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  4. Godfrey, Kristie v State of Queensland (Public Safety Business Agency) - [2020] QIRC 85

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Godfrey, Kristie v State of Queensland (Public Safety Business Agency)[2020] QIRC 85

Godfrey, Kristie v State of Queensland (Public Safety Business Agency)[2020] QIRC 85

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Godfrey, Kristie v State of Queensland (Public

Safety Business Agency) [2020] QIRC 085

PARTIES:

Godfrey, Kristie

(Applicant)

v

State of Queensland (Public Safety Business

Agency)

(Respondent)

CASE NO:

TD/2018/30

PROCEEDING:

Application for reinstatement 

DELIVERED ON:

16 June 2020

HEARING DATES: 

20 January 2020

5 February 2020 (Applicant's submissions)

11 February 2020 (Respondent's submissions)

MEMBER:

Knight IC

HEARD AT:

Brisbane

ORDER:

The application is dismissed. 

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – Applicant employed as Business Support Officer – discipline procedure commenced under Public Service Act 2008 – disciplinary finding that Applicant removed IT items from workplace for private use – further finding Applicant accessed and distributed confidential information – misconduct – contravention of Code of Conduct – disciplinary decision of dismissal – whether allegations can be substantiated – whether conduct can be characterised as misconduct under the PS Act – whether conduct contravened Code of Conduct – whether dismissal harsh, unjust or unreasonable – whether employee was warned – dismissal not harsh, unjust or unreasonable – application dismissed

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 316, s 317 

Public Service Act 2008 (Qld) s 187

Code of Conduct for the Queensland Public Service

CASES:

Bostik (Australia) Pty Ltd v Geogevski (No 1) 36 FCR 20

Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914

The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067

Wang and Crestell Industries Pty Ltd (1997) 73 IR 454

APPEARANCES:

Ms K Godfrey, the Applicant, in person

Mr C Hurren of the Public Safety Business Agency, for the respondent

Reasons for Decision

  1. [1]
    Ms Kristie Godfrey, a Business Support Officer (AO3) with the Public Safety Business Agency (PSBA), was dismissed from her employment following a show cause and disciplinary process. 
  1. [2]
    At the conclusion of the disciplinary process, the PSBA determined several allegations had been substantiated, noting Ms Godfrey:
  1. Removed PSBA property (including an Acer tablet, a Dell laptop computer, a laptop bag, a Dell keyboard (in packaging) and an Acer Pro dock (in packaging)) from the workplace, for her personal use without authorisation; 
  1. Had in her possession, without authorisation, an iPad belonging to the PSBA/ Queensland Police Service (QPS);
  1. Accessed and distributed confidential information without authorisation;
  1. Engaged in an inappropriate and expletive-laden exchange in an elevator while a uniformed police officer was present; and 
  1. Contacted and approached Senior Management on two occasions, requesting that a position be manufactured for her at the QPS Academy.
  1. [3]
    Ms Godfrey's employer determined she was guilty of misconduct, pursuant to section 187(1)(b) of the Public Service Act 2008 (the PS Act) for all allegations other than those set out at points Four and Five above.
  1. [4]
    In respect of points Four and Five above, Ms Godfrey's employer maintains she contravened, without reasonable excuse, a standard of conduct under the Code of Conduct for the Queensland Public Service (Code of Conduct), namely:

1.5 Integrity and Impartiality – Demonstrating a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

  1. [6]
    Ms Godfrey argues her dismissal was unfair on the basis that the investigation, disciplinary process and eventual decision to bring her employment to an end were infected with significant flaws. 
  1. [7]
    Notably, she argues one of her supervisors gave her permission to remove two laptops from the workplace for her personal use at home. Ms Godfrey contends the decision to terminate her employment was also harsh, in circumstances where the PSBA failed to consider the consequences of the dismissal and the impact on Ms Godfrey's personal, health and financial situation.
  1. [8]
    Ms Godfrey is seeking:
  • reinstatement to an AO3 position within the QPS;
  • the deletion of the disciplinary findings from her employment record;
  • compensation of $25,000; 
  • compensation for 'stress and anxiety the PSBA have put me through…'; and
  • payment of lost remuneration from the date of dismissal.
  1. [9]
    Ms Godfrey carries the onus of proving her dismissal was harsh, unjust or unreasonable. Section 320 of the Industrial Relations Act 2016 (IR Act) sets out the factors the Commission must consider in the determination of whether a dismissal is unfair.
  1. [10]
    In cases involving a dismissal because of serious misconduct or alleged criminal conduct, it falls to the respondent to establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct that formed the basis for the dismissal.[1] The principles in Briginshaw v Briginshaw[2] are relevant in the Commission’s consideration of this issue. 
  1. [11]
    Therefore, the questions the Commission must determine in this matter are:
  • Are Allegations One, Two and Three, which led to Ms Godfrey's dismissal, able to be substantiated? 
  • Is Ms Godfrey guilty of misconduct?
  • Did Ms Godfrey contravene the Code of Conduct in respect of Allegation Four?
  • Was Ms Godfrey provided with an opportunity to respond to the allegations about her conduct?
  • Was Ms Godfrey notified of the reason for dismissal?
  • Are there any other relevant matters the Commission should consider?
  • Was Ms Godfrey's dismissal harsh, unjust or unreasonable?
  • If yes, what remedy should be ordered?

Are the allegations which led to Ms Godfrey's dismissal able to be substantiated?

  1. [12]
    The four allegations which were substantiated and formed the basis for Ms Godfrey's eventual dismissal were: 

Allegation 1

That you removed, without authorisation, items from the Information Technology Support Unit based at the Queensland Police Service (QPS) Academy during 2014-2015. On searching your premises the Queensland Police Service (QPS) found you were in possession of items including an Acer tablet, a Dell Laptop computer, a Laptop bag, a Dell Keyboard (in packaging) and an Acer Pro Dock (in packaging). 

Allegation 2

That you had in your possession, without authorisation, an iPad belonging to the PSBA/QPS (this item was returned to the Public Safety Business Agency staff at your suspension meeting on 11 October 2017). 

Allegation 3

You accessed and distributed confidential information without authorisation, a summary of the particulars is as follows:

  1. (a)
    You accessed confidential performance improvement planning information relating to [an employee*]. The QPS have advised the PSBA you made admissions to this in your interview held 14 October 2017. In your interview you stated that you had obtained the documents from the Executive Support mailbox and forwarded it to Mr Neil Sluyters for personal reasons but realised you should not have forwarded it on.
  1. (b)
    You accessed confidential Establishment Management Committee documentation and forwarded this to [an employee*]. 
  1. (c)
    You accessed and distributed the Information Technology (IT) access details for [an employee*]. Attachment 3 is a copy of an email dated 27 July 2017 from you to [another employee*] containing [the employee's*] IT access details. This action represents a breach of the "Authority to operate as a QPS desktop environment systems administrator" which you signed on 16 June 2009.

Allegation 4

On several occasions you have failed to demonstrate a high standard of workplace behaviour and conduct, and show courtesy and respect, the particulars are as follows:

  1. (a)
    On 25 September 2017 you engaged in an expletive-laden exchange with a colleague within a lift at QPS Headquarters. This was witnessed by uniformed police officer. You allegedly stated "that was just bullshit, the fucking PSBA will be disbanded soon".
  1. (b)
    On 11 September 2017 you contacted [an employee*], asking him to approach Mr Gregg Watts to manufacture a position for you at the QPS Academy and further offering to cease all communication should this be progressed. 
  1. (c)
    On 28 August 2017 you emailed the Chief Operating Officer at the PSBA stating "I believe it is within your power to create and place me in an IT position at Oxley Police Academy". [3]

*Employee names have been redacted in my reproduction. 

Removal of PSBA property: Allegations One and Two

  1. [13]
    Following the receipt of concerns that Ms Godfrey had been inappropriately accessing and disseminating confidential information, Ms Godfrey's work computer transactions were reviewed by her employer, the PSBA. During this process, evidence that Ms Godfrey had potentially removed PSBA ICT assets from the workplace was identified. 
  1. [14]
    The PSBA contacted the QPS who commenced a criminal investigation into allegations of theft and the potential possession of stolen property, which included items located at Ms Godfrey's private residence following the issue of a search warrant. On 1 November 2017, Ms Godfrey notified the PSBA that she had been charged by the QPS with one charge of fraud.[4]
  1. [15]
    The particulars of the removal of the PSBA property are summarised in paragraph [12] above. It is alleged that Ms Godfrey removed without permission, and retained in her possession, the following:
  • Acer tablet;
  • Dell laptop computer;
  • Laptop bag;
  • Dell keyboard (in packaging);
  • Acer Pro dock (in packaging); and
  • iPad.

Evidence

  1. [16]
    In support of her application, Ms Godfrey tendered a statutory declaration during the proceedings, in addition to a bundle of documents which was agreed with the Respondent prior to the commencement of the hearing.[5]
  1. [17]
    Included in the agreed bundle were a series of show cause materials which also encompassed a synopsis of an interview that took place between Ms Godfrey and two police detectives, following the discovery of PSBA property in her home.
  1. [18]
    The witness statements of Mr Damien Davies-Crampton, Project Manager and Mr Christos Maliahovas, Senior IT Officer, were also included in the show cause materials. Neither Ms Godfrey, nor the PSBA, called Mr Davies-Crampton or Mr Maliahovas as witnesses during the proceedings. 
  1. [19]
    Ms Godfrey sought at the conclusion of her case to tender some additional emails, which were not attached to her original statutory declaration and which, as best I understand it,

were not disclosed to the PSBA in accordance with the Directions Orders relevant to this proceeding.

  1. [20]
    A representative from the PSBA objected to the emails being tendered, arguing Ms Godfrey had ample opportunity to include the emails with her statutory declaration or a witness statement prior to the matter being heard and in accordance with the Directions.
  1. [21]
    Although I had some sympathy for the PSBA’s concerns, I allowed Ms Godfrey to tender the emails in circumstances where she was self-represented and intimated that she did not fully understand the processes leading up to the hearing. 
  1. [22]
    Ms Godfrey did not provide any meaningful evidence during the proceedings as to the context or circumstances in which the emails were drafted, sent or received.
  1. [23]
    For example, it is not clear how the items referred to in the emails are connected, if at all, to the items eventually located at Ms Godfrey's home. The Commission was not provided with a fulsome explanation as to how they were relevant, other than Ms Godfrey's broad claims that the emails demonstrated she was given permission to take items home by her supervisors.
  1. [24]
    As best I can tell from the show cause materials provided to the Commission, Ms Godfrey did not refer to or highlight the existence of the emails during the show cause and disciplinary process. Her position during the proceedings was that her employer should have gone through her emails while the show cause process was on foot, and located them.
  1. [25]
    There is no question that the items which are the subject of Allegation One were located in Ms Godfrey's home by the QPS. Likewise, it is not in contention that Ms Godfrey was in possession of the iPad, which forms the basis of Allegation Two. 
  1. [26]
    The crux of Ms Godfrey's argument is that permission from management for employees to take 'written off' machines home for private use was commonplace when she worked at the Oxley Police Service Academy (the Academy).
  1. [27]
    Her employer's position is that it is inconceivable, given her length of service with the PSBA and the QPS, that Ms Godfrey was not aware of the Code of Conduct in relation to the personal use of public resources. Further, that it is unable to accept Ms Godfrey was not aware of the inappropriateness of removing items from the workplace for personal use.
  1. [28]
    Ms Godfrey confirmed she worked at the Academy for a period of a year and a half before moving to a position in Kedron. The role of the unit in which she worked was to provide on-site support for the Academy, which extended to the provision of software and hardware.
  1. [29]
    Ms Godfrey’s responsibilities included the renewal, refreshing and disposal of IT equipment, which included computers and various accessories.
  1. [30]
    Mr Davies-Crampton was the supervisor of the unit. He was based at Police Headquarters at Roma Street, Brisbane and would attend the Academy around once a week to deal with staffing and other operational issues. When Mr Davies-Crampton was unable to visit the academy, the 2IC of the unit, Mr Maliahovas would attend in his place.
  1. [31]
    The process for the disposal of computer hardware involved the retrieval of the item and its relocation into a storeroom for a minimum of two weeks.  According to Mr Maliahovas' witness statement, which was tendered as part of Exhibit 3 and the show cause materials, the hard drive of the computer would be wiped, and the PC and serial numbers would then be forwarded to a coordination team to be recorded.
  1. [32]
    The asset numbers of the machines would be added to a spreadsheet, which would be approved by the Director. A contracted buyer of used computer hardware would then collect the items, marking them off the relevant sheet as they were received.   
  1. [33]
    Ms Godfrey's evidence to the Commission was that although she was aware policies surrounding the disposal of ICT equipment existed, she was never specifically directed to the relevant provisions.[6]
  1. [34]
    Separately, Ms Godfrey confirmed she was not aware of any policies that provided for computers to be written off and taken home for personal use.
  1. [35]
    Ms Godfrey acknowledged she undertook Code of Conduct training approximately every two years. She considered she would have undertaken the training on at least four or five occasions while working for the PSBA and the QPS.[7]
  1. [36]
    Her evidence to the Commission was that the computers discovered at her house were taken home with the permission of her supervisor, Mr Chris Maliahovas. In crossexamination, Ms Godfrey said:

MR HURREN: Okay. And to get right to the heart of the matter, it's your contention that your supervisor had told you that they were going to write off computers - - -?

APPLICANT:  ---Correct.

MR HURREN: - - - PCs and laptops and that you could take them home and they'd be yours forever for personal use?---

APPLICANT: Yes. Because he had done so himself.[8]

  1. [37]
    Earlier, in a show cause response dated 22 November 2017, Ms Godfrey acknowledged she was aware that taking equipment home was not in accordance with disposal procedures, noting:

I was given permission to take these items by Chris Maliahovas, when I was working at the Oxley Police Academy. He gave me verbal permission and assured me that would "write them off" in Equipment Manager for me to use at home.

This was not in accordance with disposal procedures, however Chris assured me it was OK to do so…

(my emphasis).

...

They were for my own use and I thought that it was ok to take them as they were out of warranty and were going to be disposed of, and I was given permission by, and with the knowledge of my superiors to have them for my own use.[9]

  1. [38]
    In cross-examination, Ms Godfrey was asked why she initially recognised her actions were not in accordance with procedures during the show cause process, but later changed her position during the unfair dismissal proceedings. Ms Godfrey's response was, "…that was on advice from the union to write that."[10]
  1. [39]
    In cross-examination, Ms Godfrey appeared to maintain it was reasonable for an employee to take home a computer which was no longer of any value or use to anyone, but she later acknowledged that people should not be doing it, noting she did not know any better at the time.  
  1. [40]
    In response to Allegation One, Ms Godfrey's evidence was that she originally asked her supervisor, Mr Maliahovas, if he could "write off" an Acer laptop. She provided no details as to how and when the request was made.
  1. [41]
    Around the same time, Ms Godfrey recalled asking Mr Maliahovas if he had any Dell laptops which were 'set for disposal'. According to Ms Godfrey, her reasoning was that Dell laptops performed better than Acer laptops and there were not any located at the Academy.
  1. [42]
    Ms Godfrey told the Commission that Mr Maliahovas handed her a Dell laptop a few days later when he returned to the Academy. According to Ms Godfrey, he also advised

her to take the other Acer laptop home, which had been the subject of their earlier discussions. Ms Godfrey's evidence was this occurred in 2015 or 2016.

  1. [43]
    In the same period, she recalled Mr Sluyters was directed to put up a sign outside the library saying 'Take me' in respect of laptop bags that had come out of a box in the storeroom and were going to be thrown out. As best I understand it, Ms Godfrey's evidence is that the laptop bag discovered at her house by the police was one of the laptop bags placed outside the library.
  1. [44]
    Likewise, Ms Godfrey told the Commission her supervisor gave her permission to take home a Dell keyboard. She explained that within her workplace there were stacks of keyboards stored on shelves. Ms Godfrey's view was the keyboards were not an asset, but later acknowledged they were still the property of the State.
  1. [45]
    In the synopsis of her QPS interview, Ms Godfrey was reported as saying she acquired the Dell keyboard in the same way as the laptop bag. That is, it was going to be thrown out anyway, so she took one home. During the interview, she was recorded as being unable to provide a reason as to why a decision was made to throw out new equipment.
  1. [46]
    Ms Godfrey told the Commission that the Acer tablet discovered at her house was originally found by a recruit who was cleaning up the storeroom.
  1. [47]
    According to Ms Godfrey, Mr Sluyters told her the tablet was only going to end up in the bin. Ms Godfrey told the Commission that she suggested to Mr Sluyters she would have a go at fixing it, so that he could use it to scan barcodes, instead of writing them down for disposal.
  1. [48]
    When questioned as to how the tablet ended up at her house, Ms Godfrey explained she had put it in her car when she was moving workplaces from Oxley to Kedron in around October 2016. 
  1. [49]
    Ms Godfrey was transferred to Kedron from the Academy after she was unsuccessful in obtaining an AO4 position, during an Expression of Interest process for a series of ‘uplifted’ roles. 
  1. [50]
    She said the tablet was sitting in the back of her car just before she had a car accident in around May 2017. She explained that she didn’t trust tow truck drivers, so on the day of the accident she decided to remove the Acer tablet, along with some other items from her car, which is how it came to be at her house when the police undertook a search. 
  1. [51]
    Ms Godfrey told the Commission she intended to give it to Mr Sluyters when she saw him next.   
  1. [52]
    In relation to the Acer dock, which was also found in its packaging, Ms Godfrey said she asked her supervisor if she could take one home. Separately, she recalled a conversation with Mr Davies-Crampton who had told her the Acer docks were being thrown out.
  2. [53]
    In a synopsis of her interview with the QPS, Ms Godfrey is recorded as noting the Acer docks were going to be thrown out and it could save her some money on having to purchase one herself.  Ms Godfrey maintained she was given permission to take home the Acer dock. She is recorded as acknowledging her actions could be perceived as being dishonest, but insisted she had permission. 
  1. [54]
    Ms Godfrey also sought to rely on the evidence of Mr Neil Sluyters, Information Technology Officer, Oxley Police Academy. Mr Sluyters, while not her supervisor, was an AO4 at the time Ms Godfrey was an AO3 at the Academy.
  1. [55]
    Mr Sluyters confirmed he was aware of the policies dealing with the disposal of IT equipment. He explained the process to the Commission, noting that where a machine was due to be swapped out, it would be recovered from its location, and he would run a 'security wipe disc on them'.
  1. [56]
    Depending on the outcome of the security test, the hard drive would have to be removed. The items for disposal would then be placed on a list and then provided to the relevant contracted disposal supplier. Hard drives would be shredded.  Mr Sluyters confirmed his understanding that it was not permissible to take computers home.
  1. [57]
    Mr Sluyters told the Commission that there was talk in the office regarding selling RAM from PSBA PCs to fund a staff Christmas party, but could not confirm whether this eventuated.[11]
  1. [58]
    While giving his evidence, the following exchange took place between Mr Sluyters and Ms Godfrey: 

APPLICANT: Okay. So in relation to the disposal process, to your knowledge, has there been any bending of the rules?---

MR SLUYTERS:   You'll have to be more specific in - - -

APPLICANT:   Taking items home for personal use, written off?---

MR SLUYTERS:   Not the academy.[12]

  1. [59]
    In cross-examination, Mr Sluyters considered it would be 'fair to say' that Ms Godfrey would have been aware that ICT assets were not to be taken home for personal use.[13]
  1. [60]
    Neither Mr Davies-Crampton nor Mr Maliahovas were called by either party to give evidence during the proceedings. In those circumstances it was difficult to test or weigh up the evidence of either supervisor, so I have approached the witness statements with some caution.
  1. [61]
    In show cause documentation tendered during the proceedings, Mr Maliahovas is reported as stating he recalled occasionally providing Ms Godfrey permission to take a laptop home for the purposes of performing work from home, but that she was not given permission to take the other items home.
  1. [62]
    Mr Davies-Crampton is said to have recalled that "staff would occasionally request to take computers 'marked for disposal' home, however no permission was ever given for devices marked for disposal to be taken home, to keep." (my emphasis)[14]
  1. [63]
    Ms Godfrey's position during the proceedings was that both Mr Davies-Crampton and Mr Maliahovas lied when providing their witness statements. 
  1. [64]
    Ms Godfrey continued to insist during her interview with the police, the show cause process and the proceedings before the Commission, that she received permission to take the items detailed in Allegations One and Two to her home. In support of those claims, Ms Godfrey provided the Commission with six emails towards the end of her case.  
  1. [65]
    In my view, there is only one email within the bundle that potentially highlights an arrangement or agreement whereby a supervisor is providing permission to Ms Godfrey to take a computer home:

Sent: Monday, 16 May 2016 4:40PM

...

Subject: RE: PC for write off – PC5151451 – For Kristie  

I'll add it to the list.

Chris Maliahovas

Sent: Monday, 16 May 2016 9:16AM

...

Subject: PC for write off – PC515451 – For Kristie

Hi Chris

Is there any chance that you can "write off" PC515451 please?

I would like to take it home, as our main PC at home has just died. I have removed the hard drive out f it and will put one of ours in it at home.

It is an I7 with spec'd up ram and another video card.

Thanks heaps if you can do this for me...

KRISTIE GODFREY[15]

  1. [66]
    As best I understand it, the email was not provided to the PSBA during the show cause process. There is no evidence before the Commission which provides the context or circumstances in which the computer was written off or any terms under which it was agreed Ms Godfrey was able to take the computer home. 
  1. [67]
    It is also not clear from the email whether the computer referred to in Ms Godfrey's email was one of the computers located in her home, as detailed in Allegation One.

Allegation Two

  1. [68]
    In respect of Allegation Two, Ms Godfrey told the Commission Mr Maliahovas provided her with an iPad while she 'was at the Academy, for use 'out there' noting: 

COMMISSIONER: I think that the issue from the PSBA's perspective is that it wasn't returned. What's the situation there?

APPLICANT: ... And I mentioned to Chris, in passing through the hallway, "I've still got the iPad. What do you want me to do with it?" He said, "Just keep it until we need it. Nobody's in urgent need of it." So that stayed with me.[16]

  1. [69]
    Ms Godfrey's response to Allegation Two in earlier show cause correspondence was slightly different, where she noted:

Chris Maliahovas knew that I had the iPad and at any stage could have requested it back. Chris knew of my whereabouts and that I had changed areas and I often saw Chris at PHQ and he said nothing about having it back. It was an older iPad and higher employees only wanted the newest and latest technology, so therefore there was no one to my knowledge, that wanted or needed an iPad. I would have gladly handed it back if asked or directed to earlier than at the time of my suspension. I handed the iPad back at the time of my suspension as it was PSBA property and I am not a thief.[17] 

  1. [70]
    In the synopsis of her interview with the QPS, Ms Godfrey was recorded as being unable to provide a reason for why the iPad was not returned after she left the Academy, but she continued to insist during the interview that Mr Maliahovas knew she had the iPad.
  1. [71]
    The record of the interview with Ms Godfrey noted the iPad had personal apps on the device, along with Ms Godfrey's iTunes account. Further, that the SIM in the iPad was being paid for by 'the organisation'. Although Ms Godfrey is recorded as saying she used her own home Wi-Fi when possible, the interview record included the following note:

...(NB a review of the settings on the device shows the device is not set up for any WIFI network).[18]

  1. [72]
    During the proceedings, Ms Godfrey did not take issue with the synopsis of the QPS interview in so far as it related to her comments about the iPad or the ACER tablet.
  1. [73]
    According to the show cause material tendered during the proceedings, Mr Maliahovas recalled providing permission for Ms Godfrey to take an iPad home to familiarise herself with the workings of a new program, so she was able to respond to queries in her role at the Academy. 

Are Allegations One and Two, in so far as they relate to the removal of PSBA property without authorisation able to be substantiated?

  1. [74]
    Clause 4.3 of the Code of Conduct is headed 'Ensure appropriate use of official resources, public property and facilities' and states: 

We are accountable for all resources that we use in the course of our duties. 

We will: 

  1. be economical, and avoid waste and extravagance in the use of public resources for proper purposes 
  2. use any public resource in accordance with official policies 
  3. purchase, manage and care for public resources in accordance with official policies, and 
  4. responsibly utilise human assets such as corporate knowledge and intellectual property, as public resources.
  1. [75]
    The PSBA Information Technology policy, Asset Management and Disposal Policy, is a protocol that applied to Ms Godfrey's employment. Relevantly, it sets out:

Asset Disposal

Disposal of assets must be performed in a manner that ensures no sensitive information is exposed. 

Formal procedures must exist for the disposal of assets including media. 

Disposal of computer systems and media must comply with environmental guidelines.

Disposal of Hardware Assets

  • Hardware assets must be checked prior to disposal to ensure that any sensitive data and licensed software has been removed or securely overwritten;
  • The presence of internal disks must be checked when disposing of multifunction devices. An internal disk should be removed or overwritten before disposal; 
  • Hardware assets to be disposed of externally are to be handled using an approved third party provider; 
  • The asset register must be updated accordingly.

...

Secure Transfer

  • Assets awaiting destruction must continue to be managed according to their classification markings. They must be clearly marked as awaiting disposal and held in appropriate storage until either destroyed internally, or sent to a third party for destruction; 
  • A clear record of authorisation and handover (as necessary) of the assets to a third party must be retained, detailing by reference what was disposed of and on what date; 
  • For bulk asset removal, the summary should include the number of boxes released and/or its weight;
  • Proof of destroyed records should be held indefinitely and at least as long as may be required to meet all legal, regulatory and business requirements. Such documentation can provide evidence that disposal has taken place in a timely and proper manner. 
  1. [76]
    As the hearing of this application unfolded, the reliability of Ms Godfrey's evidence increasingly became an issue. 
  1. [77]
    At times she presented as being frustrated that several work colleagues had, in her view, gotten away with taking items home, in circumstances where she did not. Her account of how she was given permission to retain certain items, varied somewhat from previous responses provided in her show cause material. At times, her explanations were not entirely clear or convincing.  
  1. [78]
    On occasion, she was quick to attribute blame elsewhere and appeared to be unable or unwilling to comprehend or accept the meaning and significance of both the Asset Management and Disposal Policy and Clause 4.3 of the Code of Conduct, in so far as it related to the use of public resources, continuing to insist that if items were being thrown out, then it made sense (at the time) that she could take them home for her personal and private use. 
  1. [79]
    In relation to Ms Godfrey’s email exchange with Mr Davies-Crampton, it is not possible to determine whether Ms Godfrey was provided with permission to 'keep' the computer or if it was a temporary arrangement while her home computer was being replaced. 
  1. [80]
    It is also unclear as to whether the computer referenced in the email is one of the items located in Ms Godfrey’s home. The Commission did not have the benefit of hearing from Mr Davies-Crampton as to what had taken place and Ms Godfrey did not include any commentary about the emails in her statutory declaration.[19]
  1. [81]
    On balance however, notwithstanding the evidentiary challenges the Commission is presented with, I am prepared to accept there is material before the Commission that suggests that in one instance, Mr Davies-Crampton acquiesced to a request from Ms Godfrey to write off a computer she intended to use in her home.  
  1. [82]
    Although I am prepared to accept it is possible there may have been occasions where staff were given permission by a supervisor to take a computer home for work purposes, or in the case of Ms Godfrey, to assist her at a time when her home computer had 'died', the evidence before the Commission does not support her claims there was a widespread culture of employees regularly taking multiple 'written off' machines to keep for their own private use. 
  1. [83]
    In any event, the relevant policy and processes did not provide for such an arrangement.
  1. [84]
    I am not persuaded, on the materials before the Commission, that the environment or culture at the Acadmey was such that Ms Godfrey's supervisors gave her permission to take all the items, which are the subject of Allegation One, for her own ongoing private use. 
  1. [85]
    I am satisfied Ms Godfrey did not have permission to take an iPad home when she left the Academy. On her own evidence, it is clear she failed to return the device to the Academy, instead, retaining it for her own use. 
  1. [86]
    When she departed from the Academy, Ms Godfrey no longer worked in the same role, or reported to Mr Davies-Crampton or Mr Maliahovas.  I am unable to accept an arrangement existed whereby she was provided with permission to retain the device indefinitely. 
  1. [87]
    In my view, it was incumbent on Ms Godfrey to return the device, particularly in circumstances where, as best I understand it, the cost of the SIM within the device continued to be absorbed by the PSBA and it was clearly an asset of her employer. The device was only returned at the commencement of the disciplinary proceedings.
  1. [88]
    It is also clear on her own evidence that Ms Godfrey did not have permission to take the Acer tablet. I am not persuaded she intended to return it to Mr Sluyters when she next ran into him. 
  1. [89]
    While giving his evidence, there was an opportunity for Mr Sluyters to confirm Ms Godfrey’s account that there was a culture of allowing staff to take home written off computers. Instead, his evidence indicated he considered there was no 'bending of the rules' at the Academy. [20]
  1. [90]
    Likewise, there was an opportunity for Mr Sluyters to confirm Ms Godfrey's account in respect of the Acer tablet, yet no evidence in respect of his alleged encouragement at the time that she took the tablet was forthcoming. 
  1. [91]
    In any event, the Acer tablet was clearly the property of her employer. Mr Sluyters was not Ms Godfrey's supervisor, nor did he have any authority to allow her to take the device to her home. 
  1. [92]
    Even if I accept that one of the laptops located in Ms Godfrey’s house was taken home with approval, the challenge Ms Godfrey has with her application is that I don’t accept she was given permission to take home the iPad or the Acer tablet, to keep for her own private purposes. 
  1. [93]
    The evidence suggests Ms Godfrey’s decision to retain the iPad and the Acer tablet was quite deliberate, rather than an innocent mistake or an error of judgement. She continued to hold onto these devices despite no longer working in her role with the Academy. She had ample opportunity to return the items.
  1. [94]
    While I am prepared to accept that there may have been old accessories that were thrown out from time to time, including the laptop bag, or an old keyboard, I am not persuaded Ms Godfrey received permission to take an Acer dock or a Dell keyboard (both unused and in their packaging) to her home, for her own private use. 
  1. [95]
    Even if I was found to be wrong in respect of my findings about the individual items which formed the basis of Allegations One and Two, and it was the case that Ms Godfrey was provided with some form of tacit or direct permission from a supervisor, the other difficulty I have with her application is the Asset Disposal and Management policy in combination with Clause 4.3 of the Code of Conduct provides limited, if any scope, for a situation where her supervisors could provide permission for staff to take items from the Academy, to keep for their own private use. 
  1. [96]
    The only person who was able to formally authorise the disposal of physical IT hardware and the removal of an asset from the register was the relevant Director of the unit. Neither Mr Davies-Crampton nor Mr Maliahovas held the position of Director.  
  1. [97]
    Given Ms Godfrey's length of service and the extent of her training in relation to the Code of Conduct, I am unable to accept she was unaware of her basic obligations in respect of Clause 4.3 of the Code of Conduct and the Asset Disposal and Management policy.  
  1. [98]
    Likewise, in circumstances where several core aspects of Ms Godfrey's role while located at the Academy revolved around the refreshing and disposal of IT assets, I am unable to accept she was so unfamiliar with the processes set out in the policy and the Code of Conduct, that she was not aware that taking items home for her private use was unacceptable. 
  1. [99]
    Ms Godfrey acknowledged as much in her initial show cause response, when she originally confirmed her understanding that 'this was not in accordance with disposal procedures…'.    
  1. [100]
    In those circumstances, I consider the decision by the PSBA to substantiate Allegations One and Two was formed on reasonable grounds. 
  1. [101]
    The conclusions reached by the PSBA followed an investigation undertaken by the QPS. The PSBA, as part of the show cause process, also considered information obtained by the QPS. I am satisfied the information obtained by QPS during its investigation was properly conveyed to the PSBA, pursuant to section 10.2 of the Police Service Administration Act 1990.
  1. [102]
    Ms Godfrey’s decision to remove these items from the workplace, which were the property of her employer, and take them to her house for her own private use, was a deliberate departure from the accepted policies and expectations of the PSBA and was inconsistent with her training and the requirements set out in the Code of Conduct at Clause 4.3.

Do the substantiated allegations satisfy the definition of misconduct under the PS Act?

  1. [103]
    In her employment as a Business Services Officer, the PS Act applies to Ms Godfrey. Relevantly, it provides:

187 Grounds for discipline

  1. (1)
    A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (b)
    been guilty of misconduct; or

...

  1. [104]
    The Respondent's case is that the substantiated allegations formed the basis of Ms Godfrey's dismissal as she was guilty of misconduct, pursuant to s 187(1)(b) of the PS Act.
  1. [105]
    Section 187(4)(a) of the PS Act relevantly defines ‘misconduct’ as ‘inappropriate or improper conduct in an official capacity.’ 
  1. [106]
    I am not persuaded that Ms Godfrey's conduct in respect of the removal of PSBA assets could be characterised as an error of judgment, an innocent mistake or mere negligence.[21]
  1. [107]
    For the reasons set out above, I am satisfied Allegations One and Two can be characterised as misconduct for the purposes of the PS Act. In my view, Ms Godfrey has engaged in improper conduct in an official capacity. 

Access and dissemination of confidential information without authorisation: Allegation Three

  1. [108]
    The circumstances of Allegation Three are detailed in paragraph [12] above. It was alleged Ms Godfrey, through her role in IT support, had on three separate occasions accessed, without authorisation, confidential information relating to PSBA employees and disseminated the material to third parties who were not authorised to have that information.

The Evidence

  1. [109]
    Other than her show cause response, there was very limited evidence before the Commission in respect of Allegation Three.
  1. [110]
    In her show cause response dated 29 January 2018, Ms Godfrey acknowledged she had accessed confidential information which included performance improvement planning material related to another employee. She conceded she forwarded the material onto Mr Sluyters who she had previously worked with at the Academy.
  1. [111]
    By way of explanation, Ms Godfrey explained that when she had previously worked with the person (who was the subject of the performance improvement plan), she had been aware of some issues with his performance and had been merely letting Mr Sluyters know that their former colleague was 'up to his old tricks again'.
  1. [112]
    Ms Godfrey was at pains to highlight that as best she understood, Mr Sluyters did not forward the material onto others. She acknowledged, having revisited the Code of Conduct, that she had engaged in inappropriate behaviour and apologised for her actions.
  1. [113]
    Likewise, Ms Godfrey conceded she accessed confidential 'Establishment Management Committee' documentation, which she then forwarded to another colleague, with the goal of apprising the recipient that some permanent roles may be created in the future. 
  1. [114]
    In her defence, Ms Godfrey stated that she had not received any training for the position and had not been advised that the information in the business email address was confidential. 
  1. [115]
    In response to a separate incident which also formed part of Allegation Three, Ms Godfrey acknowledged she accessed and forwarded Information Technology access details for a co-worker onto another colleague.
  1. [116]
    By way of explanation she stated that she was merely highlighting the preferential treatment staff received, depending on their relationships with more senior staff.   

Is Allegation Three, as it relates to the access and dissemination of confidential information able to be substantiated?

  1. [117]
    It was alleged Ms Godfrey, through her role in IT support, had on three separate occasions accessed, without authorisation, confidential information relating to PSBA employees and disseminated the material to third parties not authorised to have that information.
  1. [118]
    In circumstances where Ms Godfrey has acknowledged the conduct occurred as detailed within the Allegation, I consider all three parts of the Allegation are able to be substantiated. 

Is Ms Godfrey guilty of misconduct in respect of Allegation Three?

  1. [119]
    Section 187(4)(a) of the PS Act relevantly defines ‘misconduct’ as ‘inappropriate or improper conduct in an official capacity.’ 
  1. [120]
    Clause 4.4 of the Code of Conduct is titled 'Ensure appropriate use and disclosure of official information, and states:

The public has a right to know the information that is created and used by the government on their behalf. This right is balanced by necessary protections for certain information, including personal information. 

Information privacy legislation protects against the misuse of personal information and we have an obligation to ensure the lawful collection and handling of personal information. 

In addition, we will : 

  1. treat official information with care and use it only for the purpose for which it was collected or authorised 
  2. store official information securely, and limit access to those persons requiring it for legitimate purposes, and 
  3. not use confidential or privileged information to further personal interests 

We will continue to respect the confidentiality of official information when we leave public service employment.

(my emphasis)

  1. [121]
    When she was provided with authority to operate as a QPS Desktop Environment Systems Administrator in mid-2009, Ms Godfrey signed a declaration which accompanied an annexure titled 'Conditions Under Which Authority is Given.'[22]
  1. [122]
    Clause 9 of the annexure notes:

I confirm that any information I observe will be treated with utmost confidentiality. I will not discuss, release or cause to be released, any information with any third party either internal or external to QPS, in accordance with the Police Service Administration Act and QPS Policy.[23]

(my emphasis)

  1. [123]
    In signing the declaration, Ms Godfrey acknowledged:

…that any carelessness or abuse of the privileges that I have been given will be regarded as a serious breach of discipline, potentially attracting significant consequences and penalties.[24]

  1. [124]
    Given the nature of her role and her extensive period of employment within IT related roles, I do not accept Ms Godfrey was unaware of her obligations in respect of accessing and disseminating confidential information to third parties.
  1. [125]
    Having accessed and obtained the information without reason or authority, Ms Godfrey breached her obligations in respect of confidentiality, deliberately forwarding the material onto other colleagues within the PSBA. 
  1. [126]
    In my view, the dissemination of confidential performance improvement materials about a co-worker was particularly unkind and concerning, as was the distribution of another colleagues’ IT access details to a co-worker. 
  1. [127]
    Ms Godfrey’s show cause response in respect of Allegation Three focussed heavily on her view that the materials she had accessed and forwarded had not then been onforwarded to others by the original recipients. With respect, this submission appears to miss the point. Ms Godfrey should not have been accessing and forwarding confidential information in the first instance. I don’t accept she was unaware of the requirements in terms of keeping information confidential.  
  1. [128]
    I also do not consider the explanations provided by Ms Godfrey as to why she engaged in the conduct to be satisfactory.  I am also not persuaded the events substantiated as part of Allegation Three could be characterised as an error of judgment, an innocent mistake or mere negligence.
  1. [129]
    I am satisfied Ms Godfrey engaged in inappropriate conduct in an official capacity when she abused her access privileges to access and disseminate confidential information about PSBA staff and its operations. 

Did Ms Godfrey contravene the Public Service Code of Conduct in respect of Allegation Four?

  1. [130]
    Allegation Four consists of three separate incidents where it is alleged Ms Godfrey failed to demonstrate a high standard of workplace behaviour and conduct, and show courtesy and respect, namely:
  1. (a)
    Engaging in an expletive-laden exchange in an elevator while a uniformed police officer was present;
  1. (b)
    Contacting Mr Dean Phillips asking him to approach Mr Greg Watts to manufacture her a position at the Academy and further offering to cease all communication should this be progressed;
  1. (c)
    Emailing the Chief Operating Officer of the PSBA stating "I believe that it is within your power to create and place me in an IT position at Oxley Police Academy". 

The Evidence

  1. [131]
    Other than the show cause materials, Mr Marsden’s affidavit and Ms Godfrey's statutory declaration, which included what could be best described as an explanation about the circumstances that led her to undertake the actions described at Allegation 4 (b) and (c), there were no further materials provided to the Commission relating to Allegation Four.
  1. [132]
    In respect of Allegation 4 (a), included within Exhibit 3 was a statement prepared by a Ms Krystle Cash in relation to the incident, where she stated:

On Monday 25th September 2017 after the On Monday 25th September 2017 after the Strategy & ICT Business Services Branch meeting finished at about 1pm I went to the lifts and Kristie Godfrey entered the same lift. A uniformed police officer entered the lift also. 

Kristie began talking to me about the meeting and made the comment;

"that was just b*llsh*t, the f*ck*n PSBA will be disbanded soon"

After she left the lift on level 2, the officer looked at me astounded, I said she must be having a bad day.

I was completely mortified I didn't know what to do or say.

Krystle Cash.[25]

  1. [133]
    Ms Cash was not called to give evidence.
  1. [134]
    In her show cause response, Ms Godfrey advised she did not recall the event, but noted:

If it did occur, I sincerely apologise for my inappropriate and unprofessional actions, and can only put it down to a frustrated outburst of my own opinions.[26]

  1. [135]
    In relation to Allegation 4(b), Ms Godfrey noted that she would have been better served if she had obtained assistance from her union. She does not deny engaging in the conduct, and stated in her response:

I said to him "I would be very happy to be placed back at the Oxley Academy and would be happy to be there for the rest of my life and no one would hear boo from me again", as I would have work/life balance and loved the work and the people at the Academy whom I was working with"[27]

  1. [136]
    It seems the impetus for Ms Godfrey's contact with both Mr Griffin and Mr Phillips was her disappointment in not being appointed to an uplifted position through an Expression of Interest (EOI) process related to her previous role at the Academy, ultimately resulting in Ms Godfrey being transferred into to a different role with the PSBA at Kedron. 
  1. [137]
    Having regard to the commentary in Ms Godfrey's statutory declaration and her email to Mr Griffin, which was included in Exhibit 3, it appears she was unhappy in her role at Kedron. She described feeling as if she had been ‘dumped’ in the role, noting she would prefer to work at the Academy in a similar role to the one she had previously undertaken.
  1. [138]
    Before contacting either Mr Phillips or Mr Griffin, Ms Godfrey claimed to have ‘exhausted all other avenues of managerial support and assistance’, in her quest to raise her concerns about the outcome of the EOI and the role she was placed in. Ms Godfrey considered the issues she had raised were not adequately addressed. 
  1. [139]
    Ms Godfrey maintained she was under the impression Mr Phillips had an open-door policy. She considered there were no restrictions or impediments to her approaching Mr Griffin or Mr Phillips.
  1. [140]
    Ms Godfrey’s position in relation to Allegation 4(c) is that she seized an opportunity to speak with Mr Griffin when they were both attending a Dog Squad event at Police Headquarters in late August 2017. 
  1. [141]
    She recalled raising concerns with Mr Griffin about her role at Kedron. She considered Mr Griffin was interested in her comments. Afterwards, she decided to follow up their conversation with an email, which is when she referred to his capacity to create roles and appoint people directly to roles, explaining:

I believed that my concerns had not been appropriately addressed by immediate Management and therefore I seized the opportunity to speak with the COO when it presented itself, and he had advised me that he would look into it. I then followed up with an email explanation for his consideration on what could possibly be done to assist me, as it was/is my belief as head of PSBA, or even as an Executive Director, had the authority to create and direct appoint people to positions.

I believe that my email to Peter Griffin was professional, respectful and clearly outlined my concerns and requested his consideration on the matter. I had seen that other people had been given considerations and had positions manufactured for them without needing to apply, so why not me, after all it was not a high position and there was the work at Oxley Academy to justify another position there.[28]

  1. [142]
    Having considered materials before the Commission in respect of Allegation 4(a) and Ms Godfrey’s response, on balance, I am satisfied the events occurred in the manner described.  Likewise, there appears to be no question the events set out in Allegation 4(b) and (c) occurred in the manner which was described in the show cause notice. 

Does the substantiated allegation breach the Code of Conduct?

  1. [143]
    The Respondent's case is that the conduct associated with substantiated Allegation Four contravenes s 187(1)(f)(ii) without reasonable excuse, breaching Clause 1.5 of the Code of Conduct:
  1. [144]
    The relevant standards of the Code of Conduct follows:

1.5   Integrity and Impartiality – Demonstrating a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

  1. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
  2. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
  3. ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
  4. ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
  5. comply with legislative and/or policy obligations to report employee criminal charges and convictions
  1. [145]
    I consider Ms Godfrey’s conduct in the lift has been appropriately characterised as her breaching the Code of Conduct, particularly in respect of the standards set out at Clause

1.5(a). 

  1. [146]
    In respect of Allegations 4(b) and (c), I accept Ms Godfrey was dissatisfied with the responses she was receiving from managers with whom she had previously raised concerns about the suitability of her role at Kedron. 
  1. [147]
    I accept she may well have had a legitimate grievance in relation to the suitability of the role and her ongoing job satisfaction. However, the difficulty with the nature of her interaction with Mr Griffin and later, Mr Phillips, is that there are well established practices and processes in place within the Queensland Public Service in respect of the creation of new roles, the recruitment and selection processes for those roles and, the raising of a grievance where an employee is unhappy with a recruitment process or outcome. 
  1. [148]
    In her pursuit of a role at the Academy, Ms Godfrey, despite her length of employment, appears to have had little regard to these processes and practices. On her own evidence, she confirmed that she directly approached senior managers and requested that a position be created. 
  1. [149]
    A better course of action would have been for Ms Godfrey to continue to escalate her grievances through the appropriate channels. 
  1. [150]
    Having been a long-term employee with the Queensland Public Service, who had attended multiple training courses in the Code of Conduct and also applied for various roles during the course of her employment, I am unable to accept Ms Godfrey did not have a basic grasp of the appropriate processes one should follow in the event they wish to raise a grievance about their role or a selection process.  
  1. [151]
    In those circumstance, I consider Allegations Four (b) and (c) are able to be substantiated and characterised as Ms Godfrey contravening, without reasonable excuse, Clause 1.5(a) of the Code of Conduct. I agree with Ms Godfrey’s submission, however, that the contravention is very much at the lower end, in terms of severity.
  1. [152]
    On its own, one can envisage a situation where a reprimand or intervention from a manager at a local level would have been a suitable approach in terms of responding to the conduct. 
  1. [153]
    However, coupled with the other substantiated allegations which were far more serious, the conduct no doubt further contributed to Mr Marsden’s consideration as to whether dismissal was the most suitable disciplinary penalty, having regard to all the circumstances. 

Was Ms Godfrey provided with an opportunity to respond to the allegations about her conduct?

  1. [154]
    Ms Godfrey was suspended on full-pay in mid-October 2017.
  1. [155]
    In a letter dated 20 October 2017, Mr Gregory Watts, Acting Chief Information Officer, Frontline & Digital Services invited Ms Godfrey to show cause in respect to several allegations.[29]
  1. [156]
    In a letter dated 26 October 2017, Ms Godfrey's union representative Mr Alex Smith sought that the 20 October 2017 show cause notice be withdrawn. The letter raised concerns about the initial show cause notice, including:
  • Failure to provide particulars and relevant supporting information in support of the allegations raised;
  • The decision maker may also be a complainant or witness to one of the allegations;
  • PSBA failed to appropriately identify the disciplinary grounds.[30]
  1. [157]
    On 8 November 2017, Ms Godfrey was advised the previous 20 October 2017 notice had been withdrawn. She was issued a new show cause notice. A different decision maker, Mr Kurt Marsden, General Manager, Human Resources, was appointed.[31] The allegations contained in that show cause notice are reproduced in paragraph [12] above.
  1. [158]
    After receiving Ms Godfrey's 22 November 2017 response, Ms Godfrey was advised by Mr Marsden on 2 January 2018 that all four allegations detailed in [12] above had been substantiated. Ms Godfrey was invited to respond to the proposed penalty of termination of employment within 10 days.[32]
  1. [159]
    On 3 January 2018, Ms Godfrey requested an extension of time to reply to the 2 January 2018 show cause notice, in circumstances where her union representative was on leave. Ms Godfrey’s request was granted the same day, extending the time to reply to 19 January 2018.[33] 
  1. [160]
    On 15 January 2018, Mr Smith wrote to Mr Marsden, raising a concern that Ms Godfrey had not yet been provided with the statements from police interviews of Mr Maliahovas and Mr Davies-Crampton.
  1. [161]
    Although it was acknowledged in the letter that Ms Godfrey had received the statements separately, during a concurrent criminal process, Mr Smith sought the show cause notice be withdrawn on the basis that Ms Godfrey had not been provided with copies, during a show cause process relevant to her employment. 
  1. [162]
    It was submitted, the show cause notice should be withdrawn and the finding of liability be rescinded, with Ms Godfrey to be provided an opportunity to respond after receiving the witness statements.[34]
  1. [163]
    On 17 January 2018, Mr Marsden wrote to Mr Smith and advised he had decided to rescind the findings of 2 January 2018. Mr Smith was provided with copies of the relevant witness statements. Ms Godfrey was provided until 25 January 2018 to respond.[35]
  1. [164]
    After receiving Ms Godfrey's response, Mr Marsden advised by correspondence on 1 February 2018 that all four allegations were substantiated.
  1. [165]
    Mr Marsden invited Ms Godfrey to respond to the proposed penalty of termination.[36]
  1. [166]
    In response to Ms Godfrey's 8 February letter, on 6 March 2018 Mr Marsden confirmed a decision to impose the penalty of termination had been made, effective immediately.[37]
  1. [167]
    Although it is clear there were several deficiencies associated with the content and attachments of the initial show cause documentation, I accept the correspondence was rescinded and the errors were adequately addressed by the PSBA once they had been identified. 
  1. [168]
    Having regard to the processes undertaken by the PSBA during the show cause process and the responses provided by Ms Godfrey and her union representative, I am satisfied Ms Godfrey was given an opportunity to respond to all four allegations, prior to her dismissal.

Was the dismissal related to Ms Godfrey's conduct?

  1. [169]
    In the absence of any other evidence suggesting otherwise, and having regard to the allegations, show cause process and the conclusions of Mr Marsden, I am satisfied for the reasons set out above that the allegations were substantiated, and the dismissal related directly to Ms Godfrey's conduct.

Was Ms Godfrey warned about her conduct?

  1. [170]
    As best I can tell, Ms Godfrey was not the recipient of any formal disciplinary action, up until the events which led to her dismissal.
  1. [171]
    A lack of any prior warnings issued to Ms Godfrey is a relevant consideration under s 320 of the IR Act when determining whether a dismissal was harsh, unjust or unreasonable. However, the failure to issue a warning does not automatically lead to a conclusion that a dismissal is unfair, particularly where allegations of serious misconduct are concerned.
  1. [172]
    Ms Godfrey was employed by the PSBA and before that, the QPS for a period of more than eighteen years. Her evidence was she attended at least four and possibly five training courses associated with the Code of Conduct over the course of her employment.
  1. [173]
    I am not persuaded she did not understand the inappropriateness of her actions, particularly when removing and retaining computer items such as an iPad or Acer tablet from the workplace for her own private use, and disseminating confidential material inappropriately obtained in the course of her employment to third parties. 
  1. [174]
    In the latter part of her employment, Ms Godfrey undertook roles in QPS as an IT systems administrator where she was required to sign a declaration which explicitly detailed the conditions associated with system administrator user access. The conditions made it very clear that any information she observed or came upon in the course of her employment as a systems operator, could not be discussed or released with either internal or external third parties.   
  1. [175]
    The PSBA contends Mr Marsden considered the seriousness of the substantiated conduct in relation to Allegations One and Two to be at the higher end of misconduct and fatal to the employment relationship.[38] I agree. I also consider accessing and disseminating confidential information about the performance of a co-worker to a third party, without authority, to be quite a serious matter.
  1. [176]
    That Ms Godfrey was not warned about her conduct, in those circumstances, does not mean her dismissal was unfair.

Are there any other relevant matters the Commission should consider?

Investigation – Flawed, unreasonable and unjust

  1. [177]
    Ms Godfrey argues the investigation was unreasonable for the following reasons:
  1. (a)
    The PSBA failed to undertake a detailed investigation of all allegations;
  2. (b)
    The PSBA relied on witness statements obtained by the police;
  3. (c)
    The disciplinary process commenced prior to several witness statements being obtained;
  4. (d)
    The PSBA failed to interview Ms Godfrey directly, instead relying on the synopsis on her police interview;
  5. (e)
    The PSBA failed to undertake reasonable inquiries as a follow-up to the explanations provided by Ms Godfrey.
  1. [178]
    In the course of its investigation, the PSBA relied on the show cause responses provided by Ms Godfrey and a series of witness statements and records of interview obtained by the QPS.
  1. [179]
    Ms Godfrey largely conceded her conduct in respect of Allegations Three and Four. It is difficult to comprehend, in those circumstances, what other investigations the PSBA should have undertaken. 
  1. [180]
    The computer items set out in Allegation One were also located in her home.  Ms Godfrey also acknowledged she had taken the iPad and the Acer tablet to her house. 
  1. [181]
    The main point of contention in respect of Allegations One and Two, were Ms Godfrey’s claims that her supervisors, to varying extents, had given her permission to take the items home and retain them for her own private use. 
  1. [182]
    As best I understand it, Ms Godfrey’s criticism of the investigation is her belief that a more thorough investigation would have revealed a culture which allowed or promoted the ‘writing off’ of assets by supervisors, in contravention of the relevant policy and Code of Conduct. 
  1. [183]
    The PSBA, as part of its show cause process, considered witness statements obtained by the QPS from both supervisors, when responding to Ms Godfrey’s claims. 
  1. [184]
    It is not uncommon for employers who have initiated a show cause process, to rely on third party investigators to obtain witness statements from relevant employees. In this case, the third party was the QPS. I am satisfied the information was obtained in accordance with section 10.2 of the Police Service Administration Act 1990.
  1. [185]
    On the materials before the Commission, I am unable to find fault with the decision to commence the disciplinary process before the additional witness statements were considered. Ms Godfrey was also not able to point me towards a disciplinary process or policy which may have been breached by the PSBA, in this regard. 
  1. [186]
    The chronology of events is such that the QPS undertook a search of Ms Godfrey’s home in October 2017. During the search, the police discovered assets which appeared to be property of the PSBA or the Academy. In those circumstances, the PSBA understandably commenced a show cause process. 
  1. [187]
    It is not uncommon for an employer to consider or obtain further witness statements once a disciplinary process has commenced, particularly after receiving a response from the subject of the disciplinary process where further investigation might be warranted. 
  1. [188]
    The materials before the Commission in respect of the investigation were relatively limited in their content. As far as I can tell, the PSBA took the time to respond to Ms Godfrey’s show cause responses having regard to their content.
  1. [189]
    Importantly, Ms Godfrey’s own witness, Mr Sluyters did not support her view that the rules (in respect of the disposal of ICT assets) were being broken at the Academy.  
  1. [190]
    Ms Godfrey also maintains the disciplinary process was unjust in circumstances where:
  1. (a)
    The initial show cause correspondence was deficient in that it lacked particulars, failed to provide supporting documents and nominated a potential witness as the decision maker;
  2. (b)
    The initial finding in respect of liability was unlawful as the PSBA had not provided Ms Godfrey with all the documents it intended to rely on;
  3. (c)
    The evidence of Mr Maliahovas and Mr Davies-Crampton was not particularised and it was left to Ms Godfrey to determine which information her employer was going to rely on;
  4. (d)
    Mr Marsden failed to recuse himself from the process, after flaws in respect of the show cause correspondence had been brought to his attention;
  5. (e)
    The PSBA failed to genuinely consider Ms Godfrey’s response, which indicates Ms Godfrey was participating in a process with a pre-determined outcome. 
  6. (f)
    The PSBA failed to provide any information as to why it considered that dismissal was a reasonable disciplinary penalty, therefore denying Ms Godfrey natural justice and undermining her capacity to respond to the proposed penalty;
  7. (g)
    The PSBA’s attempts to deliver correspondence directly to her home was intimidating.   
  1. [191]
    It is the case that there were several basic flaws identified early in the disciplinary process by Ms Godfrey’s union representative. Had they been left unaddressed; it may well be the case that I would have determined Ms Godfrey’s claims of procedural unfairness were accurate. Having regard to the materials before the Commission and for reasons set out elsewhere in this decision, I accept the deficiencies were adequately addressed by the PSBA.
  1. [192]
    The witness statements of Mr Maliahovas and Mr Davies-Crampton were short, numbering only a few pages each. 
  1. [193]
    The main point of contention between Ms Godfrey and the PSBA was the question of whether she had received permission to take the items which are the subject of Allegations One and Two, home, to keep.
  1. [194]
    The witness statements of both supervisors directly respond to this issue. I do not consider the length and content of the statements to be so onerous that it would have impacted Ms Godfrey’s ability to discern which elements of the statements her employer relied on in support of the view she did not receive permission.  
  1. [195]
    For the reasons set out at paragraphs [155] to [168] of this decision and having regard to the show cause response materials provided to Ms Godfrey, I am also satisfied there was a meaningful attempt on Mr Marsden’s part to consider her explanation and follow-up other claims made by Ms Godfrey during the process.
  1. [196]
    Having substantiated all four allegations, the PSBA forwarded correspondence to Ms Godfrey clearly advising it was considering the penalty of dismissal. I am satisfied this approach accords with the PSBA’s obligations under the PS Act and the relevant disciplinary Directive.
  1. [197]
    In circumstances where Ms Godfrey was provided with an opportunity to respond to the proposed penalty, I am unable to agree with her claims that she was denied natural justice in the manner described in (f) above. 
  1. [198]
    For many employees, having to endure or progress through a disciplinary process is not a pleasant experience. As part of the process, is not uncommon for correspondence or items to be mailed or delivered to an employee’s home.
  1. [199]
    There is insufficient evidence before the Commission that demonstrates the PSBA were intimidating in their engagement with Ms Godfrey when attempting to provide her with the suspension correspondence. In any event, the PSBA agreed to an alternative arrangement suggested by Ms Godfrey, which was to provide her with the correspondence referred to at (g) at the Ipswich Police Station, instead of her home.
  1. [200]
    In her written submissions, Ms Godfrey also argued that if Mr Marsden had been provided the emails tendered as Exhibit 4, he would have been privy to the fact that the alleged conduct was permitted by management.
  1. [201]
    As best I understand it, those emails were obtained by Ms Godfrey's lawyers who were instructed in the concurrent criminal matter related to the removal of items from the Academy. However, they were not before Mr Marsden when he made the decision, nor were they referenced in the show cause responses provided by Ms Godfrey.
  1. [202]
    Amongst the thousands of emails Ms Godfrey has presumably sent and received during the course of her employment, it is not clear to me how she considered her employer would, without guidance or more details being provided during the show cause process, have understood which emails it should have been reviewing.
  1. [203]
    The PSBA submits Mr Marsden carefully considered all available information. It argues that the emails tendered as Exhibit 4 do nothing to support Ms Godfrey’s position there

was a culture within PSBA where ICT assets were 'written off' by management for their or others personal use.  

  1. [204]
    The evidence of Mr Sluyters coupled with a lack of evidence in respect of the circumstances and context in which the emails were prepared, have resulted in an outcome where I am unable to find that such a culture existed.  

Personal and economic consequences (Harshness)

  1. [164]
    Ms Godfrey highlighted the adverse personal and economic consequences of her dismissal during the proceedings. Her evidence was that she was unemployed, looking for full-time work and reliant on her partner’s salary. She described having no sense of self-worth or confidence. In her written submissions she referenced undertaking a temporary IT role for a short period.
  1. [165]
    She was particularly concerned about the events that are the subject of these proceedings being included on her disciplinary record and the consequences for her in the pursuit of employment elsewhere in the future, including with the QPS. 
  1. [166]
    Ms Godfrey stated she had suffered extreme mental and financial hardship due to the loss of her role. After being charged by the QPS, she described how it had been necessary for her to retain a lawyer, the costs of which she estimated to be in the vicinity of $16,000. In her later written submissions Ms Godfrey estimated the costs to be approximately $25,000 in circumstances where she later took steps to appeal a decision of the magistrate who determined the criminal proceedings.
  1. [167]
    In addition to her legal costs, Ms Godfrey explained she has other household expenses, including a mortgage. She said she was also not entitled to Centrelink payments due to the level of assets held by her partner. 
  1. [168]
    Aside from her estimate of the legal costs associated with the defence of criminal charges, I was not able to identify from the materials any further details in respect of Ms Godfrey’s monthly expenses.  
  1. [169]
    The final decision maker in respect of Ms Godfrey’s dismissal was Kurt Marsden, Human Resources Manager at the PSBA.
  1. [170]
    During the proceedings, Ms Godfrey asked Mr Marsden several questions relating to the severity of the penalty, including whether he had considered a lesser penalty. Mr Marsden’s evidence is that he did consider a lesser penalty but determined there were several allegations such as fraud and the disclosure of confidential information which were quite serious. In those circumstances he determined dismissal was the appropriate penalty. 
  1. [171]
    In its written submissions, the PSBA maintains Mr Marsden considered the seriousness of the substantiated conduct in relation to Allegations One and Two to be at the higher end of misconduct and fatal to the employment relationship.[39]
  1. [172]
    Although I have some sympathy for Ms Godfrey’s personal and economic circumstances, I do not consider they outweigh the conduct which led to the substantiation of all four allegations. 
  1. [173]
    This is particularly the case given she received adequate training in the Code of Conduct, and where I am not persuaded that she did not understand it was inappropriate to remove the property of her employer from the workplace for her own personal use. Likewise, she had undertaken roles in an IT environment for some time. In those circumstances I do not accept she did not understand it was inappropriate to access and disseminate records which were not directly related to her role. 
  1. [174]
    I am not satisfied Ms Godfrey’s dismissal could be characterised as harsh in those circumstances. 

Final Written Submissions – Extraneous Materials

  1. [175]
    Ms Godfrey attached a series of documents to her final written submissions, including emails and transcripts of criminal proceedings which were either not relevant to the matters I am required to determine, or not touched on during the hearing of the substantive matter.
  1. [176]
    Although I have had regard to her written submissions, I have not considered the transcripts of the magistrate proceedings or an attached decision of the District Court relating to an Appeal against Conviction and Sentence.  
  1. [177]
    I have also not had regard to any further emails or correspondence within the attachments where they were not raised during the substantive proceedings.

Was Ms Godfrey's dismissal harsh, unjust or unreasonable?

  1. [178]
    The role of the Commission in an application such as this is to consider whether Ms Godfrey's dismissal from her role as a Business Service Officer was harsh, unjust, or unreasonable.
  1. [179]
    The words "harsh, unjust or unreasonable" have their ordinary meaning. In Bostik (Australia) Pty Ltd v Gorgevski (No 1),[40]   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.[41]

  1. [180]
    Guidance on what might be considered "harsh, unjust, or unreasonable" can also be found in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited:[42]

… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[43]

  1. [181]
    In Stark v P&O Resorts (Heron Island),[44] Chief Commissioner Hall (as his Honour then was) wrote:

Where… an application... is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make.  Ordinarily intervention will be justified only where the employer has abused the right to dismiss.  Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immune from interference by the Commission…[45]

  1. [182]
    In my view, the employer in this matter was entitled on the materials before it, to arrive at a conclusion that Allegations 1 to 4 at paragraph [12] were substantiated. In particular, although I accept there may be one instance where a supervisor intimated she could take home a computer, for the reasons set out above, I am satisfied Ms Godfrey is guilty of misconduct in respect of Allegations One, Two and Three.
  1. [183]
    In my view, the decision of Mr Marsden to dismiss the applicant was formed on reasonable grounds. 
  1. [184]
    For the reasons set out earlier in this decision and having regard to the factors in s 320 of the Act, I am not satisfied Ms Godfrey’s dismissal was harsh, unjust or unreasonable.

Order

  1. [185]
    The application for reinstatement is dismissed.

Footnotes

[1]Blows v Townsville City Council [2016] QIRC 66 at [68] (citing Wang v Crestell Industries Pty Ltd (1997) 73 IR 454, 463 (citing Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914, 916).

[2]Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[3]Exhibit 3, document 5.

[4]Exhibit 3, document 4.

[5]Exhibit 3.

[6]T1-6, 25-30.

[7]T-6, 29-39.

[8]T1-6, 40-45.

[9]Exhibit 3, document 6.

[10]T1-26, 38.

[11]T1-36-37

[12]T-41, 8-11.

[13]T-40, 1-5.

[14]Exhibit 3, document 11.

[15]Exhibit 4.

[16]T1-25, 26-35.

[17]Exhibit 3, document 6.

[18]Exhibit 3, document 5.

[19]Exhibit 1.

[20]T-41, 8-11

[21]The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067.

[22]Exhibit 3, document 5, attachment 4.

[23]Ibid.

[24]Ibid.

[25]Exhibit 3, document 5.

[26]Ibid.

[27]Exhibit 3, document 6.

[28]Ibid.

[29]Exhibit 3, document 2.

[30]Exhibit 3, document 3

[31]Exhibit 3, document 5.

[32]Exhibit 3, document 7.

[33]Exhibit 3, document 8.

[34]Exhibit 3, document 10.

[35]Exhibit 3, document 11.

[36]Exhibit 3, document 13.

[37]Exhibit 3, document 16.

[38]Submissions of the Respondent, paragraph 24.

[39]Submissions of the Respondent, paragraph 24.

[40]Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20

[41]Ibid, 28.

[42]Byrne v Australian Airlines Limited (1995) 185 CLR 410.

[43]Ibid, 465.

[44]Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914.

[45]Ibid, 916.

Close

Editorial Notes

  • Published Case Name:

    Godfrey, Kristie v State of Queensland (Public Safety Business Agency)

  • Shortened Case Name:

    Godfrey, Kristie v State of Queensland (Public Safety Business Agency)

  • MNC:

    [2020] QIRC 85

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    16 Jun 2020

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
Blows v Townsville City Council [2016] QIRC 66
1 citation
Jump To
Cite 1 - [2016] QIRC 66
Bostik (Aust) Pty Ltd v Gorgevski (1992) 36 FCR 20
3 citations
Jump To
Cite 1 - (1992) 36 FCR 20
Cite 2 - (1992) 36 FCR 20
Cite 3 - (1992) 36 FCR 20
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
1 citation
Jump To
Cite 1 - (1938) HCA 34
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
4 citations
Jump To
Cite 1 - (1993) 144 QGIG 914
Cite 2 - (1993) 144 QGIG 914
Cite 3 - (1993) 144 QGIG 914
Cite 4 - (1993) 144 QGIG 914
The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67
2 citations
Jump To
Cite 1 - [2020] QIRC 67
Cite 2 - [2020] QIRC 67
Wang v Crestell Industries Pty Ltd (1997) 73 IR 454
2 citations
Jump To
Cite 1 - (1997) 73 IR 454
Cite 2 - (1997) 73 IR 454

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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