Banditt v Department of Corrective Services [2005] ICQ 64 (2005) 180 QGIG 97

[Extract from Queensland Government Industrial Gazette, dated 9 September, 2005, Vol. 180, No.2, pages 97-100] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Craig Anthony Banditt AND Department of Corrective Services (No. C37 of 2005) PRESIDENT HALL 26 August 2005 DECISION The Appellant was employed by the Respondent over the period April 1998 to January 2005. He was initially employed at Sir David Longland Correctional Centre. He was subsequently employed at Wolston Correctional Centre. On or about 25 June 2003, officers of the Queensland Police Service executed a search warrant at the former matrimonial home of the Appellant. The police were searching for heroin. No heroin was found. However, the police did find certain tablets within a chest of drawers. On analysis, the tablets in one packet were found to be contaminated with certain prohibited drugs; viz. ketamine, methylamphetamine and/or methylenedioxymethamphetamine. The quantity of each of the dangerous drugs was not identified by the analyst. On 2 December 2003 the Appellant was charged with the unlawful possession of prohibited drugs being the drugs identified above. On 5 December 2003 the Appellant informed the Respondent of the charges. On 22 December 2003 the Appellant, whose employment was governed by the Public Service Act 1996, was suspended from his employment pursuant to s. 89(1)(a) of that Act. The proceedings against the Appellant, which were for a summary offence, came before the Deputy Chief Magistrate at the Brisbane Magistrate’s Court on 15 April 2004. At the close of the prosecution case, after taking submissions from the Police Prosecutor and Mr Byrne QC for the Appellant, the Deputy Chief Magistrate concluded that all elements of the offences had not been proven beyond reasonable doubt and found the Appellant not guilty of all three charges. The Appellant was discharged. The suspension under the Public Service Act 1996 continued to run. By s. 87(1)(b) of the Public Service Act 1996 an employing authority may discipline an officer if the authority is reasonably satisfied that the officer has been guilty of misconduct. “Misconduct” is defined to mean, amongst other things, “disgraceful or improper conduct in a private capacity that reflects seriously and adversely on the public service.”. In disciplining an officer, an employing authority may, amongst other things, terminate the officer’s employment, s. 88(3)(a) of the Public Service Act 1996. In fact, after conducting what passed for an “inquiry” into the Appellant’s conduct, the Respondent dismissed the Appellant on 21 January 2005. The ground relied upon was “disgraceful or improper conduct in a private capacity that reflects seriously and adversely on the public service.”. On or about 4 February 2005 the Appellant filed an application for reinstatement under s. 74 of the Industrial Relations Act 1999. By a decision of 2 June 2005, now reported 179 QGIG 202, the Commission dismissed the application. The Appellant now seeks relief from this Court on the ground that the Commission erred in law. I entertain a clear view that the Appellant must succeed. The “inquiry” was entirely flawed. It was trenchantly criticised by the Commission. There is no need to repeat the criticisms. No attempt was made by the Respondent to re-visit the criticisms. A conclusion that there has been a failure of process, even a gross failure of process, does not necessarily involve the conclusion that a dismissal is “harsh, unjust or unreasonable”. The decision in Cooper v The Queensland Theatre Company (1996) 152 QGIG 1241 at 1245 that “one must always ask the global question whether, in all circumstances, the dismissal is harsh, unjust or unreasonable” was a decision given about the Industrial Relations Act 1990. But there is nothing in the non-exhaustive range of factors set out in s. 77 of the Industrial Relations Act 1999 to suggest that the Commission must give any want of procedural fairness conclusive weight. Indeed, having regard to the decision of the Full Court of the Federal Court in Crozier v Australian Industrial Relations Commission [2001] FCA 1031 upon the similarly worded s. 170 CG(3) of the Workplace Relations Act 1996 (Cwth) the terms of s. 77 should be seen as confirming that it is for the Commission to determine what weight it will give to procedural fairness and what weight it will give to substantive fairness, in all the circumstances of a particular case. But the finding of the Commission on procedural fairness does insulate this case from the line of authority referred to in Roma Town Council v Latemore (2001) 167 QGIG 176 at 179-180, viz. the line of authority to the effect that an employer need not prove on the balance of probabilities that an employee had actually perpetrated the conduct for which the employee was dismissed, but may avoid liability by proving no more than an honest and reasonable belief that the employee engaged in this conduct which belief was formed after a proper and sufficient investigation. Here, any belief held by the employer, was not formed after a proper and sufficient investigation. Indeed, though the matter was not fully argued, the process was so defective that there is much to be said to the view that the decision to dismiss which was its product must be condemned as arbitrary, irrational and unreasonable, compare Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J, and for that reason “harsh, unjust or unreasonable”, compare Byne and Frew v Australian Airlines Limited -- 1 of 5 -- 2 (1995) 185 CLR 410 at 466 per McHugh and Gummow JJ. Put shortly, in the circumstances of the case, to succeed at first instance it was necessary for the employer, by skilful cross-examination or evidence in chief, to place before the Commission evidence about substantive matters which would justify the Commission in declining to form an affirmative satisfaction that the dismissal was harsh, unjust or unreasonable. The Respondent failed to do that. The Respondent succeeded because the Commission misunderstood the facts. The relevant passage appears at p. 204 of the Commission’s decision: “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; honourable; 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.”. With respect, the Appellant did not admit to the possession of the prohibited drugs. Neither did the Deputy Chief Magistrate find that the Appellant had been in possession of the three prohibited drugs or any of them. What the Appellant admitted, in the police interview, was that he was in possession of tablets in a drawer which tablets were shown by other evidence to have included the contaminated tablets. Acting on that evidence, the Deputy Chief Magistrate found that the Appellant was in possession of the tablets. The Deputy Chief Magistrate did not take the further step of finding that the Appellant was in possession of the prohibited drugs because (to quote His Honour’s decision): “Where there is nothing before the Court to allow an observation of quantities as there was in the Stevens case, and there is not other proof of any quantity of the drugs whatsoever, then the Court is unable to come to a conclusion as a matter of common sense or reality that it was any of the drugs that the defendant was in possession.”. If I might be impertinent enough to say so, His Honour was indubitably correct. Indeed, in light of the decision of the Court of Appeal in Bourke v Reid (1993) 67 A Crim R 518, it seems to me that no other conclusion was open. In that case the Court of Appeal expressly adopted the observation of Gibbs and Mason JJ in Williams v The Queen (1978) 140 CLR 591 at 600 that: “… when the Act creates the offence of having possession of a dangerous drug or a prohibited plant, without adverting to quantity, it contemplates possession not of a minute quantity incapable of discernment by the naked eye and detectable only by scientific means, but a possession of such a quantity makes it reasonable to say as a matter of commonsense and reality that it is the prohibited plant or drug of which the person is presently in possession.”. Additionally, the Commission’s contention: “That the Magistrate found that as a matter of commonsense and reality Mr Banditt could not be found to be in possession of dangerous drugs does not negate his other findings”, entirely misconceives the Deputy Chief Magistrate’s findings. “Possession” in the Drugs Misuse Act 1986 has not been given a special meaning. It has been given its ordinary commonsense meaning. The remarks of Murphy J in Williams v The Queen (1978) 140 CLR 591 at 603 are of assistance: -- 2 of 5 -- 3 “… for example, it is well known that sea water, even a few drops, contains extremely minute quantities of gold and other elements detectable by sophisticated analytical techniques which have been available for decades. Inevitably a swimsuit immersed in the sea will contain gold. It would be foolish to charge a swimmer who is aware of this with possession of gold. Radioactive material from atmospheric nuclear tests is so dispersed over the surface of the earth that every person’s body contains minute quantities. It would be foolish to suggest that a person who knew that he had articles containing products of a dispersion is in breach of statute which prohibits possession of radioactive material.”. Aickin J analysed the matter in terms of the concept of possession (at 610-611): “The solution of the problem of minute quantities appears to me to be in the proper application of what is involved in the concept of “possession”. It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from surrounding circumstances. Thus both x and y may be charged with possession of cannabis, because on being searched, each had in his pocket a cigarette packet containing not ordinary cigarettes as marked on the packet but “reefers”. In each case that fact may well be prima facie evidence of possession, i.e. of physical custody or control with knowledge of what is in the cigarette packet, and, if no more appeared, there would be sufficient evidence to record a conviction in each case. Suppose, however, there were evidence that the packet which was found in the pocket of y had been given to him by x with the request y should hand them to z, because z had, by mistake left them on x’s desk, and suppose y did not know they were not ordinary cigarettes. If such evidence were accepted or had raised a reasonable doubt as to y’s knowledge of the contents, there would be no basis on which he could be convicted. If one seeks to apply this approach to a case where microscopic traces are found in the pocket of an accused’s coat, identified as cannabis, but estimated at amounting to no more than a few micrograms, a not dissimilar question would arise. If nothing more appeared, a question would be whether there was any evidence of the required mental element to sustain a finding of possession. If the evidence showed only that y’s coat was available to and occasionally used by others living in the same house, there would be insufficient evidence from which the necessary knowledge could be inferred.”. On the Appeal, the Respondent has attempted to defend the Commission’s decision to dismiss the Appellant’s reinstatement application on a ground other than that advanced by the Commission. The submission is that although the Appellant was not in possession of prohibited drugs, he was in possession of tablets which in fact were contaminated by prohibited drugs. It is contended that in the case of an officer employed by the Department of Corrective Services to assist in the operation of custodial institutions, including the management of prisoners incarcerated in consequence of conviction on drugs charges, such conduct is in itself “disgraceful or improper conduct in a private capacity that reflects seriously and adversely on the public service.”. With respect to Mr Murdoch of Counsel, who has argued a difficult case with courtesy and persistence, the submission reveals a further defect in the decision of the Commission. On the limited evidence available to the Deputy Chief Magistrate the conclusion that the Appellant was in possession of the contaminated tablets seems to me (though debatable) to have been entirely open. The Commission chose to adopt that finding. However, there was very much more evidence before the Commission. Before going to that evidence, I should emphasise that the tablets were not found on the Appellant’s person. The tablets were found in a drawer of a chest of drawers at the Appellant’s former matrimonial home. At the time that the police search revealed the tablets the Appellant had not resided at the matrimonial home for approximately a month. As emerged in cross-examination the Appellant did not have a key to the former matrimonial home and had access only with the consent of his former partner. I turn then to the further matters. At para 50 of his affidavit the Appellant deposes: “Only after the interview was I provided with the Analyst’s Certificate that identified the items. At any one time I had a variety of tablets, all perfectly legal, used in connection with body building and stored in clip seal bags in my house. I responded to the officer’s questions in ignorance of the identity of the particular tablets he was referring to.”. At para 51 the Appellant deposes that he replied to the police officer’s questions on the basis of an understanding that: “(i) none of the tablets that I have taken into my possession have contained any illicit substances; (ii) all the tablets I used or sold through my business were forms of herbal and amino acid supplements to assist in body building or as general health and diet supplements; (iii) any tablets I had would have been supplied by fellow body builders from my gym; (iv) if some of the tablets were crushed or fragmented then I certainly could not identify what they were; -- 3 of 5 -- 4 (v) the drawer in which the tablets were found was my “junk” drawer so that anything found in it was almost certainly mine; (vi) the tablets were not identified to me beyond what was put in the police officer’s questions and I was unable to provide specific information in relation to the tablets.”. The Appellant was not shaken in cross-examination on any of that evidence. He went on to swear at para 59: “I am a fitness fanatic. I do not drink alcohol, I do not smoke and I do not take illicit drugs.”. At para 123 the Appellant deposes that he was regularly given samples of materials in the course of his body building business. He deposes that generally the samples were not labelled but the person supplying them would say that they were supplements. He says: “I never refused to take such samples when they offered. However, I did not ingest the samples and took them as a matter of politeness or with an intention to try them later, which I never acted upon.”. That evidence, if accepted, and on the ineffective cross-examination there is absolutely no reason why it should not be accepted, gives quite a different complexion to the passages from the police record of interview which were the only evidence available to the Deputy Chief Magistrate. At one point in the interview the Appellant was asked whether the “things in the drawer belong to you”. The Appellant answered: “Yeah, sure, there might be the odd thing that got thrown in there but it is pretty much the junk drawer really. There might be the odd thing that belongs to Kelly but predominately my stuff. So, those clip seal bags and tablets would be yours? Well, obviously no. Kelly had her own supplements and things like that.”. Taken literally, the exchange does not amount to an admission that all of the tablets in the drawer were tablets of the Appellant, though one can understand how read in isolation the passage might be so construed. When the passage is read with the additional evidence before the Commission no such construction is available. Plainly, the case was not one in which a person could be said to be in possession of the contents of the receptacle because the person had control of the receptacle. Additionally, the record of interview contains the following passages: “I’m not familiar with exactly what they would be but to my knowledge they are herbal supplements to use for testosterone for body building. Some of them were smashed up, can you remember them? I can’t tell unless they were crushed, they were in my pocket or something like that. An amino acid, a herbal, I couldn’t tell you which ones, to be honest. I’ve had some sitting round. Everything got chucked in that drawer, everything from cold and flu tablets, everything in the drawer so I can’t tell you, things just got chucked in the drawer.”. When those passages are cobbled together with the evidence before the Commission, and in particular the evidence of the Appellant in cross-examination that the interviewing police officers had not shown him the tablets, the conclusion that any control of the chest of drawers was knowing control of the contaminated tablets is simply not open. It is not a matter of confusing an error of law with an error of fact. It is not the Appellant’s submission that the Commission’s finding that the Appellant was in possession of the tablets which were in fact contaminated was not supported by any evidence, compare Alamzeb v Education Queensland (No. 2) (2002) 170 QGIG 190 at 195. The error of law relied upon by the Appellant lies in the Commission’s omission to elaborate upon the reasons for declining to act upon the Appellant’s evidence and for adhering to a finding made by the Deputy Chief Magistrate in entirely different circumstances. Whilst there may be some argument about whether in hearing the reinstatement application the Queensland Industrial Relations Commission is exercising arbitral power or judicial power, it is clear that the Commissioner is required to act judicially. It is now established that the judicial officer is required to provide reasons for making any relevant findings and conclusions and, where evidence has been rejected, to explain the basis for doing so, in order to limit any sense of grievance or injustice on the part of the party adversely affected and to ensure that such party may properly evaluate the prospects of success on appeal: Beale v Government Insurance Office NSW (1997) 48 NSWLR 430 at 431 per Mason P and 443-444 per Meagher JA; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 135-136 per Ipp JA; and Martin v Rolling and Anor (2005) QCA 128 at [80] per Mullins J. Failure to discharge the obligation is an error of law, compare Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 per McHugh JA. The alternative ground upon which the Respondent seeks to defend the decision of the Commission is not available. In those circumstances, it is preferable to leave for another day the construction of the obliquitous charge, disgraceful or -- 4 of 5 -- 5 improper conduct in a private capacity that reflects serious and adversely on the public service. With respect to the Commissioner who dealt with the matter at first instance (and who did not have the benefit of a proper argument), the meaning of the charge cannot be determined by going to the dictionary definition of each of the words used. It is necessary to embark upon the construction of the Public Service Act 1996 read as a whole and to take account of all legitimate extrinsic material. And the task would be better undertaken in a case in which there is an issue whether conduct falls within the charge. The Appeal must be allowed. The decision of the Commission must be set aside. In circumstances in which there is no reason why the Appellant’s evidence should not be accepted and his evidence is not contra-verted, the proper course is to substitute a decision favourable to the Appellant. There was some discussion during the Appeal about the course to be adopted should the Appeal be allowed. It was the preference of Mr Murdoch for the Respondent that the matter should go back to the Commission because: (a) the Commission had had the advantage of an argument about what should occur if the dismissal was found to be “harsh, unjust or unreasonable”; and (b) if the matter was remitted to the Commission and for any reason anything went wrong an appeal would be available. I doubt that the argument which the Commission heard on the course to be adopted if the dismissal was found to be “harsh, unjust or unreasonable” will advantage the Commission overly much. The transcript shows that the core of the submission was an argument that reinstatement should not be ordered because the Respondent had lost confidence in the Appellant. Put aside arguments about whether the submission is inherently untenable, the basis suggested for a lack of confidence disappears once it is found that the Appellant was neither in possession of prohibited drugs nor in possession of tablets contaminated with prohibited drugs. Indeed, it may well be that the Commission needs to take further submissions. There is, however, great merit in Mr Murdoch’s point about an Appeal. In circumstances in which Mr Byrne, QC for the Appellant does not oppose the course of conduct suggested, I propose to remit the matter to the Commission to deal with the matter according to law. I order that the Appeal be allowed. I set aside the decision of the Commission dismissing the application for reinstatement. I record a finding that the dismissal was “harsh, unjust or unreasonable”. I remit the matter to the Commissioner who dealt with the matter at first instance to determine the matter of remedy according to law. There can be no questions as to costs. Dated 26 August 2005. D.R. HALL, President. Released: 26 August 2005 Appearances: Mr M.J. Byrne QC instructed by Carne, Reidy and Herd, lawyers for the Appellant. Mr C. Murdoch, instructed by Crown Law for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 5 of 5 --