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

1. 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.

2. 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.

3. 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 relevant to determining sanction.

4. Mr Yabsley says that a reprimand is appropriate when looking at the totality of the conduct. Mr Yabsley says that relevant factors to be considered by the Tribunal include delay in bringing the charges since the conduct (in 2012), evidence of good behaviour since the conduct, the nature of the conduct being at the lower end of the scale; and embarrassment and publicity due to his earlier demotion (the sanction set aside).

5. The respondent submits the imposition of 2 penalty units to be suspended on the condition that Mr Yabsley complete 20 hours of community service within 6 months is appropriate. The respondent submits relevant factors to be considered include Mr Yabsley’s rank in the QPS because it highlights the level of expectation (in the QPS) of senior sergeants, the conduct took place in a high risk environment (the Brisbane City Watchhouse); and Mr Yabsley was in a position of senior officer in relation to conduct involving the assistant watchhouse officer.

6. The Respondent submits there is no delay in bringing the disciplinary proceedings and there is no evidence before the Tribunal of any embarrassment or publicity that Mr Yabsley says he has experienced as a result of the earlier sanction (set aside).

What was the conduct to be sanctioned?

1. In matter 1 (as particularised), the Tribunal found that Mr Yabsley has many years of experience as a police officer and was in a senior position (to that of Mr Coolwell). The Tribunal found Mr Yabsley had a responsibility as an experienced officer to set an example to other junior officers such as Mr Coolwell and this includes setting an example about standards in working and completing rostered shifts. The Tribunal made the following findings about the conduct:

   I am satisfied that the particular in matter 1 relating to 30 May 2012 is substantiated. Mr Yabsley accepts that Mr Coolwell drove him to the airport to catch a commercial flight. Mr Coolwell was on rostered duty at the Brisbane Watchhouse and left his shift early to drive Mr Yabsley to the airport. Mr Coolwell said, when questioned, that it did ‘concern’ him to leave work early. Mr Yabsley has many years of experience as a police officer and was in a more senior position (to that of Mr Coolwell). Mr Yabsley had a responsibility as an experienced officer to set an example to other junior officers such as Mr Coolwell and this includes setting an example about standards in working and completing rostered shifts.[2]

   …

   …Mr Yabsley’s conduct in utilising a watchhouse officer to assist him with transportation was for his own private purposes and an improper use of QPS resources because Mr Coolwell was on rostered duty. I am also satisfied that Mr Yabsley’s conduct is misconduct because his actions in utilising an officer who was on rostered duty for his own private use was improper and does not meet the standard of conduct the community reasonably expects of a police officer.[3]

   [2]Ibid, [93].

   [3]Ibid, [94].

2. I accept the respondent’s submission that the circumstances of Mr Coolwell ‘volunteering’ to take Mr Yabsley to the airport should be considered in the context that Mr Coolwell (at the time he volunteered) believed that leaving for the airport would ‘coincide closer to the end of his rostered shift’.[4] This submission is consistent with the Tribunal’s findings. The Tribunal found that Mr Coolwell said in the disciplinary interview that he was ‘hesitant’ (to leave early) but Mr Yabsley told him it had been ‘okayed’ by the other senior sergeant.[5]

   [4]Respondent’s Outline of Submissions on Sanction filed 27 July 2015, [18].

   [5]Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258, [92].

3. I accept the respondent’s submission that there is a clear power imbalance between Mr Yabsley and Mr Coolwell because Mr Yabsley is of more senior rank and authority.[6] I also accept the respondent’s submission that there is an element of trust that exists between a senior officer and junior officer because a junior officer will place a degree of acceptance on what is said (to him or her) by a more senior officer. I accept the respondent’s submission that the maintenance of accountability, integrity and the ethical health of the QPS as an organisation are dependent upon senior officers such as Mr Yabsley to promote these values and to set an example to junior members of the QPS.[7]

   [6]Respondent’s Outline of Submissions on Sanction filed 27 July 2015, [21].

   [7]Ibid.

4. In matter 3, the Tribunal found that Mr Yabsley’s failure to notify the inspector and staff at the QPS Airwing about his workplace injury exposed him (Mr Yabsley) to further injury if he was utilised for prisoner escort duties on the flight. The Tribunal found that it was Mr Yabsley’s responsibility to manage his own injury and in particular being able to remember when he was certified as being unfit for work and that this would include being able to manage whether he is fit to perform a police function. The Tribunal made the following findings about the conduct:

   Mr Yabsley is a police officer with many years’ experience. He accepts that by travelling on the Airwing there was a risk to the QPS and that it was his responsibility to manage his own injury and in particular being able to remember when he was certified as being unfit for work and this would include being able to manage whether he is fit to perform a police function.[8]

   I am satisfied that Mr Yabsley’s conduct in relation to matter 3 is substantiated and that the conduct is ‘misconduct’ because his actions in failing to notify his supervisor and the staff at the QPS Airwing were improper and does not meet the standard of conduct the community reasonably expects of a police officer.[9]

   [8]Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258, [102].

   [9]Ibid, [103].

5. I accept the respondent’s submission that Mr Yabsley’s conduct in failing to notify the Inspector and QPS staff had the ‘real potential for significant risk’ to the QPS, Mr Yabsley and others.[10] This is consistent with the Tribunal’s findings that Mr Yabsley accepted when questioned in the disciplinary interview that his travel while he was reported to have an injury, was a risk to the QPS.[11] I accept the submission that Mr Yabsley’s conduct should not be minimised because there was no risk that eventuated in this case.[12]

   [10]Respondent’s Outline of Submissions on Sanction filed 27 July 2015, [29].

   [11]Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258, [99].

   [12]Respondent’s Outline of Submissions on Sanction filed 27 July 2015, [29].

6. In matter 4, the Tribunal found that Mr Yabsley’s conduct was misconduct because his actions in being absent from duty were improper and did not meet the standard of conduct the community reasonably expects of a police officer. The Tribunal made the following findings about the conduct:

   Mr Yabsley has many years’ experience as a police officer and would be aware of the importance to remain on duty during the rostered period of time. I am satisfied that Mr Yabsley’s conduct is misconduct because his actions in being absent from duty on 14 and 30 May 2012 were improper and do not meet the standard of conduct the community reasonably expects of a police officer.[13]

   [13]Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258, [109].

7. I accept the respondent’s submission that the conduct took place in a high risk area (the Brisbane City Watchhouse) and that being absent from duty means that Mr Yabsley was unable to fulfil his duties ‘[and this] necessitates another officer to undertake that task in his stead’.[14] This is consistent with the Tribunal’s findings because (as found) Mr Yabsley accepted what he did was wrong and that he should have taken leave.[15]

   [14]Respondent’s Outline of Submissions on Sanction filed 27 July 2015, [24], [36].

   [15]Yabsley v Acting Assistant Commissioner Michael Keating [2015] QCAT 258, [108].

8. The Tribunal also found that the officer in charge of the Watchhouse (Mr Keillor) said that there was a procedure for an officer wanting to leave early and that involved notifying the oncoming duty senior to see if they could come in and start early.[16] In this case, Mr Yabsley has left his rostered shift approximately 2.5 hours early on 14 May 2012 and 1 hour early on 30 May 2012.[17]

   [16]Ibid, [106].

   [17]As agreed at the oral hearing allowing for change-over of shift at 1:30 pm. See Respondent’s section 21 material, p 469-470 and Chronology with facts agreed or in dispute filed on 10 April 2015, p 4.

What are the mitigating circumstances?

1. There is evidence of delay before me. The chronology prepared by the respondent identifies the relevant dates in this matter from the date of conduct (in May 2012) to the disciplinary hearing (on 25 July 2014), the respondent’s decision on 22 August 2014 and the Tribunal’s hearing on 20 March 2015.[18] The chronology shows that there has been a period of approximately 3 years from the date of conduct to the Tribunal hearing.

   [18]Respondent’s Outline of Submissions on Sanction filed 27 July 2015, at [39].

2. In Crime and Misconduct Commission v Swindells & Gardiner,[19] the Tribunal found that the ‘significant’ delay between the date of conduct and the ‘first hearing’ gave the Tribunal an opportunity to assess what the officer concerned has learned from the disciplinary proceedings. In Gardiner’s case the Tribunal found that the officer remained in the QPS and has not been the subject of any complaint. Kingham J, Deputy President (as she then was) said:

   A far more cogent consideration is Constable Gardiner’s conduct since the investigation commenced. The delay affords the opportunity to assess what the officer has learned from the salutary experience of these disciplinary proceedings. There are strong positive signs in Constable Gardiner’s favour.[20]

   [19][2010] QCAT 490.

   [20]Ibid, [24].

3. The delay in Mr Yabsley’s case can be distinguished from the length of delay found in Gardiner’s case. In Yabsley’s case, there has been a total of 3 years from the date of conduct to the date of the Tribunal’s decision. In Gardiner’s case, there was a delay of 3 years from the date of conduct (in 2004) to the respondent decision maker’s decision (in 2007) and a further 3 years delay to the Tribunal’s decision in 2010. This is a total of 6 years delay.

4. In Mr Yabsley’s case, there is evidence of good conduct and professional performance in the past 3 years since the conduct.[21] Mr Yabsley said in his affidavit sworn 14 July 2015 that since 31 May 2012 he has not been ‘accused, to the best of [his] knowledge, of any other wrong doing, misconduct or breach of discipline’.[22] I accept Mr Yabsley’s evidence. The respondent decision maker in determining sanction in the disciplinary hearing (at first instance) also acknowledged Mr Yabsley’s prior good work history including 20 favourable records from 1984 to 2010 (inclusive).[23]

   [21]Outline of Submissions on sanction for the applicant filed on 14 July 2015, [32].

   [22]Exhibit 1.

   [23]Disciplinary hearing findings and reasons dated 26 September 2014, Respondent’s section 21 material, p 2.

5. I accept Mr Yabsley’s submission that he has suffered the embarrassment and humiliation of serving an actual demotion since the respondent decision maker imposed a sanction (of demotion) on 26 September 2014.[24] Although there is no independent evidence before me about how Mr Yabsley was perceived by his peers in the QPS during the period of demotion Mr Yabsley has in his affidavit given his own evidence about the impact of the demotion on him personally. Mr Yabsley said in his affidavit sworn 14 July 2015 that since the demotion he has been subject to humiliation because he has worn sergeant stripes instead of senior sergeant crown on his epaulettes and his demotion was published in the gazette.[25] Mr Yabsley said:

   The duties I perform in my substantive position are uniform in nature. This has meant that since the demotion, I have had to wear Sergeant stripes instead of the Senior Sergeant crown on my epaulettes. This is a very visible change to my daily uniform attire and clearly announces my demotion to each of my colleagues and workmates.

   In addition to this, the QPS is required to publish a police gazette which advises of all promotions, transfers, etc. This is published each Friday with some exceptions such as over the Christmas break. The gazette is on the QPS internal bulletin board and is available for reading by all police officers and other employees of the QPS.

   My demotion was published in the gazette, which accords with policy.

   As a consequence of publication and my change in uniform rank, I have been subject to the humiliation of having all of my colleagues aware of my demotion, and a reminder of it when dressing for work.[26]

   [24]Outline of Submissions on sanction for the applicant filed on 14 July 2015, [33].

   [25]Ibid, [15].

   [26]Ibid, [14]-[15].

6. The evidence of Mr Yabsley’s humiliation during the period of demotion is relevant to the appropriateness of sanction in particular general deterrence to Mr Yabsley and others in the QPS. This is because from September 2014 to 1 July 2015 (period of demotion) Mr Yabsley wore his uniform depicting a lower rank and his demotion was published in the gazette. The Tribunal accepts Mr Yabsley’s submission that during this time he ‘suffered embarrassment and humiliation’.[27]

   [27]Ibid, [33].

7. I accept Mr Yabsley’s evidence that he is remorseful for his conduct. Mr Yabsley said in his sworn affidavit that he is deeply sorry for his actions and that he has learnt a significant lesson from the incidents. Mr Yabsley said:

   I am deeply sorry for my actions in leaving work early and also for allowing CWO Coolwell to leave early to assist me with transport… I accept my conduct was wrong.

   I also accept that I should have turned my mind to informing the Airwing staff of my workcover leave and accordingly my inability to perform prisoner escorts…

   I have learnt a significant lesson from these incidents, and have endeavoured to conduct myself professionally for the three years since these matters arose.

   I have not taken excessive sick leave or otherwise shirked my duties as a consequence of being either under investigation or being demoted. In fact I have had my work performance acknowledged and have passed my annual performance reviews during this subsequent period.[28]

   [28]Exhibit 1, [18]-[21].

8. The respondent decision maker, in determining sanction at first instance, also acknowledged Mr Yabsley’s remorse for his actions. The respondent decision maker said Mr Yabsley ‘clearly showed some remorse during the later stage of the hearing process’.[29] The respondent decision maker also referred to Mr Yabsley acknowledging the seriousness of his actions but not the importance in terms of his role as senior sergeant within the QPS.[30]

   [29]Disciplinary hearing findings and reasons dated 26 September 2014, Respondent’s section 21 material, p 5.

   [30]Ibid.

9. I do not accept Mr Yabsley’s submission that the finding of misconduct will impact on his career as a police officer in the QPS.[31] In oral submissions Mr Schmidt on behalf of the applicant said Mr Yabsley did have a promising career and his opportunity to progress in the QPS is gone albeit from his own conduct. Mr Schmidt refers the Tribunal to s 5.2 of the Police Service Administration Act 1990 (Qld) (the PSA Act) that requires promotion of an officer to be made at a level of integrity. Mr Schmidt says a finding of misconduct will therefore have an impact on promotion.

   [31]Exhibit 1 – Affidavit of Mark Yabsley sworn 10 August 2015, at [4].

10. I agree with Mr Schmidt’s submission that the PSA Act does require an applicant to have a level of integrity in relation to promotion in the QPS. I do not accept however that Mr Yabsley has no promotional prospects within the QPS.

11. As found in VG v Deputy Commissioner Barnett[32] the Tribunal ‘cannot predict with any certainty’ whether Mr Yabsley will be successful in attaining a promotion in the QPS at some future time. Mr Yabsley says he will progress to senior sergeant pay point 4.4 in September 2015.[33] It is a matter for Mr Yabsley as to whether he applies for a promotion should a position become available.

    [32][2013] QCAT 449.

    [33]Exhibit 1 – Affidavit of Mark Yabsley sworn 10 August 2015, at [4].

12. In this case, Mr Yabsley was disciplined for previous conduct on 3 February 2006. Mr Yabsley successfully served the operational period of the sanction suspended. Mr Yabsley says that because the sanction was ‘rescinded’ for the purposes of s 12 of the Police Service (Discipline) Regulations 1990 (Qld) (the Regulations) the Tribunal cannot consider the rescinded sanction when imposing a sanction in this instance.[34]

    [34]Applicant’s Outline of Submissions on Sanction filed 14 July 2015 at [6]-[8].

1. Mr Schmidt in oral submissions for the applicant said that the previous conduct for the purposes of s 12 of the Regulations may be considered by the Tribunal for the purposes of ‘insight’ and the officer’s conduct is viewed only in the context of the officer having had a ‘serious warning’. Mr Schmidt relies on the findings made by Judicial Member J Thomas in Crime and Misconduct Commission v Assistant Commissioner Ross Barnett.[35]

   [35][2010] QCAT 690.

2. The respondent in written submissions concedes that previous sanction for the purposes of s 12 can be considered by the Tribunal when assessing an officer’s ‘background knowledge and state of mind’ or that the officer had received a ‘serious warning’ in relation to the conduct.[36]

   [36]Respondent’s Outline of Submissions on Sanction filed 27 July 2015, [14].

3. In Barnett’s case, Judicial Member J Thomas found that fresh evidence of coronial findings involving a police officer in a separate incident was capable of being considered in subsequent disciplinary proceedings. The coronial enquiry findings was found to be evidence that the subject officer had had a serious warning of which he might be expected to have taken heed. Judicial Member J Thomas said:

   … The evidence is capable of being received as evidence that Sergeant Eaton had had a serious warning of which he might be expected to have taken heed. In short, the limited purpose of its reception is to demonstrate the background knowledge and state of mind of Sergeant Eaton when he chose to drive in the manner he did in 2009. Beyond that, it has no relevance.[37]

   [37]Ibid, [32].

4. I find that Mr Yabsley has served the operational period of the sanction imposed and the previous conduct cannot be considered by the Tribunal when determining sanction because the sanction has been ‘rescinded’ by virtue of s 12 of the Regulations.

5. I accept Mr Schmidt’s oral submission, consistent with the findings of Judicial Member J Thomas in Barnett’s case, that the sanction ‘rescinded’ for the purposes of s 12 of the Regulations can be considered by the Tribunal as conduct where the subject officer has had a ‘serious warning’.

What is the correct and preferable decision?

1. Mr Yabsley was a senior sergeant with several years experience as a police officer when he was absent from rostered duty, utilised a junior officer for transportation (during rostered duty) and failed to notify his supervisor and QPS staff about his workplace injury. Mr Yabsley was required to set an example to junior officers and staff such as Mr Coolwell about work place practices; in particular the circumstances when an officer can leave his or her rostered duty.

2. I find that Mr Yabsley placed himself and the QPS at potential risk because he failed to notify his supervising officer and QPS staff at the Airwing about his inability to escort prisoners during a time when he had indicated he was available to do so.

3. I am satisfied there are mitigating circumstances in this case including Mr Yabsley’s good conduct because of the delay since the date of conduct and the Tribunal’s findings, his favourable work history, remorse; and humiliation experienced as a result of the demotion. The mitigating circumstances are relevant to determining sanction.

4. It is well settled law that the object of disciplinary proceedings is to ‘protect the public, to maintain proper standards of conduct … and to promote the reputation of that body. The object … is not to punish or exact retribution’.[38] The objects in the Police Service (Discipline) Regulations 1990 (Qld) refer to appropriate standards of discipline being maintained in the QPS to protect the public, uphold ethical standards within the QPS and to promote and maintain confidence in the QPS.[39]

   [38]Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597.

   [39]Police Service (Discipline) Regulations 1990 (Qld) s 3.

5. I am not satisfied that a sanction of reprimand is appropriate in this matter because of the findings made by the Tribunal about the conduct and the senior position held by Mr Yabsley in the QPS including his number of years experience as a police officer. A police officer with several years experience and holding a senior rank in the QPS has a responsibility to set an example to more junior officers to ensure efficiency in the QPS and to maintain public confidence. In this case, Mr Yabsley was working in a high risk environment being the Brisbane City Watchhouse and he left his rostered duty early and on another occasion took a junior officer with him.

6. As found in Police Service Board v Morris,[40] the purpose of discipline is to ensure the ‘maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency’.[41] Mr Yabsley as senior sergeant was in a position of responsibility to set an example to junior officers such as Mr Coolwell about standards in the QPS and this is particularly important when working in a high risk environment such as the Brisbane City Watchhouse.

   [40](1985) 156 CLR 397.

   [41]Ibid, 412.

7. I have carefully considered all of the mitigating circumstances and the nature of the conduct. I have also considered the objects of the disciplinary proceedings, including maintaining proper standards of conduct by members and protecting the reputation of the QPS. I am satisfied that the imposition of 2 penalty units to be suspended provided Mr Yabsley complete a period of unpaid community service at a Police Citizens Youth Club within 6 months from the date of this order is appropriate. A period of community service is also appropriate in this matter given that Mr Yabsley completed ethics training, as reflected in the agreed chronology, on 22 September 2011.[42]

   [42]Chronology with facts agreed or in dispute.

8. I do not accept the respondent’s submission that a period of 20 hours community service is appropriate in this matter because it does not reflect all of the mitigating circumstances before me including the evidence of humiliation, remorse, and good conduct and performance since the date of the conduct in 2012.

9. I find that a period of 8 hours community service is appropriate in this matter because it reflects the nature of the conduct and is sufficient to serve as a deterrent to others while maintaining standards about conduct of senior ranking officers in the QPS. I order that the sanction to be imposed on Mr Yabsley is the imposition of 2 penalty units to be suspended provided Mr Yabsley completes a period of 8 hours unpaid community service at a Police Citizens Youth Club within 6 months from the date of this order.[43]

   [43]Citation for reasons for decision amended to include “No.2”.