being asleep at that time. No.[72]
[72] T 1-23, ll 37-46.
With respect to the 6.34.40 am time stamp, Mr Weaver said "I don't recall" what he was doing at that point. His evidence was that:
Mr Weaver:I may have been asleep. I may have been watching the television. I may have been watching the prisoner. I mean, exactly what it is I don't recall but certainly it would be seen as if I'm – had a microsleep.
Mr Sibley:Is it your normal posture to sit there and watch the prisoner in that sort of position?
Mr Weaver:Yes.
…
Mr Sibley:Not move?
Mr Weaver:Yeah. Exactly.
…
Mr Weaver:And depending on what you're doing, if I was reading something, I may have been reading, if I was focused on something –
Mr Sibley:Yes?
Mr Weaver:I would have been sitting fairly still, I'd imagine.
Mr Sibley:And is it the case that no one's told you that you're asleep and no one's tried to -?
Mr Weaver:That's right.
Mr Sibley:- wake you?
Mr Weaver:I don't recall anyone telling me that.
Mr Sibley:Yes. Yes?
Mr Weaver:At that point on that day.
Mr Sibley:And you weren't aware if you were asleep?
Mr Weaver:That's – yeah. If I was asleep, I certainly wasn't aware that I was asleep.
Mr Sibley:Okay. So as far as we can see, you were simply sitting still?
Mr Weaver:Yes.[73]
[73] T 1-25, ll 12-40.
However, with respect to the 8.43.57.48 am time stamp, Mr Weaver did agree that "Yes, certainly possible. Yes"[74] that he was asleep at that point.
[74] T 1-49, l 16.
It cannot be the case that Mr Weaver was "awake and alert" during the microsleeps he succumbed to on that shift, noting though that was for brief periods at a time.
With respect to the duty to "perform constant observations" of the prisoner, the records variously showed either Mr Weaver's or CCO Singh's initials at 15 minute intervals as required, confirming the observations performed by the CCO pair throughout the 12 hour shift.[75] However, that differs from the requirement of "constant observations" to continually watch the prisoner. The video footage showed that Mr Weaver was discharging the duty, other than the periods of microsleep.
[75] Exhibit 1, 12.
Response to emergency
An incident did occur on that shift that Mr Weaver responded to with alacrity. When the prisoner fell to the ground moving from the bed to the toilet, it was left to Mr Weaver to raise the alarm for medical assistance and enter the prisoner's room immediately.[76]
[76] T 2-11, ll 1-20.
The video footage showed that CCO Singh was absent from his post at the doorway without first arranging another CCO to relieve him, both at that critical time and at several other times for extended periods during that shift. Mr Weaver was left alone.
As Mr Weaver was at least on the spot when the incident occurred, I consider he was better placed to respond to that emergency situation and indeed did so.
That incident was subject of the only Officer's Report completed with respect to Mr Weaver on that shift.
Did Mr Weaver intend to sleep on duty?
The video footage shows Mr Weaver taking active steps to ensure his alertness throughout the shift, including reading, conversing, drinking tea, standing and moving from a sedentary position.[77]
[77] Exhibit 2; Applicant's Closing Submissions filed 8 October 2021, 3 [22].
Further Mr Weaver had not positioned himself in such a manner that would increase his risk of falling asleep.
In my view, Mr Weaver could not be said to be indifferent as to whether or not he succumbed to fatigue.
Did Mr Weaver know he had been asleep on duty?
CCO Singh's account
CCO Singh is with the Escort and Security Branch and has worked for QCS for approximately 15 years. He was also on a rostered day off when he accepted the overtime shift at the PAHSU.[78]
[78] Respondent's Closing Submission filed 15 November 2021, 1 [6].
CCO Singh provided an Officer's Report[79] six days after the incident and accepted that was the most accurate recollection of events.[80]
[79] Exhibit 1, 4.
[80] T 2-140, ll 32-34.
CCO Singh's Officer's Report claimed that from 6:10 am until approximately 8:30 am, Mr Weaver was falling asleep continually:
CCO Paul Weaver commencing from 0610 Hours was falling off to sleep continually. I shook him a few times but he continued.
…
At approximately 0830 I informed the Acting Supervisor Scott Krueger that CSO Weaver was constantly closing his eyes and to speak with him whether he requires relief.[81]
[81] Exhibit 1, 4.
CCO Singh's evidence was that he had prodded Mr Weaver on two or three separate occasions,[82] prior to speaking with CCS Krueger about it at 8:30 am.[83]
[82] T 2-138, ll 35-37.
[83] T 2-145, ll 45-47.
However, in cross-examination when the video footage was viewed, CCO Singh accepted that the first occasion he became aware that Mr Weaver was asleep was at 8:43:54 am:
Mr Sibley:Okay. But you – do you agree with me that this is the first occasion that you have become aware that he is asleep?
CCO Singh: Yes.
Mr Sibley: And you've woken him up by touching him?
CCO Singh: Yes.
Mr Sibley:Okay. Do you accept that you did not say to him anything about him being asleep?
CCO Singh:I'm not sure whether I said it there or maybe later.
Mr Sibley:Maybe later?
CCO Singh:Yeah.
Mr Sibley:All right. So these things that you said that you had been doing on two, maybe even three occasions to – to wake up my client prior to going and seeing Mr – Officer Krueger at around 8:30, do you accept that, in fact, this is when that has happened? The first instance that we've seen of you being aware that my client is asleep and waking him up is at 8:43. Do you accept that?
CCO Singh:Eight-forty-three.
Mr Sibley:Okay. That's the first instance that you become aware of it?
CCO Singh:Yes.[84]
[84] T 2-180, ll 25-41.
CCO Singh asserted that Mrs Weaver came to visit Mr Weaver at his post at about 6:40 am, potentially 15 minutes either side.[85] CCO Singh stated that Mrs Weaver said words to the effect of "just keep an eye on him"[86] (meaning Mr Weaver) and that it had not been a joking conversation.
[85] T 2-145, ll 9-29.
[86] T 2-137, ll 1-2.
In his evidence in chief, CCO Singh said that he had informed Mr Weaver he was sleeping and that Mr Weaver replied "I'm okay. I'm okay".[87] That was not included in either his Officer's Report or interview with the investigator "because he didn't ask me".[88]
[87] T 2-138, ll 35-44.
[88] Exhibit 1, 168; T2-152, l 12.
[100]In cross examination, CCO Singh said Mr Weaver did not respond when he told him he had been asleep:
Mr Sibley: What was his response when you said "You're sleeping"?
CCO Singh: Say it again. I ---
Mr Sibley:What was Mr Weaver's response , now that you're telling us that you told him that he was asleep?
CCO Singh:He didn't say anything.
Mr Sibley:He didn't say anything?
CCO Singh:No.
Mr Sibley:So is it possible he wasn't even aware that you had said that?
CCO Singh:He was aware, but he said – I mean, he did not make any comment when I said, "Mate, you are sleeping."[89]
[89] T 2-152, ll 19-27.
However, earlier in his evidence in chief, CCO Singh stated that Mr Weaver did reply:
Dr Brooks:Okay. Now, did you do anything when you saw Mr Weaver was asleep?
CCO Singh:Yes. I actually prodded him a couple of times to say, "Hey, mate. Get up."
Dr Brooks:And when you say you prodded him a couple of times, do you mean you prodded him twice in succession or on two separate occasions?
CCO Singh:I think two or three separate occasions.
Dr Brooks:All right. Did you say anything to Mr Weaver?
CCO Singh:Yeah. I told him, "Mate, you're – you're falling off to sleep."
Dr Brooks:And what did Mr Weaver say in response? Do you recall?
CCO Singh:He'd say, "I'm okay. I'm okay." [90]
[90] T 2-138, ll 32-43.
[101]CCO Singh's Officer's Report and evidence is inconsistent with the video footage, in that:
·In cross examination, CCO Singh accepted that Mr Weaver had not been continuously falling asleep from 6:10 am until 8:30 am when he spoke to CCS Krueger, as he had claimed in his Officer's Report.[91] CCO Singh agreed that Mr Weaver's first confirmed microsleep was at 8:43:54 am according to the video footage.
[91] T 2-180, ll 25-41.
·The only time CCO Singh prods Mr Weaver awake is at 8:43 am. He had not shaken him a few times before he went to speak to CCS Krueger as claimed in his Officer's Report.[92]
[92] T 2-180, ll 1-10; Exhibit 1, 4.
·Mrs Weaver visited Mr Weaver and CCO Singh at 8:48am, in which a short jovial conversation occurs. The Applicant submitted that:
The brevity of the interaction between CCO Singh and Ms Weaver explains why CCO Singh may have believed this was not the interaction where he believed Ms Weaver said those words. In any event a statement to "Keep your eyes on him" does not infer that the Applicant or Ms Weaver was in any way aware the Applicant was at risk of falling asleep.[93]
[93] Applicant Closing Submissions filed 8 October 2021, 4 [26].
[102]Despite the inconsistency between the video footage, Officer's Report and ESG interview, CCO Singh's confidence in his own evidence was indefatigable. CCO Singh's Officer's Report was prepared 6 days after the incident occurred and is itself inconsistent with the video footage in several respects.
[103]One would presume inherent challenges in being asked to recall an incident with precision at an ESG interview and thence at a Hearing of the matter. Indeed the Respondent submitted that:
It is not unreasonable that more than three years after a shift, CCO Singh could not recall the precise number of occasions on which he touched the applicant.[94]
[94] Respondent's Closing Submissions filed 15 November 2021, 3 [17].
[104]Bluntly, CCO Singh himself did not agree. When it was suggested to him that he was placed in an unenviable position being asked to recall events some 11 months earlier within the investigation process, he was not concerned that his memory may have faded after 11 months had elapsed and neither was he concerned that his "memory of an incident two and a half, maybe three years later might be somewhat faulty as well."[95]
[95] T 2-194, ll 33-45.
[105]In my view, a failure to make sensible concessions throughout his evidence impacted on CCO Singh's credibility as a witness.
CCS Krueger's account
[106]CCS Krueger has worked with the QCS since 2012. He has been Acting Correctional Supervisor at the Escort and Services Branch for the past 5 years and was based at the PAHSU on this day.[96]
[96] Respondent's Closing Submission filed 15 November 2021, 2 [13].
[107]CCS Krueger's evidence was that it had been reported to him that Mr Weaver appeared to be asleep and that he had checked on him when doing his rounds.
[108]CCS Krueger suggested that he had seen Mr Weaver asleep and when calling out to Mr Weaver, he woke up and it appeared he wasn't aware that he was asleep and carried on as if nothing had happened.[97]
[97] T 3-82, ll 8-10.
[109]CCS Krueger's Officer's Report stated he had confronted Mr Weaver about falling asleep on duty and offered to arrange a break if he required it.[98]
[98] Exhibit 1, 7.
[110]CCS Krueger's oral evidence was that he offered Mr Weaver a relief break, however he resiled from the statement in his Officer's Report. Instead, CCS Krueger confirmed that at no time that day did he tell Mr Weaver he had been asleep:[99]
[99] T 3-82, ll 35-39; T 3-84, ll 1-10.
Mr Sibley:Right. So he didn't say anything about being asleep at that time, did he?
CCS Krueger: No.
Mr Sibley:And you didn't either, did you?
CCS Krueger: To my recollection…
Mr Sibley:No?
CCS Krueger: No.
[111]I found CCS Krueger to be an honest and credible witness. He gave a clear account of his recollection of the first two allegations and was an objective witness in these proceedings.
[112]CCS Krueger,[100] CCS Watts[101] and Mr Henderson[102] each gave evidence that an officer would be asked to complete a report if they had been found asleep. On the occasion of the second allegation, CCS Krueger did just that. The fact that CCS Krueger did not ask Mr Weaver to write an Officer's Report that day supports the position that he did not witness him asleep nor tell him others had observed him to have been asleep.
[100] T 3-123, ll 1-6.
[101] T 4-31, ll 3-8.
[102] T 4-77, ll 5-7.
NUM's email
[113]Evidence was given that the Nurse Unit Manager (NUM) had observed that Mr Weaver appeared to be asleep and had subsequently emailed Mr Peter Coyne. In that email, the NUM said she had reported her concern to CCS Krueger and observed that:
I am not sure why the second officers at the post do not take it upon themselves to rectify these situations and wait for the nursing staff to initiate reporting as was the case on Wednesday.[103]
[103] Exhibit 1, 3.
Mr Weaver's account
[114]Mr Weaver did not recall anyone telling him he was asleep, or indeed waking him up:[104]
[104] T 1-16, ll 10-15; T 1-53, ll 17-47.
Mr Sibley:All right. Now at any stage during that shift do you recall falling asleep?
Mr Weaver: No, I don't. No.
Mr Sibley: Okay. Do you recall anyone telling you that you were asleep?
Mr Weaver: No. No, I don't.
Mr Sibley: Do you recall anyone waking you up during the shift?
Mr Weaver: No.
[115]Mr Weaver indicated that it was entirely normal for an officer to be asked if they required a break and no inference was to be drawn from that.[105]
[105] T 1-53, ll 17-39.
Consideration
[116]So the sum of all those accounts is that whilst there were a number of staff who apparently saw Mr Weaver's microsleeps during that shift, CCO Singh alone did not resile from his claim to have told Mr Weaver of it.
[117]In the circumstances, I quite agree with the Applicant's submission that:
…the evidence of Singh is impossible to reconcile with the fact he left Mr Weaver for considerable periods of time on his own to watch the unrestrained prisoner.[106]
[106] Applicant's closing submissions filed 8 October 2021, 5 [36].
[118]In several critical elements, CCO Singh's Officer's Report, statements to the ESG investigator and oral evidence are inconsistent with the actual video footage.[107] At the Hearing, CCO Singh also gave contradictory evidence as to whether or not Mr Weaver responded when he told him he was asleep.[108]
[107] [101] of this Decision.
[108] [97] and [100] of this Decision.
[119]Throughout his evidence, Mr Weaver steadfastly held that he did not recall falling asleep, no one told him he had been asleep and he did not recall waking up or being woken from sleep.
[120]The medical expert supported the possibility that SOSA sufferers can microsleep during the day without knowing it. Dr Lee's evidence was that it is possible for someone suffering SOSA to fall asleep and be woken by someone touching their leg, and not being aware they were asleep, or that they had just awoke:
Mr Sibley:…If the person is asleep for a brief period, which as I understood, your opinion was up to minutes – if during that period somebody put their hand on their leg and even twice and the person then woke up, is it possible that that person, the sleeping person that is wouldn't be as well aware that someone else had touched their leg and they have woken up and not been aware of being asleep?
Dr Lee:Yes, with the – yes, is the simple answer but as often, the whole context needs to be taken into consideration, such as how long had they been actually asleep for, did they wake up for a long period of time, and then before falling back asleep, if they fell asleep, first of all. So I think the simple answer is, yes, it is possible, particularly if they weren't aware of the fact that they were asleep in the first place.
Mr Sibley:Okay. And would it also be particularly the case if that person didn't actually then say to them about being asleep after they have woken?
Dr Lee: You wouldn't know.
Mr Sibley: You wouldn't know. All right?
Dr Lee:You wouldn't know. When the awareness of symptoms is not there in the first place, why would you think that you would have fallen asleep in the first place if you give me an Epworth Score of four, say.
Mr Sibley: Yes. You would just carry on as though nothing had happened?
Dr Lee: Exactly…[109]
[109] T 1-43, ll 19-38.
[121]In weighing the evidence before me, I believe Mr Weaver's account. CCS Krueger confirmed in cross examination that he had not told Mr Weaver that he had been asleep. While the NUM reportedly saw Mr Weaver asleep, it is not contended that the NUM raised the matter directly with him. The medical evidence also supports that someone with SOSA can be woken without having been aware that they had been asleep.
[122]In light of all that, the outlier position was that of CCO Singh. I was entirely unimpressed with CCO Singh as a witness. CCO Singh was confident to the point of dogmatic in his evidence, however that was belied by his patchy recall of the facts. Throughout his evidence, CCO Singh failed to make sensible concessions until confronted with the clear contradiction of the video footage. I did not consider his responses to be measured and objective.
[123]I find that Mr Weaver was not informed and did not know that he had been asleep on duty on 10 October 2018.[110]
[110] Applicant's Reply Submissions, 6 December 2021, 2 [8].
Did Mr Weaver know that he had a propensity to fall asleep at that time?
[124]Mr Weaver's evidence was that he did not know that he had a propensity to microsleep at that time, as his medical condition was as yet undiagnosed.
[125]Before commencing his shift on 10 October 2018, Mr Weaver thought himself fit for duty.[111] That is consistent with the medical evidence. Dr Lee confirmed that SOSA sufferers "can wake pretty refreshed" [112] and that "it can be common for people to feel that they have been asleep the whole night". [113]
[111] T 1-11, ll 41-44; T 1-12, ll 1-5.
[112] T 1-38, ll 37-45.
[113] T 1-37, ll 41-42.
[126]I have earlier considered CCO Singh's account of an exchange with Mrs Weaver at about 6:40 am,[114] in which Mrs Weaver reportedly said words to the effect of "just keep an eye on him (Mr Weaver)"[115] and that the comment was not in jest. The video footage showed the time of Mrs Weaver's visit to be both considerably later[116] and light-hearted in tenor. Mr Weaver was present and did not recall any such exchange. There is no evidence before me that an exchange occurred in the terms described by CCO Singh, other than his own. To the extent of any inconsistencies between the evidence of Mr Weaver and CCO Singh, I prefer the evidence of Mr Weaver for the reasons I have outlined above.
[114] T 2-145, ll 9-29.
[115] T 2-137, ll 1-2.
[116] 8:48 am.
[127]The medical expert evidence of Dr Lee confirmed the diagnosis of Mr Weaver's medical condition as SOSA and he described its impact as follows:
Mr Sibley:…so a person who suffers from this level of severe sleep apnoea, is it fair to say that they're not getting enough quality sleep during that period that they're in bed?
Dr Lee:It is, it is. So there's no good quality sleep here whatsoever, I think, looking at this – looking at the sleep test.
Mr Sibley:All right. And is it possible that a person with this score may not be aware that they're having this sleep apnoea issue?
Dr Lee:It is possible [indistinct].[117]
[117] T 1-38, ll 13-21.
[128]Dr Lee gave evidence that Mr Weaver would not have considered himself to be sleepy with an Epworth Score of four.[118] He explained:
[118] Exhibit 1, 328.
Dr Lee:Without knowing any more of Mr Weaver, I guess the number that speaks most to me of Mr Weaver's unawareness of his symptoms is actually the Epworth Score, the ESS score of four. Which is a self-completed questionnaire of self-reported sleepiness. It is a validated tool for us to assess someone's awareness of their sleepiness whereby a score of less than 10 we would consider not sleepy. Anything more than 10 on that score, we would suggest that it – it would suggest that they are sleepy – they're reporting that they're sleepy.[119]
[119] T 1-41, ll 21-29.
…
Dr Lee:We use that score to assess someone's awareness of their sleepiness symptoms, if you like. So there are certain limitations but its validated [indistinct] when it's completed honestly, the person – I would say that Mr Weaver wasn't very aware that he was asleep – he was sleepy.[120]
[120] Ibid ll 45-46; T 1-42, ll 1-2.
…
Mr Sibley:But clearly, he is sleepy if he's falling asleep without notice – if that's something that's occurring?
Dr Lee:Well, yes. I will qualify that statement. I think he doesn't feel sleepy so it's possible for him to fall asleep briefly without noticing that he has fallen asleep because simply, he hasn't been aware of it.[121]
[121] T 1-42, ll 17-20.
[129]For all of those reasons, I find that Mr Weaver did not know that he had a propensity to microsleep at that time.
Allegation 1 Findings
[130]In summary, I find that:
·Mr Weaver was not "alert and performing constant observations of a prisoner at the Princess Alexander Hospital Secure Unit" for the entirety of the 12 hour shift on 10 October 2018;
·Mr Weaver had succumbed to brief periods of microsleep during that shift, due to his undiagnosed and untreated medical condition (SOSA) at that time;
·an incident did occur on that shift that Mr Weaver responded to with alacrity;
·Mr Weaver did not intend to sleep on duty;
·Mr Weaver did not know that he had been asleep on duty; and
·Mr Weaver did not know that he had a propensity to fall asleep at that time.
Question 2: Whether Mr Weaver engaged in the conduct subject of Allegation 2
[131]The second allegation was (emphasis added):
That on 15 October 2018 you were derelict in the performance of your duties, when you were required to be alert and performing constant observations of a prisoner at the Princess Alexander Hospital Secure Unit.[122]
[122] Exhibit 1, 442.
[132]The Show Cause Notice – Liability for Disciplinary Findings (SCN-LDF) issued to Mr Weaver explained the problem with the alleged conduct as:
Your actions on 15 October 2018 including closing your eyes, dozing and/or being asleep for short periods of time, placed yourself, your fellow officers, the prisoner and the public at risk.
Your actions also created a potential security risk in that you were in no condition to respond to an emergency had the situation required for it.[123]
[123] Ibid 371.
[133]The SCN-LDF advised Mr Weaver that he may be liable to disciplinary action on the following basis (emphasis added):
(a)Pursuant to s 187(1)(b) of the Act, in that you have been guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).
Alternatively,
(b)Pursuant to s 187(1)(a) of the Act, in that you have performed your duties carelessly, incompetently or inefficiently.
Alternatively,
(c)Pursuant to s 187(1)(f)(ii) of the Act, in that you have contravened, without reasonable excuse, a standard of conduct applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, namely the Code of Conduct for the Queensland Public Service (the Code)…[124]
[124] Exhibit 1, 368.
[134]The Show Cause Notice – Decision on Disciplinary Action (SCN-DDA) issued to Mr Weaver finally concluded that (emphasis added):
In respect to Allegations 1, 2 and 3, pursuant to section 187(1)(b) of the Public Service Act 2008 (the Act), you are guilty of misconduct, namely inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).[125]
[125] Ibid 442.
[135]It is noted that the allegation investigated by the ESG was earlier cast as (emphasis added):
That on 15 October 2018 you were not fit for duty at your post at the Princess Alexander Hospital Secure Unit.[126]
[126] Ibid 366.
Nature of the shift on 15 October 2018
[136]Mr Weaver was working an overtime shift of 12 hour duration, 6 am to 6 pm.[127]
[127] Ibid 370.
[137]The CCO duties he was required to perform was "constant observation duties of the prisoner".[128] The open door observations involved "monitoring the prisoner so that she did not attempt to harm herself in any way."[129]
[128] Ibid.
[129] Ibid.
[138]Mr Weaver and (then CCO, now CCS) CCS Cook were the pair of Officers assigned to perform the duties with respect to that particular prisoner for that shift. They were "located at the doorway of room 3 and were seated in two armchairs."[130]
[130] Ibid; The Officers' Reports at Exhibit 1, 24-30, 49-55 and Respondent's Closing Submissions filed 15 November 2021 all refer to Allegation Two instead occurring outside Room 2, rather than Room 3. However, whether it was Room 3 or Room 2 is not material to my considerations.
Was Mr Weaver "awake and alert" and "performing constant observations" of a prisoner?
[139]It is not disputed that Mr Weaver had more than likely succumbed to microsleeps on 15 October 2018. Mr Weaver "accepts that he was more than likely asleep or dozing for brief moments on the relevant dates." [131]
[131] Applicant's Statement of Facts and Contentions filed 10 November 2020, 5 [3.1].
[140]The Respondent noted that the video footage showed Mr Weaver to be not moving at 9.04.58.95 am, 9.05.07.23 am, 9.05.42 am, 9.23.01 am, 9.23.10.42 am and 1.43.20 pm. Mr Weaver did not recall being asleep and was not aware that he had been asleep at those times, though he did accept that it were possible he may have succumbed to microsleep at various times.[132]
[132] Respondent's Closing Submissions filed 15 November 2021, 4 [27]; Respondent's Table Summary of CCTV Footage filed 15 November 2021; T 1–63, l 38.
[141]With respect to the 9.04.58.95 am time stamp, Mr Weaver's evidence was that he did not recall being asleep, was not aware that he had been asleep, no one spoke to him at that time about being asleep - though he did accept that it was "absolutely possible" that he may have succumbed to microsleep.[133]
[133] T 1-63, ll 32-44.
[142]With respect to the 9.05.07.23 am time stamp, Mr Weaver asserted that "I certainly believe I am awake because I'm not aware that I was asleep". Although he agreed that he may have fallen asleep and woken up because "…certainly, my being able to view the footage, it's obvious that that's certainly something that could have happened" as "I was startled, yes. Yep." At that time, Mr Weaver accepted that he may have succumbed to microsleep.[134]
[134] T 1-64, ll 1-16.
[143]With respect to the 9.05.42 am time stamp, Mr Weaver concluded he did not recall being asleep, was not aware that he had been asleep, no one spoke to him at that time about being asleep - though he did accept that it was "certainly possible" that he may have succumbed to microsleep.[135]
[135] Ibid ll 18-30.
[144]With respect to the 9.23.01 am time stamp, Mr Weaver said that he was not aware that he had been asleep, CCS Cook had not spoken to him at that time about being asleep, he had no recollection of CCS Cook touching him, tapping him or the like, he had no recollection of making a snoring, snorting or any other sort of noise - though he did accept that it appeared he had another brief episode where he had startled.[136]
[136] T 1-66, ll 1-18.
[145]With respect to the 9.23.10.42 am time stamp, Mr Weaver concluded he did not recall being asleep and was not aware if he had been asleep.
[146]With respect to the 1.43.20 pm time stamp, Mr Weaver observed the footage to show CCS Krueger coming down the hall and CCS Cook sitting beside him outside the prisoner's room. He said he was not aware that he was asleep. Mr Weaver's evidence was that he and CCS Krueger then went up the corridor together. At that point, he was told by CCS Krueger that he thought he might have been asleep and was asked to do an Officer's Report.[137]
[137] T 2-22, ll 4-33.
[147]With respect to the video footage of the incident subject of Allegation 2, the ESG investigator described Mr Weaver's observed behaviours as:
…sleeping, dozing, in very short bursts, a minute, a minute and a-half, and then you're awake…[138]
[138] Exhibit 1, 244 [182]-[184], 246 [213] when discussing Allegation 2.
[148]CCS Cook's evidence was:
Dr Brooks: How long were his eyes closed for?
CCS Cook:Well, it – it depends how long he was asleep for at the time. Like, it could be a couple of seconds sometimes, and then at other times, it could be like up to 30 – 40 seconds, and I'd give him a tap with my foot.[139]
[139] T 3-7, ll 29-31.
[149]CCS Cook accepted that the statement contained in her Officer's Report that Mr Weaver "continually was falling asleep and snoring"[140] was harsh, given the video footage showed that he had not been asleep prior to 9 am.[141]
[140] Exhibit 1, 27.
[141] T 3-34, ll 3-5.
[150]In paragraphs [77]-[78] above, the medical evidence described that people suffering from untreated SOSA commonly fall asleep for brief periods. The statements of the ESG investigator and CCS Cook, the medical evidence and video footage are all consistent on that point.
[151]As I have previously observed in my consideration of Allegation 1, it cannot be the case that Mr Weaver was both "awake and alert" and succumbing to microsleeps, even if it were the case that was for brief periods.
[152]With respect to the duty to "perform constant observations" of the prisoner, the records variously showed either Mr Weaver's or CCS Cook's initials at 15 minute intervals as required,[142] confirming the observations performed by the CCO pair throughout the shift until "CCO Weaver off post" at 4:10 pm.[143] However, I appreciate that initialling the Constant Observation record sheet is not the same as the express requirement to constantly observe the prisoner at risk of self-harm.
[142] Exhibit 1, 37.
[143] Ibid 38.
[153]At 1:43 pm,[144] CCS Krueger directed Mr Weaver to prepare an Officer's Report after observing him to be asleep on duty.[145] Mr Weaver was not of course undertaking constant observations of the prisoner in that period of absence, whilst he was meeting with CCS Krueger and composing his Officer's Report. However, the video footage showed that Mr Weaver was otherwise discharging the duty to perform constant observations.
[144] T 3-54, l 10; T 3-71, l 29.
[145] T 3-71, ll 35-37.
Response to emergency
[154]No emergency requiring response arose in the period that Mr Weaver was on duty that day.
Did Mr Weaver intend to sleep on duty?
[155]The video footage shows Mr Weaver taking active steps to ensure his alertness throughout the shift, including reading, watching television, conversing, drinking tea, standing and moving from a sedentary position.[146]
[146] Exhibit 3; Applicant's Closing Submissions filed 8 October 2021, 5 [39]; T 3-38, ll 7-10.
[156]Further Mr Weaver had not positioned himself in such a manner that would increase his risk of falling asleep. CCS Cook's evidence confirmed that Mr Weaver had not done anything deliberately to make himself comfortable so that he could take a nap.[147]
[147] T 3-48, ll 33-46; T 3-49, ll 1-6.
[157]In my view, Mr Weaver could not be said to be indifferent as to whether or not he succumbed to fatigue.
Did Mr Weaver know he had been asleep on duty?
CCS Cook's account
[158]CCS Cook is a Custodial Correctional Supervisor at Brisbane Women's Correctional Centre and has worked for QCS for more than 31 years.[148] She was working as a CCO at the PAHSU on this day.
[148] Respondent's Closing Submissions filed 15 November 2021, 4 [25].
[159]CCS Cook's Officer Report stated that Mr Weaver had been continually falling asleep and snoring and that she had woken him on several occasions. CCS Cook wrote that she reported the situation to CCS Krueger at approximately 10 am. Further, that when CCS Krueger was doing his rounds he found Mr Weaver asleep and removed him from his post at about 1:30 pm.[149] CCS Cook does not claim to have told Mr Weaver that he had been asleep in her Officer's Report.
[149] Exhibit 1, 27.
[160]At the Hearing, CCS Cook confirmed that her claim that Mr Weaver was continually sleeping between 6:15 am and 10 am was harsh,[150] in light of the video footage that showed Mr Weaver had not been asleep before 9 am.
[150] T 3-34, ll 3-5.
[161]In her interview with the ESG Investigator, CCS Cook indicated that she thought Mr Weaver had been aware that he had been asleep on occasion because he tapped his legs and "jumped" upon waking. She said "he would say sorry mate" and asked her to nudge him.[151]
[151] Exhibit 1, 192.
[162]At the Hearing, CCS Cook's evidence was:
CCS Cook: I tapped him on the foot a few times, which woke him up.
Dr Brooks:All right. And what did you observe of Mr Weaver after you'd tapped him on the foot? What did he do, if anything?
CCS Cook:Well, what he was doing was, he was tapping his hands on his knees like that. And – and –
Dr Brooks:When was he doing that?
CCS Cook:And he would –
Dr Brooks:After?
CCS Cook:After I nudged him –
Dr Brooks:Right?
CCS Cook:and he'd say, "Sorry Cookie", and then he'd just tap his hands and then –
Dr Brooks:And what would happen after that?
CCS Cook:Then he'd start snoring again.[152]
[152] T 3-8, ll 5-19.
[163]CCS Cook couldn't recall whether anyone had told Mr Weaver that he had been asleep prior to CCS Krueger directing him to write an Officer's Report.[153] CCS Cook then affirmed the proposition that it was likely that any exchange between Mr Weaver and herself about him having been asleep would have happened after he came back from meeting with CCS Krueger.[154]
[153] T 3-44, ll 42-46; T 3-45, ll 1-10.
[154] T 3-45, ll 11-20.
[164]In cross examination, CCS Cook further agreed that Mr Weaver's request that she just nudge him if he falls asleep was made after he had returned from writing his Officer's Report as directed and after being told by CCS Krueger that he may have been asleep. CCS Cook indicated that Mr Weaver's comment was apologetic.
[165]In re-examination, CCS Cook explained that Mr Weaver had apologised to her when she had tapped his foot to wake him and again after his return from CCS Krueger's office after 1:45 pm.[155] However, in earlier evidence, CCS Cook had also agreed with the proposition put to her that Mr Weaver had "woken up and carried on as though nothing's happened".[156]
[155] T 3-59, ll 15-21.
[156] T 3-48, ll 12-13.
[166]The Applicant has submitted that CCS Cook's evidence is inconsistent on the exact time or times that Mr Weaver apologised to her.[157] That is significant in my consideration of whether Mr Weaver knew he had been asleep on duty. However, that is to be expected in circumstances where CCS Cook readily agreed that it was difficult for her to recall the details of an incident that had taken place some 10 months prior to the interview with the ESG investigator where she hadn't been given the opportunity to first view the video footage.[158] It is also the case that, in cross examination, CCS Cook accepted that given the time that had elapsed she may have conflated her recollections into one overall description of the incident as a general commentary.[159]
[157] Applicant's closing submissions, filed 8 October 2021, 6 [47].
[158] T 3-14.
[159] T 3-44, ll 30-31.
[167]My impression of CCS Cook was that she was straight-forward and fair-minded. She is an experienced Officer who presented as having a clear sense of her duty to QCS, colleagues and prisoners alike. As a witness, CCS Cook made sensible concessions and gave an objective account of matters as she was able to recall them.
CCS Krueger's account
[168]In his Officer's Report, CCS Krueger stated that CCS Cook advised him at approximately 10 am that "it appeared Paul Weaver was falling asleep and had to constantly talk a bit louder and nudge him to keep him awake." CCS Krueger wrote that, at about 11:15 am:
I said that it wasn't acceptable for anyone to appear to be asleep, especially on an open door. He acknowledged my comments…[160]
[160] Exhibit 1, 24.
While completing his rounds at approximately 1:45 pm, CCS Krueger noted:
…it appeared Paul had fallen asleep again. I called out his name a couple of times and he appeared to wake up. I spoke to Paul again and advised him that this is totally unacceptable and I would arrange for you to be relieved while a report is submitted…[161]
[161] Ibid.
[169]At the Hearing, CCS Krueger's evidence was that Mr Weaver appeared to be asleep when he walked up behind him[162] at 11:15 am[163] but that he woke up once CCS Krueger spoke to him.[164] CCS Krueger then asked whether Mr Weaver needed a break, to which he replied that he did not need a break and was not fatigued.[165]
[162] T 3-104, l 35.
[163] T 3-105, ll 12-14.
[164] T 3-104, l 29.
[165] T 3-105, ll 12-34.
[170]CCS Krueger's account was that:
Dr Brooks:All right. Officer Krueger, after you had that conversation with custodial supervisor Cook, what did you do?
[508]It has affected Mr Weaver's wife and her work. Mr Henderson's evidence was that:
Mr Henderson: So I only found out that Paul had been dismissed when his wife came up and asked to get moved from a roster. I touched base with Paul's wife, another high performing officer that does at a lot of overtime and involved in a lot of roles in the centre. She came up to me very upset and wanted to move roster. So it was again from one area to another area, just moving her down into residential, because she didn't want to face questions about Paul being dismissed. And that's the first time I found out Paul had been dismissed.[452]
[452] T 4-73, ll 27-33.
[509]Mr Weaver also spoke about the impact of his dismissal on his family in these terms:
Mr Weaver:I'm married. My wife works with Corrective Services so there was a certain level of embarrassment that we'd been suffering because of it. We have – my wife and three teenage girls. So they're ours and we look after – so I had – we had that. We had a house that we had to look after. You know, a car. I was concerned about superannuation going forward as well so – and retirement given my age so – yeah – I – there was a lot of financial issues to be – to be taken into consideration with that.
Mr Sibley:Now, at this time there was also the issue of the COVID pandemic?
Mr Weaver:That's correct.
…
Mr Sibley:So you were concerned that there'd be less options for you?
Mr Weaver:Absolutely. Yes.[453]
[453] T 2-71, ll 14-30.
[510]The SCN – DDF & PDA Response provided on behalf of Mr Weaver on 21 May 2020 outlined the personal impact of termination on Mr Weaver and proposed an alternative suggestion of a more appropriate disciplinary penalty in the circumstances.
[511]While AC Shaddock's DDA correspondence indicated that Mr Weaver's submissions in relation to the impact termination of employment would have on his personal and family circumstances were carefully considered, he did not consider that outweighed the seriousness of the conduct.[454]
[454] Exhibit 1, 448.
[512]When considered in concert with the fact that the said conduct occurred involuntarily and without awareness on the part of Mr Weaver, the decision to terminate his employment was harsh in my view.
Disproportionate nature of the disciplinary action
[513]I have also considered the disproportionate nature of the disciplinary action.
[514]The muddle of the two different decision makers making two different disciplinary penalty determinations in this matter is front of mind. Even with a disciplinary finding of 'misconduct' before him (which I have disturbed in this Decision), DC McCahon had determined the appropriate disciplinary penalty to be a formal warning letter of reprimand.
[515]However, with the same set of facts before him, AC Shaddock made a very different decision, one at the opposite end of the disciplinary penalty range available to him.
[516]I do not believe that discrepancy can be explained as a case of reasonable minds differing. Instead, I rather consider that difference to be accounted for by AC Shaddock being so encumbered with a deep-held view about Mr Weaver's 'character' harking back to the resolved 2017 disciplinary incident.
[517]I acknowledge that AC Shaddock expressly rejected the proposition put to him as to whether it was his intention to repunish Mr Weaver for that earlier 2017 incident. But in the absence of any clear or persuasive reason as to what caused AC Shaddock's change of heart with respect to the appropriate disciplinary penalty, I have explained why I believe that may subconsciously have been the case.
[518]AC Papalia also gave evidence about a number of similar matters and the different treatment each received:
AC Papalia:…I mentioned earlier that in the time I've been here, we've had 17 matters that was similar in nature. I'm aware of a variety of outcome. So in my response, I did include the full suite of outcome in terms of potential sanction that could be faced by Mr Weaver. I know that of the 17, five officers have been returned to duty with no – other than a reminder of obligation outcome. Of the remaining 12, there was a variety of disciplinary sanctions applied through from reduction in level to loss of employment.[455]
[455] T 5-9, ll 10-16.
[519]For the reasons explained above, the disproportionate nature of the disciplinary action determined to terminate Mr Weaver's employment was harsh in my view.
Question 9: Whether reinstatement is impracticable or otherwise inappropriate
[520]Having found that the decision to terminate Mr Weaver's employment was harsh, unjust or unreasonable on the eleven grounds reasoned above, my consideration now turns to the appropriate remedy.
[521]Mr Weaver seeks reinstatement to his former position without loss of service and compensation (being reimbursement lost because of the dismissal) from the date the dismissal took effect and the date of reinstatement.[456] That is, from 5 August 2020 to the release of this Decision.
[456] Application for Reinstatement filed on 21 August 2020.
[522]Mr Weaver's application was made under s 317 of the IR Act. The remedies he seeks are available under ss 321 and 322 of the IR Act in particular circumstances:
321 Remedies—reinstatement or re-employment
(1) This section applies if the commission is satisfied an employee was unfairly dismissed.
(2)The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
(3)If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.
(4) The commission may also—
(a)make an order it considers necessary to maintain the continuity of the employee's employment or service;
and
(b)order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and
(c)order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.
(5)This section does not limit the commission's power to make an interim or interlocutory order.
322 Remedies—compensation
(1)If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of
compensation decided by the commission.
(2) The commission must not award an amount of compensation that is more than—
(a)if the employee was employed under an industrial instrument—the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or
(b)if the employee was not employed under an industrial instrument—the lesser of the wages under paragraph (a) and an amount equal to half the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.
(3)The commission must take into account any amount paid to the employee by the employer on the dismissal.
(4)This section does not limit the commission's power to make an interim or interlocutory order.
Trust and confidence
[523]Vice President O'Connor previously considered the effect of a loss of trust and confidence on the question of the 'practicability' of a reinstatement remedy. In Ball,[457] his Honour cited with approval the Full Court of the NSW Industrial Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd (emphasis added):
[457] [2021] QIRC 116, 42 [197].
Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.
Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.[458]
[458] (1997) 72 IR 186, 191.
[524]The Applicant submitted that "it is simply untenable for the Respondent to say there has been a loss of trust or confidence" in circumstances where a lengthy period elapsed between the alleged events and initiation of paid suspension, and with respect to the duties performed by Mr Weaver in the intervening period.[459]
[459] Applicant's Closing Submissions, filed 8 October 2021, 10 [77].
[525]It was submitted on behalf of the Applicant that he:
….was not suspended after the incident occurred, and whilst he was placed on alternative duties for a short period of time, he was, by June 2019, reinstated to his substantive role, and he continued in that role for a further eight months before being suspended from his position.
…the alternative duties that he performed…involved a very high degree of trust and a very high degree of responsibility and in our submission that indicates that they had not lost trust in his ability as a correctional officer to perform those roles.[460]
[460] T 1-6, ll 34-43.
[526]The Applicant further asserts that "the doctrine of condonation applies to the extent that the Respondent relies upon the misconduct which they say justified dismissal."[461]
[461] Antony Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226, [40]-[41]; Applicant's Closing Submissions, filed 8 October 2021, 10 [77].
[527]That argument is expressly rejected by the Respondent.[462] The Respondent has submitted that:
[462] Respondent's Closing Submissions filed 15 November 2021, 9 [65].
The transfer of the Applicant to alternative duties from 4 February 2019 was consistent with the Respondent's statutory obligations.[463]
[463] "…to consider all alternative duties that may be available for the employee to perform"; Respondent's Statement of Facts and Contentions filed 17 November 2020, 6 [46].
…
…the decision to return the Applicant to his usual roster was made prior to the conclusion of the Ethical Standards Unit investigation. The Applicant was suspended from duty when a decision maker with delegated authority to suspend the Applicant from duty reviewed the investigation report and determined to commence a disciplinary process. The decision to return the Applicant to his usual roster does not alter the seriousness of his conduct.
The fact that the Applicant remained in the workplace until 12 February 2020 does not prevent a finding that the Respondent had lost trust and confidence in his ability to comply with his obligations as an employee, noting the repeated nature of his conduct.[464]
[464] Respondent's Statement of Facts and Contentions filed 17 November 2020, 5-6 [47]-[48].
[528]Earlier in this Decision, I have considered the length of time that had elapsed between the allegations and initiation of paid suspension, the high-level of responsibility that remained inherent in the 'non-prisoner contact' duties Mr Weaver performed in the intervening period, the evidence that the SOSA medical condition had resolved due to Mr Weaver's active continued attention and Mr Henderson's high regard for him as an officer.
[529]On all those measures, any suggestion that there has been a loss of trust and confidence that would prevent Mr Weaver's reinstatement does not hold water in my view.
AC Shaddock
[530]AC Shaddock has made no secret of his view of Mr Weaver's 'character' throughout this proceeding. I believe that was a significant factor that led to him ultimately concluding that termination was the appropriate disciplinary penalty, departing from the option of his earlier notated 'consideration' – and a significant departure from the 'reprimand' that DC McCahon had separately and independently determined to apply.
[531]The significant factor in AC Shaddock's assessment of 'trust and confidence' was the earlier 2017 incident in which Mr Weaver was said to have alerted colleagues to a covert operation at the correctional facility in which staff bags would be checked. To be clear, that earlier incident had been investigated, the penalty of reprimand applied to Mr Weaver and the matter closed.
[532]At the Hearing, AC Shaddock denied that he was repunishing Mr Weaver for that earlier incident by terminating his employment.
[533]Nonetheless, it was self-evident that AC Shaddock continued to harbour a negative opinion of Mr Weaver's character as a result of that prior event. AC Shaddock's evidence on that issue was reproduced at paragraph [437] of this Decision and need not be again repeated here.
[534]AC Shaddock is currently Assistant Commissioner for the Central Northern Region Command for Queensland Corrective Services, that is the area described as "From Woodford north".[465] I recognise that in the event that Mr Weaver was reinstated to "a role as a correctional officer in Borallon or the Brisbane area",[466] he would fall under the Southern Command and AC Ursula Roter.[467]
[465] T 5-152, l 31.
[466] Ibid ll 35-36.
[467] Ibid ll 28-46; T 5-153, ll 1-4.
AC Papalia
[535]For his part, AC Papalia ruminated that "…part of the confidence for me is that how – how honest and forefront are they in terms of their [indistinct] we seek to promote that".[468]
[468] T 5-76, ll 35-36.
[536]AC Papalia went on to agree though that he would have confidence in someone returning to work where their prior medical condition had been resolved:
Mr Sibley:So I mean, if the sole issue is about their fitness for duty because of a sleeping disorder and that's been rectified and they're now fit for duty, you'd have confidence in them being returned to work, wouldn't you?
AC Papalia:Commissioner, I see that as no different than any other medical condition, If it's diagnosed medical condition and there's treatment available and we can fulfil that treatment then that's the approach we'd take. If an officer was on the floor having a stroke, then we would look to try and respond to the medical condition.[469]
[469] T 5-77, ll 6-12.
[537]He made positive comment about the positive actions taken by Mr Weaver to resume his health and well-being in these terms:
Mr Sibley:And you didn't, as you say, you didn't make the decision in Mr Weaver's case but you certainly consider it commendable that he took such quick action to identify his medical condition and to rectify it?
AC Papalia:What I feel is commendable regarding Mr Weaver's action is that he's taken active steps in terms of getting diagnosed but then followed a treatment program and, candidly, he's lost a lot of weight. I understand that that contributes to the risk. I think those are very commendable actions, not only for, you know, a potential work environment but for personal survivability.[470]
[470] T 5-76, ll 25-31.
Mr Henderson
[538]I recognise that AC Shaddock's assessment of Mr Weaver's character was at odds with that of Mr Henderson, General Manager, Brisbane Correctional Centre. Mr Henderson's evidence was effusive that he held Mr Weaver in high regard.
[539]Mr Henderson spoke of being required to serve the SCN - LDF, informing Mr Weaver that he was to be placed on paid suspension in these terms:
Dr Brooks: All right. And you gave it to him a couple of days after you received it?
Mr Henderson: Yes.
Dr Brooks:Why was that?
Mr Henderson: I had a conversation with the delegate that night.
Dr Brooks:Who is that?
Mr Henderson: Peter Shaddock.
Dr Brooks:Yes?
Mr Henderson: Where I rang him up and voiced a range of concerns about serving this document on Mr Weaver.
Dr Brooks:All right. And what concerns did you hold?
Mr Henderson: I had concerns – I struggled with the fact that these incidents happened a year previously, 12, 14 months previously, that we'd kept Mr Weaver in the workplace. We'd placed a great deal of responsibility on him, including managing our gatehouse, response vehicles, and master controls. So I voiced my concerns about that. I voiced my moral concerns about serving it. I voiced my concerns that I thought this was procedurally fraught with contestability.[471]
[471] T 4-60, ll 42-46; T 4-61, ll 1-9.
[540]Mr Henderson's assessment proved apposite in this case.
[541]Further, Mr Weaver's conduct upon suspension did not seem to create any impediments to his return to QCS:
Mr Sibley:Okay. When – when you spoke to Paul about all these issues, and in fact, you've reviewed that document that he prepared in relation to the suspension, did Mr Weaver – sorry, I shouldn't say Paul, Mr Weaver, did he appear aggressive or defensive about his – in his manner?
Mr Henderson: Paul has never appeared aggressive or defensive about anything that he's had in his involvement of me. I've always – he was a professional corrections officer with me.
Mr Sibley:So he wasn't lashing out or making disparaging comments about anyone?
Mr Henderson: No. My conversation, if I can – he was – my conversation when I first spoke to him about it, he was somewhat surprised that we'd ended up in these circumstances and almost dismayed that I was suspending him – well, I was providing him suspension paper. I had concerns about his mental health in regards to it. I have concerns when we suspend everybody about their mental health. But he was gobsmacked.[472]
[472] T 4-76, ll 31-44.
CCOs and CSOs
[542]Several CCOs and CSOs who gave evidence were asked whether they would be confident working alongside Mr Weaver once again, should medical evidence show that his medical condition was now appropriately managed. Each of the witnesses below affirmed that they would be prepared to again work with Mr Weaver in those circumstances.
[543]CCO Sheahan's evidence was as follows:
Mr Sibley:…so your only issue about Mr Weaver, is it fair to say, is that he – that there was a risk that he would fall asleep?
CCO Sheahan: Correct.
Mr Sibley:And if you knew now, or you know now that that is no longer a risk because he's treated for sleep apnoea, would you be confident and have trust in him to be able to form that role without falling asleep?
CCO Sheahan: If it was treated and it was proven that it was treated, I wouldn't have an issue.[473]
[473] T 3-179, ll 5-11.
[544]CCS Krueger's evidence was as follows:
Mr Sibley:Is that yes to my question, that you would have confidence that if he was no longer at risk of falling asleep while he was on duty, because the sleeping – the falling asleep had been caused by a medical condition that he'd rectified – you would then be confident and have trust in him to perform his duty?
CCS Krueger: Obviously, yes, I would have to – I'd have to agree, yes.
Mr Sibley: You would?
CCS Krueger: Yes.[474]
[474] T 3-123, ll 26-33.
[545]CCS Cook's evidence was as follows:
Mr Sibley:…if you were of the understanding that a person in Mr Weaver's position, in hindsight, was unaware that they were falling in and out of sleep because of their medical condition, and they had that condition rectified such that they would no longer be at risk of falling in and out of sleep during a shift, would you have confidence in working alongside Mr Weaver?
CCS Cook:If Mr Weaver's aware of what his medical condition is now and he's being treated for it, I don't have any issue with working with Mr Weaver at all.
Mr Sibley:Because the only issue that caused you concern was the fact that he was falling in and out of sleep?
CCS Cook: That's correct. Yes.
Mr Sibley:All right. And so I suggest to you that in circumstances where he had treated that medical condition and he was no longer at risk of falling asleep – in and out of sleep – during a shift, you would have full trust and confidence in working alongside him?
CCS Cook: Absolutely. Yes.[475]
[475] T 3-58, ll 20-34.
[546]CCO Singh's evidence was as follows:
Mr Sibley:…If I said to you that he had a medical condition at the time that meant that he was falling asleep during the day without being aware of it and being unable to control it, okay, so he wasn't aware that he was falling asleep and he wasn't able to control the fac that he would fall asleep, and when he woke up, he may not even have been aware that he was asleep. If that condition was rectified, such that he was no longer at risk of falling asleep during times that he should be awake, but, like, at work, would you feel confident to work with him and trust him as a colleague to stand beside you?
CCO Singh:Yes.[476]
[476] T 2-194, ll 18-25.
[547]Notwithstanding AC Shaddock's contrary view of Mr Weaver, the CCOs who gave evidence in this case indicated they would not have any issues working with Mr Weaver in the event that he was reinstated, providing his medical condition was now appropriately managed.
Impact of Mr Weaver's written response provided to the ESG Investigator
[548]With respect to the Respondent's assertion that "reinstatement is not appropriate because there has been a justifiable loss of trust and confidence" with respect to Mr Weaver's written response provided at interview with the ESG Investigator on 6 September 2019, my assessment is that Mr Weaver, CCS Watts and CCO Sheahan had all recounted snippets of what Prisoner [X] had said to them about another officer at some time during the ESG Investigation, within their Officer Reports or throughout the disciplinary process.
[549]CCS Watts objected to what the prisoner was said to have told Mr Weaver about her – just as Mr Weaver had objected to what the prisoner said about him.
[550]Ultimately, the prisoner declined to be interviewed and it was noted by the ESG Investigator that he was now ensconced as an in-patient at a psychiatric facility.
[551]Even so, it was generally accepted by the relevant witnesses that on 28 January 2019, Prisoner [X] was already a "difficult customer", rambling, playing staff off against each other and altogether a very unwell individual.
[552]Against that backdrop, it is unsurprising that he said things about at least two officers that day, and succeeded in causing upset to both of them.
[553]I quite agree with AC Papalia's sensible observation that in such circumstances, little weight would be given to the word of the prisoner - and as it was he declined to be interviewed.
Remedy
[554]At the Hearing of this matter, it was submitted that:
…there has been no loss of trust and confidence in the applicant and the appropriate remedy would be the Commission find…that the dismissal was harsh, unjust or unreasonable and to reinstate (Mr Weaver) to his former position.[477]
[477] T 1-6, ll 45-46; T 1-7, ll 1-2.
[555]For the reasons explained above, I find that reinstatement is the appropriate remedy in this case.
Conclusion
[556]Mr Weaver impressed me as a straightforward, hardworking and diligent person – the type of person that most would feel fortunate to have in their employ.
[557]The video footage I have viewed extensively over the course of the Hearing showed Mr Weaver to be conscientious in remaining at his post as required, taking active steps to manage his fatigue, engaging pleasantly with people around him and using some of the available time to review work-related material.
[558]When Mr Weaver was made aware that he had fallen asleep by CCS Krueger, he took a period of leave to refresh shortly thereafter and then sought medical advice in order to investigate whether there may be any underlying issue. Once Mr Weaver obtained a medical diagnosis for a problem only recently suspected, he acted to remedy the problem with commendable alacrity. His actions included seeking expert medical advice and assessment, purchasing a special machine at considerable personal expense and faithfully following a weight loss regime with great success.
[559]Mr Weaver appraised the ESG investigator and QCS of his medical condition, once a diagnosis was obtained. In my view, Mr Weaver engaged with the investigation and subsequent show cause process appropriately given all the circumstances. It is entirely understandable that Mr Weaver could only provide answers within his knowledge at any point in time. QCS made much of Mr Weaver's continuation to deny he was asleep on duty even after he was aware of the SOSA diagnosis. However, the medical evidence confirmed that someone with an Epworth score of 4 may not well feel sleepy and that it were possible that Mr Weaver was not aware that he had fallen asleep or woken up. I have accepted Mr Weaver's account that was in fact the case.
[560]I find it concerning that Mr Weaver was required to respond to allegations that occurred some considerable time ago, in circumstances where the available video footage was not first provided to him.
[561]Further procedural problems were that all relevant witnesses were not interviewed and that the entirety of the material relied upon in taking the decision to terminate Mr Weaver's employment was not first put to him for response ahead of any disciplinary finding being made.
[562]I have considered other relevant factors mandated by s 320 of the IR Act, including Mr Weaver's length of service, the personal impacts of termination, evidence that he is held in high regard and his commendable contribution and commitment to QCS. Those factors were certainly considered against an isolated incident of disciplinary action in 2017.
[563]Having seen medical evidence that Mr Weaver is fit to perform duties and evidence that he had successfully done so leading up to his suspension, I am satisfied that Mr Weaver can and should be reinstated.
[564]Ultimately my considerations of procedural fairness, whether the allegations could be substantiated, misconduct and whether Mr Weaver was derelict the performance of his duties have led to my conclusion that the termination of Mr Weaver's employment was harsh, unjust and unreasonable. The evidence supporting this conclusion is overwhelming in my opinion.
[565]It was not a fair decision in the circumstances for the eleven grounds I have explained above. Those reasons include significant procedural errors within the disciplinary process.
[566]I find that the termination of Mr Weaver's employment was harsh, unjust and unreasonable.
[567]The application for reinstatement is granted.
Orders:
1. Pursuant to s 321(2) of the Industrial Relations Act 2016 (Qld), Mr Weaver is to be reinstated to his former position on conditions at least as favourable as the conditions on which he was employed immediately before dismissal.
2.Pursuant to s 321(4)(a) of the Industrial Relations Act 2016 (Qld), Mr Weaver’s continuity of employment shall be maintained between the date his dismissal took effect on 5 August 2020 and the date of reinstatement (the relevant period).
3.
(a) Pursuant to s 321(4)(b), (c) of the Industrial Relations Act 2016 (Qld), the Respondent shall pay to Mr Weaver:
i.the remuneration lost, or likely to have been lost, by Mr Weaver because of the dismissal in the relevant period;
Less:
ii.the monies earnt by Mr Weaver in the relevant period; and
iii.the monies paid by the Respondent to Mr Weaver, by way of notice upon the termination of his employment; and
iv.any monies paid by the Respondent to Mr Weaver for any accrued entitlements upon the termination of his employment (provided those accrued entitlements are now to be reinstated).
(b) The gross amount shall be taxed according to Australian Law.
(c) Should the parties, within 21 days of date of reinstatement, be unable to agree on the amount of remuneration lost, either party has liberty to notify the Registrar and I will list the matter for further Directions to determine the amount of remuneration lost.
4.Mr Weaver is to be reinstated within 22 days of the release of the date of this Order.
8
0