Banditt v Department of Corrective Services [2005] QIRC 74 (2005) 179 QGIG 202

[Extract from Queensland Government Industrial Gazette, dated 17 June, 2005, Vol. 179, No.7, pages 202-205] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Craig Banditt AND Department of Corrective Services (No. B157 of 2005) COMMISSIONER FISHER 2 June 2005 Application for reinstatement – Police search applicant’s home – Applicant charged with unlawful possession of three prohibited drugs – Applicant suspended on full pay – Magistrates Court found applicant not guilty – Applicant seeks reinstatement – Ethical Standards Unit (ESU) review – Show cause – Applicant dismissed for engaging in disgraceful or improper conduct in a private capacity that reflects seriously and adversely on the public service – Magistrates Court findings – Departmental process – ESU Memorandum – Memorandum found neither objective nor fair – Whistleblowers allegations included in memorandum – Applicant disadvantaged – Factual errors in memorandum and written in emotive language – Memorandum found highly prejudicial to applicant – Applicant not afforded procedural fairness – Case law – Applicant admits to possession of tablets found to contain dangerous drugs – Applicant has contact with prison inmates – Dismissal with notice appropriate penalty – Dismissal found not harsh, unjust or unreasonable – Application dismissed. DECISION On 25 June 2003, officers of the Drug Squad, Queensland Police Service, executed a search warrant at the matrimonial home of the applicant, Craig Banditt, who was then employed as a Correctional Services Officer at the Wolston Correctional Centre, Department of Corrective Services (the Department). Although the warrant gave authority to the Police to search for heroin, none was found. The police however seized two clipseal bags containing a total of 14 tablets and some fragments of tablets. Police interviewed Mr Banditt on 2 December 2003 in relation to the search in June. After the interview Mr Banditt was charged with unlawful possession of three prohibited drugs. On 5 December 2003 Mr Banditt notified his employer of the charges. On 22 December 2003 Mr Banditt was suspended from his employment on full pay under s. 89A of the Public Service Act 1996. On 15 April 2004 Mr Banditt appeared before the Magistrates Court in relation to the charges. After the Police Prosecutor had presented his case, Mr Banditt’s Counsel made submissions to the Court that the charges be dismissed. The Deputy Chief Magistrate considered the submissions made by both the prosecution and the defence on the point and decided that all elements of the offence had not been proven beyond reasonable doubt. Mr Banditt was found not guilty of all three charges. Immediately on the result of the case being known Mr Banditt contacted his employer seeking reinstatement. After receiving no response his lawyers then contacted the Department. Mr Banditt remained suspended on full pay while the Ethical Standards Unit (ESU) of the Department conducted a “review” of Mr Banditt’s case. As a result of that review, Mr Banditt was asked to show cause why disciplinary action should not be initiated against him for allegedly engaging in “disgraceful or improper conduct in a private capacity that reflects seriously and adversely on the public service”. Despite Mr Banditt’s protestations, the show cause process found Mr Banditt to be guilty of misconduct and, in particular, of the alleged offence. After inviting Mr Banditt to make a submission regarding the penalty to be imposed, the Director-General decided that Mr Banditt should be dismissed. Mr Banditt was notified of his dismissal by letter dated 20 January 2005. By this application, Mr Banditt has complained that his dismissal was harsh, unjust or unreasonable. In particular, his complaint is that procedural fairness was not afforded to him by the Department. That submission is not without foundation. Before examining the allegations regarding lack of procedural fairness, I shall briefly return to matters relating to the police search and investigation and the Magistrates Court proceedings. Criminal Matters (i) whether Mr Banditt resided at the matrimonial home at the time of the search. When the Police conducted the search Mr Banditt was not in attendance. Although he said in the interview of 2 December 2003 that he was residing there at the time, the Police Prosecutor accepted before the Magistrates Court that -- 1 of 5 -- 2 Mr Banditt had moved out about one month earlier. However, that admission was accepted with the rider that Mr Banditt would on occasion visit the matrimonial home and sleep over. In his evidence before the Commission Mr Banditt said that his visits were to see his children with the permission of his then wife. He denied that he slept over. I accept Mr Banditt’s evidence with respect to his visits but in relation to whether he slept over, the position put before the Magistrates Court is adopted. If that position was inaccurate, then Mr Banditt’s Counsel had the opportunity to correct the record in those proceedings. That he did not leads me to conclude that the position before the Deputy Chief Magistrate is correct. (ii) the Police Investigation and Interview Mr Banditt was telephoned by police after the search had been conducted and he arranged to meet the police at the Drug Squad the following day. At that time the police and Mr Banditt had “a conversation” about the matter but no action was taken against him. The police sent the tablets and fragments for analysis. Mr Banditt was formally interviewed by police on 2 December 2003, nearly six months after the search. It was his uncontradicted evidence that the police invited him in for coffee and a chat. He was not told that he was to be formally interviewed. He voluntarily attended the interview, co-operated with the police and did not seek legal representation. The interview commenced at 4.29 p.m. and concluded at 4.45 p.m.. Although Mr Banditt was asked about the tablets that were found and some of them were described to him, they were not shown to him nor was he given any other details in relation to them. In particular, he was not informed of the results of the analysis. Peter Bottomley, Director of the ESU and a former Police Officer, described the police interview as “far from satisfactory” and the investigation as “fundamentally flawed”. Even from the perspective of a non-participant in the criminal justice system, the time allocated to the interview and the transcript of it shows that it was perfunctory at best. Nonetheless during the interview, Mr Banditt admitted the tablets were his and he was subsequently charged with three counts of possession of a dangerous drug. (iii) Magistrates Court Findings In his decision the Deputy Chief Magistrate made three findings of significance: (a) that Mr Banditt had admitted possession of the tablets and fragments of the tablets in a record of interview with police; (b) the identity of the drug and the fact they were dangerous drugs had been proved beyond reasonable doubt; and (c) the Court was unable to conclude that as a matter of commonsense or reality that Mr Banditt was in possession of any of the drugs because there was no proof of the quantities of the drugs. As a consequence Mr Banditt was found not guilty of the three charges. Departmental Processes The ESU did not conduct an investigation into the situation concerning Mr Banditt in accordance with its Investigation Procedures Manual. Instead, the then head of the Unit charged Mr Bottomley, the then Investigations Manager of that Unit to conduct a “review”. The Commission can accept that where a police investigation has occurred and Court proceedings have resulted that it may not be necessary for the ESU to conduct a full investigation into the matter and that a review of the case against the employee may be a more appropriate way to proceed. Given that a body of material would have already been collected such an approach would save both time and resources. In conducting any such review it is essential that the reviewer be in possession of all of the relevant facts. In this case Mr Bottomley relied on information given by police to other police officers serving in the Corrective Services Investigation Unit of the Department. The end result was that Mr Bottomley was informed that the police case was not presented to the Magistrates Court and thus the charges against Mr Banditt had not been tested. This information was clearly wrong and when Mr Bottomley learned of the true situation some months after completing his review, he did not seek to correct his report. Mr Bottomley also had before him the police brief of evidence which included the police record of interview. He did not have, nor did he seek to obtain, the transcript of the proceedings in the Magistrates Court or the decision of the Deputy Chief Magistrate. Accordingly, Mr Bottomley only had a one sided account of the case against Mr Banditt and an incomplete and flawed case in that. Those deficiencies did not prevent Mr Bottomley from making adverse findings against Mr Banditt. Although Mr Bottomley’s review was not governed by the Investigations Procedures Manual, it would be reasonable to assume that the standards required of an Investigation Report specified in that Manual would also apply to the document produced as a result of a review. -- 2 of 5 -- 3 Paragraph 7.4 of the Manual states that: “Investigation Reports . . . must remain objective, fair and concise . . . Investigation Reports shall not under any circumstances contain emotive language, defamatory comments or findings that cannot be supported by the facts/evidence contained in the body of the report.”. Regrettably, Mr Bottomley’s report of the review that became a Memorandum from the then Director of the ESU to the Acting Executive Director, Custodial Corrections, is neither objective nor fair. Further, in the section headed “Findings on the Balance of Probability”, it contains both emotive language and defamatory comments. Examples are as follows: “after a number of remands … CSO Banditt eventually pleaded ‘not guilty’; “CSO Banditt’s version . . . of what he ‘thought’ the tablets were is considered to be highly implausible . . .”; “. . . he was both evasive and conveniently ‘unclear’ . . .”; and “. . . it is ridiculous for CSO Banditt . . . to suggest . . .”. The problems with the Memorandum do not stop here. Contained in the document are allegations made by two whistleblowers against Mr Banditt concerning the supply of drugs. The two informants were given whistleblower status under the Whistleblowers Protection Act 1994 as their “evidence” was deemed to constitute a “public interest disclosure” under that Act. It should be noted that two informants were Departmental employees. It is not for me to determine whether the two informants could properly be characterised as whistleblowers under the relevant legislation. However, the allegations contained in the Memorandum fall far short of what could constitute evidence before any court (and this Commission) and their lack of particularity would make it difficult for them to be relied on in any proper investigation. But that is by the way. The main point of concern is that the allegations of the alleged whistleblowers were included in the Memorandum and relied on in Mr Bottomley’s findings to support the conclusion that Mr Banditt was “completely untruthful” when he told Police that he did not know what the tablets contained and that he had “full knowledge” of their contents when he took possession of them. Mr Bottomely defended the inclusion of the whistleblower allegations by relying on a Crime and Misconduct Commission guide called “Facing the Facts” which is a practice guide to the investigation of public sector misconduct. In his affidavit he said: “15. The obligation to inform a person of the substance of the allegations does not apply if the ‘investigation’ is merely collecting information for the purpose of making a report or disclosure to a final decision-maker as that the latter can take action in respect of the matter. The facts of this particular case demonstrate that ESU did nothing more than gather information to be used in connection with a decision making process at a more senior level of the agency.”. With respect to Mr Bottomley his review report was substantially more than an information gathering exercise. It is evident that the review made findings, including findings based on the untested allegations of “whistleblowers”. With the inclusion of the whistleblower allegations the process being conducted by Mr Bottomley could no longer be characterised as a review of the body of evidence that had already been collected. It metamorphosed into an investigation and the procedures set down in the Investigation Procedures Manual should have then been applied. The failure to alter the process at that point led to Mr Banditt being treated unfairly because the allegations were relied on in part to support the initiation of the show cause process, before Mr Banditt had knowledge of them. Consequently, he was at a disadvantage. There is also nothing in the material before me nor from the evidence of Shane Donovan, the Acting Manager of Employer Relations, who provided advice to the Director-General on the disciplinary proceedings, to suggest that the whistleblower information was not relied on to support the ultimate determination. Again, as more of a by the way comment, it is noted that the termination letter refers to only one whistleblower, when according to Mr Bottomley’s document, two whistleblowers made allegations against Mr Banditt. In his evidence to the Commission Mr Banditt identified many errors of fact in Mr Bottomley’s report. Most of these resulted from Mr Bottomley not having complete and accurate information before him. Amongst the errors of fact identified by Mr Banditt, in addition to those mentioned above, were: a. that the police search was undertaken while Mr Banditt was resident in the matrimonial home. As noted earlier, at the trial, police accepted Mr Banditt had moved out a month before the search; -- 3 of 5 -- 4 b. that the police executed the search warrant “acting on reliable and confidential information that (Mr Banditt) was involved in the distribution of illegal drugs.”. The search warrant identified that police were searching on suspicion of heroin. During the police interview, Mr Banditt was not asked about distribution of illegal drugs nor was he charged with any such offence. There is nothing in any of the materials before the Commission to show on what information the police acted; c. that the report stated that three clipseal bags were found whereas two were seized; and d. that “several of the pills (were) similar in appearance to MDMA tablets, otherwise known as “ecstasy”. There is nothing in the certificate of analysis or in the Deputy Chief Magistrate’s findings to support a conclusion that the tablets were ecstasy. Mr Bottomley’s review also concluded that Mr Banditt’s conduct constituted criminal offences. The decision of the Deputy Chief Magistrate showed that that conclusion could not be supported. It is important to note that at no time during their oral or written evidence did the Departmental witnesses challenge the errors of fact identified by Mr Banditt. In all, the ESU Memorandum was wrong about many facts of the matter, included allegations that had not been tested and was written in language that was emotive and perhaps defamatory. It was highly prejudicial. It is often difficult for an employee to defeat a show cause process even where the investigation leading to that process has been conducted properly. Where what passes for a review is inaccurate, subjective, includes unsubstantiated allegations and is otherwise highly prejudicial, the employee has no prospect of success. The scales are well and truly tipped against them. Such was the situation in which Mr Banditt found himself. The result of the manifestly prejudicial Memorandum produced by ESU was to irrevocably taint the whole of the subsequent show cause and disciplinary penalty process. Despite the show cause and disciplinary penalty process employed by the Department following standard public service procedure, I consider that Mr Banditt was not afforded procedural fairness because of the prejudicial initiating document. While the Commission is prepared to accommodate procedural defects of a minor nature or where they do not sufficiently impinge on the outcome, it is generally reluctant to overlook a process of review which is substantially flawed. This process can be so characterised. Misconduct The reason that Mr Banditt was dismissed was misconduct, in particular, disgraceful or improper conduct in a private capacity that reflects seriously or adversely on the public service. That reason was squarely based on Mr Bottomley’s review finding that “[o]n the balance of probability,… on 25 June 2003, CSO Banditt had possession of the dangerous drugs (as described), and that these drugs were contained in the tablets located in his possession.”. In reaching its decision the Department considered its responsibility to ensure the security and good order of correctional facilities. Mr Banditt’s position required him to work within a correctional facility and to have contact with inmates. It is perfectly understandable that the Department would not want to have in its employ an employee who was found to be in possession of dangerous drugs, albeit that the quantity was not certain. Mr Banditt’s admissions before the Magistrates Court and the findings of the Deputy Chief Magistrate as to possession of illegal substances cannot be ignored. That the Magistrate found that as a matter of common sense and reality Mr Banditt could not be found to be in possession of dangerous drugs does not negate his other findings. It is clear that illegal substances were found to be in Mr Banditt’s possession. In light of the Magistrates Court finding that Mr Banditt was found to be in possession of tablets and the identity of the drug and that they were dangerous drugs were proved, the question that arises is whether Mr Banditt’s conduct constituted misconduct, in particular, disgraceful or improper conduct in a private capacity that reflects seriously or adversely on the public service? In considering this I firstly note that I was not addressed on the meaning of this provision. Accordingly, the dictionary definitions of “disgraceful” and “improper” are considered. The Macquarie Dictionary defines “disgraceful” to include “bringing or deserving disgrace; shameful; dishonourable; disreputable”. “Improper” is defined to include “unsuitable or inappropriate”. In my view Mr Banditt’s admission of the possession of the tablets and the finding that they were dangerous drugs shows that he was engaging in conduct that was at least unsuitable or inappropriate and was thus misconduct. It was conduct carried out in a private capacity and for reasons explained below, was conduct that reflects seriously or adversely on the public service. Dismissal as the Appropriate Penalty Was the misconduct of a type to warrant dismissal? The matter must be considered in the light of the following:  the denial of procedural fairness;  the findings of the Magistrates Court; and  the nature of Mr Banditt’s occupation and his employer. -- 4 of 5 -- 5 This consideration requires the Commission to weigh and balance the competing factors. The denial of procedural fairness is a matter that supports a finding that dismissal was too harsh a penalty in the circumstances. Weighed against this are the other two factors. Mr Banditt was employed as a Correctional Services Officer inside a correctional facility with inmate contact. Given the nature of correctional facilities it is important that their staff be beyond reproach. In this employment context dismissal would usually be found the appropriate penalty where a person has admitted possession of tablets and the Magistrates Court had made findings regarding the identity of the drug and that they were dangerous. The procedural fairness deficiencies have caused me considerable concern but ultimately I am of the view that the first two findings of the Deputy Chief Magistrate must be considered in the context of the nature of the employment. These are the more compelling considerations and lead me to conclude that in all of the circumstances Mr Banditt could not be continued in employment. Mr Banditt was not summarily dismissed. Taking all of these matters into account I am satisfied that dismissal, with notice, was the appropriate penalty. Conclusion In light of the above the Commission finds that Mr Banditt’s dismissal was not harsh, unjust or unreasonable. The application is refused. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2005 9, 10 May Appearances: Mr D. Quinn (Carne Reidy Herd) appearing on behalf of the applicant. Mr S.B. Klein and with him Ms D. Gibson for the respondent. Released: 2 June 2005 Government Printer, Queensland The State of Queensland 2005. -- 5 of 5 --