Black v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27

CITATION: Black v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27 PARTIES: Kirk Romel Black v Chief Executive, Department of Employment, Economic Development and Innovation APPLICATION NUMBER: GAR 390-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 4 January 2011 HEARD AT: Brisbane DECISION OF: Ms M Howard DELIVERED ON: 4 January 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. That the operation of the decision of the respondent dated 3 November 2010 to suspend the applicant’s licence as a security officer (unarmed) be stayed pending the hearing of this proceeding. CATCHWORDS : Stay application - where security provider charged with a disqualifying offence - Queensland Civil and Administrative Tribunal Act 2009 - section 22 APPEARANCES and REPRESENTATION (if any): The proceeding was heard on the papers in the absence of the parties. -- 1 of 4 -- GAR 390-10 / Page 2 of 4 REASONS FOR DECISION 1. An application was made to the Tribunal on 29 November 2010 by Kirk Romel Black (the applicant) seeking a review of a decision of the Chief Executive, Department of Employment, Economic Development and Innovation (the respondent) made on 3 November 2010 to suspend the applicant’s licence as a security officer (unarmed) and crowd controller until finalisation of criminal proceedings concerning a charge against the applicant of grievous bodily harm. 2. The license was suspended under section 21(3) of the Security Providers Act 1993 (the Act) following notification of the respondent by the Queensland Police Service (QPS) of the charge under the Act. Brief particulars of the offence were contained in the QPS notification to the effect that the applicant struck the complainant in the head with a closed fist causing him to fall to the ground and dislocate a finger which is now a permanent injury. The legislation 3. Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides that the Tribunal may make an order to stay a reviewable decision only if it considers it desirable having regard to the interests of any person whose interests may be affected by making or not making the order; any submission made by the decision-maker for the reviewable decision; and the public interest. 4. By virtue of section 11 of the Act, if the applicant is convicted of a disqualifying offence, he will be ineligible to hold a security provider’s licence for 10 years. Section 21 provides that charging of a licensee with a disqualifying offence is a ground for suspension until the end of the proceeding for the charge. After opportunity has been given to the licensee to show cause why the licence should not be suspended and after considering the representations made, the chief executive may suspend a licence under section 22, if it is considered grounds to take action exist. The Submissions 5. The applicant relied upon written submissions which formed part of his application for a stay as well as his substantive application and its various attachments including various character references. 6. The applicant’s arguments are twofold. Firstly, he is suffering financial distress as a result of the loss of his income as he has been deprived of the ability to earn an income pending the outcome of the criminal charges. He has been a security provider since 2003. It has provided his sole source of income. He has no other criminal history. 7. He lives in Airlie Beach which he says is a classified as a remote area which is heavily reliant on tourism and offers relatively few employment opportunities. He says that because of his current financial situation, namely he is receiving Centrelink benefits of $546.50 per fortnight, he cannot afford to relocate. He has been actively seeking alternative employment. He has sourced and -- 2 of 4 -- GAR 390-10 / Page 3 of 4 enrolled in a Certificate III in Fitness which he hopes will lead to employment but he must finance $1,000 of the cost and he has had to access his rental bond money to do this course. 8. He says that he was working with two security firms prior to the suspension and grossing in excess of $1,300 per week. Additionally, he was depositing $150 per week into an account for his ageing mother, who is otherwise in receipt of a Centrelink benefit only. He says that this aides her to have an adequate standard of living. He has depleted his savings. Copies of bank records were provided. 9. He entered a 12 month lease on 4 November 2010 with three other persons which obliges him to contribute to rental of $900 per week. He subsequently received the reviewable decision on 13 th November of the suspension. He says his share is $300 per week. 10. Secondly, he makes arguments relating to the criminal charge itself. These arguments outline a course of conduct by the complainant and suggest that the applicant intends to make arguments concerning self-defence and/or provocation at the hearing. The events outlined occurred in the applicant’s role as a crowd controller when he was struck, verbally threatened and in fear for his safety. 11. The character references provided are from former employers of the applicant, who speak highly of him and who have provided references in the knowledge of the pending charges. They are unanimous in the view that he displays great respect for clients and patrons, is honest and responsible and has good control of his emotions when dealing with difficult or abusive persons. 12. The applicant seeks orders for a stay such that his licence be reinstated, at least in relation to his security officer (unarmed) licence, as it was in this capacity that he was earning his income having ‘phased out’ crowd control work. 13. The respondent opposes the stay application. The respondent has concerns for persons that the applicant may come into contact with as a security provider as either a security officer (unarmed) or a crowd controller. Despite the applicant’s claims of self-defence, the respondent argues that his actions indicate a lack of control on his part leading to a permanent injury being suffered by the victim. Also, it is argued that the offence is more serious than the lesser charge of common assault. Conclusion 14. On the available evidence, it is apparent that the applicant has been a valued employee with an exemplary conduct record over a significant period in the security industry. He has no previous criminal history. He has been providing a level of ongoing support to his ageing mother to ensure she maintains an adequate standard of living. 15. There is no doubt that the applicant is in a difficult financial position as a result of the loss of his licence and consequent inability to earn an income and meet his expenses. His interests have been adversely affected by the suspension of -- 3 of 4 -- GAR 390-10 / Page 4 of 4 his licence, and it would be financially advantageous to him to be granted a stay pending the final hearing of his application. If granted, the stay would enable him to resume work as a security provider at least for the time being. He is actively seeking alternative work and retraining opportunities. He is no doubt aware that if he is convicted of grievous bodily harm, he will be ineligible to hold a licence under the Act. 16. The respondent argues that the charges indicate a lack of control on his part. It also has concerns for persons the applicant may have contact with as a security provider. It is trite to say, but the Tribunal has no role in determining the criminal proceedings. Nevertheless, it is open to the Tribunal to make the observation that on the information available, it appears the applicant has real issues to raise in respect of the criminal charge of grievous bodily harm against him. Without diminishing the seriousness of any incident of violence involving a security provider and any injury occasioned as a result, the nature of the injury apparently sustained by the complainant appears to be of the most minor type of injury which could possibly sustain a charge of grievous bodily harm. 17. Clearly, it is in the public interest for persons who work as security providers to be in control their actions to prevent harm to patrons. However, it is also inevitable that from time to time incidents will occur when security providers must deal with situations in which they are physically and verbally threatened and assaulted. In the public interest, criminal charges will not infrequently follow, so that it can be determined whether the actions of the security provider were appropriate in the circumstances. It is not in the public interest for security providers who find themselves in this situation to be necessarily deprived of their ability to earn an income while this process ensues. A person is innocent until proven guilty of the criminal charges. Each situation must be considered on its merits. The Act recognises this by providing that being charged with a disqualifying offence is a ground for suspension, but does not provide for automatic suspension following charges. 18. The incident resulting in the charges occurred in the applicant’s employment as a crowd controller, and he does not press the application for a stay in relation to that licence. 19. Whether or not the reviewable decision should be set aside is a matter for hearing for the Tribunal. However, on balance, having considered the applicant’s interests, the respondent’s submissions and the public interest, I am satisfied that pending the hearing of the review application, that the reviewable decision should be stayed in respect of the applicant’s licence as a security officer (unarmed). I make orders accordingly. -- 4 of 4 --