Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2015
  4. Johnson v State of Queensland (Department of Justice and Attorney-General) - [2015] QIRC 122

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Johnson v State of Queensland (Department of Justice and Attorney-General)[2015] QIRC 122

Johnson v State of Queensland (Department of Justice and Attorney-General)[2015] QIRC 122

itional.dtd">

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Johnson v State of Queensland (Department of Justice and Attorney-General) [2015] QIRC 122

PARTIES:

Johnson, Belinda

(Applicant)

v

State of Queensland (Department of Justice and Attorney-General)

(Respondent)

CASE NO:

TD/2014/38

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

23 June 2015

HEARING DATES:

12 and 13 February 2015

10 April 2015 (Respondent's submissions)

1 May 2015 (Applicant's submissions)

6 May 2015 (Respondent's submissions in reply)

MEMBER:

Industrial Commissioner Thompson

ORDER:

The Application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment ‑ Dismissal ‑ Witness Evidence ‑ Whether allegations able to be substantiated - Was decision to terminate employment in all circumstances warranted - History - Investigation - Decision maker - Penalty - Decision to terminate not harsh, unjust or unreasonable - Application dismissed.

CASES:

Industrial Relations Act 1999, s 73, s 74, s 77, s 79, s 335, s 679

Public Service Act 2008, s 187, s 189, s 192

Corrective Services Act 2006, s 341

Crime and Misconduct Act 2001

Public Sector Ethics Act 1994

Information Privacy Act 2000

Right to Information Act 2009

Bannister & Ors v D-G Department of Corrective Services [2002] QSC 469

Byrne v Australian Airlines Limited [1995] HCA 24

Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50

Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186

Wolrige v Australian Broadcasting Corporation (1997) 74 IR 249

Queensland Teachers' Union of Employees v Department of Education (2000) 165 QGIG 767

Scott Challinger v JBS Australia Pty Ltd [2014] FWC 7963

Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139

Briginshaw v Briginshaw (1938) 60 CLR 336

Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66

Ord v State of Queensland (Sunshine Coast Hospital and Health Service) [2015] QIRC 029

APPEARANCES:

Mr D. Hochin of Counsel, instructed by Harrington Legal for the Applicant.

Mr J. Merrell of Counsel, instructed by Crown Law, for the Respondent.

Decision

Background

  1. [1]
    On 28 April 2014 Belinda Johnson (Johnson) lodged with the Industrial Registrar an application for reinstatement following the termination of her employment on 3 April 2014 by the State of Queensland (Department of Justice and Attorney-General) - Queensland Corrective Services (QCS) which was said to be harsh.
  1. [2]
    At the commencement of the proceedings the Applicant sought leave to allow for an additional affidavit to be relied upon that had been sworn by Johnson on 10 February 2015.  The affidavit was not an affidavit in reply pursuant to the Amended Further Directions Order (paragraph 6) issued by Vice President Linnane on 24 November 2014.
  1. [3]
    Counsel for QCS opposed the application to file the affidavit in question for a number of reasons that included not being filed in compliance with the Directions Orders and the lateness of being provided with the affidavit which denied QCS the opportunity to undertake appropriate inquiries, particularly as it appeared there was to be a new aspect of her case that had taken QCS by surprise.  If the Commission was minded to exercise a discretion to allow the affidavit then so as not to suffer disadvantage QCS were likely to seek an adjournment of the substantive matter for the purposes of conducting their own investigations about meeting a particular new aspects of the case.
  1. [4]
    The Commission, on consideration of arguments, determined not to exercise discretion for the affidavit to be part of the proceedings on the basis of firstly the lateness associated with the filing which for all intents and purposes would have had the effect of preventing QCS from adequately responding to the content in the course of the proceedings.  The Commission went on to add:

"The content undoubtedly is significant and it does differ from what was contained in the affidavit of Johnson on the 17th of December 2014 and also on the application that was made to the registry in relation to these proceedings.  There was, in my view, ample opportunity for the applicant to have filed such material well before the 10th of February and there is no compelling reason, in my view, why the application should be granted."  [Transcript p. 1-16] 

  1. [5]
    A further issue that required consideration by the Commission related to a Notice to Admit Facts served on Johnson by QCS (Crown Law) on 27 January 2015 which gave her 14 days to serve a notice upon them disputing facts that she was taken to have admitted for these proceedings only.  The Notice went on to state:

"The facts, the admission of which is required, are -

  1. The following emails listed in the attached Schedule to this Notice and identified as being sent 'From' 'Belinda Johnson' or 'B Johnson', were sent by you using your departmental email account:
  1. 1.1item numbers 3, 5-6, 10-12, 14, 16-17, 19, 26-29, 31, 33-34, 36-52, 59, 78, 81, 114-115, 118-119, 153-154, 156-157, 161-162, 164, 168-169, 171, 174, 176, 179, 181-182, 184-185, 187-191, 193, 195, 197-198, 201, 203, 205-207, 209-218, 223, 232, 236, 245, 248-251, 256, 258, 260, 262, 266, 270, 273, 287, 289-294, 298, 315, 323, 327, 442-445, 470, 472-474, 509-518 and 524 of the Schedule."
  1. [6]
    A Notice Disputing Facts was served on QCS on 11 February 2014 one day past the 14 day period identified in the original notice with QCS questioning reliance upon the Notice filed by Solicitors on behalf of Johnson due to it being out of time.  The Notice contained the following:

"The facts disputed are -

  1. The Applicant disputes that the following emails were sent by her using her departmental email account (document numbers are as per Schedule to Notice to Admit Facts form Respondent dated 27 January 2015):
  1. 1.1Documents No. - 17, 19, 26, 42, 43, 44, 45, 51, 59, 179, 181, 182, 193."
  1. [7]
    The Commission acknowledged the arguments of QCS that the Notice was served outside the 14 day period however in the circumstances it was prepared to extend the time period.
  1. [8]
    The Notice Disputing Facts and the Notice to Admit Facts became Exhibits 1 and 2 respectively.
  1. [9]
    The Commission, with agreement from the parties, issued a Suppression Order in accordance with s 679 of the Industrial Relations Act 1999 (the Act) in the following terms:

"1. That pursuant to s. 679 of the Industrial Relations Act 1999, the confidential information relating to Attachment KM6 of the Affidavit of Kerrith McDermott, specifically pages 122 to 152 (inclusive), be withheld from release or search absolutely until further order of the Commission.

  1. That pursuant to s. 679 of the Industrial Relations Act 1999, Exhibit 8 (an unredacted copy of the Report marked Attachment PW5 to the Affidavit of Paul White) be withheld from release or search absolutely until further order of the Commission."

Applicant

  1. [10]
    Evidence was called from two witnesses in the proceedings:
  • Johnson; and
  • Michelle Harrington (Harrington).

Johnson

  1. [11]
    Johnson a former Corrective Services Office (CSO) commenced employment with QCS on 5 October 1998 as a Custodial Correctional Officer.  During her custodial training course she recalled completing standard computer usage training but had no recall of undertaking any extra training on emailing processes and policies at that stage.
  1. [12]
    In 2011 she became the President of the Townsville Branch of Together Queensland, Industrial Union of Employees (TQ).
  1. [13]
    The culture of the Townsville Correctional Centre amongst employees was that in quiet periods they would quite often utilise the QCS email for personal use and she had witnessed many employees purchasing items on websites such as eBay, booking holidays, studying private university subjects and privately corresponding to receive emails which were not QCS related.  Johnson was not of the belief her actions regarding email usage was anything different to any of her colleagues.
  1. [14]
    Each rostered shift was 12 hours in duration and it was the usual practice amongst staff to heavily rely upon the QCS email account for personal email usage.  At no time was she spoken to in a disciplinary manner regarding the amount of personal email usage and had that occurred she would certainly ceased usage of her QCS email account.
  1. [15]
    As a Union Delegate of TQ she was required to liaise with various political parties and stakeholders even though she was a member of Katter's Australian Party (KAP).
  1. [16]
    Johnson had no recall of sending particular emails the subject of Allegation 1 (on Sunday 11 November 2012) but had always taken liability for the same due to the fact it was her "log on".  Johnson did not believe that the emails in question had been sent with the intent of causing any harm to any named persons or QCS as a whole.
  1. [17]
    On or about 9 June 2013 she recalled sending Rob Katter (Katter) an email which stated "…at NO time do I give you consent to release any E-mails that are written by me or have my name or details mentioned in them without my consent".  Johnson believed she had sent him the same message on a number of occasions as a practical joke because colleagues of hers would send emails to others in her address book inferring the email was sent by her.  It was a common occurrence for Officers to send these emails from other colleagues' "log on" in email accounts as a practical joke whilst an Officer had stepped away from their computer.
  1. [18]
    In the period she was required to address QCS in relation to the allegations against her, she had engaged Hall Payne Lawyers who advised to claim privilege against any self‑incrimination.  As she had not previously been required to seek legal advice, she actively took her representatives advice.
  1. [19]
    The penalty imposed on her in the form of termination of her employment was harsh and unjust as she was not given the opportunity to prove to the QCS there were alternative disciplinary actions available other than termination.  She would have loved the opportunity to have been able to remedy her actions by way of other methods of discipline such as educating other Officers on email protocols and policies or even a penalty in the form of a reduction in pay.
  1. [20]
    Johnson was perplexed as to why it took the QCS such a long period of time to bring the emails to her attention, when given the opportunity to address any unapproved behaviour she would have endeavoured to do so immediately.
  1. [21]
    In the 15.5 years of employment she had thoroughly enjoyed her position within QCS and sought reinstatement to her previous position as well as compensation.
  1. [22]
    Johnson gave the following evidence in the course of cross-examination.
  1. [23]
    The entire time of her employment she had been at the Townsville Correctional Centre was spent working in all areas of the Centre, although in 2012/2013 she worked in the high security area of the Woman's Correctional Centre [Transcript p. 1-29].  Her tasks included the supervision of prisoners on a daily basis, monitoring and maintaining security as well as complying with QCS policies, procedures and legislation pertaining to operations.  Prior to commencement of her role she undertook a ten week pre-service training course, and on conclusion of the training was awarded a Certificate III in Correctional Practice (Custodial) [Transcript p. 1-30].
  1. [24]
    In 2001 Johnson was the subject of an investigation for matters that included:
  • failed to report inappropriate inmate behaviour; and
  • failed to report material of security or intelligence importance.

At the time the investigator also questioned her about open discussions of sexual matters with other Officers that were inappropriate [Transcript p. 1-31].  On 11 April 2001 she received correspondence from QCS - Acting Director of Human Resources - advising that on consideration of the evidence, material and Johnson's response to the allegations, that the allegations had been substantiated however there was to be no formal disciplinary action against her beyond being formally cautioned [Transcript p. 1-33].

  1. [25]
    In March 2002 Johnson received a Reprimand for making sexual references in the workplace and was directed to undergo Code of Conduct training regarding respect for people [Transcript p. 1-34].  On 21 February 2012 she was presented with a certificate of completing for Code of Conduct training online [Transcript p. 1-36].  Further Code of Conduct training was completed online in October 2012 with another certificate issued [Transcript p. 1-37].
  1. [26]
    In 2013 the Applicant was the subject of ten allegations about her conduct which were found to have been substantiated [Transcript p. 1-38].  Noting these were different to the allegations that led to her dismissal in April 2014.  The decision maker in 2013 advised that consideration was being given to issuing a penalty of termination [Transcript p. 1-39].  That disciplinary process was put into abeyance given the latter allegations made against Johnson that resulted in her termination [Transcript p. 1-40].  Johnson had responded the early allegations in September/October 2013.
  1. [27]
    In correspondence (dated 12 December 2013) under the signature of Kerrith McDermott (McDermott) Acting Deputy Commissioner - Statewide Operations, Johnson was advised that pursuant to s 189(1) of the Public Service Act 2008 (PS Act) she was to be suspended from duty on full remuneration, effective immediately and that pursuant to s 192(2)(a) of the Act the suspension would continue to have effect until 31 January 2014 unless otherwise advised.  The suspension related to allegations "concerning among other things, your inappropriate use of departmental information and communication technology resources for political purposes" [Transcript p. 1-42].  In correspondence (dated 28 January 2014) Johnson was informed the suspension on full pay was to be extended to 28 March 2014.  On 20 March 2014 further correspondence advised of a further an extension of the suspension on full remuneration until 2 June 2014 [Transcript p. 1-43].
  1. [28]
    On 6 January 2014 McDermott in correspondence to Johnson indicated it was open to her to determine the appropriate penalty for the ten allegations substantiated in late 2013 however that was in effect put on hold with Johnson being invited to respond to a number of new allegations, five in all [Transcript p. 1-44].
  1. [29]
    The allegations were particularised in significant detail identifying the relevant sections of the Corrective Services Act 2006 said to have been enlivened by her conduct and the sections of the PS Act under which matters of that nature could be addressed.  The allegations were as follows:

"Allegation 1(a)

It is alleged tat 6:10 p.m. on Sunday 11 November 2012 you sent an email with the subject code 'Code Yellow S1" to a Rob Katter, a person external to the department disclosing without authorisation, or as a function of your role, confidential information as defined by section 341(4)(a)(i) of the Corrective Services Act 2006.

In particular it is alleged that you disclosed a confidential report directed to the then General Manager detailing allegations and personal details concerning offended [name withheld].

Allegation 1(b)

It is alleged that 6:12 p.m. on Sunday 11 November 2012 you sent an e-mail with the subject code 'Try this on for size' to a Rob Katter, a person external to the department, disclosing without authorisation, or as a function of your role, confidential information as defined by section 341(4)(a)(i) and (v) of the Corrective Services Act 2006.

In particular it is alleged that you disclosed a confidential report directed to the then General Manager which divulged the identity of the Custodial Correctional Officer informant and particulars detailing allegations and personal details concerning offender [name withheld].

Allegation 2

Between June 2012 and November 2013, during your rostered hours of duty, you made excessive use of departmental ICT facilities and resources to generate and send word documents and emails to the Katter Australia Party (KAP) dealing with the party business of KAP.

Allegation 3

Between June 2012 and November 20103, during your rostered hours of duty, you inappropriately forwarded emails and documents meant for the information of Townsville Correctional Centre staff members, to the Katter Australia Party for the information of the KAP executive.

Allegation 4

After amendments to section 691 of the Industrial Relations Act 1999 (Qld) in July 2013 relating to industrial agreements, you made excessive use of departmental ICT facilities and recourses relating to the business of the Together Union and its members.

Allegation 5

After receiving an internal email via a department ICT facility which contained inappropriate and offensive material, you then transmitted that email and attachment to an external email address."

  1. [30]
    Johnson conceded with regards to previous disciplinary issues she had experience in instructing Lawyers and on 6 January 2014 engaged Hall Payne Lawyers.  She agreed that once engaged Lawyers in responding on her behalf could only act on her instructions [Transcript p. 1-47].  Johnson said that never happened in this case [Transcript p. 1-48].  Johnson was taken to correspondence from Hall Payne Lawyers (dated 10 February 2014) in which they responded to QCS correspondence of 6 January 2014.  Johnson denied giving her Lawyers false information in her instructions to them [Transcript p. 1‑49].  Johnson accepted that in correspondence to her Lawyers (dated 18 March 2014) McDermott was inviting her through her Lawyers to make a response about what disciplinary penalty should be imposed in respect of the five allegations and she instructed them as to the facts in the reply correspondence generated on her behalf (dated 25 March 2014).  Johnson's response to the content of Hall Payne's correspondence relating to "14 years of unblemished employment" with QCS was that she had asked Hall Payne Lawyers to access her "HR File" [Transcript p. 1-51].  Johnson denied providing false information.
  1. [31]
    Johnson was taken to the application for reinstatement and in particular Attachment 1 where it was stated that "At no time during that time up until the current proceedings has our client been the subject of any performance management or disciplinary action".  Johnson denied giving her current legal representative (Harrington) those instructions because she had everything from Hall Payne which would have been on her HR file [Transcript p. 1-52].  She acknowledged she was no "stranger" to instructing solicitors in regards to disciplinary matters [Transcript p. 1-53].
  1. [32]
    Johnson on 23 January 2009 completed a QCS certificate course in Information Security Awareness which she accepted reinforced that she could not disclose confidential information to third parties using QCS technology systems unless expressly authorised [Transcript p. 1-54].  On 28 November 2009 Johnson received a certificate for the completion of Information Privacy and Right to Information Awareness Training which taught her not to disclose confidential information to third parties unless expressly authorised [Transcript p. 1-55].  As a long-term CSO she was aware of the Corrective Services Act 2006 and the obligations imposed on by that Act and that as late as October 2012 she had completed Code of Conduct training [Transcript p. 1-55].
  1. [33]
    The Code of Conduct training dealt with principles that included the public sector having a duty to uphold the system of government, laws of State and Federal Governments and required a commitment "to effecting official public sector priorities, policies and decisions professionally and impartially."  Johnson understood that it was improper to use confidential information for improper purposes or private gain [Transcript p. 1-57].  Information regarding prisoner's name, number and location was to be treated as confidential.
  1. [34]
    As a QCS employee she was provided with access to a computer, given a personal email address for work usage and also some private use but according to her evidence had never been informed about limitations regarding private use [Transcript p. 1-58].  Johnson conceded that in June 2012 there was limited personal use of emails in circumstances namely not during working hours, infrequent and could not interfere with the operations of government although it was her understanding due to her work environment there was a private use component.  She had never been spoken to about excessive usage [Transcript p. 1-59].
  1. [35]
    Johnson knew from these proceedings that the mailbox of her email was captured by QCS for the period June 2012 to November 2013 and conceded in that period:
  • she sent and received a large number of emails not connected to her duties;
  • some emails sent and received had attachments to them;
  • some emails and attachments had been created on her QCS computer; and
  • she stored documents in folders created in her email mailbox [Transcript p. 1‑61].
  1. [36]
    The folders were given specific names and included:
  • Andrew Pike - former General Manager at Townsville Correctional Centre;
  • Together Union;
  • Local Workplace Consultative Committee;
  • Me (Applicant);
  • KAP - Katter Australia Party;
  • Robbie Katter (Katter) - Queensland Parliament - KAP; and
  • Shane Knuth (Knuth) - Queensland Parliament - KAP [Transcript p. 1-62].

Johnson in June 2012 was a member of KAP and had sent emails to Katter for approval that had been generated from her QCS computer [Transcript p. 1-65].

  1. [37]
    On 11 November 2012 Johnson confirmed she had at 6.09 pm sent a report to the General Manager and to other QCS Officers regarding offensive behaviour of a female prisoner (unredacted) [Transcript p. 1-68] however Johnson could not recall forwarding the same report to Katter at 6.10 pm on the same day.  The report contained confidential information which included:
  • prisoner's name;
  • identification number; and
  • details of the incident.

Johnson acknowledged she would not have had the authority of QCS to disclose that information to Katter [Transcript p. 1-69].  Johnson continued to deny sending the email to Katter [Transcript p. 1-70].

  1. [38]
    On 11 November 2012 at 4.17 pm, Johnson had received an email from a fellow CSO employee at the Townsville Correctional Centre about the latter stages of the incident subject of the report which was forwarded to Katter from her QCS email address, although Johnson had no recall of sending the email [Transcript p. 1-71].  She gave evidence that if the email was sent to Katter it was a "breach" but again denied forwarding the email [Transcript p. 1-72].
  1. [39]
    Johnson accepted that in correspondence (dated 6 January 2014) Hall Payne on her behalf responded to QCS in respect of the five allegations against her which included that between January 2012 and November 2013 during her rostered hours of duty she had made excessive use of QCS ICT facilities and resources to generate and send Microsoft Word documents to KAP dealing with party business.  She acknowledged that the response recorded her not denying the allegation [Transcript p. 1-73].
  1. [40]
    In December 2012 Johnson gave evidence of having her own private Gmail address to which she forwarded a KAP structure line document using her work email address.  She conceded she was using the employer's resources to do private political work in work time [Transcript p. 1-75].  Johnson confirmed preparing and sending by work email a speech about Policing for Katter to use and further on the same day preparing similar speech notes for Katter this time on the topic of Corrective Services [Transcript p. 1-78].  Johnson accepted there was nothing in the emails to indicate they were sent in her capacity as the TQ President - Townsville Branch [Transcript p. 1-79].
  1. [41]
    On 10 September 2012 Johnson sent from her own "iPhone" whilst at work, an email to Katter giving him the "heads up" about a QCS employment announcement expected at 15.00 hours the next day [Transcript p. 1-81].  Katter was informed regarding the "heads up" that Johnson had been "trying to ring you to fill you in so that you're one up on the LNP" [Transcript p. 1-82].  Johnson claimed the emails were union inspired and not party political [Transcript p. 1-86].
  1. [42]
    Johnson and KAP exchanged 212 emails between 11 June 2012 and 6 November 2013 by way of her QCS email account [Transcript p. 1-91].  On 8 January 2013 at 9.15 am Johnson forwarded an email to Katter that had been sent to her by the Townsville Correctional Centre's General Manager which provided KAP with information about changes to how the centre was to be run [Transcript p. 1-94].  Johnson was unable to recall sending Katter an email on 9 June 2013 but denied it was sent because she knew she had breached the Code of Conduct in respect of previous information she had passed on [Transcript p. 1-98].  A similar email was sent to Knuth at the same time.
  1. [43]
    Johnson acknowledged that in respect of Allegation 5 her Lawyers had in their response on 10 February 2014 on her behalf stated:

"Given the information provided in the investigation report our client admits she transmitted an email to her own personal email account".

The email related to a bogus report which she conceded was in breach of the Code of Conduct as the email contained offensive material [Transcript pp. 1-101 to 1-103].

  1. [44]
    Johnson gave evidence regarding her suspension on full remuneration from 12 December 2013 until March 2014.  The suspension was extended until 2 June 2014 however her employment was terminated prior to that date [Transcript p. 1-105].
  1. [45]
    With regards to the disciplinary process Johnson was provided with a show cause letter (dated 6 January 2014) which contained the Ethical Standards Unit report as an attachment.  There was a DVD provided which Johnson evidenced the Union took off her but accepted it was provided to her Lawyers [Transcript p. 1-105].  Johnson applied for and was given an extension of time to respond to the show cause letter [Transcript p. 1-106].  Hall Payne had responded to the show cause penalty letter on 25 March 2014 on her behalf [Transcript p. 1-107].
  1. [46]
    Johnson did not accept it was inappropriate to send an email to Pike with words to the effect "how did it feel to be targeted because you were a fat black woman, from a non‑English speaking background with a disability" [Transcript p. 1-113].
  1. [47]
    In re-examination Johnson acknowledged being counselled for disciplinary purposes in 2001/2002 but there were no such issues between 2002-2012.  In terms of certificate training undertaken by her, it was completed online where at the end you received a certificate of completion.  The training was often undertaken by a group of Officers at the same computer at the same time.  There were no individual computers assigned and anybody could login using someone else's information.  Johnson had only a basic understanding of computers and often sought help from other Officers.
  1. [48]
    In evidence she described duties undertaken in the course of a twelve hour shift and the paper/computer work associated with the role which was described as a "lot".  When logged on to a computer she would, at times, leave the area leaving the computer logged on, with the computer not always in her line of sight.
  1. [49]
    With regard to the ten allegations levelled against her they were said to have arisen out of events on just one day.  In 2012/2013 she was never criticised about not achieving her work nor was it brought to her attention that her computer use had affected the QCS.
  1. [50]
    Johnson gave evidence of her duties as a union representative on site that included representing staff on issues such as:
  • policies;
  • procedures;
  • LWCC;
  • leave applications; and
  • support in meeting with the General Manager.

She would often liaise with various political parties which included the Australian Labor Party (ALP) usually by telephone.  There were also engagements with the LNP through the Minister's Office.

Harrington

  1. [51]
    Harrington, a Solicitor since 2007, gave evidence that Johnson attended her office on 7 April 2014 for an initial consultation following the receipt of a letter of termination (dated 3 April 2014).  Johnson provided her office with various documentation which included copies of correspondence to QCS and Hall Payne Lawyers.
  1. [52]
    Within the correspondence Hall Payne had advised QCS that Johnson during her 15 years of service as a CSO had not been the subject of any performance management or disciplinary action aside from the current allegations put to her on 17 September 2013.  The correspondence referred to an unblemished record.
  1. [53]
    Upon the initial consultation there was no discussion with Johnson around the content of the Hall Payne correspondence with Harrington assuming the information had been Johnson's true and correct instructions.  Due to the limited time available to submit the application for reinstatement she unilaterally drafted "Attachment 1" using the information drafted from Hall Payne as well as verbal instructions from the 7 April 2014 consultation.  At no time did Johnson provide verbal instructions that she had an unblemished record or had never been the subject of any performance management or disciplinary action.
  1. [54]
    Under cross-examination Harrington's evidence was that Johnson gave instructions for her to file an application for unfair dismissal but did not believe that Johnson had read "Attachment 1" [Transcript p. 2-16].  Harrington conceded that Johnson had provided her with documentation including correspondence from Hall Payne as part of the show cause process [Transcript p. 2-17].  Harrington further conceded that Johnson gave instructions which included having an unblemished record for 15 years as a CSO.

QCS

  1. [55]
    Witness evidence was given on behalf of QCS in the proceedings by:
  • Casey;
  • White; and
  • McDermott.

Casey

  1. [56]
    Casey, the Manager of Employee Relations QCS based in Brisbane gave evidence of his role and responsibilities which included the management of employee conduct and disciplinary matters referred to the employee relations team by the (then) Ethical Standards Unit (ESU), Commissioner Statewide Operations and other such hierarchy positions.
  1. [57]
    On 6 March 2013 he received an email from the (then) Commissioner Statewide Operation (Marlene Morison) advising that Johnson had been identified as one of six persons who may have released information about Townsville Correctional Centre and QCS to the media.  Johnson was known to him as a result of her status as a union delegate and their respective involvement in industrial activities within QCS.
  1. [58]
    The ESU on 26 October 2012 had requested the contents of all six persons email accounts and following an analysis uncovered no evidence of staff communicating with the relevant journalist regarding the particular pieces of information which had been suspected of being leaked.  Morison noted that having reviewed Johnson's emails "Belinda has been using her work email to communicate to others in Katter Party" but the content was "not contentious nor does it seem to include anything that would be seen as confidential or private".  The file on the matter was closed.
  1. [59]
    Casey himself conducted a review of a random selection of Johnson's emails and found a derogatory email on Dutch Muslims which to his surprise had not been found to be contentious.  However in the light of Morison's position he had erroneously concluded that the entire matter was closed and therefore at the time did not scrutinise all the material further.
  1. [60]
    On 1 November 2013 due to machinery of government changes the QCS became part of the Department of Justice and Attorney-General (DJAG) with the DJAG ESU taking over all investigations into alleged inappropriate conduct on behalf of QCS personnel.  In a discussion Johnson's name came up at which time he became aware of an investigation into phone, computer and email records of a Senior Officer at the Townsville Correctional Centre which prompted Casey to recall having seen some email traffic between the Senior Officer and Johnson in the material reviewed in March 2013.  He undertook to revisit his file with Johnson's emails and provide the relevant material exchanged between the pair.
  1. [61]
    Casey's review on this occasion took into account all of the material from Johnson's emails being from June 2012 until October 2012.  He gave evidence regarding certain emails that included:

"…in the emails dated 10 and 11 September 2012, with the subject 'Heads Up!!', Ms Johnson emailed Mr Rob Katter stating 'Correctional Services Staff throughout QLD will be advised at 1530hrs tomorrow who will lose their jobs' and later on 'Can't say much on E-mail, but big things happening throughout the state today.  HUGE…I have been trying to ring you to fill you in so that you are one up on LNP';

in an email dated 11 September 2012, with the subject 'Information', Ms Johnson emailed Mr Rob Katter stating that she received a call from 'John' and 'gave what information I could but there is something going on that I can't take the risk of being leaked…I am more then happy to give you the information direct';

in an email chain dated 19 September 2012 between Ms Johnson and an external party, with the subject 'RE:', where Ms Johnson made references to charges on bestiality; and

in an email dated 21 October 2012, with the subject 'Re:', Ms Johnson received an email from an external party asking whether Townsville Correctional Centre had someone 'done for aggravated [sic] assault in Ayr as a bouncer recently' (although there was no record before me of Ms Johnson replying by email)."

  1. [62]
    On 20 November 2013 he sent a copy of the material to McDermott and Neil Boyd (Boyd) the Executive Director of DJAG ESU.  He advised in the form of a summary the material reviewed in Johnson's emails:

"references to charges of bestiality, the reference to court proceedings, passing on information about some offender, offers to provide leaked information personally, (too dangerous otherwise she says) demonstrates the use of departmental resources to assist in the political campaign of the Katter Party (though the relationship appears to became somewhat strained). promulgating material in relation to Dutch Muslims, and when taken overall, more than sufficient for a chief executive to reasonably believe she may be liable for discipline irrespective of the fact that she may also be a union delegate."

  1. [63]
    Casey in his affidavit [Exhibit 5] provided responses to a number of assertion made by Johnson that included:
  • personal use of QCS information resources including the internet is available to staff subject to restrictions identified in the Information and Communications Systems Acceptable Use Procedure that includes:
  • use consistent with professional, legal, moral and ethical standards consistent with Code of Conduct;
  • personal use access can be revoked at any time if excessive or interfering with performance or duties;
  • use does not violate policies regarding acceptable use;
  • any personal files, documents created on QCS systems are open to being accessed; and
  • personal usage of email and internet must be:
  • infrequent and brief;
  • take place in staffs' own time;
  • does not include maintaining or supporting a private business.
  1. [64]
    Employees who have been previously observed to be in breach of QCS policies have been subject to investigation and disciplinary action.  Of instances previously investigated that proceeded to disciplinary processes Officers were the subject of penalties that included:
  • pay levels reduced;
  • reprimand; and
  • reprimand and final warning.

None of the allegations in these cases related to the disclosure of confidential reports which divulged the identity of a CSO informant or personal details concerning an offender as had been the case with Johnson.

  1. [65]
    From the time the additional data was captured from Johnson's emails and documents stored in her work account, taking into account the Christmas compulsory closure it was Casey's opinion that the allegations could not have been brought to her attention any sooner.
  1. [66]
    Under cross-examination Casey's evidence was that the show cause processes for Johnson were not as a consequence of an investigation into leaks to the media but as a result of a combination of information [Transcript p. 2-20].  He was not aware of any counselling or warning given to Johnson about her computer usage following the first capture of her emails [Transcript p. 2-21].  On the references to charges of bestiality Casey was taken to an email trail in which Johnson makes references to a person as "Danni's dog-doer husband" which Casey agreed there was nothing that identified that information from QCS other than the email had been sent on the QCS email system [Transcript p. 2-24].
  1. [67]
    On Casey's position that Johnson had used QCS resources to assist the KAP in a political campaign it was his evidence that some of the emails related to KAP but he acknowledged her union role and that within limits she was sanctioned access to QCS resources for the purpose of communicating union matters [Transcript p. 2-26].  Casey did not accept that the QCS procedures allowed a CSO to disclose the name of a corrective service facility in which a prisoner was currently accommodated to a person who enquires in accordance with s 341(3)(f) of the Corrective Services Act 2006.  The email to Johnson requesting that information was accepted by Casey as being an unsolicited email [Transcript p. 2-28].
  1. [68]
    On personal usage of government IT systems, Casey conceded it was an accepted practice with QCS allowing limited use although there was no definition in the documentation that defined "limited personal use" [Transcript p. 2-29].  Policy does allow limited personal use consistent with the Code of Conduct and that access may be revoked at any time at the discretion of an employee's manager.  Casey's evidence was at no time was Johnson's access rights revoked [Transcript p. 2-30].  There was no allegation against Johnson that her email usage was interfering with the performance of her duties [Transcript p. 2-30].  There was no allegation that her usage had impacted on the business [Transcript p. 2-30].  The allegations against her referred to 212 emails in the period between June 2012 and November 2013 [Transcript p. 2-31].  The policies contemplated that personal files and documents could be created on QCS computer systems [Transcript p. 2-32].  There was no allegation she had accessed pornography or sexually explicit material [Transcript p. 2-32].
  1. [69]
    On the documents regulating personal usage of QCS computers and emails, Casey gave evidence that "one's more specific than the other".  In terms of prohibition on usage one provision contains a prohibition during work time and the other does not [Transcript p. 2-34].  When asked how does a staff member know which of these applies, Casey responded "What - whether they can use it all.  I don't know" [Transcript p. 2-35].
  1. [70]
    Note:  The two documents in question were:
  • Department of Community Safety - Information and Communication Systems - Acceptable Use Procedure; and
  • Information Communication Systems (ICS) Email and Internet Usage.
  1. [71]
    On the capture of Johnson's email data it was Casey's evidence that whilst the emails were looked at in 2012 the material relating to the show cause was found as a result of the investigation into the Senior Officer at a time after 2012 [Transcript p. 2-37].
  1. [72]
    In terms of Allegation 2 the evidence was that it was the excessive use of resources and it would not have mattered if it involved the "local scouts" as opposed to KAP [Transcript p. 2-38].  Allegation 3 was about providing information and again it did not matter that it was to KAP [Transcript p. 2-39].  Allegation 4 was unsubstantiated with Allegation 5 related to forwarding inappropriate and offensive material to her own email address [Transcript p. 2-39].  Casey had the view regarding the material subject of Allegation 5 that the creation of the document and sending it to staff was more serious than Johnson forwarding it to herself.  He was given no instruction to pursue the creator of the document [Transcript p. 2-40].

White

  1. [73]
    White an Ethics Consultant with DJAG ESU has responsibilities that includes providing advice to DJAG employees on ethical issues and investigating corrupt conduct, misconduct and breaches of the Code of Conduct.  White gave evidence of previous positions held by him prior to commencing in his current role.  These included:
  • Senior Investigations Officer - ESU - Queensland Department of Education;
  • Senior Investigations Officer - Disability Services;
  • Senior Investigations Officer - Office of Fair Trading;
  • Senior Prosecutor - Department of Transport;
  • Senior Police Prosecutor; and
  • Police Officer.
  1. [74]
    In relation to the ESU carriage of this investigation he was requested by Boyd to conduct a formal investigation into Johnson and her inappropriate and excessive use of QCS information and communication technology facilities and resources that potentially could have been misconduct.  Johnson at the time was unknown to him and he has never met her.
  1. [75]
    He had access to material emanating from Casey's consideration of Johnson's emails.  On 26 November 2013 he requested the Information and Communication Unit (ICU) do the following:
  • capture and provide an updated version of Johnson's work (email) and mailbox; and
  • capture and provide hard drive and local drives.

On 29 November 2013 ICU captured and supplied the requested information.

  1. [76]
    The matter was referred to the (then) Crime and Misconduct Commission (CMC) (on 5 December 2013) with the CMC referring the matter to the Queensland Police Service (on 15 August 2014).  The Police Service advised the ESU they were satisfied it was not in the public interest to prosecute the matter on the basis of Johnson's termination.
  1. [77]
    Whilst it was his first investigation for the ESU, he had a great deal of training and experience in relation to workplace investigations and his primary focus was on gathering sufficient information to allow a decision to be made about the most appropriate response to a particular issue.  The investigation was carried out in accordance with the published guidelines by the Queensland Crime and Corruption Commission having regard for the following modules within the guidelines:
  • Module 4 - Role of investigator;
  • Module 5 - Conducting an investigation;
  • Module 6 - Gathering evidence;
  • Module 7 - Gathering oral evidence, interviewing; and
  • Module 8 - At the end of the investigation.

He in the course of carrying out the investigation ensured that he adhered to the statutory and/or policy requirements and principles of procedural fairness and natural justice.

  1. [78]
    In respect of the five allegations between 28 November 2013 and 17 December 2013 he reviewed and assessed the data provided by the ICU which involved the assessment and consideration of a large number of emails and data captured from Johnson's work email mail box, hard drive and local drive.  He examined Johnson's completed and certified rosters for the relevant period.
  1. [79]
    The relevant policy and legislation considered was as follows:
  • Crime and Misconduct Act 2001;
  • Public Service Act 2008;
  • Public Sector Ethics Act 1994;
  • Corrective Services Act 2006;
  • Industrial Relations Act 1999;
  • Code of Conduct for the Queensland Public Service;
  • Policies and Procedures of the Department of Community Safety, being:
  • Management of IT Device Usage Procedure;
  • IS38:  Use of ICT Facilities and Devices; and
  • Disclosure of Confidential Information Procedure.
  1. [80]
    During the review and assessment he found emails that established on 28 October 2013 Johnson had been offered a position on the KAP Executive Committee accepting the position on 30 October 2013.  White also ascertained that at the time Johnson was the North Queensland President of TQ. 
  1. [81]
    In relation to the Allegations he gave the following evidence.

Allegation 1

  1. [82]
    On reviewing emails on 11 November 2012 sent at 6.10 pm and 6.12 pm forwarded to Katter he formed the view that each of the internal reports contained in the emails were capable of being categorised as confidential internal departmental documents that related to an incident involving a prisoner at the Townsville Correctional Complex and were intended for the information of departmental officers only.
  1. [83]
    Each of the internal reports could be considered to contain "confidential information" as defined in s 341 of the Corrective Services Act 2006 as the contents identified the female prisoner involved in the incident and gave her prison identification number.  The Corrective Services Act 2006 provides for a person in Johnson's position to have possibly committed a criminal offence if confidential information is disclosed to anyone else other than a person approved by the Act.
  1. [84]
    There was no evidence to suggest that Johnson had obtained prior approval or authority to forward the two documents to Katter.

Allegation 2

  1. [85]
    In assessing the general email traffic between Johnson and KAP (stored in eight separate folders) there were over 200 emails in the relevant period and on 15 separate days between June 2012 and November 2013 there were four or more emails sent or received on those days.  The emails were sent during Johnson's rostered hours and the Microsoft Word documents located on her work hard drive had been created during her shifts.
  1. [86]
    In relation to other emails generated by Johnson during her shift, it was his evidence that some of those emails would have taken substantial periods of time to construct.  These included:
  • 10 January 2013 - sent to Katter at 3.33 pm - Johnson constructed a speech for Katter to deliver on Policing that was:
  • one page in length - 204 words;
  • was edited over 1 hour 06 minutes between 2.27 pm and 3.33 pm on that day;
  • 10 January 2013 - sent to Katter at 5.04 pm - speech for Katter titled "Corrective Services" that was:
  • one page in length - 206 words; and
  • was modified over 1 hour 09 minutes between 3.51 pm and 5.00 pm on that day.
  1. [87]
    Having regard for the factual evidence he formed the view that Johnson's conduct could be found to be in breach of the ICT Facilities and Devices Policy and the Code of Conduct.

Allegation 3

  1. [88]
    White noted that on:
  • 11 November 2012 - forwarded to Katter an internal email from two other CSOs dealing with an internal matter relating to the Townsville Correctional Centre;
  • 8 January 2013 - forwarded to Katter an internal email that had come from the General Manager of the Corrections Centre dealing with the future direction of the Centre; and
  • 10 January 2013 - forwarded a document to Katter which was an internal departmental document about trade instructor's entitlements being cut back at several prisons throughout the State.
  1. [89]
    White having regard for the factual evidence formed a view that the information provided to Katter was not intended for an external audience and was provided to Katter for political purposes given Johnson's heavy involvement with KAP.  The information was not available to Katter's political opponents and was to his advantage.  The conduct could be found to be in breach of the Code of Conduct.

Allegation 4

  1. [90]
    Whilst assessing that a total of 344 emails had been sent and received between Johnson and the General Manager (between 6 September 2012 and 17 November 2013) that concerned union issues it was not until December 2013 that QCS advised the General Managers that union delegates were only to be provided the same reasonable access to the ICT facilities and resources as other staff members.

Allegation 5

  1. [91]
    On 17 December 2012 at 4.04 pm Johnson had forwarded an email and attachment to her private email address having received the said documents from a Timothy Marrian (Marrian) at 3.53 pm on the same day.  The attachment contained a report about a fictional CSO who had supposedly digitally penetrated the anus of a prisoner during a fictitious incident at the Townsville Correctional Centre.
  1. [92]
    On reviewing the factual evidence he found that Johnson had been on shift at the relevant time and that her conduct could be found to be a breach of the Code of Conduct.
  1. [93]
    White formed the view that if the relevant decision-maker accepted the evidence that on the balance of probabilities Allegations 1, 2, 3 and 5 could be capable of substantiation however that was not the case with Allegation 4 which was not capable of being substantiated.
  1. [94]
    A report [Exhibit 6 - PW5] was provided to Boyd on 17 December 2013.
  1. [95]
    Under cross-examination White accepted he had no qualifications in:
  • computing;
  • information technology; or
  • Microsoft Word [Transcript p. 2-44].

White had not interviewed Johnson and accepted it would be the normal case in an investigation to interview the person concerned and that most people in those circumstances were interviewed.  In this case White considered it to be a "factual investigation" based upon an assessment of email traffic and other documents and did not need to interview her as a response could be sought if a show cause proceeding eventuated [Transcript p. 2-44].  White accepted he had not foreseen there might have been explanations for the emails or disputes about emails that could have been clarified by way of an interview [Transcript p. 2-45].

  1. [96]
    The number of emails between Johnson and KAP were in his view considered to be excessive in that there were more than 200 and considered by him to be a "bulk transmission".  He had not turned his mind to the fact the emails were spread over a 500 day period which meant one email every two and a-half days [Transcript p. 2-46].  There was no baseline with regards to the usage of other CSOs, it was just considered by him to be excessive in the circumstances [Transcript p. 2-47].  There were no instructions to make comparisons with other Officers [Transcript p. 2-48].  White was not aware of any impact upon the IT system as a consequence of Johnson's usage [Transcript p. 2-48].
  2. [97]
    On the material before him he acknowledged he was unable to tell who exactly had sent any particular email and in terms of her hours of duty understood 12 hour shifts were worked but he had no knowledge of meal breaks and personal time that may have been taken by Johnson [Transcript p. 2-49].  On the document created about Policing (subject of Allegation 2) White's evidence was that he did not have the expertise in the Microsoft field about creation of documents and made an assumption on when the document was created based upon his experience in investigations over the years [Transcript p. 2-50].  On the editing time of 1 hour and 6 minutes he accepted he did not know whether that was the actual time spent editing the document [Transcript p. 2-50].  The claim by White that the construction of the document would have taken a substantial period of time was questioned with White accepting that a person with a typing speed of 60 words a minute could type the document in four minutes.  He had no knowledge of the speed at which Johnson types [Transcript p. 2-51].  He based the editing time on how long the document was open which was according to his evidence not conclusive [Transcript p. 2-51].
  1. [98]
    White's evidence was similar with regards to the document on Corrections with not having knowledge how Microsoft worked and he undertook no controlled test on the editing times.  There was no awareness of whether Johnson had gone away for a period and returned with the document left open [Transcript p. 2-52].
  1. [99]
    The Schloss Report (subject of Allegation 5) on the face appeared to have been sent to Johnson by Marrian however White could not specifically identify the author of the document [Transcript p. 2-53].  Johnson had forwarded the email to herself and it was not part of his brief to investigate the origins of the document [Transcript p. 2-53].  White denied that his investigation was an investigation into Johnson's political activity conceding that would not have been proper [Transcript p. 2-53].  The investigation was about Johnson's conduct and inappropriate excessive use of ICT resources [Transcript p. 2-54].
  1. [100]
    In terms of Allegation 1(a) and 1(b) the concerns related to s 341 of the Corrective Services Act 2006 and the confidential information passed on when it should not have been.  The reports provide the name of a prisoner and private detail about the prisoner's identity [Transcript p. 2-55].  It showed the prisoner as being an inmate of the Townsville Correctional Centre [Transcript p. 2-56].  On the face the disclosure did not pose a risk to someone's life or health including psychological health, did not divulge the identity of an informant or prejudice a law enforcement agency's investigation [Transcript p. 2-57].  White was unable to say with 100 per cent confidence that Johnson sent the emails but based upon the balance of probabilities, common-sense dictated she had received the document and passed it on [Transcript p. 2-59].  The proof required was not beyond a reasonable doubt [Transcript p. 2-60]  White had no recall of seeing an email from Johnson sent on 8 October 2012 which stated:

"Once again, I would like to apologise for the dysfunctional people that I work with as they think that it is funny to send my emails all over the world.  So, please accept my apologies but I can not promise that this will never happen again.  So if you would like to punish me, feel free.  I'm up for it.  I will mow the lawns, clean houses, wash cars and many more things.  BJ.  Belinda Johnson."

  1. [101]
    Had he seen the document it would not have overly caused him concern as he had no idea who it was addressed to or the context it was sent [Transcript p. 2-62].  White did not believe in the overall context this email carried much weight [Transcript p. 2-63].

McDermott

  1. [102]
    McDermott, currently the Acting Assistant Director-General, QCS, first became aware of Johnson in 2012 in her TQ union role having only limited dealings with her.  In or about October 2013 she became the decision-maker in a separate disciplinary process against Johnson that had been on foot since September 2013 and related to 11 allegations of inappropriate workplace conduct.  On 11 December 2013 she informed Johnson ten of the allegations were substantiated and she was seriously considering imposing a penalty of termination of her employment.
  1. [103]
    On 20 November 2013 she became aware of issues relating to Johnson about work emails and of a pending investigation.  A memo was received from Boyd on 20 December 2013 relating to Johnson's alleged inappropriate and excessive use of departmental ICT facilities and resources.  Boyd advised of the capture and analysis of Johnson's email correspondence along with the contents of her hard drive which was accompanied by a copy of a completed investigation report prepared by White (dated 17 December 2013) which outlined the findings against Johnson.
  1. [104]
    It was recommended by Boyd that she consider the evidence adduced in the investigation report and determine on the balance of probabilities whether or not to accept White's finding in relation to each of the allegations.  Then after consideration of the evidence again on the balance of probabilities whether to initiate disciplinary action against Johnson or determine an alternate path.
  1. [105]
    McDermott carefully reviewed the information and conclusions in the investigation report in relation to the allegations against Johnson noting the evidence and attachments in relation to each allegation in addition to performing her own enquiries in which she:
  • obtained a copy of a DVD disc from ESU - containing a copy of Johnson's emails retrieved and subject to the investigation;
  • carefully reviewed and considered those emails; and
  • obtained and reviewed the relevant sections of the Corrective Services Act 2006.
  1. [106]
    It became clear that the evidence against Johnson in terms of the allegations was factually based having regard to the material before her.
  1. [107]
    In relation to each of the allegations McDermott in pages 7 to 11 (inclusive) of her affidavit of evidence [Exhibit 7] identified in significant detail the relevant material, legislation, policies, Codes, procedures and documents considered by her in deciding that on the evidence before her that she was satisfied on the balance of probabilities that Allegations 1, 2, 3 and 5 were capable of substantiation however that was not the case in respect of Allegation 4 which was not capable of substantiation.  It was determined that a disciplinary process should be initiated against Johnson in relation to those allegations.  This would become the "second disciplinary process".
  1. [108]
    Based on the seriousness of the allegations in particular the release of confidential information to a third party and the excessive use of ICT facilities it was considered that suspension was appropriate in the circumstances.  The transfer to alternate duties was not considered as Johnson would have continued to have access to QCS facilities and resources.  The initial suspension was from 12 December 2013 until 31 January 2014 which was further extended on two separate occasions.  The suspensions were on full pay.  Prior to commencing the second disciplinary process she reframed the allegations as outlined in the investigative report so as to ensure Johnson was able to properly respond to the allegations.  Given the serious nature of the further allegations it was determined by McDermott that it was appropriate to place on hold the decision in respect of the first disciplinary process.
  1. [109]
    On 6 January 2014 McDermott issued a show cause letter requiring Johnson to respond to the further allegations prior to a determination on penalty for the first allegations.  The correspondence contained in full the Allegations 1 through to 5 (inclusive) with Allegation 4 not proceeded with as it had not been substantiated.  Johnson was referred to material specifically relevant to each allegation against her that included:
  • relevant pages of the investigation report and attachments;
  • relevant sections of the Public Service Act 2008 and the Corrective Services Act 2006;
  • relevant departmental policies and procedures, including Code of Conduct; and
  • DVD of copied emails from ESU.
  1. [110]
    Johnson on 16 January 2014 requested an extension of time to respond to the show cause which was granted with the new date for a response being 7 February 2014 which was further extended to 10 February 2014.  Through Lawyers acting for Johnson, a response was provided on 10 February 2014 which included amongst other things the following responses:
  • Allegations 1(a) and 1(b)
  • declined to respond on the basis of "privilege against self‑incrimination" and "penalty privilege"; and
  • asserted no adverse inference could by drawn from her position.
  • Allegation 2
  • concern about being treated differently to other employees because of her political views;
  • entirely reasonable for her to have used "breaks" to "prepare documents for personal matters" and "use the computer system to forward these documents to outside parties";
  • had never received training around appropriate use of work resources;
  • no training on Code of Conduct for 15 years;
  • no basis to find she had breached the Code of Conduct;
  • had not been wasteful or extravagant in use of public resources; and
  • had not interfered with QCS business.
  • Allegation 3
  • dates of allegation (June 12 to November 2013 did not match dates of investigation report (November 12 to February 2013);
  • did not deny "that she forwarded emails and documents to outside parties during November 2012 to February 2013";
  • her actions were not malicious;
  • significant period of time had passed before the issues were raised with her;
  • asserted no training around appropriate use of resources or Code of Conduct; and
  • no basis for finding against her.
  • Allegation 5
  • admitted "she transmitted an email to her own personal email account";
  • could not recall email; and
  • submitted given the period of time that had elapsed since email was forwarded and being no further similar incidents limited weight should be given to this incident for purposes of disciplinary action.
  1. [111]
    In relation to Allegations 1(a) and 1(b) McDermott in considering Johnson's claim of privilege relied upon Bannister & Ors v D-G Department of Corrective Services[1] for guidance on claims of privilege against self-incrimination and right to silence in disciplinary matters.  In taking into account Bannister, the conflict for Johnson between providing any explanation and maintaining silence was a matter for her to resolve.  The obligation for McDermott was to resolve Allegations 1(a) and 1(b) expeditiously given the seriousness of the allegations.
  1. [112]
    McDermott after making enquiries found that contrary to Johnson's claim about not receiving Code of Conduct training in 15 years she had been issued with a Certificate of Completion for that training on 16 October 2012.  Given Johnson's decision to decline to respond to Allegations 1(a) and 1(b) and that there were responses to Allegations 2, 3 and 5 she determined she was in a position to decide the matter on the material before her.
  1. [113]
    Upon reviewing all of the material previously considered by her and the content of Johnson's response letter, McDermott found the following in respect of the allegations:
  • Allegation 1(a) and 1(b)
  • given the decline of Johnson to provide a response McDermott was left with only the material before her.
  • Allegation 2
  • the claim that Johnson was treated differently as a result of her affiliation with KAP was unfounded;
  • the core element of the excessive use of departmental ICT facilities remained unchanged;
  • date and time stamps on emails in question fell out of all meal windows and on Johnson's time sheets the emails did not appear to be sent after her shift; and
  • Johnson had completed Code of Conduct training within the period the alleged conduct was said to have occurred.
  • Allegation 3
  • Johnson's Lawyers had correctly identified the appropriate date range of the allegations being November 2012 to February 2013 and despite the error in the show cause letter were able to properly respond to this allegation; and
  • Johnson's admissions contained in the response.
  • Allegation 4
  • Allegation not substantiated.
  • Allegation 5
  • Johnson's admission contained in the response.
  1. [114]
    McDermott in applying the balance of probabilities as the standard of proof and taking into account the significant consequences of a finding against Johnson considered that Allegations 1, 2, 3 and 5 were substantiated and that she was liable to discipline pursuant to s 187(1)(f)(ii) of the Public Service Act 2008 on the grounds that she had contravened without reasonable excuse an obligation imposed on her under the Code of Conduct.
  1. [115]
    On 18 March 2014 correspondence was forwarded to Johnson's Lawyers advising of McDermott's determination and findings.  Due to the gravity of Allegations 1(a) and 1(b) it had been determined that a penalty of termination of employment may have been an appropriate penalty in the circumstances.  Johnson was required to provide a response to the proposed penalty within seven days from the receipt of the letter.  By error a copy of the Certificate of Completion for the Code of Conduct training was not attached to the correspondence but was forwarded to the Lawyers on 21 March 2014.
  1. [116]
    Johnson's Lawyers responded to the show cause letter on penalty on her behalf (25 March 2014) with the contents of the correspondence summarised to include references to:
  • Johnson's length of service;
  • acknowledged seriousness of substantiated allegations but did not warrant termination; and
  • noted entitlement to "penalty privilege" and "privilege against self‑incrimination".

It acknowledged that Johnson was agreeable to:

  • having her performance monitored through a performance management plan;
  • engage in further training with respect to Code of Conduct obligations.
  1. [117]
    Johnson it was said thoroughly enjoyed her work as a CSO, took responsibility for her actions acknowledging she could improve her conduct and performance in the workplace.
  1. [118]
    Following consideration of Johnson's second response letter and prior to making a decision on penalty McDermott contacted two referees nominated by Johnson for the purposes of providing a reference on her behalf.  The two referees for differing reasons declined to provide references.
  1. [119]
    After careful consideration of the second response letter and the material before her, McDermott was aware that terminating a person's employment was depriving them of their financial livelihood and would have great financial impact upon Johnson.  Taken into account also was:
  • length of period of service and work history;
  • an alternate penalty such as a performance management plan, further training around the Code of Conduct; and
  • mitigating factors such as Johnson's willingness to take responsibility for her actions.
  1. [120]
    McDermott considered that Johnson's continued reference to "penalty privilege" was misconceived as Johnson was not facing a prosecution nor was there a suggestion of such a prosecution.  In reaching the decision to terminate the most significant factors were:
  • the seriousness of substantiated Allegations 1(a) and 1(b) releasing confidential information to a third party and excessive use of ICT facilities and resources;
  • Johnson had acknowledged the seriousness of the substantiated allegations but asserted they were not serious enough to impose the penalty of termination which indicated she had no insight into the seriousness of the allegations;
  • she no longer had trust or confidence in Johnson's suitability to uphold the values and principles of her role; and
  • Johnson's conduct with respect to Allegations 1(a) and 1(b) offended the core expectations of a CSO.
  1. [121]
    Having considered the range of penalty options available it was determined that termination was the appropriate penalty.  Johnson was informed on 3 April 2014 of the decision and the reasons for that decision.
  1. [122]
    The loss of trust and confidence in Johnson was further compounded by what appeared to be dishonest actions in order to defend her inappropriate conduct and a review of Johnson's disciplinary file revealed that her claim of an unblemished history was far from accurate with previous allegations having led to her being formally cautioned and in one instance being issued with a Reprimand.
  1. [123]
    The reinstatement of Johnson was opposed on the basis that public trust and confidence in QCS that would be eroded if there was a continuation of employment of a person who had revealed confidential information about an inmate to a third party and had misused ICT facilities and resources.
  1. [124]
    McDermott in the affidavit responded to a number of alleged discrepancies contained in Johnson's affidavit that included:
  • Code of Conduct training completed in 2010 - 2012;
  • content of Code of Conduct training with reference to ethical principles:
  • integrity;
  • impartiality;
  • accountability;
  • transparency; and
  • commitment to system of government;
  • Information Security Awareness completed in 2009;
  • Information Privacy and Right to Information Awareness completed in 2009;
  • the accepted use of work emails for personal use which was limited and subject to the relevant departmental policies; and
  • emails subject of the allegations were promptly brought to her attention.
  1. [125]
    Under cross-examination McDermott confirmed her evidence regarding the material considered in substantiating the allegations and determining the penalty of termination against Johnson indicating there was no independent investigation carried out by herself [Transcript p. 2-67].  On the ten-allegation investigation that preceded the allegations subject to these proceedings McDermott on her own volition had held that matter in abeyance to give attention to the second allegations [Transcript p. 2-68].  The Code of Conduct provided general guidelines for public servants but did not set actual criteria which in many cases is contained in policies and procedures prepared by departments [Transcript p. 2-68].
  1. [126]
    In relation to the level of personal usage of ICT facilities and devices there were documents relied upon by agencies in the development of their own policies on personal usage [Transcript p. 2-69].  The documents in question did not define "limited personal use" only that such usage needed to be consistent with the broad overall policy covering public servants with the documents being broad in terms of obligations [Transcript p. 2‑70].
  1. [127]
    In the termination of Johnson there was no allegation that her use of computer systems had interfered with her ability to perform her duties [Transcript p. 2-70] nor had it resulted in a direct cost to QCS [Transcript p. 2-71].  There was no allegation her use of the email system had an impact on the network and the personal files established were not open records [Transcript p. 2-71].  On the forwarding of an inappropriate email to herself (Allegation 5) McDermott conceded her actions were less serious that the person who had created the document and she was not aware of an investigation or disciplinary actions relating to the document [Transcript p. 2-72].
  1. [128]
    Material regarding departmental practices and government statements were in contravention of policy in that Johnson distributed such material to persons outside the union members she represented [Transcript p. 2-73].  McDermott was unable to point to any document that would prevent a Union delegate speaking to the media [Transcript p. 2-74].  McDermott on the documents in place that went to personal usage of departmental ICT facilities and devices gave evidence they were not inconsistent but were for different purposes [Transcript p. 2-75].  They did allow for personal emails to be sent in work time and there had never been an absolute prohibition on such activities [Transcript p. 2-76].  The amount of emails sent by Johnson were considered excessive although there was not any promulgated material setting out the number of emails that amounted to excessive use [Transcript p. 2-76].
  1. [129]
    On the release by Johnson of confidential information the policy relates to s. 341 of the Corrective Services Act 2006 with the Act applying to all CSOs and defines a range of confidential information.  There is a provision that allows for the name of a corrective services facilities in which a prisoner is currently accommodated to be provided to a person who inquires but no other information can be disclosed [Transcript p. 2-78].  In this case it was the release of the identification of a prisoner, prisoner's number and the incident in which she was involved that fell within the definitions of confidential information [Transcript p. 2-79].
  1. [130]
    If it was found that Johnson had not sent the emails subject to Allegation 1(a) and 1(b) then the allegation would not stand [Transcript p. 2-79].  It was accepted by Johnson that the email came from her account with McDermott accepting that she could not categorically state who actually sent the email [Transcript p. 2-79].  The computer system did however have a time out period of some minutes which sees it automatically shut down when a person ceases to use the computer [Transcript p. 2-80].  McDermott accepted the proposition that a person having logged on to a computer could walk away and until it logs off and shuts down any other person could send an email on the open account [Transcript p. 2-80].
  1. [131]
    McDermott could not confirm having seen an email from Johnson in which she apologised for "dysfunctional people" she worked with accessing her email account at work but it would not have caused her concern over the allegations about whether she (Johnson) had sent any particular emails.  It would be of concern if other people were using other people's login however throughout the process Johnson never claimed this was the case [Transcript p. 2-81].  Between June 2012 and when the show cause letter was sent to Johnson she was not aware of Johnson being counselled in relation to excessive use of QCS computer facilities [Transcript p. 2-82].
  1. [132]
    In re-examination McDermott's evidence was that it was her decision to suspend Johnson in December 2013 which was for reasons that included she was unable to be placed in a position where she would not have access to ICT resources.

Submissions

QCS

  1. [133]
    The submissions initially identified s 187(1) of the Public Service Act 2008 as the relevant legislation in terms of responding to the conduct which Johnson had engaged leading to McDermott finding that on five occasions Johnson had contravened without reasonable excuse, an obligation imposed on her in her position as a CSO under the Code of Conduct.
  1. [134]
    In terms of the allegations McDermott had found the following:
  • Allegation 1(a) - Johnson's conduct contravened without reasonable excuse an obligation under the Code of Conduct:

"Obligation 3.1  Commit to our roles in the public service which requires officers to amongst other things…

c. comply with the laws of State, Australian and local governments."

Johnson had contravened s 341(4)(a)(i) of the Corrective Services Act 2006.

  • Allegation 1(b) - Identical finding to Allegation 1(a).
  • Allegation 2 - Johnson's conduct contravened without reasonable excuse an obligation under the Code of Conduct:

"Obligation 4.3  Ensure appropriate use of official resources, public property and facilities which requires officers to:

a. be economical, and avoid waste and extravagance in the use of public resources for proper purposes

b. use any public resource in accordance with official policies

c. purchase, manage and care for public resources in accordance with official policies, and

d. responsibly utilise human assets such as corporate knowledge and intellectual property, such as public resources."

  • Allegation 3 - identical finding to Allegation 2.
  • Allegation 5 - Johnson's conduct contravened without reasonable excuse an obligation under the Code of Conduct:

"Obligation 4.3  Ensure appropriate use of official resources, public property and facilities which requires officers to…

b. use any public resource in accordance with official policies".

  1. [135]
    QCS denies that the dismissal was harsh, unjust or unreasonable and submits reinstatement should not occur.
  1. [136]
    In the alternative if it was found the dismissal was harsh, unjust or unreasonable Johnson should not be reinstated because she had demonstrated in the course of the disciplinary proceedings dishonesty and a flagrant disregard for her obligations as CSO leading to the loss of trust and confidence in her which was said to be soundly and reasonably based.
  1. [137]
    There were a number of preliminary matters not in dispute of which in some cases should be found against Johnson, including her:
  • length of service, duties and training;
  • disciplinary history
  • 2001 disciplinary matter;
  • 2002 disciplinary matter;
  • training in Code of Conduct;
  • misrepresentation during disciplinary process;
  • other relevant training;
  • knowledge about what amounted to confidential information;
  • membership of KAP and use of QCS resources concerning KAP activities; and
  • how Allegations 1(a), 1(b), 2, 3 and 5 came to Johnson's attention.
  1. [138]
    There was no doubt that McDermott did not merely accept the report provided by White but relied upon her own independent judgement to reach her own independent conclusions that Johnson had engaged in conduct that was inconsistent with the Public Service Act 2008.  The first show cause letter was issued only after she had determined on the balance of probabilities the Code of Conduct had been breached in respect of Allegations 1(a), 1(b), 2, 3 and 5.
  1. [139]
    The submission identified the evidence that was said to clearly disclose the contraventions of the Code of Conduct by Johnson that left her liable for discipline pursuant to s 187(1)(f)(ii) of the Public Service Act 2008.
  1. [140]
    For the purposes of economy it is not the intention to publish the material relied upon in the submission relating to the various allegations but to identify the pages applicable to each allegation that was the subject of consideration by the Commission:
  • Allegation 1(a) - pages 13 to 19 (inclusive) encompassing paragraphs 63 to 86 of the submission;
  • Allegation 1(b) - pages 19 to 21 (inclusive) encompassing paragraphs 87 to 98 of the submission;
  • Allegation 2 - pages 21 to 23 (inclusive) encompassing paragraphs 99 to 110 of the submission;
  • Allegation 3 - pages 23 to 24 (inclusive) encompassing paragraphs 111 to 114 of the submission; and
  • Allegation 5 - pages 24 to 25 (inclusive) encompassing paragraphs 115 to 119 of the submission.
  1. [141]
    There were a number of matters said to be relevant to Johnson's credit in particular to emails sent by her using her departmental email.  Johnson had in response to the notice to admit facts disputed only 13, namely the documents numbered 17, 19, 26, 42, 43, 45, 51, 59, 179, 181, 182 and 193.  Documents 43 and 45 were the emails subject to Allegations 1(a) and 1(b) and it had been established those emails and attachments had been sent by Johnson.  Under cross-examination Johnson had conceded sending most of the emails which were numbered 59, 17, 19, 26, 51, 179, 181, 182 and 193.  The concessions made by Johnson about sending the emails which she had originally disputed sending should count against her credit.
  1. [142]
    The submission focussed on the relevant sections of the Industrial Relations Act 1999 being:
  • s 73 When is a dismissal unfair

"73When is a dismissal unfair

  1. (1)
    A dismissal is unfair if it is -
  1. (a)
    harsh, unjust or unreasonable; or
  1. (b)
    for an invalid reason."
  • s 77 Matters to be considered in deciding an application

"77Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  1. (b)
    whether the dismissal related to -
  1. (i)
    the operational requirements of the employer's undertaking, establishment or service; or
  1. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance -
  1. (i)
    whether the employee had been warned about the conduct, capacity or performance; or
  1. (ii)
    whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant."
  1. [143]
    In respect of the phrase "harsh, unjust or unreasonable" the submission cited Byrne v Australian Airlines Limited[2] - McHugh and Gummow JJ where it was relevantly stated:

"In Bostik (Aust) Pty Ltd v Gorgevski (No 1)(174), a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase 'harsh, unjust or unreasonable' as it appeared in the Manufacturing Grocers Award 1985:

'These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct'."

  1. [144]
    In the context of the Industrial Relations Act 1999 there is a need to consider the substantive issues along with procedural issues which in this case were fair from both a substantive point of view and procedurally.

Remedy

  1. [145]
    The principal remedy which must be considered is reinstatement or re-employment with the relevant principle being the appropriateness of reinstatement being considered in a common sense way.  Authorities cited supporting this proposition included:
  • Nicholson v Heaven and Earth Gallery Pty Ltd[3];
  • Perkins v Grace Worldwide (Australia) Pty Ltd[4]; and
  • Wolrige v Australian Broadcasting Corporation[5].
  1. [146]
    In respect of a consideration of what was meant by "impracticable" within the meaning of s 79 of the Industrial Relations Act 1999, the decision of Hall P in Queensland Teachers' Union of Employees v Department of Education[6] was cited as argument against the reinstatement or re-employment of Johnson.
  1. [147]
    On the issue of the claim by QCS of having lost trust and confidence in Johnson the Commission was taken to a Fair Work Commission matter in Challinger v JBS Australia Pty Ltd[7].

Compensation

  1. [148]
    If the Commission was to find in favour of Johnson and then consider that reinstatement or re-employment was impracticable then the maximum amount of compensation is capped in the Industrial Relations Act 1999 at six months' wages at the rate the employee was receiving immediately prior to the dismissal.
  1. [149]
    Factors to be taken into account when determining amount by way of compensation were identified in Barsha v Motor Finance Wizard (Sales) Pty Ltd[8].  There was no evidence provided by Johnson in respect of any of the factors identified in Barsha.
  1. [150]
    The options of reinstatement or re-employment in this case are impracticable for numerous reasons that include:
  • proven before the Commission as not capable of being honest;
  • provided misleading information to her Lawyers rendering Johnson as untrustworthy;
  • had not complied with the Code of Conduct and not likely to into the future; and
  • loss of trust and confidence by QCS in Johnson.
  1. [151]
    There was no evidence from Johnson that could assist the Commission to determine an amount of compensation.

Conclusion

  1. [152]
    The application should be dismissed and in the alternative reinstatement could not be an appropriate remedy.

Applicant

  1. [153]
    The submission dealt with the background to the allegations that had been levelled against Johnson and the issuing of a show cause letter on 6 January 2014.  The background relied upon included:
  • Johnson's employment history with QCS;
  • October 2012 investigation regarding release of information to the media which found she had no role;
  • as a result of 2012 investigation a "dump" of Johnson's emails had been made with initially no concerns raised;
  • White carried out an investigation having obtained Johnson's emails between June 2012 and November 2013;
  • White recorded 409 emails sent and received between 6 September 2012 and 13 November 2013 on Union matters;
  • in a 500 day period 200 emails involving KAP; and
  • White concluded there was alleged inappropriate use of departmental ICT facilities that may have constituted a breach of the Code of Conduct.
  1. [154]
    Allegations 1(a), 1(b), 2, 3, 4 and 5 were set out in short form identifying Allegation 4 as not being pursued.
  1. [155]
    There was a response to the show cause notice on 10 February 2014 through Lawyers acting for Johnson which included a claim for privilege as there had been a referral to the CMC as alleged official misconduct on 6 December 2013.
  1. [156]
    McDermott determined that the allegations (except Allegation 4) had been substantiated and Johnson was liable for discipline pursuant to s 187(1)(f)(ii) of the Public Service Act 2008 and in correspondence (dated 18 March 2014) advised Johnson of her determination and the proposed penalty of termination.  On 25 March 2014 Lawyers for Johnson again responded to QCS this time in respect of the proposed disciplinary penalty.  Johnson's employment was terminated on 3 April 2014.
  1. [157]
    An application for reinstatement was lodged on 14 April 2014 pursuant to s 74 of the Industrial Relations Act 1999, specifically seeking the following orders:
  • that the employee be reinstated to her former position (or as nearly as possible) without prejudice to the employee's former conditions or employment;
  • that the respondent pay the remuneration lost between the date the dismissal took effect 3 April 2014 and the date of reinstatement;
  • that the respondent pay the employee the amount of compensation the Commission considers appropriate;
  • the employer pay the employee's reasonable costs in this matter; and
  • such further or other order as the Commission considers appropriate.
  1. [158]
    On or about 27 January 2015 Johnson was served with a Notice to Admit Facts with the "fact" to be admitted being each email listed in the notice as being "sent" by Johnson.  There were a number of listed documents disputed by Johnson including documents 43 and 44 which were the subject of Allegations 1(a) and 1(b).
  1. [159]
    There was acknowledgement that Johnson had made a number of admissions in correspondence prior to the hearing and at the hearing:
  • Allegation 2 - admitted using departmental computer facilities to send emails and generate Microsoft Word documents on personal matters;
  • Allegation 3 - admitted forwarding emails and documents to outside parties between November 2012 and February 2013; and
  • Allegation 5 - admitted transmission of emails to personal email account.
  1. [160]
    The submission in pages 6 to 13 (inclusive) dealt in some length with each individual allegation and whilst for reasons of economy the bulk of this section of the submission is not reproduced in its entirety the Commission has carefully considered this content and makes the following brief points.

Allegation 1(a)

  1. [161]
    There was no issue that the email was sent from Johnson's departmental email address to an external, non-authorised recipient (Katter).  The email was sent during Johnson's rostered hours of work but there was no direct evidence that Johnson sent the email, it was just assumed to be the case.
  1. [162]
    Johnson gave evidence to the effect that:
  • she did not send the email;
  • other staff would use open computers to send emails for work or in jest;
  • she had complained in 2012 about people using her email in jest;
  • content was innocuous and had no political connotation or value to Katter; and
  • at 6.58 pm on 11 November 2012 sent the following email to Katter:

"Good Evening,

I don't know why, but for some reason some of my E-mails have gone to you & some others.  As they are confidential reports could you please just delete them."

  1. [163]
    White as the investigator had no knowledge of the Townsville Correctional Centre or its layout, did not interview Johnson and did not know whether the computers could be accessed by others.
  2. [164]
    In a circumstantial case, any other hypothesis consistent with innocence would be applied in which case it is submitted a real alternative hypothesis is that Johnson did not send the email.

Allegation 1(b)

  1. [165]
    The submission relied upon basically the same argument as in the case of Allegation 1(a) noting however that the report had been sent to Johnson at 4.17 pm and that Katter had been sent other emails at 2.34 pm and 6.46 pm which was said to make no sense at all.  It was submitted the emails in question were random emails sent in jest or maliciously by another person and not Johnson.

Allegation 2

  1. [166]
    Allegation 2 related to excessive use of departmental computer facilities and resources to send Microsoft Word documents and emails to KAP about KAP business.  In cross-examination of QCS witnesses it became apparent:
  • there was no comparative evidence gathered on authorised use by Johnson or other staff members;
  • Johnson had not been previously warned or counselled about excessive computer use or told her use was excessive or the correct amount of use;
  • no allegation that the alleged email usage took Johnson away from or interfered with her duties;
  • there was no promulgated material to QCS staff on what was considered excessive use; and
  • White had no computer training or relevant experience or experience in speech writing.

Allegation 3

  1. [167]
    Allegation 3 related to unauthorised persons being forwarded emails meant for the information of Townsville Correctional Centre staff.  Evidence relied upon included:
  • two emails sent on 11 November 2012;
  • email sent on 8 January 2013 to Katter; and
  • email sent on 10 January 2013 to Katter.

White had formed the view the documents were provided for political purposes to advantage KAP.

  1. [168]
    Johnson admitted sending the email (dated 10 January 2013) and the email related to union business.  As a delegate of TQ she was entitled to raise issues outside of the Townsville Correctional Centre or QCS forums.  Respondent witnesses had repeatedly stated that the investigation had not been into the political activities of Johnson and that the allegations would have been just as pertinent if the facts related to a P&C or sporting clubs.

Allegation 5

  1. [169]
    Johnson accepted in was contrary to ITC policy to forward offensive emails even to one's self.  Johnson was not the originator of the emails and it had been conceded by QCS witnesses the originator had not been investigated or disciplined.
  1. [170]
    In addressing general matters it was noted that in cross-examination Johnson had agreed she had previously been issued with a Reprimand and had undergone Code of Conduct training.  On the accusation of having given false information to her Lawyers for the purposes of providing her response to McDermott's letter of 6 January 2014 there was a denial by Johnson of that being the case.  She did not acknowledge having given specific instructions that she had an unblemished record and there was no basis that some form of deceit in this process would have the effect of benefit for her.
  1. [171]
    The denial by Johnson of recent Code of Conduct training was incorrect for the reason she did not remember the training and given the nature of the training (computer based) it is unsurprising it was not at all memorable.  On the ten allegations which had been investigated in 2013, the process not completed therefore it would be erroneous of the Commission to have regard for that evidence.
  1. [172]
    The submission identified the relevant sections of the Industrial Relations Act 1999 as ss 73, 74 and 77 to be relied upon in applications of this nature.  On the standard of proof, on the balance of probabilities there was reliance upon Briginshaw v Briginshaw[9] as a relevant authority.
  1. [173]
    The Public Service Act 2008 at s 187(1)(f)(ii) provides that a public service employee may be disciplined by the Chief Executive if the Chief Executive is reasonably satisfied the employee has:

"(f) contravened, without reasonable excuse -

…

  1. (ii)
    a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994".
  1. [174]
    The Code of Conduct is such a Code with reference in the submission to:
  • 4.3  Ensure appropriate use of official resources, public property and facilities; and
  • 4.4  Ensure appropriate use and disclosure of official information.
  1. [175]
    The Corrective Service Act 2006 dealt with confidential information at s 341(1), (2), (3) and (4).
  1. [176]
    Policies relevant to the proceedings were:
  • IS38  Use of ICT facilities and devices (June 2000) which deals with:
  • purpose; and
  • limited personal use.
  1. [177]
    The Information and Communications System - Acceptable Use (Procedure) sets out restrictions on limited personal use of the departments information resources which includes internet access, email and messaging services being allowed in accordance with the following restrictions that include:
  • Use is to be consistent with the professional, legal, moral and ethical standards expected of departmental personnel and consistent with the Code of Conduct for the Queensland Public Service.
  • The employee's personal use access rights may be revoked at any time at the discretion of the employee's manager should it be deemed to be excessive or interfering with the employee's performance of their duties.
  • Use is generally expected to take place out of office hours, eg. before or after work hours or during an employee's break or lunch time and not interfere with the normal performance of an employee's duties, or as directed by the employee's manager.
  • Use is not to result in direct cost to the department.  The department reserves the right to require reimbursement of costs for excessive personal use.
  • Use is not to impact business use in any way eg. Excessive utilisation of network resources impacting upon business use of internet connectivity or other information systems.
  • Use is not to violate any of the statements specified in this procedure or related policies regarding acceptable use of information or information systems.
  • Any personal files and documents created, accessed, sent and/or received via the department's information systems are subject to open records requests and may be accessed in accordance with this procedure and associated policy, the Information Privacy Act 2000 and the Right to Information Act 2009.
  1. [178]
    The Information Communication Systems - Email and Internet Usage relevantly provided (at 21 October 2010):

"Email and Internet Usage

…

Staff are also permitted strictly limited personal use of these facilities…

Personal usage must be infrequent and brief:

- takes place during a staff members own time,

- does not interfere with the operations of the Department or Agency or

- place an unnecessary and excessive burden on agencies resources,

- does not include maintaining or supporting a private business enterprise and/or is not for personal gain or profit,

- The limited personal use of email and internet is a privilege that may be restricted or revoked at any time.

Email Usage

…

Staff must ensure that their email use does not interfere with the operations of the Department or place an unnecessary and excessive burden on DCS resources, for example, mass emailing using multiple distribution lists or individual email addresses, excessive storage or transmission of electronic files."

  1. [179]
    The term excessive use is not defined in any of the relevant legislation or policies, standards or procedures.  Definitions of the term excessive were provided in the submission from both the Oxford and Macquarie Dictionaries.
  1. [180]
    The dismissal of Johnson was said to be unfair for reasons including:
  • investigation was not rigorous enough to support termination;
  • findings (on the balance of probabilities) were not correct and did not support a termination; and
  • Johnson was not warned about her conduct and dismissed without the opportunity to correct her behaviour.
  1. [181]
    There was criticism of White's investigation along the following lines:
  • failure to interview Johnson;
  • failed to make himself familiar with the Townsville Correctional Centre;
  • failed to consider all emails with respect to Allegations 1(a) and 1(b) in particular the email of 8 October 2012 where concerns were raised about people using Johnson's email and 11 November 2012 which advised Katter he had been sent unauthorised emails by someone else and requested to delete the emails; and
  • failed to make a comparison of email usage with other Officers.
  1. [182]
    The errors identified were said to have led McDermott into error as the delegate and in particular his strong urge to "assume" that Johnson had sent the emails because they came from her email address.  The narrow approach taken by White had led to a fait accompli as if the factual evidence was so strong in his view.  McDermott's evidence that the email from Johnson of 8 October 2012 would not have changed her mind smacked of "predetermination of outcome" however giving the delegate the benefit of the doubt on that issue the existence of the 11 November 2012 6.58 pm email would have given any reasonable person doubts on the substantiation of Allegations 1(a) and 1(b).
  1. [183]
    The case for excessive email usage cannot be made as there was no standard published at the time to enable staff to know what was excessive or otherwise.  All that was available was the subjective whim and capriciousness of management as to what was excessive.  The email usage by Johnson was agreed by management as not having interfered with her duties or performance of her role and she had never received counselling about usage before the disciplinary proceedings commenced.  There was no basis for White's assessment on the time spent creating Microsoft Word documents as he had a lack of knowledge and experience in Microsoft Word.
  1. [184]
    Johnson submitted that Allegations 1(a) and 1(b) were factually untrue and could not be substantiated on the balance of probabilities.  It was also the case that the emails sent at 2.34 pm and 6.46 pm on 11 November 2012 were in fact not sent by her.  There were legitimate grounds for emails sent by Johnson relating to her role as TQ delegate and she was entitled to send and use such documents as the Future Directions email as well as the Trade Instructor email which did not appear to be a QCS document in any event.  The QCS witnesses gave evidence that the investigation was not based on politics however the focus of the investigation suggests otherwise.  The emails sent to KAP should be considered as if they were sent to a P&C or soccer club.
  1. [185]
    There was no concession by Johnson that the email traffic in any event was excessive with a conservative observation being that 200 emails over a period of 300 days was hardly excessive and there was no basis for the substantiation of Allegations 2 and 3.  There was acceptance from Johnson that she had breached departmental policy by forwarding the offensive email to her external email address but such behaviour should only merit a Reprimand or retraining in accordance with the applicable policy especially when it is taken into account that there was no interest shown in the originator of the offensive material or disseminator of the material.
  1. [186]
    On the matter of QCS having lost trust and confidence in Johnson she was a person who could reasonably be reinstated.  There was no evidence of Johnson's co-workers having lost trust and confidence in her which was an essential element necessary for safety, protection and performance of work duties and she was a person of 15 years' experience where her performance had never been questioned nor was her performance raised in the allegations.
  1. [187]
    If the decision was to reinstate Johnson then an order ought to be made for compensation for time lost less the five weeks she was paid in lieu of notice at the time of her termination.  If reinstatement was not accepted then the maximum compensation of six months less the five weeks was sought.
  1. [188]
    It was unreasonable for QCS to maintain its case having regard for the existence of the emails of 8 October 2012 and the 11 November 2012 at 6.58 pm.  There should have been an earlier resolution to this matter and in the circumstances Johnson had incurred costs and expenses due to the unreasonable action of QCS and therefore should have costs ordered in her favour pursuant to s 335(1)(b) of the Industrial Relations Act 1999.
  1. [189]
    Orders sought were:
  • Johnson's termination on 3 April 2014 was unlawful pursuant to s 73 of the Industrial Relations Act 1999;
  • reinstatement to her former position on conditions at least favourable as the conditions immediately prior to the dismissal;
  • QCS pay to Johnson remuneration lost, or likely to have been lost because of the dismissal after taking into account employment benefits or wages received since the dismissal; and
  • QCS pay to Johnson reasonable costs of and incidental to her application for reinstatement but not limited to, legal costs.

QCS in Reply

  1. [190]
    In relation to the Applicant's submission on the standard of proof and in particular to the citing of Briginshaw v Briginshaw[10] this was not a case where the principles in Briginshaw must apply.  Supportive of this argument the submission relied upon the Neat Holdings v Karajan Holdings Pty Ltd[11] Mason CJ, Brennan, Deane and Gaudron JJ stated:

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud … On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear … or cogent … or strict … proof is necessary 'where so serious a matter as fraud is to be found' ... Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct … and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw …:

'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...'."

  1. [191]
    Johnson had not been dismissed for misconduct or serious misconduct or having been found by the employer to have performed her duties carelessly, incompetently or inefficiently within the meaning of s 187(1)(a) of the Public Service Act 2008 as in the case of Ord v State of Queensland (Sunshine Coast Hospital and Health Service)[12].  Johnson was dismissed because she had contravened the Code of Conduct without a reasonable excuse in respect of Allegations 1(a), 1(b), 2, 3 and 5.
  1. [192]
    This is not a case where the standard of evidence led by QCS must be clear or cogent or strict so as to satisfy the Commission that Johnson engaged in the conduct for which she was dismissed.  To accept the argument advanced in terms of Briginshaw would mean that every unfair dismissal case required such a high standard of evidence.  This is not the case in relation to the authorities cited, particularly as no pecuniary penalty was being sought or where serious misconduct was alleged against Johnson.
  1. [193]
    In any event while it was conceded by QCS that the Allegations 1(a) and 1(b) involved serious breaches of the Code of Conduct there was clear evidence Johnson engaged in that conduct.
  1. [194]
    In this instance regarding the lack of comparative evidence the correct test for the Commission to apply in respect of Allegation 2 was whether on the evidence Johnson contravened without reasonable excuse an obligation imposed on her under the Conduct of Conduct, namely:

"Obligation 4.3  Ensure appropriate use of official resources, public property and facilities which requires officers to:

a. be economical, and avoid waste and extravagance in the use of public resources for proper purposes

b. use any public resource in accordance with official policies

c. purchase, manage and care for public resources in accordance with official policies, and

d. responsibly utilise human assets such as corporate knowledge and intellectual property, such as public resources."

  1. [195]
    Johnson was aware from her Code of Conduct training in 2012 and her long experience as a CSO that any private use of QCS computer and email system was limited in that she could only use it for reasonable private use and could not use the QCS computer and email system as her own.  The correct enquiry is not whether the admitted and uncontested computer and email usage was excessive compared to other employees use but whether it was excessive having regard to the obligations imposed under the Code of Conduct having regard to the training received by Johnson.

Conclusion

  1. [196]
    In the course of the proceedings there were a number of factual matters that emerged which were not of contention, pertaining to Johnson including:
  • commenced employment as a Custodial Corrections Officer with (the now) QCS on 5 October 1998;
  • completed a Certificate III in Correctional Practice (Custodial);
  • completed QCS certification in Information Security Awareness (23 January 2009);
  • completed QCS certification in Information Privacy and Right to Information Awareness Training (28 November 2009);
  • completed Code of Conduct Training for Queensland Public Service course (October 2012);
  • for the entirety of her employment she was located at the Townsville Correctional Centre (apart from a limited secondment to the Townsville Women's Correctional Centre);
  • was an accredited workplace delegate of TQ holding that position at the time of dismissal;
  • in 2011 became the President of TQ (Townsville Branch);
  • in 2013 ten allegations were substantiated relating to alleged conduct issues however the penalty phase of the disciplinary process was held in abeyance upon consideration by McDermott of the emerging allegations subject of this application;
  • there were three periods of continuous suspension (on full pay) from work commencing on 12 December 2013;
  • on 6 January 2014 McDermott issued a show cause letter to Johnson requiring a response to Allegations 1(a), 1(b), 2, 3 and 5;
  • on 10 February 2014 Lawyers acting for Johnson provided responses to the abovementioned allegations;
  • on 18 March 2014 in correspondence forwarded to Johnson's Lawyers McDermott advised that Allegations 1(a), 1(b), 2, 3 and 5 had been substantiated and that she was liable to discipline pursuant to s 187(1)(f)(ii) of the Public Service Act 2008.  Due to the serious nature of Allegations 1(a) and 1(b) the penalty of termination was the subject of consideration. 

Note:  The correspondence omitted Johnson's Code of Conduct certification with the error rectified on 21 March 2014;

  • Lawyers acting for Johnson responded on 25 March 2014 regarding opposition to the imposition of the penalty of termination of employment; and
  • on 3 April 2014 Johnson was informed of the termination of her employment and of the reasons for that decision.

Matters for Determination

  1. [197]
    In essence the matters for determination in this application are as follows:
  • whether Allegations 1(a), 1(b), 2, 3 and 5 on the evidence available were able to be substantiated; and
  • if some or all of the allegations were able to be substantiated was the decision to terminate Johnson's employment in all circumstances warranted.

History

  1. [198]
    The fact that the allegations against Johnson emerged as a result of other allegations that were being investigated in respect of another employee is of no consequence as was the case with respect to an investigation in October 2012 in which Johnson and five other persons had their QCS email accounts examined following suspected "leaks" to a journalist.
  1. [199]
    In early November 2013 Casey with regards to the investigation into the other employee recalled from the October 2012 investigations that Johnson had exchanged emails with the subject of the investigation and on that basis undertook a review of all of Johnson's emails upon which material emerged that he saw fit to exchange with McDermott and the Executive Director of DJAG ESU expressing his concerns.
  1. [200]
    An investigation into Johnson's email usage following the review by Casey was set in train by DJAG ESU with the carriage of the investigation given to White.
  1. [201]
    There was no question in the mind of the Commission that the material available to DJAG ESU at the time of commissioning the investigation was sufficient to warrant the course of action embarked upon.

The Investigation

  1. [202]
    The credentials of White in terms of his experience as an investigator as documented earlier in this decision (paragraph 73) portray a person with an extremely high level of investigative skills and certainly a person on the face who was more than capable of undertaking the task allocated to him in the form of the investigation.
  1. [203]
    On the investigation itself the evidence of White was that his conduct was governed by published guidelines from the Queensland Crime and Corruption Commission and in the course of the investigation he ensured that he adhered to all statutory and policy requirements in addition to ensuring the principles of procedural fairness and natural justice were followed.  The relevant policy and legislation utilised by White in the course of the investigation was extensive as it was all encompassing and identified earlier in this decision (paragraph 79).
  1. [204]
    The evidence of White in respect of each of the allegations was both concise and informative identifying clearly the material on hand for his consideration that enabled him to conclude that Johnson's conduct was of a nature that in the circumstances:
  • Allegations 1(a) and 1(b) - possibly committed a criminal offence in disclosing confidential information in accordance with the Corrective Services Act 2006;
  • Allegation 2 - could be found to have breached the ICT Facilities and Devices Policy in addition to the Code of Conduct;
  • Allegation 3 - could be found to have breached the Code of Conduct;
  • Allegation 4 - acknowledged that it was not until December 2013 that Union delegates advised that they were from that time eligible to only the same reasonable access to ICT facilities and resources as other staff; and
  • Allegation 5 - could be found to have breached the Code of Conduct.
  1. [205]
    White whilst not the relevant decision maker, in his Report (dated 17 December 2013) advised that Allegations 1(a), 1(b), 2, 3 and 5 in his view were capable of being substantiated and recommended that the contents of the brief be considered.
  1. [206]
    The Report itself was a 17 page document tendered into the proceedings as an attachment to White's affidavit of evidence and clearly demonstrated the significant nature of the investigation undertaken by him.
  1. [207]
    There was a level of criticism offered with regards to what were said to be failures by White in the conduct of his investigation that included:
  • failure to interview Johnson;
  • failure to familiarise himself with the Townsville Correctional Centre;
  • failure to consider all emails with respect to Allegations 1(a) and 1(b) which included an email sent by Johnson (on 8 October 2012) regarding people accessing (without her knowledge) her QCS email account; and
  • 11 November 2012 email to Katter regarding the sending of unauthorised emails by another person and the request for the unauthorised email to be deleted.
  1. [208]
    In the course of cross-examination of White other areas of criticism were raised in particular to his level of expertise, or lack thereof, which included the lack of qualifications and knowledge regarding:
  • computing;
  • information technology; and
  • Microsoft Word.
  1. [209]
    In relation to the failure to interview Johnson or visit her employment location, I am satisfied the investigative role undertaken by White allowed for a judgement call in respect of both these claims and I am unable to conclude his decision affected the credibility of his investigation thus rendering the process as either tainted or inconclusive to the extent that it would be unsafe to rely upon the content of the Report.
  1. [210]
    The email of 8 October 2012 whilst highlighting in a generic sense the possible misuse of Johnson's QCS email (by someone else) it was not supported by any evidence in these proceedings of being relevant in respect of Allegations 1(a) and 1(b) and may be more aptly described for the purposes of these proceedings as a "red herring".
  1. [211]
    The email of 11 November 2012 relied upon in my view is likely to have been a belated attempt to address what was significant disregard of QCS policy with the release of confidential information about an inmate to an unauthorised person.
  1. [212]
    There is some basis for the criticism offered of White with regards to his lack of computer and technology expertise and that would have particular relevance with regards to his findings and evidence of the notes prepared for Katter by Johnson for the purposes of "press releases or conferences".
  1. [213]
    Overall the evidence before the proceedings was conducive to a finding that the investigation undertaken by White was thorough and conducted in a professional manner that allowed, on the material available, for the conclusions reached by him in respect of Allegations 1(a), 1(b), 2, 3 and 5 as being capable of substantiation with the same applying to Allegation 4 where he found that allegation as not being capable of substantiation.  Further the material considered by White was in all circumstances both relevant and appropriate.

Decision Maker

  1. [214]
    McDermott as the QCS person holding delegation for matters of discipline, upon receiving a comprehensive brief (on 20 December 2013) relating to the allegations against Johnson which included the material considered by White and a copy of his completed Report carefully considered all that material after which she formed the view that the allegations were factually based.
  1. [215]
    A show cause letter was issued (on 6 January 2014) that provided Johnson with the opportunity to respond to the allegations which occurred through a response from her Lawyer that was received on 10 February 2014 after having been granted two extensions of time by QCS.  The responses to Allegations 1(a) and 1(b) were that of declining to offer a response on the basis of "privilege against self-incrimination" and "penalty privilege".  Allegations 2, 3 and 5 were the subject of detailed responses that contained certain concessions in terms of Allegations 3 and 5.  In respect of the response to Allegation 2 there was amongst other things a denial that Johnson had received training on the Code of Conduct during the course of her 15 years of employment with QCS.
  1. [216]
    On receipt of the response McDermott undertook further enquiries where she found evidence of Johnson having completed Code of Conduct training on 16 October 2012 contrary to her response.  In relation to Johnson's claim of privilege McDermott relied upon the matter of Bannister & Ors v D-G Department of Corrective Services[13] for guidance regarding the "privilege" claim by Johnson and accordingly decided Allegations 1(a) and 1(b) on the material before her and in the absence of any explanation on Johnson's behalf.
  1. [217]
    McDermott in applying the balance of probabilities as the requisite standard of proof found that Allegations 1(a), 1(b), 2, 3 and 5 had been substantiated and proceeded to issue a show cause letter in respect of penalty which included notice that termination of employment may be in the circumstances an appropriate penalty.  After consideration of the response and the various penalty options available McDermott determined that termination was the appropriate penalty and subsequently informed Johnson on 3 April 2014 of her decision.
  1. [218]
    There was no evidence advanced in the proceedings to lead the Commission to a finding that McDermott's role as decision maker was flawed or that she had done anything other than having reached a considered position based on the evidence and material available at the time of her consideration.  The process from the commencement of McDermott's involvement was, for good reason, not the subject of challenge in the proceedings as it afforded Johnson all appropriate avenues available under legislation and the relevant policies.
  1. [219]
    McDermott's considerations regarding Allegations 1(a) and 1(b) were done so without any material to the contrary of White's investigation, and whilst at the time Johnson advanced the claim of "privilege" so as not to offer a response it is worth noting that whilst the claim by Johnson in the proceedings that the emails containing the confidential information had been forwarded by a person or persons unknown, no such claim was made by her at any other relevant time in the disciplinary process.
  1. [220]
    In the absence of any supportive evidence of Johnson's position on the sending of the emails relevant to Allegations 1(a) and 1(b) it would be entirely unsafe to find that occurred as claimed particularly when there was other evidence advanced by Johnson in the proceedings that on the face appeared to be blatantly untrue and thus reflecting negatively on her credit as a witness.  Such evidence included but was not limited to:
  • denial of Code of Conduct training;
  • claims that prior to this matter she had never provided instructions to a Lawyer; and
  • claims matters of her previous disciplinary history that were omitted in her responses at the hands of her Lawyers when such a response could only have been authorised by the instructions of the client.
  1. [221]
    These particular examples of evidence given untruthfully were not harmless "white lies" but went to matters of some significance in the proceedings and when coupled with Johnson's demeanour in the witness box it was difficult to find that she was a witness of substantial credit. 

Penalty

  1. [222]
    On finding that McDermott's decision to substantiate Allegations 1(a), 1(b), 2, 3 and 5 was founded on material and evidence that met the requisite standard of proof required under the Industrial Relations Act 1999 it is necessary to consider whether the penalty of termination imposed was appropriate in all circumstances.  There were a number of penalty options available under the relevant legislation and it is not of question that the termination was the harshest of all in that it brought an end to Johnson's 15 year career with QCS.
  1. [223]
    In looking at the allegations separately it becomes obvious that Allegations 1(a) and 1(b) stand apart from Allegations 2, 3 and 5 in relation to the level of seriousness of the conduct.  It is unlikely that McDermott as the decision maker could have justified the termination of Johnson based on the content of Allegations 2, 3 or 5 either individually or collectively.  QCS in respect of Allegation 2 had at all times at their disposal access to Johnson's QCS email usage and at no point prior to the allegations being investigated did they feel the need to challenge or question such usage as being above a reasonable limit.  Had such an intervention occurred and the level of usage had not diminished then the consequences for Johnson would have rightly warranted a level of penalty.  Allegation 3 was in some respect downgraded by the evidence of QCS witnesses in that no issue was taken with the emails involving KAP perse.  It would have been the same concern if the recipient had been a P&C or sporting club.  Finally Allegation 5 was uncontested by Johnson however the failure of QCS to investigate the source of the document or take the matter up with the person who forwarded the email to Johnson, likely utilising QCS ICT facilities certainly lessens the seriousness of Johnson's conduct.
  1. [224]
    The case in respect of Allegations 1(a) and 1(b) is however to be viewed in a somewhat different context to the other allegations as Johnson was found to have disclosed information of a confidential nature at 6.10 pm and 6.12 pm on 11 November 2012 to a person (Katter) to whom such information should not have been disclosed.  In doing so Johnson breached sections of the Corrective Services Act 2006 that allowed for a penalty in such circumstances to include:

"Maximum penalty - 100 penalty units or 2 years imprisonment".

  1. [225]
    The relevant sections of legislation are as follows.
  1. [226]
    Section 341 of the Corrective Services Act 2006 states:

"341Confidential information

  1. (1)
    This section applies to either of the following (each of whom is an informed person) -
  1. (a)
    a person who is performing or has performed a function under this Act or any of the repealed Acts, or is or was otherwise engaged in the administration of this Act or any of the repealed Acts;
  1. (b)
    a person who has obtained access to confidential information, whether before or after the commencement of this section and whether directly or indirectly, from a person mentioned in paragraph (a).
  1. (2)
    The informed person must not disclose confidential information acquired by the informed person to anyone else other than under subsection (3).

…

  1. (4)
    In this section -

confidential information -

  1. (a)
    includes information -
  1. (i)
    about a person's private details;

…

private details of a person includes the person's identity, private residential address or contact details."

  1. [227]
    The information provided was of a level that in the course of the proceedings with the agreement of the parties the Commission issued a Suppression Order pursuant to s 679 of the Industrial Relations Act 1999 in the following terms:

"1. That pursuant to s. 679 of the Industrial Relations Act 1999, the confidential information relating to Attachment KM6 of the Affidavit of Kerrith McDermott, specifically pages 122 to 152 (inclusive), be withheld from release or search absolutely until further order of the Commission.

  1. That pursuant to s. 679 of the Industrial Relations Act 1999, Exhibit 8 (an unredacted copy of the Report marked Attachment PW5 to the Affidavit of Paul White) be withheld from release or search absolutely until further order of the Commission."
  1. [228]
    The material (collectively) identified an inmate by name or number at least 29 times and was forwarded by email to Katter for purposes that on the surface appear to be "information sharing".  There was no evidence in respect of Katter having further distributed the material in question or having inappropriately utilised such material however that is not the test under which the seriousness of Johnson's conduct must be judged.
  1. [229]
    Johnson (unauthorised) distributed confidential information, prescribed in the Corrective Services Act 2006 of a nature that in the worst scenario could provide for a person to be sentenced to two years imprisonment.  There was no evidence of Johnson having faced any other jurisdiction regarding this conduct but that does not detract from the serious nature of the conduct.
  1. [230]
    In the view of the Commission I accept Johnson's conduct in relation to Allegations 1(a) and 1(b) led to the loss of the trust and confidence required by QCS to continue to employ her in the capacity of CSO particularly when she would have had continued exposure to similar types of information on a day-to-day basis. 
  1. [231]
    Despite the fact that Johnson's disciplinary history in the workplace was not significant the failure to concede her actions or demonstrate remorse did not sit well with the Commission.
  1. [232]
    Further compounding the conduct of Johnson in relation to the disclosure of confidential information was the completion of authorised training in 2009 which provided awareness of not disclosing confidential information to a third person unless expressly authorised and acknowledged by her in cross-examination.

Findings

  1. [233]
    On the consideration of the evidence, material and submissions, I find that the decision of State of Queensland (Department of Justice and Attorney‑General) - Queensland Corrective Services to terminate the employment of Belinda Johnson on 3 April 2014 was not in the circumstances harsh, unjust or unreasonable.
  1. [234]
    The Application for Reinstatement is dismissed.
  1. [235]
    I order accordingly.

Footnotes

[1] Bannister & Ors v D-G Department of Corrective Services [2002] QSC 469

[2] Byrne v Australian Airlines Limited [1995] HCA 24

[3] Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50

[4] Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186

[5] Wolrige v Australian Broadcasting Corporation (1997) 74 IR 249

[6] Queensland Teachers' Union of Employees v Department of Education (2000) 165 QGIG 767

[7] Scott Challinger v JBS Australia Pty Ltd [2014] FWC 7963

[8] Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139

[9] Briginshaw v Briginshaw (1938) 60 CLR 336

[10] Briginshaw v Briginshaw (1938) 60 CLR 336

[11] Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66

[12] Ord v State of Queensland (Sunshine Coast Hospital and Health Service) [2015] QIRC 029

[13] Bannister & Ors v D-G Department of Corrective Services [2002] QSC 469

Close

Editorial Notes

  • Published Case Name:

    Johnson v State of Queensland (Department of Justice and Attorney-General)

  • Shortened Case Name:

    Johnson v State of Queensland (Department of Justice and Attorney-General)

  • MNC:

    [2015] QIRC 122

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    23 Jun 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bannister v Department of Corrective Services[2005] 1 Qd R 117; [2002] QSC 469
3 citations
Jump To
Cite 1 - [2002] QSC 469
Cite 2 - [2002] QSC 469
Cite 3 - [2002] QSC 469
Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139
2 citations
Jump To
Cite 1 - (2002) 171 QGIG 139
Cite 2 - (2002) 171 QGIG 139
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Byrne v Australian Airlines Ltd [1995] HCA 24
2 citations
Jump To
Cite 1 - [1995] HCA 24
Cite 2 - [1995] HCA 24
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) HCA 66
2 citations
Jump To
Cite 1 - (1992) HCA 66
Cite 2 - (1992) HCA 66
Nicolson v Heaven and Earth Gallery (1994) 57 IR 50
2 citations
Jump To
Cite 1 - (1994) 57 IR 50
Cite 2 - (1994) 57 IR 50
Ord v State of Queensland (Sunshine Coast Hospital and Health Service) [2015] QIRC 29
2 citations
Jump To
Cite 1 - [2015] QIRC 29
Cite 2 - [2015] QIRC 29
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
2 citations
Jump To
Cite 1 - (1997) 72 IR 186
Cite 2 - (1997) 72 IR 186
Queensland Teachers Union of Employees v Department of Education (2000) 165 QGIG 767
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 767
Cite 2 - (2000) 165 QGIG 767
Scott Challinger v JBS Australia Pty Ltd [2014] FWC 7963
2 citations
Jump To
Cite 1 - [2014] FWC 7963
Cite 2 - [2014] FWC 7963
Wolrige v Australian Broadcasting Corporation (1997) 74 IR 249
2 citations
Jump To
Cite 1 - (1997) 74 IR 249
Cite 2 - (1997) 74 IR 249

Cases Citing

Case NameFull CitationFrequency
Huyghe v State of Queensland (Mackay Hospital and Health Service) (No 2) [2022] QIRC 962 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.