Ecimovic v State of Queensland (Queensland Police Service) [2022] QIRC 300

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Ecimovic v State of Queensland (Queensland Police Service) [2022] QIRC 300 PARTIES: Ecimovic, Michael (Appellant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: PSA/2022/267 PROCEEDING: Public Service Appeal – Fair Treatment DELIVERED ON: 5 August 2022 MEMBER: Knight IC HEARD AT: On the papers Final submissions received 3 May 2022 ORDERS: 1. The appellant is granted leave to commence his appeal against the decision on disciplinary findings and proposed action out of time. 2. The appeal is allowed in part. 3. Allegation 1(a) is substantiated. 4. Allegation 1(b) is unsubstantiated. 5. The appellant's conduct in relation to Allegation 1(a) does not meet the definition of 'misconduct' in s 187(1)(b) and s 187(4)(a) of the Public Service Act 2008 (Qld). 6. The decision on disciplinary findings and proposed action is returned to the decision- maker with a copy of these reasons. 7. The decision-maker is directed to reissue the decision on disciplinary findings and proposed action containing only the substantiated allegation I have found to be fair and reasonable, namely Allegation 1(a). -- 1 of 26 -- 2 8. The decision-maker is further directed to specify the following in the reissued decision: (a) the standard or standards of the Code of Conduct for the Queensland Public Service the decision-maker finds the appellant contravened in respect of each of the substantiated allegations; and/or (b) the section or sections of the Public Service Act 2008 (Qld) under which the decision-maker finds there are grounds to discipline the appellant in respect of the substantiated allegation; and (c) the decision-maker's reasons for determining the appellant contravened each of the specified standards and/or sections. 9. The decision-maker is directed to reissue their decision within 21 days of these reasons. 10. The decision on disciplinary action is set aside. 11. The stay of the decisions appealed against is lifted. CATCHWORDS: INDUSTRIAL LAW ⎯ QUEENSLAND ⎯ APPEALS ⎯ whether leave ought to be granted to commence appeal against disciplinary finding out of time – where appeal lodged 42 days out of time – where appellant provided incorrect information with respect to appeal entitlements – where appellant proceeded on incorrect basis – extension of time granted PUBLIC SERVICE ⎯ EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY ⎯ appeal against a decision pursuant to s 197 of the Public Service Act 2008 (Qld) – where death in custody – where two allegations substantiated regarding adequacy of inspection and record of inspection – whether decision fair and reasonable – whether inspection adequate – whether record false – consideration of 'false' – whether conduct amounted to misconduct – disciplinary finding in respect of -- 2 of 26 -- 3 inspection confirmed – disciplinary finding in respect of false record set aside – finding of misconduct set aside and returned to decision-maker LEGISLATION AND INSTRUMENTS: Criminal Code Act 1899 (Qld) sch 1 Directive 14/20 Discipline cl 12.1 Industrial Relations Act 2016 (Qld) ss 562B, 562C, 564 Police Powers and Responsibilities Act 2000 (Qld) ss 641-659 Police Service Administration Act 1990 (Qld) ss 2.5, 7.1, 7.4 Public Service Act 2008 (Qld) ss 148, 187, 197 Queensland Ambulance Service Disciplinary Policy cl 10 Queensland Police Service, Operational Procedures Manual ch 16 Work Health and Safety Act 2011 (Qld) CASES: A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Benson v State of Queensland (Department of Education) [2021] QIRC 152 Briginshaw v Briginshaw (1938) 60 CLR 336 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Crothers v State of Queensland (Queensland Police Service) [2022] QIRC 097 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344 Margrave v State of Queensland (Department of Energy and Public Works) [2022] QIRC 118 Mathieu v Higgins [2008] QSC 209 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 -- 3 of 26 -- 4 Purnell v Workers' Compensation Regulator; Ex parte State of Queensland (Department of Education) [2022] QIRC 141 Ulowski v Miller (1968) SASR 227 Reasons for Decision [1] Mr Michael Ecimovic is employed by the State of Queensland through the Queensland Police Service ('the Service') as an Assistant Watchhouse Officer. He is employed under s 148 of the Public Service Act 2008 (Qld) ('the PS Act') and is classified as a 'staff member' under s 2.5(1)(b)(ii) of the Police Service Administration Act 1990 (Qld) ('the PSAA'). [2] Although he is not a police officer, the powers and functions of Mr Ecimovic's role as a watchhouse officer are set out under ss 641 to 659 of the Police Powers and Responsibilities Act 2000 (Qld). [3] By decision-letters dated 13 December 2021 and 3 February 2022, Assistant Commissioner Maurice Carless APM informed Mr Ecimovic he had made disciplinary findings in relation to Mr Ecimovic's conduct and, subsequently, that disciplinary action would be imposed on him. [4] The allegation relates to Mr Ecimovic's execution of his duties on the morning of 10 September 2020. Specifically, it is alleged Mr Ecimovic failed to undertake an adequate inspection of a person in watchhouse custody and subsequently made a false entry into the Queensland Police Records and Information Management Exchange ('QPRIME'). [5] For privacy reasons, I will refer to the relevant person in custody throughout this decision as 'X'. [6] By appeal notice filed 15 February 2022, Mr Ecimovic seeks to appeal both the disciplinary findings and disciplinary action under ch 7 pt 1 of the PS Act. Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').1 It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.2 Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.3 1 Public Service Act 2008 (Qld) s 197. 2 Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 3 Industrial Relations Act 2016 (Qld) s 562B(3). -- 4 of 26 -- 5 Out of Time [7] Before turning to the substantive appeal it is necessary to determine a jurisdictional issue, namely that Mr Ecimovic's appeal is out of time in so far as it seeks to appeal the decision on disciplinary finding. For clarity, Mr Ecimovic's appeal against the decision to impose disciplinary action was made within time and the following relates only to the 13 December 2021 decision substantiating the allegation against Mr Ecimovic. [8] The preliminary issue for my consideration is whether I should exercise my discretion to extend time for Mr Ecimovic to commence his appeal against the disciplinary finding. Parties' Submissions [9] Mr Ecimovic contends there is a reasonable explanation for his delay in commencing his appeal, and it would be fair and equitable to extend time in the circumstances.4 He argues his failure to file his appeal within time is a direct result of incorrect information provided within the 13 December 2021 decision-letter with respect to his appeal entitlements.5 Had he received the correct information, Mr Ecimovic submits he would have appealed within time.6 [10] He submits he became aware of the error after receiving the decision on disciplinary action, and took steps to file his appeal against both decisions as soon as possible, and well within the appeal period for the later decision.7 In any event, he maintains he provided a response to the decision on disciplinary finding on 24 January 2022 and this should factor into any consideration of whether he has demonstrated a reasonable excuse for the delay.8 [11] Mr Ecimovic contends the Service will suffer little to no prejudice in defending the appeal if time is extended as both decisions are related and, in his view, readily dealt with together.9 Conversely, he argues he will suffer great prejudice if time is not extended as the Service relies on the decision on disciplinary finding to take disciplinary action against him.10 [12] Finally, Mr Ecimovic argues there is a fundamental flaw in the decision in respect of the disciplinary findings and his prospects of success in the substantive appeal are, at least, reasonable.11 4 Mr Ecimovic's submissions filed 7 April 2022, [18], [21]; relying on A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16, 2; Margrave v State of Queensland (Department of Energy and Public Works) [2022] QIRC 118; Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344. 5 Mr Ecimovic's submissions filed 7 April 2022, [13]-[14], [18]. 6 Ibid [14]. 7 Ibid [18]. 8 Ibid. 9 Ibid [20]. 10 Ibid. 11 Ibid. -- 5 of 26 -- 6 [13] For its part, the Service contends Mr Ecimovic was obliged to consider what his appeal rights were when the disciplinary finding was made having regard to Directive 14/20 Discipline ('the Directive'), which outlines an employee's appeal entitlements, and s 564(3) of the IR Act in terms of time limits for appeal.12 [14] Notwithstanding the fact it acknowledges the decision-letter contained incorrect information, the Service submits that information does not prevail over the Directive or the IR Act,13 nor does it absolve Mr Ecimovic from his obligation to appeal within time.14 [15] Finally, the Service notes Mr Ecimovic received legal advice in respect of the matters giving rise to the appeal, and it was incumbent on his legal representative to advise him of his appeal rights.15 [16] In reply submissions, Mr Ecimovic argues the Service's contentions are 'nonsense' and reiterates his position he was entitled to rely upon the information in the decision-letter.16 To deny him the opportunity to appeal when he was provided incorrect information, he submits, would be unfair.17 Consideration – Out of Time [17] Section 564(1) of the IR Act states that, unless the Commission allows an appeal to be started within a longer period under sub-s (2), it must be commenced within 21 days of the decision being given. [18] The principles applicable to applications to allow an appeal out of time are well established.18 I do not consider it necessary to repeat those principles here, other than to reflect that, generally, the Commission will have regard to the following: the length of the delay; the explanation for the delay; the conduct of the respondent; the prejudice to the appellant if the discretion is not exercised; and the prejudice to the respondent if the discretion is exercised.19 12 The Service's submissions filed 26 April 2022, [28]-[30]; citing Directive 14/20 Discipline cl 12.1. 13 Ibid [29]. 14 Ibid [29]-[30]. 15 Ibid [31]. 16 Mr Ecimovic's submissions in reply filed 3 May 2022, [14]. 17 Ibid [15]. 18 See, for example, Crothers v State of Queensland (Queensland Police Service) [2022] QIRC 097, [19]-[23]; Purnell v Workers' Compensation Regulator; Ex parte State of Queensland (Department of Education) [2022] QIRC 141, [14]-[17]. 19 Ulowski v Miller (1968) SASR 227. -- 6 of 26 -- 7 [19] The Commission will also generally consider the appellant's substantive prospects of success, and whether it is fair and equitable in the circumstances to extend time.20 [20] The decision in respect of disciplinary findings was made on 13 December 2021, but Mr Ecimovic did not seek to appeal that decision until 15 February 2022. The means by which dates are calculated are practically explained by McLennan IC in Benson v State of Queensland (Department of Education).21 Consequently, although Mr Ecimovic and the Service submit the appeal is five weeks out of time, I have determined that it is in fact 6 weeks or 42 days out of time. [21] It is not controversial to observe that 42 days is not an insignificant amount of time. However, the length of the delay takes its relevance from the circumstances of, and reasons for, the failure to file within time. [22] Mr Ecimovic's explanation for his failure is that he relied on incorrect information given to him within the 13 December 2021 decision-letter. Relevantly, the decision-letter provides: Appeal entitlements If you believe my decision to find that the allegations above are substantiated (disciplinary finding decision) is unfair and unreasonable, you may lodge a fair treatment appeal under the appeal provisions of the Act. Alternatively, you may decide to wait until I have made a decision about the proposed disciplinary action and appeal both the disciplinary finding and the disciplinary action.22 [23] Both parties accept this information was incorrect and inconsistent with s 564 of the IR Act. However, the Service argues that it was incumbent on Mr Ecimovic to identify this information as incorrect and undertake steps to ascertain the correct information. [24] In my view, such submissions are contrary to the concept of procedural fairness. I would have less sympathy for Mr Ecimovic if it were the case he was simply not provided sufficient information. As the Service highlights, Mr Ecimovic was legally represented throughout the show cause process and would have been in a position to investigate his appeal options. [25] However, while it is certainly curious the error was not questioned by his legal representative, I consider it reasonable for Mr Ecimovic to have relied on explicit advice provided by the decision-maker that he was entitled to wait until a decision on disciplinary action was made and appeal both decisions. Consequently, I consider he has demonstrated a sufficiently reasonable explanation for his delay in filing his appeal. [26] Although lengthy, I do not consider the delay likely to have caused any prejudice to the Service, nor has it raised such an issue in its submissions. This is particularly so where Mr Ecimovic provided a response on 24 January 2022 indicating he did not consider his 20 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349. 21 [2021] QIRC 152, [61]-[63]. 22 Appeal notice filed 15 February 2022, 'Decision on Disciplinary Finding and Proposed Action', 13. -- 7 of 26 -- 8 actions amounted to improper conduct in the circumstances. Consequently, it cannot be said the Service has been taken by surprise by Mr Ecimovic's appeal, or more specifically, his appeal grounds. [27] I do, however, accept that denying a person the opportunity to commence an appeal of this kind will almost certainly cause prejudice to that person. This is particularly so in circumstances such as this where the appeal relates to a disciplinary finding giving rise to the imposition of disciplinary action. [28] On balance, I consider it would be unfair to deny Mr Ecimovic the opportunity to pursue his appeal in relation to the disciplinary finding. I am therefore satisfied it is appropriate to extend time for Mr Ecimovic to commence his appeal. Background to the Substantive Appeal [29] Before turning to the substantive appeal, it is necessary to understand the circumstances giving rise to the disciplinary process. [30] Mr Ecimovic commenced his shift shortly before 6.00 am on 10 September 2020. On arrival, he received a handover from the Senior Watchhouse Officer. He was not informed of any issues at handover. However, unbeknown to Mr Ecimovic, one of the people in the Service's custody, X, had died in their cell during the previous shift, purportedly due to a medical condition. [31] In his role, Mr Ecimovic is required to comply with the Service's Operational Procedures Manual ('the OPM') which contains various policies in relation to operational matters. The purpose of the OPM is to assist members of the Service in discharging their duties lawfully, ethically and efficiently. The introductory provisions of the OPM stipulate: Members are to comply with the contents of this Manual so that their duties are discharged lawfully, ethically and efficiently and failure to comply with the contents may constitute grounds for disciplinary action.23 [32] Chapter 16 of the OPM sets out the policies and requirements relevant to where a person is held in custody by the Service, either at a police station or watchhouse. This chapter deals primarily with areas of responsibility connected with prisoner safety, the healthcare and management of persons in custody, and regular inspections to ensure the preservation and necessaries of life.24 [33] Relevantly, Mr Ecimovic was required to undertake at least hourly observations of each person in custody to ensure they did not require assistance in relation to their health or safety. 23 Queensland Police Service, Operational Procedures Manual. 24 As required under the Criminal Code Act 1899 (Qld) sch 1 ch 27. -- 8 of 26 -- 9 [34] Where a person in custody is sleeping, the inspecting officer is also required to ensure that person is breathing comfortably and appears well by observing their breathing and movements.25 Moreover, where an inspecting officer cannot easily observe the rise and fall of the chest of a person who is sleeping, they are to wake the person.26 [35] Mr Ecimovic commenced his first round of observations at 5.44 am. There were 15 people in custody at the time, one of which was X. [36] During the inspection, X was covered by two blankets and Mr Ecimovic perceived them to be sleeping. He viewed X through the Perspex of their cell and satisfied himself that they appeared well and were breathing comfortably. It is not in dispute Mr Ecimovic spent approximately three seconds observing X. [37] Mr Ecimovic maintains he genuinely believed he saw X's chest rise and fall in their sleep. At the completion of his inspection, Mr Ecimovic entered his observations into QPRIME, noting the following: cell check: No complaints, No problems detected, 0600 hours handover received. Walk around conducted – Prisoner observed breathing/moving. Nil issues upon starting [38] At approximately 6.00 am, Mr Ecimovic made a call over the intercom system to X's cell regarding their medication. He received no response. He did not consider this to be unusual as people in custody often did not respond to early morning calls as they were sleeping. He made two further calls to the cell before 6.14 am. At that time, he enquired with X's cellmate whether X was breathing and the cellmate indicated they were. [39] Mr Ecimovic entered X's cell at 6.15 am and found them to be non-responsive. He immediately notified the watchhouse manager and called for medical assistance. [40] The Service's Ethical Standards Command unit undertook a comprehensive investigation into the events leading to X's death and a discipline investigation report was produced on 28 April 2021. [41] A coronial inquest has also been commenced. Decision on Disciplinary Finding [42] On 6 August 2021, Mr Ecimovic was invited to show cause as to why a disciplinary finding should not be made against him pursuant to s 187(1)(b) of the PS Act. [43] Mr Ecimovic provided his response to the Service on 15 October 2021. 25 Queensland Police Service, Operational Procedures Manual s 16.13.3. 26 Ibid. -- 9 of 26 -- 10 [44] In a decision-letter dated 13 December 2021, Mr Ecimovic was informed the following allegation had been substantiated: Allegation 1: That on 10 September 2020 at Brisbane your conduct was improper in an official capacity in that you: a) failed to conduct adequate inspections of prisoners in custody at the Brisbane Watchhouse; b) made false entries in a QPS computer system concerning the supervision and care of prisoners in custody at the Brisbane Watchhouse. ('the Disciplinary Finding').27 [45] The substantiated allegation was accompanied by the following particulars: In relation to matter 1 (a) and (b), the investigation identified: i. You joined the Police Service in 2020 and have worked in the Brisbane Watchhouse since that time; ii. Your duties at the watchhouse include providing meals, caring for prisoners, providing medication, ensuring court appearances and looking after prisoners whilst in custody; iii. On 10 September 2020 at about 5.45am at the commencement of your 6am shift you received a 'handover' from Senior Assistant Watchhouse Officer ... No issues of significance were reported by you at that time; iv. At the commencement of your shift on 10 September 2020 you were supervising 15 prisoners (10 female and 5 male) including [X]; Inspection 1 (inadequate inspection) v. At 0542 hours 10 September 2020 you performed an inadequate inspection of all prisoners including [X], failing to attempt to notice movement, breathing, rise and fall of the chest or other signs of life; vi. At 0550 hours you completed a custody entry within QPRIME "cell check: No complaints, No problems detected, 0600 hours handover received. Walk around conducted – Prisoner observed breathing/moving. Nil issues upon starting" falsely indicating an adequate inspection was completed of all prisoners; vii. When inspecting the prisoners, you did not conduct all actions necessary to identify a rise and fall of [X's] chest or anything abnormal; viii. At about 0615 hours 10 September 2021 you returned to [X's] pod and were unable to awaken [X]; ix. At 0622 hours 10 September 2021 you completed a QPRIME log explaining your 0615 hours inspection of the prisoners and [X].28 [46] Within the decision, the decision-maker: • noted the Briginshaw29 principle and, given the seriousness of the allegations, the requirement to be satisfied to a greater degree on the balance of probabilities; • noted Mr Ecimovic's response and his submissions within that response; 27 Appeal notice filed 15 February 2022, 'Decision on Disciplinary Finding and Proposed Action'. 28 Ibid 1-2; footnotes omitted. 29 Referring to the principle established in Briginshaw v Briginshaw (1938) 60 CLR 336. -- 10 of 26 -- 11 • rejected Mr Ecimovic's submission that his conduct did not amount to misconduct, noting he considers it to be a minimum requirement and fundamental duty to ensure all prisoners are alive and breathing comfortably; • outlined the requirements for an adequate inspection of a prisoner's breathing and the appropriate resources where this information could be found; • stated that, notwithstanding the previous officer's failure to notice X had stopped breathing, Mr Ecimovic was responsible for conducting a first inspection to a standard capable of determining signs of life; • considered Mr Ecimovic's three second inspection of X to be inadequate to discharge his duties; • determined that the failure to adequately inspect X, combined with making false computer entries was at least a 'deliberate departure from acceptable standards' and amounts to 'improper conduct in an official capacity'; • acknowledged Mr Ecimovic's submissions he had not received training in relation to the identification of persons in an unconscious state; • determined that Mr Ecimovic's training and assessments, length of service and mentoring by more experienced officers was significant and provided him with the skills necessary to conduct adequate inspections; • noted the sufficiency of an inspection is founded on diligence and a duty of care, not the length of time it takes to carry out; • acknowledged Mr Ecimovic's submissions that X was covered by two blankets hindering his ability to accurately determine breathing rhythms and that a degree of human error should be accounted for; • rejected that such factors could be considered mitigating circumstances, determining they instead required Mr Ecimovic to exercise more care in discharging his duties; • considered it was because Mr Ecimovic's inspection was inadequate that he was unable to identify clear and present indicators that X may have required assistance; • considered Mr Ecimovic's entry into QPRIME indicated he was aware of, and understood, his obligation to undertake adequate inspections; • rejected Mr Ecimovic's submissions that the failure of X's cellmate to identify she was not breathing supports the reasonableness of his mistaken belief, noting he gave no weight to the cellmate's opinion or assessment as this was not something prisoners are required to do in custody; • noted the Service's policies contain detailed orders regarding prisoner inspections; • stressed that any findings of procedural failures on Mr Ecimovic's part in no way indicated he exercised deliberate intent or that his failures contributed to X's death; -- 11 of 26 -- 12 • acknowledged Mr Ecimovic's submission that it is not false to record what you believe to be true, but stated he was not persuaded by this argument; • stated he did not believe the entries were false in the sense Mr Ecimovic knew X was not breathing or had detected a problem and failed to record it; • stated he believed Mr Ecimovic held an honest, yet mistaken, belief X was alive and breathing; • considered the entry was false in the sense that it was linked to the inadequate inspection and fact that Mr Ecimovic had not attempted to comply with policy, and that it misrepresented that the inspection was adequate; • considered Mr Ecimovic's interview comments during the investigation supported the finding that the inspection was inadequate and there was a failure of duty of such a nature as to be improper; • acknowledged Mr Ecimovic was not aware of X's medical concerns and, had he been aware, he may have increased his observations of X; • stressed that any finding of procedural deficiencies in relation to the incident in no way indicated those failures contributed to the death of X in custody; • accepted that Mr Ecimovic is a positive, diligent, engaged and efficient professional; • considered Mr Ecimovic had in no way intentionally or consciously set out to fail in his duty to X or any other person in his care; and • found there was sufficient evidence to substantiate both Allegation 1(a) and (b), and that Mr Ecimovic's conduct was improper. [47] The decision-maker concluded the decision by setting out the disciplinary action he was giving consideration to, and inviting Mr Ecimovic to respond to the proposed action. Decision on Disciplinary Action [48] Mr Ecimovic provided his response to the proposed disciplinary action on 24 January 2022. [49] By further decision-letter dated 3 February 2022, Mr Ecimovic was informed the following disciplinary action would be imposed in relation to the substantiated allegation: a reduction of one Assistant Watchhouse Officer pay point level, wholly suspended on the condition that no further ground for discipline is substantiated against Mr Ecimovic relating to his conduct within 6 months from 3 February 2022; a reprimand; and a requirement to successfully complete or recomplete the following learning products within one month of the decision: -- 12 of 26 -- 13 Watchhouse Custody – Sixth Edition (QCP009_05); and Custody Management OLP (QCO185_05); ('the Disciplinary Action').30 [50] The Disciplinary Action was stayed pending the outcome of this appeal.31 [51] As he is still undertaking his duties, Mr Ecimovic agreed to the stay being lifted in respect of the requirement to complete or recomplete the training referred to at (c) above, notwithstanding the appeal. Grounds of Appeal [52] Mr Ecimovic appeals on the following grounds: it was not open to the decision-maker to be reasonably satisfied of each of the substantiated disciplinary findings; it was not open to the decision-maker to be reasonably satisfied that any conduct amounted to misconduct; and the decision-maker erred when determining that Mr Ecimovic held an honest yet mistaken belief that X was alive and breathing, but nevertheless substantiated each of the allegations.32 Relevant Principles [53] The PS Act relevantly provides: 187 Grounds for discipline (1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— ... (b) been guilty of misconduct; or ... (4) In this section— misconduct means— (a) inappropriate or improper conduct in an official capacity;33 or (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service. Example of misconduct— victimising another public service employee in the course of the other employee's employment in the public service 30 Appeal notice filed 15 February 2022, 'Decision on Disciplinary Action'. 31 Directions Order issued 25 February 2022. 32 Appeal notice filed 15 February 2022, Part C. 33 My emphasis. -- 13 of 26 -- 14 [54] Chapter 16 of the OPM relevantly provides: 16.13.3 Prisoner/watchhouse inspection ... Inspection of prisoners ... The inspection officer is to: (i) where practicable and subject to prisoner numbers, prior to the initial inspection, read the information in the QPRIME Custody Report (Full) Detention Log relating to each prisoner; (ii) observe the prisoner's physical appearance or demeanour; (iii) ask prisoners who are awake if they are well; (iv) pay particular attention to any prisoner apparently intoxicated to ensure intoxication is not masking symptoms of a serious medical condition (see Appendix 16.10: 'Drug and alcohol intoxication, overdose and withdrawal', of this chapter); (v) ensure a sleeping prisoner is breathing comfortably and appears well by observing the prisoner's breathing and moving. Breathing is to be observed by the rise and fall of the prisoner's chest. In low light conditions a torch or other method of illumination, is to be used to confirm the rise and fall of the prisoner's chest; (vi) wake a sleeping prisoner; (a) when they cannot easily observe the rise and fall of the chest; (b) if unsure of a prisoner's condition and suspects the prisoner may require medical attention; (vii) ensure the security of the cell keys and where reasonably practicable, be in the company of a second officer when entering a cell. What Decisions can an Industrial Commissioner make? [55] In deciding this appeal, s 562C(1) of the IR Act provides that I may: confirm the decision appealed against; set the decision aside and substitute another decision; or set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate. Did Mr Ecimovic Fail to Undertake an Adequate Inspection? [56] Allegation 1(a) concerns Mr Ecimovic's failure to conduct adequate inspections of persons in custody at the Brisbane Watchhouse on 10 September 2020. [57] On the day in question, Mr Ecimovic was rostered to work from 6.00 am to 2.00 pm. [58] The first four particulars of the allegation are uncontentious, with the fifth, sixth and seventh being: v. At 0542 hours 10 September 2020 you performed an inadequate inspection of all prisoners including [X], failing to attempt to notice movement, breathing, rise and fall of the chest or other signs of life. -- 14 of 26 -- 15 vi. At 0550 hours you completed a custody entry within QPRIME "cell check: No complaints. No problems detected. 0600 hours handover received. Walk around conducted – Prisoner observed breathing/moving. Nil issues upon starting" falsely indicating an adequate inspection was completed of all prisoners; vii. When inspecting the prisoners, you did not conduct all actions necessary to identify a rise and fall of [X's] chest or anything abnormal.34 [59] Mr Ecimovic denies he failed to undertake an adequate inspection, instead contending he undertook his duties in accordance with the OPM and his training, and simply made an error in his observations.35 He therefore contends he should not be subject to the proposed discipline for making an error.36 [60] He argues the decision-maker erred in his consideration of the OPM, noting the OPM requires an officer to exercise judgment in ascertaining whether a person is well and breathing comfortably.37 [61] Mr Ecimovic maintains he satisfied himself X was well and breathing comfortably, notwithstanding the fact this assessment turned out to be incorrect.38 In those circumstances, he submits he was not required to follow the further steps of the OPM which are only relevant where an officer is unable to satisfy themself.39 Consequently, he contends the fact he was mistaken does not mean he failed to comply with the OPM.40 [62] Further, he disputes the decision-maker's characterisation of his experience and training as 'extensive'.41 Specifically, he disputes the finding that his 10 weeks of training, seven months of service and assessment specific to watchhouse duties was 'significant' and provided him with the 'skills necessary to conduct adequate inspections'.42 However, in any event he submits that training was not relevant to the inspections he conducted on 10 September 2020.43 [63] Mr Ecimovic submits the decision-maker has placed undue weight on the fact it was not possible for him to see X's chest rise and fall because they were already deceased.44 However, he contends this has little bearing on what he observed, or rather believed he had observed, during his inspection.45 Had he had the benefit of reviewing the six hours 34 Appeal notice filed 15 February 2022, 'Decision on Disciplinary Finding and Proposed Action', 2. 35 Mr Ecimovic's submissions filed 7 April 2022, [30]. 36 Ibid. 37 Ibid [28]. 38 Ibid. 39 Ibid. 40 Ibid. 41 Ibid [31]. 42 Ibid. 43 Ibid. 44 Ibid [29]. 45 Ibid. -- 15 of 26 -- 16 of CCTV footage showing no movement from X, he submits it is likely he would have drawn the conclusion X did not 'appear well'.46 [64] Finally, rather than his inspection being inadequate, Mr Ecimovic argues it is more likely the policy requirements related to inspections, or his training, are insufficient considering the serious repercussions if an error in judgment is made.47 This is particularly so, he submits, in circumstances where another, more senior, trained officer also made an incorrect assessment of X.48 [65] Similarly, he notes elsewhere in his submissions he was not aware it may be more difficult to make an observation through Perspex, nor had he been advised to take extra care when doing so.49 Accordingly, he argues requiring an officer to exercise such a judgment is open to human error in a system that does not, and should not, allow for such error.50 [66] The Service argues Mr Ecimovic had sole responsibility for the persons in his care during his shift on 10 September 2020, and as a representative of the Service had a duty of care under the Work Health and Safety Act 2011 (Qld).51 That involved, it submits, ensuring the assessment of persons in custody was undertaken correctly and in accordance with the OPM.52 [67] In this respect, it notes the decision-letter identified Mr Ecimovic had been well trained, had benefited from additional training in areas such as first aid and had the opportunity to be mentored by experienced officers in his role as an Assistant Watchhouse Officer.53 [68] It argues Mr Ecimovic abandoned this responsibility by considering his inspection to be acceptable.54 In this respect, it notes the short length of the observation, which it characterised as a 'cursory glance', the fact X was covered by blankets and therefore not entirely visible, and the lighting conditions at the time.55 [69] It argues the OPM requires an inspecting officer to be satisfied a sleeping person in custody is breathing, and that this can only be achieved by seeing the rise and fall of their chest which may require the use of illumination in low light settings.56 It notes that during 46 Ibid. 47 Ibid [32]. 48 Ibid. 49 Ibid [5]. 50 Ibid [32]. 51 The Service's submissions filed 26 April 2022, [24]. 52 Ibid. 53 Ibid [16]. 54 Ibid [25]. 55 Ibid. 56 Ibid [14]. -- 16 of 26 -- 17 the investigation process, Mr Ecimovic acknowledged the lighting during his inspection was 'about fifty percent'.57 [70] Further, the Service argues X's medical needs were left unattended, noting Mr Ecimovic's acknowledgement that X failed to respond to the call to receive their medication.58 Consequently, it contends Mr Ecimovic's short observation of X is coupled with the knowledge that X was not responding to the call for medication, amounting to a dereliction of duty and failure to conduct an adequate inspection.59 [71] Finally, it argues Mr Ecimovic's comments regarding the difficulty in making an observation through Perspex is a deflection of his responsibility and obligations in conducting an inspection.60 [72] In reply submissions, Mr Ecimovic denies the characterisation of his inspection as 'cursory' and the submission he 'abandoned' his responsibilities, reiterating his contentions that he undertook the inspection in accordance with the OPM and his training.61 [73] He notes the Service's failure to address his submissions regarding the adequacy of his training62 and adds, given the Service's position in relation to the responsibility of his role, his training as been 'grossly inadequate'.63 [74] Finally, Mr Ecimovic argues there has been no allegation put to him that X's medical needs were left unattended and as such, this is not a relevant consideration for the Commission.64 In any event, he submits he responded to X's failure to respond to the medication call in accordance with his training.65 Further, he submits he did not make the call for X's medication until after conducting his inspection and making the entry into QPRIME, so it cannot be said the inadequacy of his inspection was compounded by his knowledge of X's failure to respond to the call.66 Consideration – Inadequate Inspection [75] Chapter 16 of the OPM relevantly provides: 16.13.3 Prisoner/watchhouse inspection ... Inspection of prisoners ... 57 Ibid [15]. 58 Ibid [11]. 59 Ibid [12]. 60 Ibid [17]. 61 Mr Ecimovic's reply submissions filed 3 May 2022, [7], [8], [10], [12]. 62 Ibid [9]. 63 Ibid [11]. 64 Ibid [1]. 65 Ibid [3]. 66 Ibid [4], [6]. -- 17 of 26 -- 18 The inspection officer is to: … (iii) observe the prisoner's physical appearance or demeanour; … (v) ensure a sleeping prisoner is breathing comfortably and appears well by observing the prisoner's breathing and moving. Breathing is to be observed by the rise and fall of the prisoner's chest. In low light conditions a torch or other method of illumination, is to be used to confirm the rise and fall of the prisoner's chest; (vi) wake a sleeping prisoner; (a) when they cannot easily observe the rise and fall of the chest; (b) if unsure of a prisoner's condition and suspects the prisoner may require medical attention; (vii) ensure the security of the cell keys and where reasonably practicable, be in the company of a second officer when entering a cell. [76] Mr Ecimovic does not dispute he is required to undertake hourly inspections in accordance with the OPM as set out above. He maintains he genuinely believed he saw X's chest rise and fall and cannot explain why '[he] thought [he] was able to see [X] breathing through the Perspex'. [77] In his reasons for decision, the decision-maker noted: 16. … I have referred to your ignite records indicating additional training has been completed in first aid, fatigue management, multicultural responsiveness and watchhouse custody. I further note your training has been complemented with periods of mentoring by more experienced officers. I consider your formal training, length of service and assessments specific to watchhouse duties are significant and provide you with the skills necessary to conduct adequate inspections of prisoners. 17. Despite your extensive experience and training in the watchhouse environment you have submitted you stood at [X's] cell for three seconds. Under the circumstances, this time frame was not sufficient to fulfil your duty of care in accordance with the training provided to you. ... 20. Your short inspection was not performed adequately enough for you to identify clear and present indicators that something may have been wrong. [78] Although the Service accepts Mr Ecimovic held an honest, yet mistaken, belief X was alive and breathing, it determined the three second timeframe within which he undertook the inspection to be inadequate. [79] Having regard to the discipline investigation report and the submissions of both Mr Ecimovic and the Service, I consider it was fair and reasonable for the decision-maker to substantiate Allegation 1(a), particularly in circumstances where: • Mr Ecimovic had received training and was aware of the obligations set out in the OPM in relation to undertaking an inspection of a person in custody; • X was covered with two layers of blanket; • the time dedicated to the inspection was no more than three seconds; • the inspection was undertaken in a dimly lit environment, where he was looking at X through Perspex; and -- 18 of 26 -- 19 • in an environment where the lighting was muted, Mr Ecimovic did not use a torch or other method of illumination to confirm his initial observations in respect of the rise and fall of X's chest. Did Mr Ecimovic Make a False Entry in QPRIME? [80] Mr Ecimovic denies he made a false entry in QPRIME. [81] Similar to his submissions in respect of Allegation 1(a), he accepts the entry he made was incorrect, but argues it was not deliberately so.67 He submits there was no deceptive or malevolent intent in making the entry, and argues it simply reflected the error he made in respect of his inspection.68 Consequently, in circumstances where the decision-maker accepted Mr Ecimovic held 'an honest, yet mistaken belief' regarding X, he submits it was not open to them to substantiate the allegation he had made a 'false' entry.69 [82] The Service did not address Mr Ecimovic's submissions regarding the entry in QPRIME. Consideration – False Entry [83] Allegation 1(b) concerns the allegation Mr Ecimovic made false entries in QPRIME concerning the supervision and care of persons in custody at the Brisbane Watchhouse. [84] The relevant particulars, in addition to those already set out above, were: At 0550 hours you completed a custody entry within QPRIME "cell check: No complaints. No problems detected. 0600 hours handover received, Walk around conducted – Prisoner observed breathing/moving. Nil issues upon starting" falsely indicating an adequate inspection was completed of all prisoners. [85] The term 'false' is relevantly defined as follows in the Macquarie Dictionary: false adjective 1. not according with fact; wrong, incorrect: a false idea. 2. spurious, sham, artificial: false gods | false teeth | false modesty. • acting as such; appearing to be such, especially deceptively: a false lining. ... 5. deceptive. 6. foll. by to deceitful, treacherous, or unfaithful. 7. fictitious or assumed: gave a false name. 8. illegal: false imprisonment. ... – ORIGIN Old English fals and Old French fals, faus from Latin falsus, past part. of fallere 'deceive'.70 67 Mr Ecimovic's submissions filed 7 April 2022, [37]. 68 Ibid. 69 Ibid [36], [38]. 70 Macquarie Dictionary (online at 8 August 2022) 'false'. -- 19 of 26 -- 20 [86] Within the decision-letter, the decision-maker considered: I do not believe the entries were false in the sense that you knew [X] was not breathing or you had in fact detected a problem and neglected to record it. I believe you held an honest, yet mistaken belief [X] was alive and breathing. The matter before me relates to whether the custody index entry was false when considering your responsibilities under the known circumstances. I consider the falsity of the entry is linked to the fact your inspection has not attempted to comply with policy and under the circumstances was not capable of detecting complaints, problems or breathing. The inspection was so cursory I believe it logically follows, your entry misrepresents your inspection was adequate, when clearly in these circumstances the inspection was not capable of reasonably detecting 'No complaint. No problems detected ... prisoner observed breathing/moving'. The prisoner was not in fact observed breathing or moving, your inspection was not adequately performed and therefore I consider the custody entry was false.71 [87] In hindsight, it is clear the entry made by Mr Ecimovic in QPRIME was incorrect in that it did not accurately depict the status of X. However, at the time the entry was made I accept, as does the Service, that Mr Ecimovic genuinely, albeit mistakenly, believed X was breathing. However, in my view, the use of the word 'false' in the allegation connotes an implication of deceptiveness on Mr Ecimovic's behalf. [88] Notwithstanding the clarification provided in the decision-letter in respect of the use of the word 'false', having reviewed the decision-letter and the submissions of both parties and in circumstances where it is accepted Mr Ecimovic held an 'honest, yet mistaken belief' that X was breathing, I do not consider it was fair and reasonable to characterise his actions as making 'false entries in a QPS computer system concerning the supervision and care of prisoners is custody...'. [89] Consequently, I do not consider it was fair and reasonable to substantiate Allegation 1(b). Did Mr Ecimovic's Conduct Amount to Misconduct? [90] Although not entirely stepped out in his submissions, Mr Ecimovic contends his conduct did not amount to misconduct, being improper conduct in an official capacity. [91] In respect of both Allegation 1(a) and (b), he argues his conduct was not 'a deliberate departure from accepted standards', nor did he engage in serious negligence to the point of indifference or abuse of the power he enjoys as a public servant.72 Further, he notes the decision-maker's finding within the decision-letter that: 'procedural failures concerning this matter, in no way indicate those failures contributed to this death in custody nor does it indicate deliberate intent by you'.73 [92] The Service contends it was reasonable for the decision-maker to consider Mr Ecimovic's conduct amounted to misconduct having regard to all the circumstances of his inspection of X.74 In this respect it reiterates Mr Ecimovic undertook his inspection in three seconds, 71 Appeal notice filed 15 February 2022, 'Decision on Disciplinary Finding and Proposed Action'. 72 Mr Ecimovic's submissions filed 7 April 2022, [34]. 73 Ibid [33], [34]. 74 Ibid [25]. -- 20 of 26 -- 21 while looking through Perspex at X in a dimly lit environment.75 His failure to mitigate those factors in his assessment, it argues, is tantamount to misconduct.76 [93] Consequently, the Service argues Mr Ecimovic's conduct was negligent or, alternatively, he deliberately failed to comply with the OPM in that he did not satisfy the accepted standard of his duty of care or the requisite level of responsible assessment of a person in custody.77 [94] With respect to the reasonableness of the decision-maker's assessment, the Service refers to the observations made in Gilmour v Waddell & Ors78 ('Gilmour'), particularly that reasonableness must be judged having regard to all the circumstances of the case.79 [95] Finally, it submits higher standards of reasonable behaviour must necessarily be applied to those in more senior roles with greater levels of responsibility.80 [96] In reply submissions, Mr Ecimovic argues the Service has failed to sufficiently demonstrate his actions rose to the level of misconduct.81 Consideration – Misconduct [97] Section 7.1 of the PSAA sets out the purpose of the disciplinary process for officers. The provision encompasses the protection of the public, the maintenance of proper standards and the need to maintain community confidence in the Service. [98] Grounds for disciplinary action under the PSAA are outlined in s 7.4, namely: 7.4 Grounds for disciplinary action (1) The subject officer may be disciplined under this part if the subject officer has— (a) committed misconduct; or (b) been convicted— (i) in Queensland of an indictable offence; or (ii) outside Queensland of an offence that, if it were committed in Queensland, would be an indictable offence; or (c) performed the subject officer's duties carelessly, incompetently or inefficiently; or (d) been absent from duty without approved leave and without reasonable excuse; or (e) contravened, without reasonable excuse— 75 Ibid [20]. 76 Ibid. 77 Ibid. 78 [2019] QSC 170 ('Gilmour'). 79 The Service's submissions filed 26 April 2022, [21]-[22]. 80 Ibid [22]. 81 Mr Ecimovic's reply submissions filed 3 May 2022, [13]. -- 21 of 26 -- 22 (i) a provision of this Act or the Police Powers and Responsibilities Act 2000; or (ii) a code of conduct that applies to the subject officer; or (iii) a direction given to the subject officer by the commissioner under this Act or by a senior officer with authority to give the direction. (2) For subsection (1)(b), the subject officer is convicted if a court makes a finding of guilt, or accepts a plea of guilty, whether or not a conviction is recorded. [99] Allegation 1(a) concerns Mr Ecimovic's failure to conduct an adequate inspection of prisoners in custody. [100] Although I consider it was open to the decision-maker, for the reasons set out above, to conclude Mr Ecimovic failed to conduct an adequate inspection of X while in custody, I do not consider it was fair and reasonable for the decision-maker to conclude the incident was grounds for misconduct. [101] Section 187(4) of the PS Act defines misconduct as 'inappropriate or improper conduct in an official capacity'. However, the PS Act does not provide guidance as to what is meant by 'inappropriate or improper conduct'. [102] Within his submissions, Mr Ecimovic relies on the decision of Merrell DP in Coleman v State of Queensland (Department of Education).82 There his Honour relevantly considered the meaning of 'misconduct' under ss 187(1)(b) and (4) of the PS Act, and determined: ... the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.83 [103] In Pillai v Messiter (No 2),84 Kirby P (as his Honour then was), observed:31 ... [T]he statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards for such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.85 [104] In Mathieu v Higgins & Anor,86 Daubney J considered cl 10(a) of the Queensland Ambulance Service Disciplinary Policy ('the QAS Policy'). The QAS Policy defined 'misconduct' as 'disgraceful or improper conduct in an official capacity'. [105] When considering cl 10(a) of the QAS Policy, Daubney J was of the view it was not appropriate to rigidly separate the definition into its component parts.87 82 [2020] QIRC 032. 83 Ibid [62]. 84 (1989) 16 NSWLR 197. 85 Ibid 200. 86 [2008] QSC 209. 87 Ibid [25(a)]. -- 22 of 26 -- 23 Instead, he determined that each term should be read as giving colour to the other.88 His Honour then held that: ... 'misconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.89 [106] In his reasons for decision, the decision-maker considered Mr Ecimovic's failure to inspect prisoners to such an extent that it was 'not identified whether a prisoner is breathing comfortably or that they are not moving, combined with computer entries falsely indicating the duties have been properly or adequately performed, is at the very least 'improper conduct in an official capacity'.90 [107] In its submissions for this appeal, the Service maintains Mr Ecimovic was negligent or, in the alternative, deliberately failed to follow the 'standards of care' and demonstrate the requisite level of responsible assessment of a person in custody as outlined in the OPM. [108] The principles relevant to an assessment of 'reasonableness' have been considered by the High Court of Australia on several occasions, most notably in the decision in Minister for Immigration and Citizenship v Li.91 As indicated by the Service, those principles were usefully summarised by Ryan J in Gilmour: [207] The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. [208] The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. [209] A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.92 [109] As highlighted by the Service, reasonableness must be considered having regard to all the relevant circumstances.93 [110] In this respect I note Mr Ecimovic arrived early for his shift and received a handover during which he was explicitly advised there were no issues with any of the persons in custody for which he was responsible. Although I accept the duration and nature of the inspection as it concerned X was inadequate, I also accept Mr Ecimovic genuinely believed at the time of the inspection that X was both sleeping and breathing. 88 Ibid. 89 Ibid [26]. 90 Appeal notice filed 15 February 2022, 'Decision on Disciplinary Action'. 91 (2013) 249 CLR 332, [63]-[76]. 92 Gilmour (n 78). 93 The Service's submissions filed 26 April 2022, [21]-[22]. -- 23 of 26 -- 24 [111] The inadequacy of Mr Ecimovic's inspection was revealed through the tragic and very serious discovery of X's death, which purportedly occurred several hours before Mr Ecimovic commenced his shift. Relevantly, although I note a coronial inquest has been commenced (but not yet completed), there is no evidence before me of any allegation that Mr Ecimovic's conduct contributed to X's death. [112] I am fully cognisant of the seriousness of a death in custody, particularly in circumstances where it appears members of the Service may not have adequately discharged their duties. However, in circumstances where Mr Ecimovic's conduct has not been alleged to have contributed to that death, and where I am satisfied he made a genuine mistake in his observations, I am not persuaded his actions or failures rise to the level of misconduct. [113] Although I have determined it was fair and reasonable for the decision-maker to substantiate Allegation 1(a), on my reading of the materials, I am not persuaded Mr Ecimovic deliberately failed to follow the standard of care, nor does it appear on the materials that his actions could be found to be 'serious negligence to the point of indifference'. Instead, having regard to the three second duration of his inspection, and as highlighted by the Service within its submissions,94 I consider Mr Ecimovic's actions were careless and inattentive. In my view, that characterisation does not amount to misconduct. [114] For the reasons set out above, I consider Mr Ecimovic's actions fall short of the threshold for misconduct. Disciplinary Action [115] Mr Ecimovic contends the Disciplinary Action is unfair and unreasonable, solely on the basis that it was made having regard to the Disciplinary Findings which he says were made in error.95 [116] The Service did not address this aspect of the appeal. Consideration – Disciplinary Action [117] Having set aside the substantiation of Allegation 1(b) and further determined Mr Ecimovic's actions in respect of substantiated Allegation 1(a) fall short of misconduct, it seems to me the best way forward is to return the matter to the decision-maker with a copy of this decision and directions that the decision be re-issued containing only the allegation I have found to be fair and reasonable and setting out the relevant clauses or provisions the Service considers Mr Ecimovic contravened. 94 Ibid [20]. 95 Mr Ecimovic's submissions filed 7 April 2022, [39]. -- 24 of 26 -- 25 Conclusion [118] Pursuant to s 194(1)(eb) of the PS Act, an appeal may be made against a decision a public service employee believes is unfair and unreasonable. [119] For the reasons given above, the decision-maker's findings in relation to the allegations were not fair and reasonable in respect of: the substantiation of the allegation Mr Ecimovic made false entries in QPRIME concerning the supervision and care of persons in custody at the Brisbane Watchhouse; and the conclusion Mr Ecimovic's conduct in respect of Allegations 1(a) and (b) amount to misconduct. [120] However, the decision-maker's findings were otherwise fair and reasonable in so far as he substantiated Allegation 1(a). [121] As the decisions were stayed pending the final determination of this appeal, it follows that stay should also be lifted. Orders [122] I order accordingly. 1. The appellant is granted leave to commence his appeal against the decision on disciplinary findings and proposed action out of time. 2. The appeal is allowed in part. 3. Allegation 1(a) is substantiated. 4. Allegation 1(b) is unsubstantiated. 5. The appellant's conduct in relation to Allegation 1(a) does not meet the definition of 'misconduct' in s 187(1)(b) and s 187(4)(a) of the Public Service Act 2008 (Qld). 6. The decision on disciplinary findings and proposed action is returned to the decision-maker with a copy of these reasons. 7. The decision-maker is directed to reissue the decision on disciplinary findings and proposed action containing only the substantiated allegation I have found to be fair and reasonable, namely Allegation 1(a). 8. The decision-maker is further directed to specify the following in the reissued decision: (a) the standard or standards of the Code of Conduct for the Queensland Public Service the decision-maker finds the appellant -- 25 of 26 -- 26 contravened in respect of each of the substantiated allegations; and/or (b) the section or sections of the Public Service Act 2008 (Qld) under which the decision-maker finds there are grounds to discipline the appellant in respect of the substantiated allegation; and (c) the decision-maker's reasons for determining the appellant contravened each of the specified standards and/or sections. 9. The decision-maker is directed to reissue their decision within 21 days of these reasons. 10. The decision on disciplinary action is set aside. 11. The stay of the decisions appealed against is lifted. -- 26 of 26 --