Ehrlich v State of Queensland (Queensland Corrective Services) [2024] QIRC 209

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Ehrlich v State of Queensland (Queensland Corrective Services) [2024] QIRC 209 PARTIES: Ehrlich, Anthony (Appellant) v State of Queensland (Queensland Corrective Services) (Respondent) CASE NO: PSA/2024/107 PSA/2024/118 PROCEEDING: Public Sector Appeal – Appeal against a suspension without pay decision DELIVERED ON: HEARING DATE: 13 August 2024 13 August 2024 MEMBER: HEARD AT: Dwyer IC Brisbane ORDER: 1. The decision under review in matter PSA/2024/107 is confirmed; and 2. The decision under review in matter PSA/2024/118 is confirmed CATCHWORDS: PUBLIC SECTOR ⎯ EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – allegations of misconduct – where Appellant suspended on normal remuneration – where criminal charges in relation to same conduct – right to silence invoked in criminal proceedings – request to suspend disciplinary process – request granted – Appellant suspended without -- 1 of 12 -- 2 remuneration – basis for suspension – compliance with directive not synonymous with fair and reasonable – no control over criminal proceedings – compelling evidence of serious misconduct in the workplace – suspension without remuneration fair and reasonable LEGISLATION AND INSTRUMENTS: Corrective Services Act 2006 (Qld) s 128 Corrective Services Regulations 2017 (Qld) s 19 Industrial Relations Act 2016 (Qld) s 562B, s 562C Public Sector Act 2022 (Qld) s 91, s 92, s 101 Suspension Directive (06/23) cl 8, cl 10 CASES: Roche v State of Queensland (Queensland Ambulance Service) [2023] QIRC 334 Reasons for Decision Delivered ex tempore, revised from transcript Introduction [1] Mr Anthony Ehrlich is employed with Queensland Corrective Services (‘QCS’) as a Custodial Correctional Officer. On 23 January 2024, Mr Ehrlich was suspended on normal remuneration in relation to certain allegations. The letter of suspension expressly refers to s 101(1)(a) of the Public Sector Act 2022 (Qld) (‘PS Act’). [2] The allegations against Mr Ehrlich are, in summary: i. On the 24th of August 2022, he introduced a prohibited item, namely, a cigarette lighter and tobacco, into a correctional facility ii. On the 13th of September 2022, he introduced a prohibited item, namely, a cigarette lighter, into a correctional facility. iii. On 13th of September 2022, he prepared an inaccurate incident report. -- 2 of 12 -- 3 iv. On the 17th of October 2023, he introduced a substance believed to be cannabis into a correctional facility. [3] The facts supporting these allegations are discussed later in these reasons. [4] The investigations in the workplace with respect to the allegations were concluded on or about March of 2024, and a show cause letter was sent to Mr Ehrlich on 3 April 2024 inviting him to show cause why disciplinary findings should not be made against him.1 [5] Relevantly, by this time Mr Ehrlich had also been charged by the Queensland Police Service in respect of the conduct giving rise to the allegations. At the time he received the show cause letter Mr Ehrlich was (and continues to be) awaiting the conclusion of those criminal proceedings. [6] On 3 May 2024, in response to the show cause letter, Mr Ehrlich’s lawyers wrote to QCS and advised that, as Mr Ehrlich had invoked the right to silence in the criminal proceedings, he was not prepared to respond to the show cause letter. Mr Ehrlich sought a suspension of the disciplinary process. Notably, while not inviting the exercise of the power, Mr Ehrlich’s own lawyers submitted in that letter that the QCS could utilise s 101 of the PS Act to suspend Mr Ehrlich without remuneration as a means to mitigate any prejudice to them arising from suspension of the disciplinary process.2 [7] On 14 May 2024, QCS wrote to Mr Ehrlich’s lawyers confirming their consent to suspend the show cause process but also, asked Mr Ehrlich to show cause why his suspension should not continue without remuneration. [8] Mr Ehrlich’s lawyers responded on 21 May 2024. Relevantly, those submissions acknowledge explicitly the suspension was pursuant to s 101(1)(a) of the PS Act. [9] On 31 May 2024 QCS responded to Mr Ehrlich and advised him that he was suspended without pay. That letter again expressly refers to the suspension of Mr Ehrlich pursuant to s 101(1)(a) of the PS Act.3 The decision includes the phrase: I have determined that it is fair and reasonable for your client to be suspended without remuneration. (Emphasis added) [10] It is this decision that is the subject of appeal number PSA/2024/107. 1 Respondent’s submissions filed 24 July 2024, attachment 2. 2 Respondent’s submissions filed 24 July 2024, attachment 3. 3 Respondent’s submissions filed 24 July 2024, attachment 6. -- 3 of 12 -- 4 [11] As an aside, it ought to be noted that this appeal was filed outside the statutory time limit. There was an attempt to file it within the requisite time frame, but filing was refused by the Registry on technical grounds. There was a further attempt to file approximately one week outside the statutory time limit that was accepted. QCS raised an objection on the basis the appeal was filed out of time. [12] I dealt with the objection at the commencement of the hearing. I noted that the decision under review was first sent to Mr Ehrlich’s lawyers and that the prohibition on lawyers appearing in public sector appeals required a transfer of representation to Mr Ehrlich’s union during the relevant period for filing. I further noted the attempt to file within time was refused on a technicality, and the compliant appeal was filed within a very short period after that. Consequently, I ordered that the time limitation be waived, and the appeal be allowed to proceed. [13] Subsequent to the decision on 31 May 2024 suspending Mr Ehrlich without remuneration, a further decision was made on 2 July 2024 to extend Mr Ehrlich’s suspension without pay. That decision considered slightly different matters to the first but arises out of the same facts. Mr Ehrlich filed a second appeal in relation to the decision issued on 2 July 2024 on 17th July 2024. [14] Because of the relationship between the matters, that appeal was allocated to me, and it became matter number PSA/2024/118. [15] With consent from the parties, both of the appeals have been dealt with concurrently. Nature of public sector appeals [16] A Public Sector Appeal is conducted by way of a review of a decision. They are not a fresh hearing on the merits of the matter. [17] Section 562B of the Industrial Relations Act 2016 (Qld) (‘IR Act’) provides that: 562B Public service appeal to commission is by way of review (1) This section applies to a public service appeal made to the commission. (2) The commission must decide the appeal by reviewing the decision appealed against. (3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. (Emphasis added) -- 4 of 12 -- 5 [18] Section s 562C of the IR Act relevantly provides that: 562C Public service appeals—decision on appeal (1) In deciding a public service appeal, the commission may— (a) confirm the decision appealed against; or … (c) for another appeal—set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. [19] The parties were directed to provide submissions in respect of both appeals and did so in writing. I do not intend to restate those submissions in these reasons. The salient portions of those submissions will be addressed in my consideration though it is worth noting generally that Mr Ehrlich’s submission alluded to the alleged application of the decision of Roche v State of Queensland (Queensland Ambulance Service) (‘Roche’).4 [20] Mr Ehrlich’s submission, inter alia, sought to rely on an alleged failure by the decision maker to have proper regard to the hardship he and his family will experience, that the decision maker viewed the conduct as more serious than it was, and further, sought to characterise the decision to suspend without remuneration as having been undermined by technical flaws, namely, different references to different provisions of the Suspension Directive (06/23) (‘the Directive’). [21] The evidence apparently supporting this last proposition was (apparently) the use of the term ‘fair and reasonable’ in the first decision letter which, it was said, was a reference to the language as it appears in Clause 8.2(b) of the Directive. Consideration [22] The singular purpose of the Commission when conducting a review of a decision is to determine if it was fair and reasonable.5 “Fair and reasonable” is a broad concept in respect of the consideration applied by the Commission. [23] While conforming with a directive is ideal, a failure by a decision maker to comply with a directive (of itself) will not render a decision unfair or unreasonable. It will always be the case that fairness and reasonableness are determined by consideration of the relevant facts and circumstances surrounding a decision under review. [24] The submissions of Mr Ehrlich in both appeals address what are alleged variously to be technical objections ranging from noncompliance with the directive to allegations that the decision-maker assessed the conduct of Mr Ehrlich as more serious than it was. 4 [2023] QIRC 334. 5 Industrial Relations Act 2016 (Qld) s 562B. -- 5 of 12 -- 6 [25] To best explain how misconceived these arguments are, an examination of the undisputed facts giving rise to the allegations assists. Allegations 1-3 [26] I preface these comments by noting that Mr Ehrlich has invoked his right to silence in the criminal proceedings and as such, he has yet to fully respond to the allegations. Having said that, the first two allegations were the subject of earlier interventions by QCS, and responses of Mr Ehrlich were documented.6 [27] It cannot be disputed by Mr Ehrlich that in respect of allegations 1 and 2, he was in possession of smoking products, including tobacco and a lighter, at a correctional facility on the nominated dates. [28] Tobacco and lighters are ‘prohibited things’ in accordance with s 128 of the Corrective Services Act 2006 (Qld). Regardless of his explanation or other mitigating circumstances, even Mr Ehrlich cannot dispute, on these facts, that he is liable to some form of discipline for his actions. [29] The third allegation is that Mr Ehrlich prepared an inaccurate incident report regarding the events of 13 September 2022. In short terms, when the cigarette lighter was found as Mr Ehrlich exited at the end of his shift, he said he was not checked with a metal detecting ‘wand’ at the start of his shift. All of the entry records indicate that he was. CCTV footage shows him being checked with the wand.7 [30] Importantly, the allegation is not one of dishonesty but ‘inaccuracy’. An ‘inaccurate’ complaint contemplates a range of possibilities, including mistake. A mistake might well mitigate the conduct, but it does not make the report made by Mr Ehrlich any less inaccurate. [31] Plainly, the CCTV footage establishes the inaccuracy of Mr Ehrlich’s report. In those circumstances Mr Ehrlich is plainly liable to some form of disciplinary action in accordance with the range options available to QCS at s 92 of the PS Act. [32] But while the factual foundations of these allegations are plainly made out, and while each of allegations one to three would plainly be grounds for discipline within the meaning of s 91 of the PS Act, it is also important to note that the conduct of Mr Ehrlich surrounding each of the first three allegations is a relevant aggravating factor. The witness testimony gathered during the investigation interviews raises serious questions about Mr Ehrlich’s integrity. 6 Respondent’s submissions filed 24 July 2024, attachment 4, 66-67, 249-266, 527-542. 7 Respondent’s submissions filed 24 July 2024, attachment 4, 57-58. -- 6 of 12 -- 7 [33] In respect of the first allegation, when initially confronted by his supervisor about smoking on duty (which includes the implication of being in possession of ‘prohibited things’), Mr Ehrlich denied the conduct. But when told there was CCTV footage, he then admitted it.8 [34] In relation to the second allegation Mr Ehrlich repeatedly denied having anything in his pocket notwithstanding the metal detecting wand was registering an item. He was ‘wanded’ five times before eventually producing the lighter from his pocket. Each time he was ‘wanded’ and a positive signal was received, Mr Ehrlich produced an innocuous item (including the same item twice) before eventually producing the contraband. 9 The conduct described by the witness in this instance is consistent with a deliberate attempt to conceal the ‘prohibited thing’ eventually revealed to be in his pocket. [35] Finally, Mr Ehrlich stated that he had not been ‘wanded’ on his way in to work at the start of the shift. Yet again, CCTV footage revealed he had.10 [36] It might well be that a decision maker at some later point in this process is prepared to accept that Mr Ehrlich absent-mindedly brought ‘prohibited things’ into a correctional centre. It might even be that they are prepared to accept that he did that twice within a matter of weeks. But his consistently evasive responses when confronted each time adds significant weight to the objective gravity of his conduct. [37] Having regard to the prevalence and nature of Mr Ehrlich’s impugned conduct, and his consistently evasive conduct when confronted, these are not minor infractions. Importantly, the material facts giving rise to the allegations are either admitted or well supported by direct evidence. Allegation 4 [38] The particulars of the fourth allegation are as follows: On 17 October 2023, during an evening briefing in the Village Officers Station (within the correctional centre), towards the end of his shift, a clear plastic bag was observed to fall from Mr Ehrlich’s pocket. The bag contained a green leafy substance. It was immediately retrieved by another officer, who handed it to his supervisor. An analysis of the contents of the bag by the Queensland Police Service has confirmed the substance to be cannabis. Cannabis is a ‘prohibited thing’ pursuant to Corrective Services Regulations 2017 (Qld).11 [39] The fourth allegation has not been the subject of any response from Mr Ehrlich. However, there are witness accounts that were prepared in the course of the investigation. These witness accounts are from individuals who were present and directly witnessed the 8 Respondent’s submissions filed 24 July 2024, attachment 4, 418. 9 Respondent’s submissions filed 24 July 2024, attachment 4, 450-451. 10 Respondent’s submissions filed 24 July 2024, attachment 4, 58. 11 Corrective Services Regulations 2017 (Qld) s 19. See also Corrective Services Act 2006 (Qld) s 128. -- 7 of 12 -- 8 material events.12 In particular, one witness confirms seeing the cannabis fall from Mr Ehrlich’s pocket.13 [40] To whatever extent there is an explanation or alibi that might be proffered by Mr Ehrlich in response to these alleged facts, it cannot be considered at this time due to his election to rely on the right to silence in his criminal proceedings. Nevertheless, the decision to suspend Mr Ehrlich without remuneration is founded on, inter alia, the direct evidence of the officer who observed the cannabis fall from his pocket and those who inspected it immediately afterwards. The basis for suspension [41] The suspension letter dated 23 January 2024 expressly states the ground for the suspension with remuneration is being effected pursuant to section 101(1)(a) of the PS Act in that it states the suspension with remuneration is “on the basis that the delegate reasonably believes Mr Ehrlich is liable to discipline”. [42] Having regard to the facts in respect of each allegation, it is impossible to reach any other conclusion. [43] The decisions under review expressly refer to s 101(1)(a) of the PS Act. To the extent it is not apparent to Mr Ehrlich it can clearly be concluded that this is not a case (like Roche) where suspension was initially put into effect pursuant to s 101(1)(b) of the PS Act. The relevance of the distinction is that an employee may only be suspended without remuneration where they have been suspended pursuant to s 101(1)(a) of the PS Act.14 Having satisfied that prerequisite, the power of the delegate to suspend Mr Ehrlich without remuneration is found then at s 101(4)(b), and to a lesser extent in Clause 8 of the Directive. [44] The power to suspend without remuneration is limited to circumstances set out in s 101(4)(b) of the PS Act, namely, where the delegate considers it is not appropriate for the employee to be entitled to normal remuneration, having regard to the nature of the discipline the delegate believes the employee is liable to. [45] The delegate has variously stated in correspondence that the allegations, if substantiated, could constitute misconduct, which implicitly carries potentially serious consequences (including termination of employment).15 12 Only a precis of these accounts was available at the time of hearing (see Respondent’s submissions filed 24 July 2024, attachment 2). During the preparation of these written reasons, upon request, QCS supplied a copy of the second investigation report dated 14 February 2024 which contains interview transcripts. The transcripts are consistent with the precis of evidence previously provided. 13 Investigation report dated 14 February 2024 (see transcript of interview dated 10 November 2023, 7). 14 Public Sector Act 2022 (Qld) s 101(4)(a). See also Roche v State of Queensland (Queensland Ambulance Service) [2023] QIRC 334, [49]-[55]. 15 Respondent’s submissions filed 24 July 2024, attachment 6, attachment 9. -- 8 of 12 -- 9 [46] The conduct alleged is very serious. The allegations, if proven, are such that there is almost no conceivable scenario that would not conclude with the termination of Mr Ehrlich’s employment. Any conclusion to suspend pursuant to s 101(1)(a) of the PS Act would therefore be fair and reasonable. [47] In respect of the decision dated the 31 May 2024 (which relates to appeal number – PSA/2024/107) I am satisfied that the delegate properly followed the steps necessary to first suspend with pay and then without pay pursuant to s 101(4) of the PS Act. The correspondence accompanying the respondent’s submissions demonstrates that more than ample procedural fairness was allowed to Mr Ehrlich in the lead-up to those decisions. [48] Further, the grounds for suspension without pay are more than plain. The delegate explains the matters that he is considering in correspondence to Mr Ehrlich’s solicitors on the 14 May 2024. To the extent that those considerations contain a reference to public interest considerations, that is plainly not exclusively a reference to the term as it appears in clause 8.2 of the Directive but rather, also a broader use of the term in considering the appropriateness of continuing Mr Ehrlich on paid suspension. [49] There is no evidence that the decision was without proper foundation or that the decision maker somehow failed to apply or misapplied his powers under the PS Act or the Directive. The decision to suspend without remuneration on the 31 May 2024 is, in all of the circumstances, fair and reasonable. [50] The decision to extend suspension without pay on 2 July 2024 essentially relies on the same reasoning. [51] There has been a submission from the representative for Mr Ehrlich that the decision is in some way technically deficient. It is a difficult submission to understand. It appears to relate to the use of the terms “public interest” and “fair and reasonable” and as indicators that the decision-maker has incorrectly confused the source of his power. Whatever the case might be, having regard to the decision I am similarly satisfied that it is equally without flaw. [52] On my reading of the material, there is no confusion by the decision maker. The suspension correspondence has been clear as to the reliance on s 101(1)(a) and later s 101(4) of the PS Act in respect of the decision to suspend without remuneration. The fact that the delegate has referred variously to public interest consideration with respect to s 101(4)(b) or that he considered hardship submissions from Mr Ehrlich, or that he made a statement that the suspension was fair and reasonable, do not render those decisions technically deficient. -- 9 of 12 -- 10 [53] For completeness, to the extent that Mr Ehrlich has sought to rely on the decision of Roche,16 I consider that decision was decided on its own unique facts. Additionally, the facts in Roche bear little to no resemblance to this matter, and the technical failing that saw Mr Roche prevail in his appeal has no application to the decisions in these appeals which have followed the proper technical path. Objective seriousness of conduct justifies decision [54] It is appropriate to again note that the purpose of the Commission in hearing Public Sector appeals is to determine if the decision under review was fair and reasonable. A decision that is technically deficient can still be fair and reasonable. While it is not ideal, there will be occasions where the right decision can be made, albeit poorly executed. If a technical failing by a decision maker does not produce a demonstrable unfairness or unreasonableness for an appellant, the decision ought not be disturbed. [55] Further, in certain matters the objective correctness of some decisions will sometimes overwhelm any unfairness or unreasonableness evoked by e.g., an inept turn of phrase used by a decision maker in correspondence, or a failure to demonstrate rigid adherence to a clause in a directive. [56] On the facts of this case, including the facts admitted by Mr Ehrlich, he is without doubt liable to discipline. Regardless of any excuse, error, or other mitigating circumstances, the witness evidence supporting a conclusion that Mr Ehrlich was in possession of an illicit substance in a correctional facility is compelling. While I accept Mr Ehrlich is yet to respond to this allegation, I would anticipate the fact that a bag of cannabis was seen to fall from his pocket will make it impossible for him to deny that he was, at the very least, in possession of the substance. [57] For a corrections officer to be in possession of an illicit substance like cannabis in a correctional facility is very serious misconduct. It is conduct that would unquestionably justify termination of Mr Ehrlich’s employment. This would be so even if it is accepted that e.g. Mr Ehrlich forgot that the substance was in his pocket or that he used it for medicinal purposes.17 The fact that Mr Ehrlich might have some legitimate basis to possess cannabis in his personal life does not change the prohibition on him bringing it into a correctional facility. Even if he does later claim it was brought in accidentally, that is only a mitigating factor, not an excuse. [58] Given his role as a correctional officer, Mr Ehrlich must be held to a much higher standard with respect to such conduct. It would be a serious oversight or error of judgement to ‘accidentally’ be in possession of cannabis in a correctional centre, and it is expected that he would not make such a serious error. 16 [2023] QIRC 334. 17 Even if it were for personal or medicinal use, it is still a prohibited item within a correctional centre. -- 10 of 12 -- 11 [59] But even if I am wrong in my characterisation of the seriousness of this conduct, it is not the only conduct of Mr Ehrlich under scrutiny. Even if one puts the cannabis allegation to one side, for all of the reasons already stated, allegations 1-3 are collectively very serious when taking into account Mr Ehrlich’s conduct surrounding them. [60] There will be matters such as this where common sense must prevail over procedure and technicality. While I am unable to find fault with the decisions under review, to whatever extent the decision maker has been unclear or has deviated from the procedural path, he has arrived at a decision that is objectively and resoundingly correct given the facts. Conclusion [61] The investigation into Mr Ehrlich’s conduct is complete. The evidence (apart from Mr Ehrlich’s statement) is complete. It collectively paints a compelling (albeit incomplete) picture of serious misconduct. On the facts established, no technical failing by the decision maker can overcome this conclusion. [62] In the circumstances, where there is already a compelling case to conclude on the balance of probabilities that Mr Ehrlich has engaged in multiple counts of misconduct, the suspension of the disciplinary process while Mr Ehrlich deals with the criminal proceedings is a very generous indulgence. Further, it is completely unreasonable to expect the public to carry the burden of Mr Ehrlich’s salary while he is granted this indulgence. [63] The criminal proceedings are still nowhere near complete and may be many months (or more) before they are. None of that is under the control of QCS. I can appreciate entirely why the delegate considered it was not appropriate to continue with remuneration during Mr Ehrlich’s suspension. One can well imagine the reaction of the public if it transpired that Mr Ehrlich was to receive full pay for months on end (or longer) in circumstances where, even on his own admissions, grounds that might warrant the immediate termination of his employment already existed but were not acted on. [64] Mr Ehrlich still has his job. He is still able to work elsewhere during his suspension. Further, Mr Ehrlich may yet have the protection of Clause 10 of the Directive if he is exonerated in the criminal proceedings, though this would not of itself invalidate the clear grounds for disciplinary action. [65] It might be the case that Mr Ehrlich will ultimately contend that he unintentionally or unknowingly brought cannabis into a correctional facility. Or he might even contend that he did not bring it in at all. Whatever the case might be, having regard to the allegations collectively, the inescapable conclusion is that Mr Ehrlich is the sole architect of these events. It is predominately his own actions that have brought him to this, and it is he alone who is responsible for the consequences of those actions. -- 11 of 12 -- 12 [66] There is nothing unfair or unreasonable about the decisions under review. Order [67] In all of the circumstances, I consider the decisions under review are fair and reasonable, and I make the following order: 1. The decision under review in matter PSA/2024/107 is confirmed; and 2. The decision under review in matter PSA/2024/118 is confirmed. -- 12 of 12 --