Curtin v Queensland Police Service [2009] QIRC 5

CITATION: Christopher Morris Curtin AND Queensland Police Service (B/2009/55) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 278 - power to recover unpaid wages and superannuation contribution etc. Christopher Morris Curtin AND Queensland Police Service (B/2009/55) COMMISSIONER FISHER 19 November 2009 Unpaid wages - Superannuation - Annual leave - Long service leave - Evidence - Notice of suspension - Disciplinary action - Service of notice before pay stopped - No policies as to how suspension without pay to be communicated - Personal service - One attempt to serve notice - Notice ought to have been served in person - Processes and practices not complied with - Claim accepted. DECISION [1] This is an application by Christopher Morris Curtin to recover the amounts set out below which he contends remain unpaid for the period from 16 January 2008 to 10 July 2008. Mr Curtin was employed as a Senior Constable with the Queensland Police Service (QPS) during the period to which his claim relates. The amounts claimed are as follow: • unpaid wages $28,043.03 • unpaid superannuation $ 1,673.75 plus employer contributions of 18% • annual leave $ 3,279.39 • long service leave $ 991.15 Evidence [2] Evidence in the application was given by: For the Applicant • Christopher Morris Curtin For the Respondent • Kathleen Rynders, Deputy Commissioner (Regional Operations) of Police; • Kevin James Hedges, Chief Superintendent of Police, Ethical Standards Command; • David Richard Isherwood, Inspector of Police, Southern Regional Office, Toowoomba; • Peter Albert Gordon, Senior Sergeant of Police, Nerang Police Station; • Thomas Herbert Gockel, Superintendent and Manager of the Right to Information and Privacy Unit; and • Michael John Ryan, Customer Advisor, WorkCover Queensland (WorkCover). Facts [3] The facts of the matter are generally not in dispute. They have been distilled from the evidence and are set out below: 1. On or about 6.00 p.m. on 11 January 2008 a search warrant was executed at the home of Mr Curtin and certain property was seized. Later the same day a Stand Down Notice signed by Deputy Commissioner Rynders was personally served upon Mr Curtin by A/Inspector Isherwood and another police officer. 2. On 16 January 2008 Deputy Commissioner Rynders signed a Revocation of the Stand Down Notice and a Notice of Suspension. She also wrote to the Assistant Commissioner South Eastern Region advising of the decision to suspend Mr Curtin and requesting that the Revocation of the Stand Down Notice and Notice of Suspension be served on Mr Curtin as soon as possible. Information was also provided about the things to occur at the time of the service of the Notice and included directions "upon service" which required the endorsement of the Notice as to the time and date of service and return of the endorsed Notices to her office and other administrative procedures. -- 1 of 5 -- 2 On or about 6.30 p.m. that evening A/Inspector Isherwood attended Mr Curtin's home for the purpose of serving the Notice of Suspension. Mr Curtin was not home. A/Inspector Isherwood spoke to Mr Curtin's wife but did not leave the Notice of Suspension. He left his mobile phone number with Mr Curtin's wife and asked her to have Mr Curtin contact him. Also on that day Mr Curtin was interviewed at the Burleigh Heads Police Station and a Notice to Appear was served upon him for stealing. Mr Curtin was due to appear in court on 31 January 2008. 3. On 17 January 2008 Mr Curtin telephoned A/Inspector Isherwood who told him of the Suspension Notice. There is some dispute over whether the full contents of the Notice were read to Mr Curtin, however, it is clear that Mr Curtin was apprised of the fact that the suspension involved stopping his wages after 14 days. Mr Curtin told A/Inspector Isherwood that he was interstate and would not be returning until shortly before his court date. 4. This information was relayed by A/Inspector Isherwood to his superiors and no further attempt was made by QPS to provide Mr Curtin with the Suspension Notice. 5. On 18 January 2008 Mr Ryan of WorkCover Queensland (WorkCover) had a telephone conversation with Mr Curtin in which he alleges Mr Curtin said he was "on the run and interstate and does not want the Notice of Suspension served on him". Mr Ryan said Mr Curtin was aware that the effect of the Notice was that he would not be paid. This information was conveyed to the QPS. 6. On 22 January 2008 Deputy Commissioner Rynders decided she was satisfied that Mr Curtin was aware that he had been suspended from duty with pay for 14 days and thereafter without pay. She made this decision in light of the information received from the region and from WorkCover. Deputy Commissioner Rynders therefore took the necessary steps to ensure the suspension was effected with respect to rosters and pay. His wages ceased to be paid on 30 January 2008. 7. On 31 January 2008 Mr Curtin did not attend the court hearing for medical reasons but later attended the court house to sign the bail undertaking. This included weekly reporting to the Mudgeeraba Police Station commencing 4 February 2008, residing at his home address and surrendering his passport. 8. On 4 February 2008 Mr Curtin commenced weekly reporting to the Mudgeeraba Police Station in accordance with his bail undertaking. 9. On 5 February 2008 Mr Curtin noticed a newspaper article about him stating that he had been suspended without pay. 10. On 21 February 2008 Mr Curtin received correspondence from the Shared Services Provider to the QPS regarding an overpayment which had occurred due to late advice of his suspension without pay. 11. On 22 February 2008 Mr Curtin spoke with Superintendent Gockel about his suspension without pay and advised that no written advice to this effect had been received. Superintendent Gockel informed Mr Curtin that he had been suspended with pay for 14 days and thereafter without pay and he could make an application for review of the decision to the Police Service Review Commissioner. 12. On 4 March 2008 Senior Sergeant Gordon telephoned Mr Curtin to arrange service of a Discontinuation of Disciplinary Hearing Notice upon him. Mr Curtin was uncooperative. 13. On 5 March 2008 Senior Sergeant Gordon attended Mr Curtin’s residential address for the purpose of serving the Notice but no-one was home. Mr Curtin and Senior Sergeant Gordon had a telephone conversation later that day in which the latter sought to arrange a convenient time for service of the Notice. Mr Curtin advised Senior Sergeant Gordon he was suspended and the Senior Sergeant could consider the Notice served. 14. On various dates between February and April 2008 Mr Curtin made enquiries with his union and the Crime and Misconduct Commission about his suspension. 15. On 14 May 2008 Mr Curtin consulted a solicitor about his suspension. 16. On 28 May 2008 the solicitor wrote to the Shared Services Provider advising that Mr Curtin had not been served with the Notice of Suspension and setting out the reasons for their contention that Mr Curtin could not initiate a review of the decision. -- 2 of 5 -- 3 17. On 2 June 2008 the solicitor wrote to the Director of Human Resources concerning Mr Curtin's suspension without pay. The letter was sent again on 12 June 2008. 18. On 12 June 2008 A/Assistant Commissioner Hedges wrote to Mr Curtin's solicitor confirming that Mr Curtin had not been served formally with the Notice of Suspension but advising that he had been made fully aware of its existence. Further, the letter stated that A/Assistant Commissioner Hedges had been reliably informed that Mr Curtin was unwilling to cooperate in receiving service of the documents. A/Assistant Commissioner Hedges suggested that Mr Curtin could be served through his solicitor and confirmed it was the decision of the QPS that he remain suspended from duty without pay. A/Assistant Commissioner Hedges further advised that Mr Curtin could apply to review the decision. 19. On 23 June 2008 Mr Curtin's solicitor wrote to A/Assistant Commissioner Hedges requesting formal service of the Notice of Suspension. 20. On 26 June 2008 the Notice of Suspension and Revocation of the Stand Down Notice was faxed to Mr Curtin's solicitor. 21. On 24 July 2008 Mr Curtin applied for a review of the decision to suspend him without pay. 22. Mr Curtin was subsequently advised that his application for a review of the decision was unsuccessful. The Notice of Suspension and Relevant Legislation [4] Section 6.1(1)(a)(ii) of the Police Service Administration Act 1990 (the PSA Act) gives authority to the Police Commissioner to suspend a police officer from duty where they are liable to disciplinary action under s. 7.4 of that Act. Section 6.3 of the PSA Act also sets out the salary entitlements of officers if suspended. The PSA Act and Regulations made under that Act are silent on how the decision to suspend is to be communicated to the affected officer. The Notice of Suspension is quite lengthy and it is unnecessary to reproduce its entire terms. For present purposes it is sufficient to note that the Notice includes the following provisions: "I, Kathleen Rynders, Acting Deputy Commissioner, Deputy Chief Executive (Operations) in pursuance of the powers delegated pursuant to Section 4.10 of the Act by Delegation Number D1.1 dated 4 April 2000, hereby suspend you from duty without the loss of salary and allowances for a period of fourteen days from the service of this Notice. At the expiration of this fourteen day period, the suspension from duty will continue without salary and allowances. … The suspension hereby notified shall take effect as from the service of this Notice.". Mr Curtin’s case [5] Mr Curtin does not dispute that he was aware of the Notice of Suspension. His argument is that the Notice requires it be served on him and the QPS had ample opportunity to serve the Notice on him especially in light of his bail requirements to attend the Mudgeeraba Police Station each Monday and to continue to reside at his home. Mr Curtin submits that his knowledge of the decision to suspend him from duty without pay does not meet the requirements of the Notice that it be served on him. He further argued that "service" means personal service with the result that until he was served with the Notice on 26 June 2008 (through his solicitor) he is entitled to payment of his wages from the date his wages ceased until 14 days after 26 June 2008, viz., 10 July 2008. The QPS case [6] The QPS opposes the claim in its entirety. The view of the QPS is that because the legislation is silent there is no requirement for the Notice to be served personally or otherwise. An attempt was made to serve the Notice personally on Mr Curtin on 16 January 2008 and the QPS submits that Mr Curtin was aware of the decision to suspend him from duty without pay on 17 January 2008. This knowledge was confirmed in later conversations with the Shared Services Provider, WorkCover and Superintendent Gockel. The QPS contends that Mr Curtin consciously avoided the service of the Notice as evidenced by his advice to Mr Ryan that he was "on the run interstate". For the reasons that the legislation imposes no requirement for service, Mr Curtin was aware of his suspension from duty without pay, he avoided service and an attempt had been made to serve the Notice personally, the QPS considers that Mr Curtin’s application should fail. Conclusion -- 3 of 5 -- 4 [7] The issue in this case does not concern the power of suspension or the decision to suspend Mr Curtin without pay, but rather whether Mr Curtin was required to have been served with the Notice of Suspension before his pay could be stopped. [8] I am satisfied that at least from 17 January 2008 Mr Curtin was aware of the existence of the Notice of Suspension, its contents and the effect of the Notice despite it not being served in accordance with the requirements of the Notice. This is evidenced by his conversations with various QPS officers including A/Inspector Isherwood, Superintendent Gockel and the officer from the Shared Services Provider, Mr Stokes. While I accept Mr Curtin’s submission that the onus rested with the QPS to serve the Notice the evidence is that the Notice would have been made available to him on his request. The evidence before me also shows that although Mr Curtin complained to various sources about the decision to suspend him no request for the Notice of Suspension was made by him or on his behalf until the letter dated 23 June 2008 was sent by his solicitor to the QPS. [9] The PSA Act is silent on how, and indeed whether, the decision to suspend an officer is to be communicated. Further, no other legislation, the Police Service Award – State 2003 or the Queensland Police Service Certified Agreement 5, 2007 provide the means by which the decision is to be communicated. In her evidence Deputy Commissioner Rynders advised that the QPS does not have any policies or other arrangements which set out how decisions about suspensions without pay are to be communicated to affected employees. She said the Notice acts as a record of decision. Superintendent Gockel confirmed this view and said that some years ago the QPS drew up templates for various decisions such as suspension which served multiple purposes including notifying the officer of their suspension, informing payroll of the decision and providing notification to regions for the purpose of roster preparation. [10] The evidence is that the process adopted by the QPS for notification of disciplinary matters is a formal one which has been in place for many years and involves serving the affected employee personally with a notice. Deputy Commissioner Rynders said in evidence that the normal procedure that applies with respect to Stand Down Notices and Notices of Suspension is personal service. The Notice of Suspension itself requires that it be served and states that the suspension will take effect as from the service of the Notice. Further the advice from Deputy Commissioner Rynders to the Assistant Commissioner South Eastern Region on 16 January 2008 also specifies a number of formal requirements relating to service of the Notice including: • Requiring a copy of the Notice of Suspension be served on Mr Curtin as soon as possible; • Instructions regarding what to do at the time of service of the Notice, e.g. directing the officer to surrender all QPS property, the officer serving the Notice to take possession of QPS issue firearms, handcuffs, batons, identification cards and notebooks and to inform the affected officer of certain matters relating to his suspension; and • Instructions concerning the endorsement of the notice as to time and date of service and other administrative instructions upon service of the Notice. [11] In accordance with the instruction given by Deputy Commissioner Rynders, A/Inspector Isherwood endorsed the copy of the Stand Down Notice after serving it on Mr Curtin. [12] The process requiring personal service also seems to be known amongst police officers. The evidence of Senior Sergeant Gordon and A/Inspector Isherwood was that they understood Notices such as a Notice of Suspension were to be personally served on the affected officer. Senior Sergeant Gordon said he was required to personally serve Mr Curtin with the Discontinuation of Disciplinary Hearing Notice. [13] Deputy Commissioner Rynders said she proceeded to act to withhold Mr Curtin's pay because she was satisfied that he had been orally served with the Notice of Suspension. However, the above shows that merely conveying the decision to suspend orally is not the usual process adopted by the QPS. The documents show that the QPS has adopted a formal process requiring service of the Notice personally on the affected employee. I accept this is for procedural fairness reasons and to protect against any later uncertainty or confusion. I also consider that the form of service contemplated in the first instance is personal service preferably by delivering the Notice into the hands of the affected employee or on a duly appointed agent. The evidence of Deputy Commissioner Rynders is that service on a duly appointed agent is an accepted (and acceptable) means of service. In this case the evidence is that the QPS only made one attempt to serve the Notice of Suspension on Mr Curtin in person before actioning the suspension of his pay and this occurred within six days of the decision to suspend without pay. [14] The evidence from QPS witnesses was that no other attempts were made because they understood that Mr Curtin was avoiding service. This was the view taken in light of the advice received from WorkCover and information relayed by A/Inspector Isherwood to his superior officers and then to Deputy Commissioner Rynders. Other attempts to serve the Notice of Suspension were not made after 31 January 2008 despite the Ethical Standards Command of the QPS being in possession of information that Mr Curtin’s bail conditions required him to report -- 4 of 5 -- 5 each Monday commencing 4 February 2008 to the Mudgeeraba Police Station and to reside at his home address. There is no evidence that Mr Curtin failed to comply with these bail conditions. [15] The Commission understands the desire of the QPS to act with some haste to effect the suspension without pay of Mr Curtin because he had been charged with an offence. However, as shown in this case, oral service is fraught with danger. It is not as though other means of service were not available or have not been used in other cases. The evidence is that in other cases the QPS has pursued other means of service including directing a police officer to attend a workplace and placing advertisements in the print media. No alternative means of service were explored in connection with Mr Curtin. In addition and although not directly applicable, guidance on service can be gained from the Acts Interpretation Act 1954 and the Uniform Civil Procedure Rules 1999. For example s. 39 of the Acts Interpretation Act 1954 provides that if an Act permits or requires a document to be served then in relation to an individual it can be delivered to the person personally or alternatively, it can be delivered to the address of the place of residence by a variety of means, including post and facsimile. Section 106 of the Uniform Civil Procedure Rules 1999, which deals with service of an originating process, also provides for personal service. If the person does not accept the document then the party serving it can serve it by putting it down in the person's presence and telling them what it is. Service under these pieces of legislation requires the affected person being given the document and not just being told about it. [16] In answer to a question from the Commission, Superintendent Gockel agreed that given the environment in which the QPS operates it would be reasonable to infer that the term "service" in a document such as a Notice of Suspension could have the meaning it bears in respect of service of other legal processes. [17] In light of the QPS's own requirements for service then the Notice ought to have been served on Mr Curtin in person (or duly appointed agent) or failing that by service through post, facsimile or other similar method to his residential address or by directing him to attend a workplace to receive service. In my view it was not sufficient for the QPS to only make one attempt at service in person when other means were available. Oral advice as to the content of a document does not equate with service. It is also not up to the affected employee to chase the Notice of Suspension, the obligation rests with the employer to make genuine endeavours to effect service. [18] It is the employer’s decision to suspend an employee from duty without pay, notice of which is being conveyed to the employee. Here, the QPS has of its own volition developed forms and practices and issues directions requiring the service of a Notice of Suspension on an employee. Its own process requires more than oral advice of the decision. By developing such a process the QPS has created an entitlement to service of the Notice as described above and must accept the consequences that flow from encountering difficulties with such service. An employee is entitled to rely on the words contained in an official document prepared by the employer. It is unfair for an employer to create a process which specifies service of a Notice before a detriment can be caused to an employee and then abandon that requirement when a difficulty in serving the affected employee arises. It is particularly unfair when the employer only makes one attempt at service and does not explore alternative means of service. [19] Accordingly, for all of the foregoing reasons the Commission is not satisfied that the QPS complied with its own processes, practices or requirements to serve Mr Curtin with the Notice of Suspension. In those circumstances I consider Mr Curtin had an entitlement to be paid wages, superannuation, annual leave and long service leave until the Notice was served in accordance with the employer's own requirements. Mr Curtin's claim is therefore accepted. [20] The QPS did not advise whether the accuracy of Mr Curtin’s calculations were accepted in the event his application was successful. In these circumstances the QPS is directed to advise the Industrial Registrar within 14 days of the date of release of this decision as to whether the calculations are disputed. If the QPS accepts the accuracy of the calculations then the amounts are to be paid within 22 days of the date of release of this decision. If the calculations are not accepted then the Commission will relist the matter to hear argument from the parties. [21] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2009 21 August 22 October Released: 19 November 2009 Appearances: Mr C.M. Curtin on his own behalf. Ms A. Venning and with her Inspector I. Wightman on behalf of the Respondent. -- 5 of 5 --