Yabsley v Acting Assistant Commissioner Michael Keating No. 2 - [2015] QCAT 359

CITATION:	Yabsley v Acting Assistant Commissioner Michael Keating No. 2 [2015] QCAT 359
PARTIES:	Mark Yabsley (Applicant)
v
Acting Assistant Commissioner Michael Keating (Respondent)

APPLICATION NUMBER:

OCR236-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

10 August 2015

HEARD AT:

Brisbane

DECISION OF:

Member Browne

DELIVERED ON:

10 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. It is ordered that the following sanction is imposed on Mark Yabsley:

The imposition of two (2) penalty units conditional upon Mark Yabsley completing eight (8) hours community service at a Police Citizens Youth Club within six (6) months from the date of this order (10 September 2015).

CATCHWORDS:

POLICE DISCIPLINARY PROCEEDINGS – SANCTION – where senior sergeant utilised assistant officer to assist with transportation for private purposes – where senior sergeant failed to notify supervisor and staff about workplace injury – where senior sergeant was absent from duty without leave granted or reasonable excuse

Crime and Corruption Act 2001 (Qld), s 219BA, s 219H, Schedule 2
Police Service Administration Act 1990 (Qld), s 1.4, s 5.2
Police Service (Discipline) Regulations 1990 (Qld), s 3, s 12
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 21

Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690; cited
Crime and Misconduct Commission v Swindells & Gardiner [2010] QCAT 490; cited
Hardcastle v Commissioner of Police (1984) 53 ALR 593; cited
Police Service Board v Morris (1985) 156 CLR 397; cited
VG v Deputy Commissioner Barnett [2013] QCAT 449; cited
Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258

REPRESENTATIVES:

APPLICANT:

Mr Yabsley represented by Mr T Schmidt of legal counsel

RESPONDENT:

Acting Assistant Commissioner Michael Keating represented by Mr P Van Grinsven of legal counsel instructed by Legal Services, Public Safety Business Agency

REASONS FOR DECISION

Mr Yabsley was subject to disciplinary proceedings regarding conduct when he was travelling, as Senior Sergeant, on the Queensland Police Service Airwing (QPS Airwing) and working in the Brisbane City Watchhouse.
The Tribunal published its decision on 1 July 2015[1] and set aside the sanction imposed because it found only three matters of misconduct were substantiated:
·Matter 1 (as particularised) – Mr Yabsley utilised assistant watchhouse officer Adrian Coolwell to assist him with transportation for private purposes from the QPS Airwing car park to the Brisbane Airport while he was on official duty at the Brisbane City Watchhouse (on 30 May 2012).
·Matter 3 – Mr Yabsley failed to notify Inspector Montgomery-Clarke and the staff at the QPS Airwing that he was unable to perform prisoner escort duty due to a workplace injury (in May 2012).
·Matter 4 – Mr Yabsley was absent from duty without leave granted or reasonable excuse (on 14 and 30 May 2012).
[1]Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258.
On 10 August 2015, both parties made oral submissions about the appropriateness of sanction to be imposed by the Tribunal. Mr Yabsley was given leave to rely on fresh evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QCAT 359
Decision Date: 10 September 2015

CaseChat Overview and Summary

The matter of Yabsley v Acting Assistant Commissioner Michael Keating No. 2 involved a disciplinary proceeding against Mark Yabsley, a senior sergeant in the police force. The central issues revolved around three instances of misconduct: Yabsley using a police assistant for personal transportation, failing to report a workplace injury, and being absent from duty without leave or reasonable excuse. The decision was rendered by the Civil and Administrative Tribunal of New South Wales.

The tribunal had to determine the appropriate sanction for Yabsley's misconduct, considering the severity and impact of each infraction. It was also required to assess whether the proposed sanction was commensurate with the gravity of the breaches and whether it effectively served the purpose of maintaining discipline within the police force.

In its decision, the tribunal recognised the seriousness of Yabsley's actions, acknowledging the breach of trust and potential risk to public safety. However, it also took into account mitigating factors such as Yabsley's otherwise unblemished service record and his cooperation during the disciplinary process. The tribunal imposed a sanction of two penalty units, contingent upon Yabsley completing eight hours of community service at a Police Citizens Youth Club within six months. This decision balanced the need for accountability with the potential for rehabilitation and positive community contribution.

Orders

Orders of the court

1. It is ordered that the following sanction is imposed on Mark Yabsley:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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