"The ESB didn t like my first report and said that if I didn t help with the"
[Extract from Queensland Government Industrial Gazette, dated 7 September 2007, Vol. 186, No. 3, pages 243-260] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement The Queensland Public Sector Union of Employees (on behalf of Trayjon Peter Doone Bannister) AND Queensland Corrective Services (TD/2007/2) DEPUTY PRESIDENT SWAN 27 August 2007 DECISION This application is made by The Queensland Public Sector Union of Employees (QPSU) on behalf of its member, Mr T. Bannister, who is seeking reinstatement to his formerly held position as a Custodial Corrections Officer with Queensland Corrective Services (QCS). Mr Bannister had been employed by QCS for approximately 9 years. On 7 November 2006, Mr Bannister was asked by QCS to show cause why disciplinary action under Part 6 of the Public Service Act 1996 (PS Act) should not be taken against him in relation to 2 allegations (initially) and eventually 3 allegations. Mr Bannister was required to respond to those allegations by 23 November 2006. The first allegation "Pursuant to Section 87(1)(f) of the Public Service Act 1996 on the grounds that you contravened without reasonable excuse a provision of this Act or the Code of Conduct. Specifically, Principle 2 - Respect for persons, 2.1 Workplace behaviour and personal conduct: It is alleged that during a staff meeting, you interjected several times during a presentation by the General Manager, Mr Bernie Kruhse, to the effect that information Mr Kruhse was presenting to the meeting was a 'lie', refer paragraphs 3.2 and 4.8.". [Attachment TB7 of Exhibit 2.] The second allegation "Pursuant to Section 87(1)(f) of the Public Service Act 1996 on the grounds that you contravened without reasonable excuse a provision of this Act or the Code of Conduct. Specifically, Principle 2 - Respect for persons, 2.1 Workplace behaviour and personal conduct: It is alleged that after engaging in a domestic argument with your spouse, Activities Officer Keira Ash, you pursued her into the property of Maryborough Correctional Centre, namely the Gatehouse, where you forcibly restricted her intended entry to her working place and applied inappropriate force to her person. Refer paragraphs 4.12 to 4.30 inclusive and 5.5 and 5.16 inclusive. During the course of the investigation and interviews conducted, the version of events presented by you appear to be inconsistent with the physical evidence (video surveillance footage) and witness statements. You are directed that you are not to approach any witness, either directly or indirectly, during the course of this process.". [Attachment TB7 of Exhibit 2.] The third allegation "Pursuant to the Public Service Act 1996, s87(1)(d), that you contravened, without reasonable excuse, a direction given to the officer as an officer by a person with authority to give the direction (whether the authority derives from this Act or otherwise). It is alleged that you contravened a direction given in my letter dated 7 November 2006, and received by you at 12:41 PM on Thursday 9 November 2006 at the Maryborough Correctional Centre. That direction, in part was: 'You are directed that you are not to approach any witness, either directly or indirectly, during the course of this process.'. It is alleged that you telephoned CCO Caine Hodge on Friday, 10 November 2006 regarding his witness statements. The details of this contact are set out in the attached report from Mr Ray Noonan, Manager Centre Services, Maryborough Correctional Centre. 2 This allegation is extremely serious, particularly given that the allegations that I have already asked you to respond to related to alleged lack of respect for other staff members, including the use of force. I require you to respond to this allegation along with those specified in my letter dated 7 November 2006. I note that these responses are now required by close of business Thursday, 23 November 2006. Given the seriousness of Allegation Three, I further require you to show cause why you should not be suspended from duty, without salary. I require you to respond to why you should not be suspended from duty, without salary by close of business Tuesday, 14 November 2006.". [Attachment TB8 of Exhibit 2.] Preliminary matters On 23 November 2006 a Member of this Commission conducted a conference upon the notification of a dispute between QPSU and QCS relating to Mr Bannister. A further conference was held on 27 November 2006. QPSU was considering suspending Mr Bannister without pay while he was subjected to a show cause notice and he had been asked to respond to that proposition. QPSU stated that Mr Bannister had a medical certificate stating that he was not fit to work and believed that he should be exempted from having to respond to the show cause notice until he was fit and able to do so. At the time of the conferences, Mr Bannister had no remaining sick leave and the reality for him was that he would be without pay until the matter had finalised. QCS advised that it was acting pursuant to s. 92 of the PS Act which in effect confers the entitlement to full remuneration for the period of suspension unless the authority otherwise decides. QCS was aware of the medical certificate held by Mr Bannister (issued by a General Practitioner), however, because Mr Bannister did not possess any psychiatric or psychological evidence to support his claim that he was unable to adequately respond to the allegations, QCS did not believe it was acting inappropriately in demanding a response to the allegations. During the course of the second conference, the issue of further medical opinion was again addressed with the QCS officer saying that "the agency is still waiting on the WorkCover investigation report which I would tend to agree with Mr Vaughan, that would occur a lot quicker than trying to tie down a psychiatrist.". [Exhibit 1, pg 19.] These conferences were followed by an arbitration of the dispute (D/2006/200) with a decision issuing from the Commission on 6 December 2006. QPSU, as applicant, had sought the following decision from the Commission: "(a) QCS has acted outside the authority of s. 92 Public Service Act 1966, by suspending Mr Bannister without full remuneration; (b) Mr Bannister is not required to participate in the disciplinary process until CCO Bannister has received a full medical clearance to do so. (c) Mr Bannister is compensated for all lost income as a result of the actions of QCS.". [Attachment TB14 of Exhibit 2.] In that decision it was determined that: The response to (a) above was that the QCS had not acted outside of the authority of s. 92 of the PS Act by suspending Mr Bannister without full remuneration. The medical certificate issued by the General Practitioner was insufficient to stop the disciplinary process. The wording on the certificate "not fit for duty" or "not able to work at all" "does not answer the obligation and it is wrong to suggest that an employee is not required to participate in a disciplinary process unless he receives a medical clearance to do so". Point (c) failed. Finally, the Member of the Commission determined "that this Commission lacks jurisdiction to deal with matters of discipline under the PSA, not amounting to dismissal and not falling within the exception provided for in s. 95(4) of the PSA". [183 QGIG 964 at 968.] As a consequence of this decision, which was not the subject of an appeal, the QCS continued upon its stated course. There are discretely different questions raised in the matter now before the Commission as to process, and it is an integral part of the complaint by QPSU that Mr Bannister was not afforded procedural fairness. This issue will be considered during the course of this decision. 3 Mrs Bannister is often referred to by witnesses as Ms Ash which was her maiden name. Affidavit evidence for the applicant Trayjon Bannister General background Mr Bannister commenced employment with QCS in March 1999 as a Custodial Corrections Officer at Wolston Correctional Centre. Mr Bannister then worked at the Townsville and Maryborough Correctional Centres. Whilst at the Maryborough Correctional Centre (the Centre), Mr Bannister was chosen to become a team leader. This position entailed a considerable amount of responsibility. Mr Bannister is a member of QPSU, having joined when he commenced working for QCS. In early 2005, whilst at the Centre, Mr Bannister became one of 5 Union delegates. Later that year, Mr Bannister was voted by Union members to become the Vice President of the Union at the Centre. Incorporated within that role was the requirement to listen to staff complaints and to attempt to rectify matters through discussion with members and/or management. Monthly meetings of the local workplace consultative committee (LWCC) considered a range of issues. Mr Kruhse, the General Manager of the Centre, attended many of the LWCC meetings in his capacity as a management representative, and Mr Bannister had open discussions with him on behalf of his members regarding the various issues which had arisen at the Centre. Mr Bannister regularly undertook negotiations with QCS management on the issue of adequate staffing levels. Mr Bannister's disciplinary history with QCS Mr Bannister states that, in correspondence dated 14 December 2006 (the termination of employment letter) QCS said that it had relied upon the findings of the investigation report of the Ethical Standards Branch (ESB) and findings relating to the third incident in addition to the following: "(a) a finding by QCS in January 2003 that I had physically attacked an ex-inmate outside of a nightclub ('the Townsville incident'); (b) a finding by QCS in October 2004 that I had fraudulently taken a sick day in breach of reporting protocol; (c) a finding by QCS also in October 2004 that I had transmitted inappropriate and offensive material through the QCS email communication system; (d) a determination in May 2005 to formally remind me that I had warnings in place and of my ongoing obligations in the workplace.". [Exhibit 2, para 90.] Re: (a) In March 2002, Mr Bannister had been involved in an incident at a Townsville nightclub and was charged with assaulting and causing bodily harm, to an ex-prisoner. Mr Bannister pleaded not guilty to the charge. QCS commenced an investigation into this incident. The ESB conducted this investigation prior to Mr Bannister's criminal charges being heard at trial. The ESB found against Mr Bannister and recommended a show cause process to be undertaken. Mr Bannister had been advised by his solicitor and his Union not to offer evidence to the ESB on the basis that it might "prejudice my criminal defence". [Exhibit 2, para 94.] Mr Bannister's solicitors wrote to QCS stating that Mr Bannister would be willing to co-operate at a time when his involvement in the disciplinary process would not prejudice his criminal defence. QCS rejected this request and "determined that the allegations against me were substantiated". [Exhibit 2, para 95.] Mr Bannister was subjected to a two pay point penalty together with an exclusion from undertaking higher duties for two years. [Exhibit 2, para 97.] Some two years later, after a full Court hearing, Mr Bannister was found not guilty of the charges which had been laid against him. Mr Bannister went on to state: "Following my being found not guilty, the Union wrote the QCS on my behalf asking that the finding against me be reconsidered in light of the evidence that was adduced at the hearing. A copy of the undated letter from the Union to QCS is attached and marked 'TB19'. By letter dated 28 September 2004, QCS declined to reconsider the disciplinary findings against me. A copy of this letter is attached and marked 'TB20'.". [Exhibit 2, para 99.] 4 Re: (b) At the time of the above criminal charges being laid against Mr Bannister, he found himself in the position where he could not continue to pay his solicitors and, as a consequence of the stress he was under, he called in sick on one day. He was later found to have played football on that day. Mr Bannister says: "... I never denied that I had played football, or asserted that I wasn't physically capable of working. Rather, I believed, and I openly told QCS during the investigation process, that the nature of my unfitness for duty did not affect my capacity to play sport, which I had genuinely. QCS didn't accept that my reasoning was valid and I was disciplined accordingly.". [Exhibit 2, para 100.] Re: (c) Mr Bannister states that he was involved in the transmission of an e-mail to another colleague. The material was deemed to contain a sexually explicit image. A further 16 other staff were also investigated about the transmission of the same document. Mr Bannister and the others were found to have transmitted the material but Mr Bannister states: "... I was the only one that had a show cause process commenced about it. This was because of my previous disciplinary history. I was reprimanded and not allowed access to overtime for 12 months.". [Exhibit 2, para 101.] Re: (d) Mr Bannister states that in March 2005, a complaint had been made against him by a prisoner but upon investigation it was found "not to warrant the instigation of disciplinary action against me". Mr Bannister did receive a warning nonetheless, and he states that this "reminder" and the one concerning the e-mail (above), was because of the earlier findings made against him with regard to the Townsville incident. [Exhibit 2, para 102.] The first allegation Prior to Mr Kruhse becoming the General Manager of the Centre in mid-2005, there had been mutual agreement between management and QPSU regarding staffing levels on the oval. Under that arrangement, a Security Officer would escort the Activities Officer to the oval and remain there until all the prisoners left the oval. In early 2006, QCS altered that arrangement and the Activities Officer was required to work unsupervised. Mr Bannister's wife, Keira Bannister (nee Ash), worked as an Activities Officer and on a particular day she was required to work on the oval without a security officer present. Mrs Bannister refused this and an industrial incident (a lock-down of prisoners) occurred. A conference was held before the Commission and upon the return to work of officers at the Centre, Mr Kruhse held a number of "Town Hall" meetings in January 2006. "Town Hall meetings were open staff meetings called by management for all staff. Town Hall meetings were information sessions at which staff were invited to share their opinions about the session topics. The meetings were conducted relatively informally. Because of the issues with which they dealt, they often got quite heated.". [Exhibit 2, para 13.] At a particular Town Hall meeting held shortly after the abovementioned industrial action had taken place, Mr Kruhse said words to the effect that "if female staff members are too scared to work with prisoners then maybe they should get another job". Mr Bannister took that to mean a criticism of his wife. When Mr Bannister retorted with "You can't speak to staff like that", he claims that Mr Kruhse said, in an angry manner - "You can sit there and write down as much as you want, and flower it up as much as you like, but that's my position". [Exhibit 2, para 14.] Mr Bannister stated that his wife had lodged a grievance against Mr Kruhse in relation to his comments at that and previous Town Hall meetings. The Town Hall meeting to which reference was made in the first allegation occurred on 20 July 2006. A particular topic addressed by Mr Kruhse related to the creation of a secure supervisor position for S6, which was one of the secure wings of the Centre. An issue had arisen between staff and management and Mr Bannister said negotiations occurred for up to 6 months, but when those negotiations broke down, industrial action had been taken by staff. As a consequence of this, QPSU delegates were invited to discuss the issue with senior QCS management about staffing levels. Mr Bannister and 2 other Union delegates from the Centre attended these meetings. The issue concerning the secure supervisor for S6 was discussed. Later in 2005, and early 2006, staff and supervisors had separate meetings and put their propositions to QCS, which ultimately were rejected. This issue, along with other staffing issues, was raised at the Brisbane meetings. Ultimately, an outcome was achieved with the creation of 3 extra positions, one of which was an S6 supervisory position to be worked in 8 hour shifts from Monday to Friday. 5 At the Town Hall meeting, Mr Kruhse "spoke for approximately five minutes at one point about how all credit should go to supervisors and management at the Centre for instigating the secure supervisor eight hour position.". [Exhibit 2, para 21.] Mr Bannister had taken exception to these comments because he believed that the successful work done in these negotiations had been done by the Union. Because of this, Mr Bannister says he told Mr Kruhse "Excuse me Bernie, I don't believe that is correct.". Mr Bannister says that Mr Kruhse responded with "Shut up Trayjon. This time you're wrong and keep out of it.". [Exhibit 2, paras 22 and 24.] These comments upset Mr Bannister and he responded with "No Bernie, I'm not going to shut up. I'm sick of you coming to these meetings and lying to staff about these Union issues.". [Exhibit 2, para 25.] The end result of the altercation was that Mr Ingram (Union delegate) was sought to provide his version of events. Mr Bannister acknowledged that his words were "confrontational" but were said for the purpose of setting the record right. Mr Bannister heard nothing more of the issue until contacted by the ESB of QCS some 6 weeks later. Mr Bannister had, after the Town Hall meeting, sought to contact Mr Kruhse to discuss that issue and the issues involving his wife's grievance. He states that Mr Kruhse did not respond to his calls. The second allegation Mr and Mrs Bannister have been a couple for some 16 years. On 15 August 2006, whilst not rostered for work, Mr Bannister drove his wife to work. Mr Bannister said that during the drive, his wife had advised him that she was going to withdraw the grievance against Mr Kruhse. An argument ensued between Mr and Mrs Bannister around this issue but then progressed into a more personal argument between them. By the time Mr and Mrs Bannister reached the Centre, Mr Bannister says his wife was "crying and hysterical and shouting at me.". [Exhibit 2, para 39.] The argument escalated to the point that Mrs Bannister told Mr Bannister that "Trayjon this time it's finally over". Mr Bannister says his wife then "jumped out of the car, slammed the door and started running toward the Gatehouse.". [Exhibit 2, para 39.] Mr Bannister believed that his wife was leaving the relationship and he says that he panicked. He did not want to leave matters as they stood and progressed after Mrs Bannister intending, as he says, to "stop her from going into work in the state she was in, and to try to finish the argument and resolve things between us.". [Exhibit 2, para 41.] Mr Bannister says that when he reached the Gatehouse, he took hold of her arm and tried to pull her to him. He states that he was pleading with his wife not to go into work. The words used by him were "Don't go in there. Please Keira. Not here Keira, of all places, not here Keira.". [Exhibit 2, para 42.] The situation was described by Mr Bannister in the following terms: "When I took hold of Keira's hand and pleaded with her not to do this in the Gatehouse and to come with me outside, she pulled away from me and as she did so I remember that she dropped to the floor. At this point she was hysterical and crying and shouting at me. When she dropped down to the floor I let go of her hand and was touching her on the shoulder still talking to her in the same terms. I was not shouting at her nor yelling, rather, I was pleading with her quietly not to do this in the Gatehouse and to talk with me about it outside. I remember that I bent down beside her and continued to plead with her. I remember that I, like her, was crying at the time. Although I wasn't sobbing I had tears in my eyes and was very upset with what was happening.". [Exhibit 2, para 43.] Mr Bannister claims that he eventually gave his wife an ultimatum by begging her to leave with him and that he would give her one more chance. [Exhibit 2, para 44.] All of this was to no avail, and Mr Bannister believed that he had lost "the most important thing to me in my life - my relationship with Keira.". [Exhibit 2, para 46.] There is video surveillance footage of this incident which was played on a number of occasions during the course of the hearing. [Attachment PB2 of Exhibit 24.] Mr Bannister was so distraught, that he got in his car and continued to drive to Byron Bay. He and his wife did break up for a period of time. As a consequence of this stress, Mr Bannister had unsuccessfully sought leave from work. In November 2006, Mr Bannister took some sick leave. During this period, he said that two prisoners had threatened to kill both he and Mrs Bannister. 6 Upon attending a General Practitioner, Dr Kumar, Mr Bannister obtained a medical certificate stating that as from 1 November 2006 until 21 November 2006 he was "not able to work at all". [Attachment TB1 of Exhibit 2.] The third allegation The third allegation related to Mr Bannister telephoning another Correctional Officer, Mr C. Hodge, with regard to the evidence he had given to QCS concerning the second allegation (the Gatehouse incident) which appeared to have contradicted what Mr Hodge had previously told him. Mr Bannister said he contacted Mr Hodge as a consequence of an earlier discussion he had with him. At the time of the Gatehouse incident, Mr Bannister said he had received an e-mail from Mr Hodge "in which he had told me that he had had to file a report about the Gatehouse incident, but that I shouldn't worry, that there was nothing bad in his report and that he knew that it was a personal issue between myself and Keira.". [Exhibit 2, para 77.] Mr Bannister added "after reading the ESB report I was upset and wanted to talk to Caine as a friend. My motivation for calling him was to find out what had happened and how it was that the report contained the comments from him that it did.". [Exhibit 2, para 78.] Mr Bannister recounted his version of the conversation held with Mr Hodge. [Exhibit 2, para 80.] "Bannister: Hi Caine it's Trayjon how's it going? Hodge: OK. Bannister: Caine I just got the report from the ESB about the Gatehouse. Hodge: Yeah. Bannister: What's happened here? It says you've said all these things mate. Hodge: What do you mean? Bannister: Well it says that I was 'dark and down'. Did you ever consider that I wasn't 'dark and down' but was emotional, upset and pleading with Keira. How do you even know? Hodge: Listen, they are not my words mate they were ESB's words. Bannister: What about all this other stuff like when it says that Keira was calling out. You couldn't hear anything from where you were could you? Hodge: No. Bannister: Caine, I just can't believe you've done this. Hodge: Well I just had to tell the truth. Bannister: Caine, I don't have a problem with you telling the truth but the things you have said aren't true. Hodge: Well Trayjon I had to tell the truth. Bannister: You emailed me and told me you understood the situation that me and Keira were in. Hodge: Listen I had to tell the truth. Bannister: Caine, why had you done this? Hodge: ESB put pressure on me. The ESB didn't like my first report and said that if I didn't help with the investigation by making a second statement for them then they'd bring action against me under the Public Service Act. Bannister: I can't believe you've done this. I hope you realise that I'm just trying to talk to you man to man. Are you after me or is the ESB after me? Hodge: I'm not after you. 7 Bannister: I hope this is over Caine. Hodge: What do you mean by that - what do you think I'm going to do? Bannister: You're not going to complain about this phone call are you? Hodge: As if I'd do something like that Trayjon. Bannister: Because, you know if you had a problem with me I'd expect you to talk to me about it. That's why I called you - just to talk man to man - you know. Hodge: Yeah, I can understand that.". Keira Bannister Mrs Bannister commenced employment with QCS in 2001 as an Activities Officer at the Townsville Correctional Centre. Mrs Bannister's recollections of the first allegation (the Town Hall incident) are as follows: She recalls discussions around staffing levels generally. Mr Bannister said words to the effect "you didn't do that" when Mr Kruhse had recounted his version of how outcomes had been achieved. Mrs Bannister believed that Mr Bannister had said "I am sick of you misleading staff at these meetings". [Exhibit 7, para 5.] Around the issue of the meeting concerning staffing issues which had taken place in Brisbane between the Union and QCS management, and around which Mr Kruhse and Mr Bannister had disagreed on the facts, Mr Ingram (another Union delegate) was called into the Town Hall meeting to add his views. Mrs Bannister believes that Mr Ingram initially agreed with Mr Kruhse and then with Mr Bannister, upon further explanation from Mr Bannister. Mrs Bannister says that, when speaking to another officer, Kevin Morgan, he had stated "I've heard it said that Mr Kruhse is going to do you for code of conduct for speaking out in Town Hall meetings - he's sick of you speaking out". [Exhibit 7, para 9.] Mr Morgan also spoke to Mrs Bannister stating "Trayjon's going to have to watch himself - Mr Kruhse is going to get him for code of conduct". [Exhibit 7, para 11.] Mr Morgan was not called to give evidence. Because Mr Bannister was the Union delegate at the Centre and later the Vice President of the Union, Mrs Bannister believed that he had put himself into a position where he had to ask "difficult questions" of Mr Kruhse relating to a range of issues raised by staff. Mrs Bannister states: "I recall that on at least three or four occasions there were Town Hall meetings where there was some degree of antagonism between Mr Kruhse and Trayjon as a result of these sorts of issues.". [Exhibit 7, para 12.] Mrs Bannister had taken a grievance action against Mr Kruhse. She had done this because of comments made by Mr Kruhse at a Town Hall meeting held on 1 March 2006. Industrial action had been taken by staff at the Centre around the question of Activities Officers working on the oval without the presence of a Security Officer. Mrs Bannister was the only Activities Officer who had refused to work under those conditions. Mrs Bannister states that at a Town Hall meeting of 27 February 2006, Mr Kruhse had said that: "... he could not understand why the other two Activities Officers do not have a problem with taking prisoners to the oval or the hall and then being left alone with them whilst one Activity Officer (clearly referring to me) does. He also said that he could not understand why we would come to a Correctional Centre to hide behind a door with a hole in it (referring to the Nursing staff) or a gate (referring to me again). Finally he challenged me directly. I ended up leaving the meeting in tears. I felt as though I had been singled out and made an example of.". [Exhibit 7, para 14.] At a follow-up meeting on 1 March 2006, Mr Kruhse had said words to the effect of: " 'If you are too scared to work with prisoners you need to address the issue'. He said that I should not need anyone to 'hold my hand' whilst conducting sporting activities. Trayjon was present at this meeting and when he objected to these comments Mr Kruhse said to him 'You can write that down as well' and 'you can flower that up however you like'.". [Exhibit 7, para 15.] 8 Mrs Bannister sought counselling from the employee assistance scheme. She followed this with the lodgement of a grievance against Mr Kruhse. This grievance was handled by Mr G. Rooney (Director, Human Resource Services Branch) who responded by stating that Mr Kruhse had denied saying these words, but that he was prepared to meet with Mrs Bannister to discuss the matter. [Exhibit 7, para 17.] Mrs Bannister's evidence around the second allegation (the Gatehouse incident) was as follows: Mrs Bannister's evidence was not dissimilar to that of Mr Bannister's in terms of their argument on the way to work on 15 August 2006. Mrs Bannister attests to being "hysterical" at the time and telling her husband that "it's all over Trayjon". [Exhibit 7, para 19.] Upon running towards the Gatehouse, Mrs Bannister says she didn't put her bag in the x-ray machine because she was not thinking properly. Mrs Bannister remembers Mr Bannister holding her wrists and trying to pull her towards him. Mrs Bannister says that she told him "don't touch me". Mr Bannister let go of her and she says that "she let herself collapse onto the ground". [Exhibit 7, para 20.] Mr Bannister then bent down to speak to her. Mrs Bannister recalls her husband saying "Come on, please don't do this, please leave with me, not here please Keira". [Exhibit 7, para 20.] Mrs Bannister recalls saying "don't try to help me" and "don't touch me". Before Mr Bannister left the Gatehouse, Mrs Bannister recalls him saying to her, as he was still bent down, "If I leave now then it is all over" to which Mrs Bannister responded "Just go". [Exhibit 7, para 20.] With Mr Bannister leaving, Mrs Bannister was escorted into the side room, with Mr Allwood and Mr Hodge. She remained hysterical and crying. Mrs Bannister states that no-one approached them until after Mr Bannister had left the Gatehouse. In her conversations with Mr Caine, in the side room off the Gatehouse foyer, Mrs Bannister felt that she was being interviewed by him rather than being asked questions out of concern for her. During all of this time, Mrs Bannister says that she remained hysterical and crying. [Exhibit 7, paras 28-29.] Alan Ingram Mr Ingram is employed by QCS as a Correctional Supervisor. Mr Ingram was not present at the Town Hall meeting when the alleged "incident" occurred, however, he was called to the meeting some time later to discuss his involvement in the processes which led to the eventual outcome concerning the extra supervisor position. At the time of Union negotiations with QCS, Mr Ingram (being a Union delegate) and Mr Bannister made "lengthy presentations" around the staffing issues. After considering these "presentations", QCS management put a final offer to the Union representatives. This offer was discussed with members at the Centre and was accepted. At the Town Hall meeting, Mr Ingram outlined his understanding of the negotiations as cited above. He further stated: "After I finished stating my recollection, Mr Bannister asked me words to the effect 'Were the initial negotiations about needing an extra supervisor done by union delegates or just supervisors?' I replied that at that stage it was done by the supervisors. Although I was a union delegate, I saw the negotiations as having been initiated by the supervisors, including myself.". [Exhibit 8, para 10.] Mr Ingram stated that Town Hall meetings were often heated and occasionally people walked out of the room. It was obvious, during interactions between Mr Kruhse and Mr Bannister, that they did not like each other. "They are both loud and opinionated people - I suspect that's why their personalities clashed.". [Exhibit 8, para 13.] Mr Ingram refuted any suggestion that Mr Bannister was "bullying or thug-like". He believed that had Mr Bannister showed any tendencies to be disrespectful, then this would have been evident from performance reviews. Matters of this type were never raised in these reviews. Eion Bennett Mr Bennett commenced employment with the QCS as a Custodial Corrections Officer in early 2003. In October 2006, Mr Bennett obtained a full-time secondment to the QPSU as a regional organiser for the Fraser Coast area. Mr Bennett's version of events around Union discussions with QCS was not dissimilar to that of Mr Ingram's. Town Hall meetings, under the previous Manager of the Centre, were conducted on the basis of open forums where staff were encouraged to express their views and grievances. Under Mr Kruhse's management, the meetings were conducted differently where Mr Kruhse provided information about decisions which had been made. 9 Mr Bennett stated: "It was not the same consultative process as under Mr Brown. Staff often did not feel as comfortable raising issues in the meetings under Mr Kruhse. I felt that Mr Kruhse was not a very approachable manager. In my view, Mr Kruhse does not like being challenged.". [Exhibit 10, para 8.] Further evidence was provided concerning Mr Bennett's representation of Mr Bannister during the investigation and disciplinary process. Mr Bennett said: He attended the ESB meeting with Mr Bannister and he affirmed Mr Bannister's view of the history surrounding the creation of the supervisor position. The interviewing officer, Mr Bottomley, became aggravated when Mr Bannister said "no comment" to some questions. Mr Bannister, during the course of this investigation, became very emotional. When Mr Bannister received his show cause notice, Mr Bennett became concerned about Mr Bannister's mental health. Mr Bennett advised Mr Kruhse that it was unacceptable that Mr Bannister should be required to respond to the notice in his emotional state. Mr Kruhse was asked to serve any other documents concerning Mr Bannister to Mr Vaughan of QPSU. Mr Bennett states: "Mr Kruhse responded by saying that he did not take direction from Mr Vaughan or anybody else from at the QPSU. He stated that he had been directed by Peter McKay to serve the document on Mr Bannister personally. He further stated that he had consistently questioned head office staff regarding the advisability/legality of serving these documents on Mr Bannister when he was on stress leave. However, despite his concerns he had been instructed to serve Mr Bannister.". [Exhibit 10, para 16.] Mr Bennett continued to be concerned about Mr Bannister's mental state. He stated that Mr Bannister would often say "I need help". Mr Bannister was primarily concerned about the threats made against him and his wife by a prisoner; his marital difficulties; his financial situation; losing his house because he had been suspended without pay and the prospect of losing his job. As a consequence of this, Mr Bennett obtained Mr Bannister's authority to contact Mr Bannister's General Practitioner, Dr Kumar and his psychologist, Mr R. Nembach. Both practitioners expressed concern about Mr Bannister's mental state. A report by Mr Nembach was provided on 23 November 2006 and this was forwarded to Mr C. Vaughan from the QPSU. In that report Mr Nembach stated, inter alia: "Due to the events which have occurred at his place of employment, he would be temporarily psychologically unable to perform his current work duties. However, it is envisaged that given adequate psychological treatment and workplace intervention that he would be able to return to his current place of employment in the foreseeable future.". [Attachment TB4 of Exhibit 2.] Dr Pravind Kumar On 16 April 2007, Dr Kumar was requested by the solicitors acting for Mr Bannister to provide a report regarding Mr Bannister's diagnosis and treatment for the period 1 November 2006 and 7 December 2006. On 1 November 2006, Mr Bannister was diagnosed with an adjustment disorder with depressed mood. Counselling was advised. On 7 November 2006, the same diagnosis was offered. A total incapacity medical certificate for 2 weeks was issued and Mr Bannister was to continue psychological support through counselling services. On 10 December 2006, Mr Bannister saw Dr Kumar. He was "teary and emotional". [Exhibit 12.] Reference was made to the report Mr Bannister had received from the ESB and Mr Bannister was prescribed anti-depressants and anti- anxiety medication. On 13 November 2006, Mr Bannister was to show cause within 24 hours or be suspended without pay if he failed to respond. On 16 November 2006, Mr Bannister again saw Dr Kumar with no improvement in his condition. A medical report dated 16 November 2006 from an independent psychologist, Ms K. Morgan (arranged by WorkCover Queensland), cited "major depression". A further visit to Dr Kumar occurred on 21 November 2006 when Mr Bannister advised that he had been suspended from work from 17 November 2006. Depression was still evident. 10 On 23 November 2006, Mr Bannister advised of a Queensland Industrial Relations Commission conference and requested a medical report "as he had to prove he had a psychological problem as he was told the Medical Certificates provided stipulated that despite being medical [sic] unfit for work, this did not preclude him from responding to the Industrial Review Commission.". [Exhibit 12.] On 6 December 2006, Mr Bannister had been advised that his employment would be terminated within 7 days. He further advised that his wife had attempted suicide on 5 December 2006. A medical certificate was issued, back dated to 5 December 2006 with a diagnosis of depression. Dr Kumar states: "In my opinion Mr Bannister was under considerable stressors, relating from work issues, financial stress and a psychologically unstable wife who also had an ongoing Workcover Claim arising from the same incident. In my opinion Mr Bannister was not in a stable psychological state to participate in the industrial relations processes occurring in November and December 2006.". [Exhibit 12.] Christopher Vaughan Mr Vaughan is an industrial officer with the QPSU. Mr Vaughan supported the views expressed by Mr Ingram concerning the ESB meeting. After the commencement of the show cause process, Mr Vaughan, on 13 November 2006, wrote to QCS providing a WorkCover medical certificate issued by Dr Kumar certifying Mr Bannister as "not able to work at all" until 21 November 2006. Issues concerning QCS' legal authority to suspend Mr Bannister without pay and a request to permit Mr Bannister to respond when he obtained a medical clearance was raised. The issues, the subject of the decision from the Commission on 6 December 2006 (D/2006/200) (previously cited), were addressed. The response from QCS was that the medical certificate did not preclude Mr Bannister from responding to the show cause. Mr Bannister was also advised by QCS that he was precluded from accessing any sick leave from the commencement of the suspension. Mr Vaughan described the difficulty he faced in attempting to gain appropriate instructions from Mr Bannister because of Mr Bannister's depressed state. Evidence for the respondent Julie Manz Ms Manz is the Accommodation Manager - Residential at the Centre, a position she has held since January 2006. On 24 July 2006, Ms Manz made a written complaint to Mr Kruhse regarding Mr Bannister's behaviour at the Town Hall meeting in question. Ms Manz believed that these Town Hall meetings were for the purpose of management informing staff of proposed changes to human resource practices and to provide management's perspective concerning matters of recent discussion between management and the QPSU. At the meeting, Ms Manz believed that Mr Bannister had acted in an "aggressive, insolent and belligerent" manner towards Mr Kruhse. [Exhibit 16, para 7.] Austin Day Mr Day's evidence around the Town Hall meeting was similar to that of Ms Manz. Mr Day, however, added that he believed that "[Mr] Bannister's behaviour in general, not only on the dates in question, was characterised as thug-like and bullying.". [Exhibit 17, para 6.] Mr Day would object to working with Mr Bannister again. Shane Allwood Mr Allwood is a Custodial Corrections Officer at the Centre. On 15 August 2006, Mr Allwood was working as a correctional supervisor in the office inside the Gatehouse at the Centre. Mr Allwood says that he heard loud voices for a short period of time and was advised by Mr Hodge that an incident was occurring between Mr and Mrs Bannister in the Gatehouse foyer. When Mr Allwood approached the roto-turn, he noticed Mrs Bannister "sitting on the floor with one of her arms resting on the bench seat situated near the entrance to the Roto-turn." [Exhibit 19, para 4.] He noticed that Mrs Bannister appeared to be crying. 11 Mr Allwood asked Mrs Bannister if she was alright and she advised that she and Mr Bannister had been involved in a domestic argument and in response to a question from Mr Allwood, Mrs Bannister said she had not been hit by Mr Bannister. Caine Hodge Mr Hodge is a Custodial Corrections Officer at the Centre. He has held that position since January 2003. Mr Hodge's evidence relates to the incident at the Gatehouse and also the third allegation. Mr Hodge was on duty at the front desk of the Gatehouse on 15 August 2007. He was able to observe Mrs Bannister "briskly walking" at the front of the Gatehouse. Mr Bannister was following behind "walking very quickly and quite forcefully". [Exhibit 20, para 3.] Mrs Bannister sat down on the bench in the foyer and he thought Mr Bannister was trying to grab some keys out of her hand. His initial reaction was that they were "mucking around". [Exhibit 20, para 3.] He could hear some of the conversation - Mrs Bannister's voice seemed to be elevated, while Mr Bannister's voice was "down and dark". [Exhibit 20, para 3.] Mr Bannister was holding Mrs Bannister's right arm below the wrist with his left and was using his right hand to grab the keys. He believed there was a bit of a struggle and then Mrs Bannister was on the ground. During all of this time, he believed that Mr Bannister was holding her arm. He believed that Mr Bannister spoke to Mrs Bannister in an angry tone. Mr Hodge believes that he heard Mrs Bannister yell "No Trayjon". During this time, he saw Mr Bannister pointing and shaking his finger at her. He heard Mr Bannister say "One chance". To this, Mrs Bannister responded "Stop it, stop it". [Exhibit 20, para 3.] Mr Hodge believes that he heard Mrs Bannister calling out for help. He believed that Mr Bannister was going to hit Mrs Bannister. Mr Hodge called out for Mr Allwood to see what was going on. Mrs Bannister was assisted into the office area by Mr Allwood and she was "very upset and was visibly shaking and we tried to calm her down". [Exhibit 20, para 3.] Mr Hodge was asked to provide a report of the incident and he states that initially he wanted to stay out of the incident as he believed it was none of his business. The report he provided was as follows: "15 August 2006 The General Manager Maryborough Correctional Centre Maryborough, Qld Subject: Observed Incident with CSO's Ash & Bannister Sir, I Caine Hodge was rostered as the Gate One Officer on the above mentioned date and wish to report the following: At approximately 06:30am, I witnessed CSO Keira ASH enter the Gatehouse area, followed by CSO Trayjon BANNISTER. There appeared to be an issue between the two persons as they entered the Gatehouse, which led to Ash being visible [sic] upset. I then called for the Gatehouse Supervisor, Shane ALLWOOD to view this event, however BANNISTER left the premises on his own accord, after a short period of time had elapsed. As ASH was visibly upset, I asked her to go to the Search Room, to remove her out of the view of other Staff Members who were entering the Centre. I then spoke to Ash to see to ensure that she was okay, before arranging for a Registered Nurse to assess ASH'S condition, before returning to normal duties. This report is submitted via request from the Centre Services Manager. Caine Hodge". [Attachment CH1 of Exhibit 20.] 12 On 19 September 2006, Mr Hodge was interviewed by the ESB. Mr Hodge believed that he should go into more detail with the ESB. On 10 November 2006, he received a telephone call from Mr Bannister. Mr Bannister stated that he was not happy with Mr Hodge believing him to have gone behind Mr Bannister's back. Mr Bannister disputed the way Mr Hodge had reported the incident. Mr Bannister asked him why he was trying to "sink him". Mr Hodge reiterated that he was only reporting what he had witnessed. Mr Bannister read to Mr Hodge parts of the ESB report describing him as "dark and violent". Mr Hodge's voice on the telephone was heard by Mr Hodge's wife. [Exhibit 20, para 6.] Mr Hodge reported this incident as he was concerned by it and any possible ramifications from Mr Bannister. Karen McNab Ms McNab is currently the Business Services Manager at Woodford Correctional Centre. At the time of the allegations, she was the Human Resources Manager at the Centre, a position she held from November 2002 to February 2007. Ms McNab had expressed views similar to those of Ms Manz with regard to the Town Hall meeting. Bernie Kruhse Mr Kruhse is the General Manager of the Centre. He has occupied that role since June 2005. Mr Kruhse believed the purpose of the Town Hall meetings was "to inform staff of impending changes to HR processes at the centre along with an update of outcomes of recent meetings management had held with the QPSU.". [Exhibit 22, para 3.] At the meeting on 20 July 2006, Mr Bannister attended the meeting sometime after its commencement. Mr Kruhse said he had to stop his presentation at times because of interjections from Mr Bannister. Mr Kruhse said "I can see what you are trying to do Trayjon, but there are people here who would like to hear the information". He says Mr Bannister responded by saying that he could not stand by and let Mr Kruhse "lie". [Exhibit 22, para 8.] After this meeting, Mr Kruhse received complaints from staff members, Ms Manz, Ms McNab and Mr Day. Consequently, Mr Kruhse approached ESB to investigate whether there had been a breach of the Code of Conduct by Mr Bannister. Mr Kruhse stated "I would oppose the return of CCO Bannister in any capacity at any time in the future. He has absolutely no respect for any person in authority at the centre, little respect for other persons generally, and this was made abundantly clear over the course of his employment.". [Exhibit 22, para 16.] Peter Bottomley Mr Bottomley is the Acting Chief Inspector, Office of the Chief Inspector, Brisbane. Mr Bottomley has held this role since December 2006. Prior to that, Mr Bottomley was the Director, ESB, QCS. The principal role as Director of ESB was to oversee the operations of the ESB and also to investigate alleged misconduct. In July 2006, Mr Bottomley received reports from Mr Kruhse with regard to Mr Bannister. On 15 August 2006, Mr Kruhse advised the ESB of another incident involving Mr Bannister - the Gatehouse incident. Relevant witnesses were interviewed and on 12 September 2006, an interview was conducted with Mr Bannister, represented by Mr Vaughan from the QPSU and supported by Mr Bennett. Mr Bannister often responded to questions with "no comment". After the investigations were finalised, the following findings were made: "CSO Bannister's conduct at the staff meeting on 20 July 2006 constituted a breach of Principle 2 ('Respect for Persons') of the Agency's Code of Conduct. CSO Bannister's behaviour toward CSO Ash was intimidating and that he applied inappropriate force to her person. This conduct constituted a breach of Principle 2 ('Respect for Persons') of the Agency's Code of Conduct.". [Exhibit 24, para 14.] 13 Kevin Rooney Mr Rooney is the Director of Human Resources Services Branch, QCS. He has held this position since January 2005. Mr Rooney became involved in the process leading to the dismissal of Mr Bannister on 7 November 2006 when he issued the "show cause" notice to Mr Bannister. Within that correspondence, he had advised Mr Bannister that: "You are directed that you are not to approach any witness, either directly or indirectly, during the course of this process.". [Attachment KGR1 of Exhibit 26.] Mr Rooney received a request from the QPSU on behalf of Mr Bannister to halt the show cause process, however, he was dissuaded from doing this because he had "no information before me that Mr Bannister was either medically unfit to respond himself to the allegations or instruct the QPSU ...". [Exhibit 26, para 11.] He was aware of Mr Bannister's workers' compensation medical certificates covering the period from November 2006 to 3 December 2006. Mr Rooney stated that he was aware of the dispute conference before the Queensland Industrial Relations Commission held on 23 and 27 November 2006, but "there was no evidence that he was unfit to instruct a representative or legal practitioner". [Exhibit 26, para 14.] By 30 November 2006, Mr Rooney had not received any responses from either Mr Bannister or the QPSU and he noted that "Allegations one and two were deemed proven pursuant to section 87(1)(f) of the Public Service Act 1996. Allegation three was deemed proven pursuant to section 87(1)(d) of the Public Service Act 1996.". [Exhibit 26, para 15.] Peter McKay Mr McKay is the Executive Director of Corporate Services, QCS, and he has held that position since August 2005. Between 13 November 2006 and 22 December 2006, Mr McKay acted in the role of Deputy Director-General, Strategic & Corporate Services. Mr McKay wrote to Mr Bannister on 14 December 2006 advising Mr Bannister of his decision to dismiss him. Within that correspondence, Mr McKay stated: "Having considered the nature of the allegations against you, I can advise you that I consider these matters to be extremely serious. Your behaviour in accusing a General Manager of a correctional centre of telling lies in a public forum is clearly inappropriate. Your actions in applying inappropriate physical force to a fellow employee of Queensland Corrective Services are inexcusable. This type of aggressive behaviour is simply not acceptable in the workplace. I also consider the third allegations [sic] against you as being extremely serious. Considering the instigation of the disciplinary process, where you have had an opportunity to consider the allegations and respond to them and also have the opportunity to provide counter information to that provided by witnesses in these processes, your actions in contacting a witness to discuss these matters are appalling. What makes this behaviour even more disturbing is the fact that you were directed not to approach any witnesses in this matter.". [Exhibit 27, para 4.] Mr McKay traversed, in his statement, the progression of the matter, through the dispute notification and the eventual arbitration of the dispute which resulted in a decision of the Commission which issued on 6 December 2006. At this point in time, Mr McKay summarised the information which was before him as follows: "- An absence of medical evidence stating that Mr Bannister could not participate in a show cause process; - Information that Mr Bannister, through his representatives, had been requested to provide better particulars of any arguments why he could not participate in a show cause process; - Show cause letters written to Mr Bannister from Mr Rooney detailing the allegations against him concerning the town hall and gatehouse incidents; - A detailed report written by the Ethical Standards Branch, testing the evidence related to the town hall and gatehouse incidents (including an interview with Mr Bannister), recommending that further action against Mr Bannister be considered in light of adverse findings against him; - Written statements from witnesses to the town hall and gatehouse incidents; - An absence of any information from Mr Bannister refuting the allegations against him related to the town hall and gatehouse incidents.". [Exhibit 27, para 14.] 14 Mr McKay says that he had taken into consideration not only the current situation but also Mr Bannister's previous disciplinary history with QCS. Of this history, Mr McKay says that Mr Bannister had a "lengthy discipline history which clearly demonstrated his inability to interact with both management and colleagues in a professional and courteous manner". [Exhibit 27, para 18.] Submissions and conclusion QCS states that when one considers all of the allegations against Mr Bannister, together with his disciplinary history with QCS, then the termination of his employment was not harsh, unjust or unreasonable. QCS also says that Mr Bannister was afforded natural justice during the investigatory process. The first allegation (the Gatehouse incident) was found not to constitute "misconduct" when investigated by the ESB, although it was found to be a breach of the "Agency's Code of Conduct". Mr Bottomley stated that: "... I did not, in my opinion, consider it to be suspected official misconduct and certainly it would not have met the threshold test that the CMC applies to allegations or workplace allegations of misconduct.". [Transcript, pg 505.] Further, Mr Bottomley said that in drawing this conclusion, he did not take into account the emotive descriptions of the event supplied by witnesses for the respondent (Ms Manz, Ms McNab and Mr Day). Mr Bottomley also did not determine the question of whether Mr Kruhse had lied to or misled his staff. Mr Bottomley said that in circumstances of this type, matters get sent back to the Director of Human Resources for the particular Government body and "perhaps a workplace investigation of a lesser nature than we would apply" could follow. [Transcript, pg 505.] Whether termination of employment eventually occurred or not would depend on the decision of these bodies. In considering the evidence around this point, I share the view expressed by Mr Bottomley. The incident in itself does not constitute misconduct and one would not expect an employee to have been dismissed for such behaviour, however, a warning would, in my view, may have been warranted. It appears that with the introduction of new management at the Centre, the style of the Town Hall meetings changed. Rather than being an "open forum for staff to express their views and grievances", the meetings became more a management vehicle for providing "information about decisions that had been made". [Exhibit 10, para 8.] Like Mr Bottomley, I have not drawn any conclusions about whether or not Mr Kruhse misled staff about the issues in contention. However, within an environment where industrial relations issues and outcomes are discussed, it is hardly surprising that different views prevail. This is also set against a background of industrial action having been taken around some of the issues. Mr Bannister, in his position as a Union delegate, was certainly free to express any view which he believed best represented the views of his members. In all, whether or not Mr Kruhse was embellishing the truth, Mr Bannister's words to him were intemperate and rude. That being said, Mr Kruhse's alleged dismissive behaviour towards Mr Bannister could also be viewed by some as provocative. Good manners and respect is not a one way street irrespective of one's position within a work hierarchy. Overall, I have accepted the evidence of Mr Ingram when he said that Mr Kruhse and Mr Bannister did not get on very well. This is clearly manifested in their interactions. The complaints from staff (Ms Manz, Ms McNab and Mr Day) were couched in extremely emotive terms and while Mr Bottomley has paid little heed to those comments in the making of his determination, they are of some relevance in understanding the whole picture around this application. There is little doubt that those who complained about Mr Bannister's behaviour at the Town Hall meeting viewed his behaviour as more than extreme and inappropriate. Descriptions such as "aggressive, insolent and belligerent" and behaviour which was "thug-like and bullying" have been used frequently to describe Mr Bannister in this hearing. Opposed to that, Mr Bennett's comments that: "It was not the same consultative process as under Mr Brown. Staff often did not feel as comfortable raising issues in the meetings under Mr Kruhse. I felt that Mr Kruhse was not a very approachable manager. In my view, Mr Kruhse does not like being challenged."; [Exhibit 10, para 8.] show a different side to the debate. As well, Mr Ingram stated that had Mr Bannister showed the personal tendencies as outlined by these witnesses, then this would have been evident in performance reviews - and matters such as these were never raised in these reviews. In all, from the evidence before me, I believe the views expressed by Mr Ingram more correctly identify the situation when he stated, in relation to both Mr Kruhse and Mr Bannister: 15 "They are both loud and opinionated people - I suspect that's why their personalities clashed.". [Exhibit 8, para 13.] In the course of interviewing Mr Bannister, Mr Bottomley said that he had not raised his voice when Mr Bannister's response to his questions was "no comment". However, he does say he raised his voice when Mr Vaughan had tried to talk over the top of him. I accept that there was an element of frustration and heated discussion during this interview on all parts, but not to a level which would require any further consideration. With regard to the Gatehouse incident, Mr Bottomley said that he had viewed a statutory declaration from Mrs Bannister saying that she had not felt intimidated by Mr Bannister during this incident. However, in response to a question from Counsel for QCS, Mr Bottomley agreed that he thought Mr Bannister may have believed that the handing over of Mrs Bannister's statutory declaration may have seen the end to the ESB investigation of the Gatehouse incident. This was not to be so. The evidence given by Mrs Bannister around this issue was described as Counsel for the QCS as "pathetic" in the sense that it was "evoking ... pity" [The Collins Concise Dictionary, Second Edition.] That is the impression I gained as well. Mrs Bannister attributed many of the difficulties around her husband's termination of employment with QCS as being of her making - e.g. the Gatehouse incident and the Town Hall incident. She allowed no room for any responsibility to be taken by Mr Bannister for his behaviour. On a number of occasions, the Commission was shown the video of this incident. There is little question that the behaviour of both Mr and Mrs Bannister was disturbing and especially so in that it occurred at the Gatehouse, immediately outside of the entrance to the secure area of the Centre. The fact that a couple are husband and wife does not mitigate against the seriousness of issues of this type. One, however, is entitled to consider all of the circumstances surrounding this incident. Mr and Mrs Bannister had, immediately prior to the incident, been involved in a domestic argument which, amongst other things and from both accounts, threatened the continuance of their marriage. That both may not have acted optimally is not surprising in the circumstances. The video clearly shows Mr Bannister pulling his wife by the right wrist and her sliding to the ground. The video then shows Mr Bannister pointing to his wife while she was slumped on the ground. There was no audio to the video. [Attachment PB2 of Exhibit 24.] What is worrying throughout this incident, which in itself did not last very long, is that it was carried out in an area accessible to the public and right beside the entry into the Centre. These are factors which are rightly the concern of QCS. The behaviour involved two employees of QCS and QCS is correct in saying that it has an obligation to ensure the safety of all of its employees. While Mrs Bannister may say that she never felt intimidated by Mr Bannister's behaviour, this did not seem evident from the video. It is also not evident from Mrs Bannister's behaviour once inside the Gatehouse. She showed signs of being clearly distressed. I have been unable to give much credence to either Mr or Mrs Bannister's evidence around the Gatehouse incident. I am sure that in hindsight, both would have wished that the incident had never occurred, but it did and QCS was entitled to draw the conclusions which it did. Work within a prison environment must never be easy for anyone, but to have behaviour such as this (albeit just outside of the secure area of the Centre) occur between two officers (whether married or not) is simply unacceptable. There is evidence from Mr Hodge that Mrs Bannister had called for help during the incident. I am more than persuaded to accept that evidence as factual when coupled with the video footage of the incident. The final incident involves the telephone call made by Mr Bannister to Mr Hodge. The direction given to Mr Bannister effectively banning him from discussions with any witnesses was ill advised. QCS has no right to ownership of witnesses. Mr Bannister was entitled to contact witnesses he thought might be of assistance to him. The normal expectation would be that he would not seek to contact and/or harass those witnesses who had given evidence against him and QCS would have been entitled to have reminded Mr Bannister of this requirement as well as placing the same restrictions on itself. However, in the case of Mr Hodge, Mr Bannister was entitled to speak to him. Mr Hodge had initially given a relatively benign account of events at the Gatehouse, to which Mr Bannister was privy, and then changed his mind for reasons which he outlined in his evidence. Mr Hodge was entitled to do that. As well, Mr Bannister was entitled to speak to him. Most people would be distressed if someone they had thought were supporting them (or, in this case, not saying anything detrimental against them) changed their mind. In any event, the account of the telephone conversation from both Mr Bannister and Mr Hodge was unexceptional, save for Mrs Hodge (who did not give evidence) reportedly saying that she could hear Mr Bannister's voice on the telephone. 16 As Mr Bannister's disciplinary record was considered by QCS in its overall evaluation of him, consideration should be given to the events surrounding the disciplinary action. Without a fulsome debate on all of these issues, it is difficult to make any firm assessment of the correctness or otherwise of actions taken by QCS against Mr Bannister. There were incidents to which Mr Bannister accepted he was at fault (although he believed in one instance he had been unfairly treated), but with regard to the District Court matter, Mr Bannister was acquitted of any charges and under normal circumstances the matter should have rested there. QCS was entitled to consider all of these incidences in its overall assessment of Mr Bannister's employment. QCS challenges the manner in which QCS undertook its investigation of Mr Bannister. It is alleged that QCS pressed on with its investigatory and show cause process in the face of Mr Bannister's clear inability to properly answer the show cause notice. Notwithstanding that QCS may have determined that the allegations concerning Mr Bannister warranted his dismissal, it still had an obligation to proceed in a manner which ensured that natural justice was afforded to Mr Bannister. Mr Bannister had a medical certificate from his General Practitioner stating that he was "not able to work at all". This issue has already been dealt with in the preliminary Commission decision of 6 December 2006 (D/2006/200). However, during the course of the conferences before another Member of the Commission (D/2006/197 - 23 November 2006 and 27 November 2006) it is clear that QCS, in stating that the General Practitioner's comments of "not able to work at all" would not suffice, acknowledged that it would be very difficult to obtain a psychological or psychiatric assessment of Mr Bannister within the show cause timeframe. The "catch 22" in all of this was that, without that specialist opinion (in the case of the psychiatrist), Mr Bannister would have never been able to properly satisfy QCS' requests to have something more than a General Practitioner's comments that he was "not able to work at all". Dr Kumar, in his evidence, stated that he had possession of a report from Dr Keane which he could have released to Mr Bannister had he the permission of WorkCover to do so. He advised Mr Bannister that all he had to do was request the release of the report and this could have been utilised by him to support his claim that he was not in a position to adequately respond to the show cause notice. Mr Bannister believed that his medical certificate from Dr Kumar would suffice. In making that call, he and his Union arguably lost the opportunity to use this report to Mr Bannister's advantage. There is no question that both Mr Bannister and his Union believed Dr Kumar's medical certificate was sufficient but in the course of the proceedings (D/2006/200) that was not to be so. One is left to wonder, in normal circumstances, how an employee could ever comply with the demands from an employer to produce a specialist medical opinion of one's inability to properly respond to a show cause notice within the short timeframes provided. One might also question why a General Practitioner is not considered sufficiently competent to assess a patient's ability to respond to the stress of a show cause notice. The question of whether the General Practitioner could have added more to the medical certificate (e.g. "not fit for duty and unable to respond to a show cause notice within a specified timeframe"), and whether that would have sufficed, was not addressed. I have considered all of those factors and while I find that QCS could have adopted a more compassionate and reasoned approach in its show cause processes with Mr Bannister, its actions were not at a level which denied Mr Bannister natural justice. In saying that, I have taken into account that Mr Bannister was represented by his Union throughout all of this. Had he not had that level of representation, I may have viewed the situation somewhat differently. Viewed separately, the Town Hall and witness allegations against Mr Bannister would not of themselves have warranted his dismissal, although the Town Hall incident may well have warranted a warning from QCS. Unfortunately, the Gatehouse incident is an extremely serious incident. In my view, the reality of that situation is that Mr Bannister acted inappropriately towards his wife while slumped on the floor and intimidated her to the point that she was asking for help from anyone. It is impossible to condone such action even when considering the background against which it occurred. The Gatehouse incident warranted the termination of Mr Bannister's employment and, when viewed against the cumulative background of a range of concerns held by QCS towards Mr Bannister (many of which were warranted), the action taken by QCS is understandable. This is, in all respects, an unfortunate case. It should not go unnoticed that I viewed some of the evidence given by witnesses for QCS, especially as it related to the Town Hall incident, as extreme, nasty and unreliable. However, the evidence around the Gatehouse incident could hardly be challenged in that the event was recorded on video. What happened immediately after Mrs Bannister went inside of the Gatehouse is based on evidence, but there is also video footage of Mrs Bannister's demeanour which corroborates the evidence from witnesses. 17 I have determined to dismiss the application. Order accordingly. D.A. SWAN, Deputy President. Appearances: Mr A. Rich, Counsel, instructed by Mr C. Haan and Ms N. Jessup of Slater Hearing Details: & Gordon, for the Applicant. 2007 10 April Mr A. Horneman-Wren, Counsel, instructed by Ms T. Lo of Crown Law, 22, 23, 24, 25, May for the Respondent. 20, 21 June 12 July Released: 27 August 2007 Government Printer, Queensland The State of Queensland 2007.