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

O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 123

O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 123

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 123

PARTIES:

O'Connor, Luisa Waqa

(Appellant)

v

State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

(Respondent)

CASE NO:

TD/2019/47

PROCEEDING:

Application for reinstatement

DELIVERED ON:

14 April 2021

HEARING DATE:

1, 2, 3, 4 and 5 March 2021

MEMBER:

Pidgeon IC

HEARD AT:

Brisbane

ORDER:

The application is dismissed

CATCHWORDS:

INDUSTRIAL LAW – application for reinstatement – unfair dismissal – where the applicant was subject of previous disciplinary action – where the applicant failed to manage conflicts of interest – whether the applicants behaviour amounts to misconduct – whether the termination of employment was harsh, unjust or unreasonable.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 316, s 317, s 320.

CASES

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

Coleman v State of Queensland (Department of Education) [2020] QIRC 32

Laegal v Scenic Rim Regional Council [2018] QIRC 136

Marshall v Commonwealth of Australia [2012] FMCA 1052

Walker v Bowtie Removals and Storage Pty Ltd [2012] FWA 2851

APPEARANCES:

Ms L O'Connor as self-represented Applicant

Mr C Murdoch QC with Ms J Marr of Counsel instructed by Crown Law for the Respondent

Decision

Background

  1. [1]
    Ms Luisa Waqa O'Connor (the Applicant) commenced employment with the State of Queensland (the Respondent)  in what was then titled the Department of Aboriginal and Torres Strait Partnerships (DATSIP) in an AO7 Principal Project Officer role on or about 1 May 2007.[1]
  1. [2]
    In November 2016, Ms O'Connor was appointed as Regional Director of the Torres Strait Region.
  1. [3]
    In June 2018, following an independent investigation and a show cause process, Ms O'Connor was demoted from her position as Regional Director to the position of AO7 Principal Project Officer. 
  1. [4]
    By letter dated 8 November 2018, DATSIP commenced a further disciplinary process regarding two allegations. This process resulted in the termination of Ms O'Connor's employment by letter signed on 17 May 2019 and delivered on 20 May 2019.[2]
  1. [5]
    Ms O'Connor says that the decision to terminate her employment was harsh, unjust and unreasonable and filed her application for reinstatement on 10 June 2019.
  1. [6]
    Ms O'Connor does not seek reinstatement, rather she seeks the maximum compensation that can be awarded under the legislation.[3]
  1. [7]
    The matters to be considered in determining Ms O'Connor's application are:
  1. a)
    Whether Ms O'Connor inappropriately utilised sick leave between 9 and 14 August 2018 when she attended a conference in Adelaide representing the Port Kennedy Association.
  1. b)
    Whether Ms O'Connor failed to manage a conflict of interest with respect to secondary employment obligations, specifically:
  1. a.
    routinely utilising departmental resources for non-work related employment, including departmental ICT systems and departmental infrastructure for non-work related matters;
  1. b.
    regularly performing non-work-related activities during work hours, including to support the Port Kennedy Association (PKA).
  1. c)
    Whether the alleged conduct constitutes 'misconduct' within the meaning of s 187(1)(b) of the Public Service Act 2008 (Qld)?
  1. d)
    Whether the termination was harsh, unjust or unreasonable?
  1. e)
    Was Ms O'Connor afforded procedural fairness as per the considerations mandated by s 320 of the Industrial Relations Act 2016?

The legislative scheme and legal framework

  1. [8]
    Section 316 of the Industrial Relations Act 2016 (IR Act) says that a dismissal is unfair if it is harsh, unjust or unreasonable. The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.[4]
  1. [9]
    Section 320 of the IR Act of the sets out the matters to be considered by the Commission in hearing an application under s 317.

320 Matters 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
  2. (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
  2. (ii)
    whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant.
  1. [10]
    Section 187 of the Public Service Act 2008 ('PS Act') relevantly 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. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.

  1. (4)
    In this section-

misconduct means-

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  2. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct-

victimising another public service employee in the course of the other employee's employment in the public service.

  1. [11]
    In Laegal v Scenic Rim Regional Council,[5] O'Connor DP (as the Vice President then was) cited with approval the following extract from Chief Commissioner Hall's (as His Honour then was) decision from Stark v P&O Resorts (Heron Island):[6]

Where…an application…is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task for the Commission is to assess where it should intervene to protect the application 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, be held immune from interference by the Commission.[7]

  1. [12]
    The definition of misconduct was recently considered by Merrell DP in Coleman v State of Queensland (Department of Education) (Coleman):[8]

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[9]

  1. [13]
    It is for Ms O'Connor to prove that her dismissal was unfair.  However, it is for the respondent to establish that the disciplinary allegations against Ms O'Connor are capable of being substantiated on the balance of probabilities, and that if substantiated, that Ms O'Connor's actions satisfy the definition of misconduct.[10]
  1. [14]
    If a disciplinary ground is established, disciplinary action may be taken under s 188(1) of the PS Act.  One of the examples of disciplinary action listed in s 188(1) is termination of employment.

Disciplinary History

  1. [15]
    There was evidence before the Commission of Ms O'Connor's disciplinary history and matters being raised with her. I set it out here as it forms part of the circumstances and context in which the decision to terminate Ms O'Connor's employment was made:[11]
  1. a)
    By letter dated 3 October 2014, Ms O'Connor was cautioned regarding a perceived conflict of interest and an attempt to gain a financial benefit for a family member in respect of seeking to have her husband, Milton Savage engaged to perform a Welcome to Country for a fee of $260.[12]
  1. b)
    On 7 April 2016, Mr Cunneen met with Ms O'Connor (and Ms Allana Bianchi, Principal Project Officer).  At this meeting, the inappropriateness of Ms O'Connor using her Departmental email account to send PKA related emails was raised. This direction was confirmed in writing and Mr Cunneen met with Ms O'Connor again and reiterated the direction not to use her Departmental account to send PKA-related emails.[13]
  1. c)
    On 27 March 2017, Ms O'Connor was issued with a written caution with regard to inappropriately managing a conflict of interest in her dealings with the Department of Housing and Public Works.[14]
  1. d)
    Between 30 January 2018 and 6 June 2018, Ms O'Connor was subject to a show cause disciplinary process regarding four separate allegations concerning the alteration of a medical certificate; inappropriate use of Government property and resources (allowing Mr Mau to occupy an office at the Thursday Island regional office); participation in a Facebook interview with Mr Mau without approval; unauthorised change to travel arrangements with costs charged to the Department.[15]
  1. e)
    Following that show cause disciplinary process, effective from 16 July 2018, Ms O'Connor was demoted from Regional Director to AO7 Principal Project Officer.[16]
  1. f)
    On or about 22 March 2018, following a complaint from a staff member at the Thursday Island office, Mr Cunneen and Ms Holm (Chief Operating Officer of the Department) met with Ms O'Connor to discuss her involvement with PKA and the potential for real or perceived conflict of interest.[17]
  1. g)
    Following the meeting on 22 March 2018, Ms O'Connor completed and signed a conflict of interest form noting that she was aware of the need to keep work business separate from PKA business and stating that she would avoid conducting her PKA work during her work hours. Ms O'Connor's conflict of interest form states that 'any PKA matters will be dealt with in my own time i.e. lunch hours or after hours'.[18]
  1. [16]
    While under cross-examination, Ms O'Connor asked why her disciplinary history was being brought up in relation to this matter.[19] For completeness, I will state here that the disciplinary history is relevant.  It was a relevant matter considered by the decision makers in determining the disciplinary penalty to be imposed.  Further to that, the legislation requires me to consider matters such as whether the employee was warned in relation to their conduct.[20]
  1. [17]
    In her statement for these proceedings, Ms O'Connor repeatedly states that throughout the disciplinary history, she was at no point warned that she could be fired, or was at risk of losing employment if she repeated this, or engaged in similar behaviour.  Ms O'Connor says that she did not repeat the behaviours after being cautioned.[21] As is explored throughout this decision, it is clear that Ms O'Connor was cautioned that future behaviour proven to constitute a breach of the Code would result in disciplinary action being taken against her.[22]
  1. [18]
    Ms O'Connor agreed that she read the letter informing her of the disciplinary penalty (demotion) and that part of the letter stated:

In accordance with departmental procedure, a record of this action will be retained on a separate confidential [indistinct] file and may be incorporated in the consideration of any future disciplinary action that may be initiated against you. Your personal file will contain only the outcome of disciplinary and a notation [indistinct] disciplinary file exists.[23]

  1. [19]
    I do not intend to go through all of Ms O'Connor's responses to questioning regarding her disciplinary history, however, there were a number of responses given by Ms O'Connor that appeared to either maintain that she had not done anything wrong or to explain the extenuating circumstances surrounding the events. Where those responses appeared to reflect Ms O'Connor's submissions regarding the different environment on Thursday Island or what I would describe as cultural matters, and matters relating to her family or personal well-being, I have briefly included them below.
  1. [20]
    With regard to the caution arising from Ms O'Connor having engaged Mr Savage (her husband) to perform a Welcome to Country at a meeting, Ms O'Connor said that she was doing her job in advising on cultural protocol in the community.[24]  When asked if this was the third occasion on which she had received a similar caution for a failure to comply with the departmental policy, Ms O'Connor said the caution arose "from lack of understanding of the Department".[25]  
  1. [21]
    With regard to the matter at [15(c)] above, Ms O'Connor agreed that a finding had been made but said that she had her 'own side' to that matter:

MR MURDOCH: And you understood that there had been a finding made that your behaviour in relation to the matter was inconsistent with the behavioural standards required under the code of conduct; correct?

MS O'CONNOR: From the Department's point of view, yes, that's a conclusion they come to. From my side, I'm about the human perception—

MR MURDOCH: Yes?

MS O'CONNOR: of the fact that those family were crying in tears, a mother with four or five kids in my office. I did what I can and also rang up the Cairns office.

MR MURDOCH: Yes, yes. So you knew going forward that you had to use great care to ensure, in your work, you complied with the requirements of the code of conduct; correct?

MS O'CONNOR: Yes, and I've stated that each – each position – each incidents, particularly this one, I didn't go out of my way just to commit the breach of code of conduct and that's what I stated before about cultural understanding and the fact that the obligation of a person in the community, obligation of a public servant, yes, I understand that. But also the fact that you are – we are providing services in the Aboriginal and Torres Strait and the community. These issues need to be looked at and also given some understanding, not flexibility but understanding. Not flexibility but understanding of the human issues that are there, yes.[26]

  1. [22]
    With regard to the alteration of the medical certificate [15(d)], Ms O'Connor's responses were vague, evasive and inconsistent. Eventually Ms O'Connor agreed that it had been her who altered the medical certificate but she said that it occurred at a time when she was going through anguish and stress.[27] Ms O'Connor also agreed that her response to the allegation prepared with her lawyer stated "I corrected the certificate to truly reflect the other two days that I was sick. Not gaining anything by this action" and that this was a different version of events than she had given the investigators.[28]
  1. [23]
    With regard to the unauthorised changes to travel at [15(d)], the evidence demonstrates that Ms O'Connor made changes to her travel arrangements without approval and did not inform her supervisor that the changes had been made until after the travel had occurred and she was on her way back to work.  When asked about this, Ms O'Connor's original explanation to Mr Cunneen was that an unplanned and emergent family situation had occurred and that she was quite distressed about it.[29]  Ms O'Connor maintained this explanation in her show cause response of 11 March 2018.[30]  Ms O'Connor's statement for this matter also suggests that the change to the travel plans was emergent.[31]
  1. [24]
    However, the records demonstrate that the changes made to Ms O'Connor's travel arrangements were made by her on 29 March 2017, ten days prior to her departure.  The hotel booking for the Sunday night in Cairns was also booked on this date.[32] The records also demonstrate that Ms O'Connor charged the cost of the accommodation and a meal to her Department credit card for the night in Cairns necessitated by her changes to the travel arrangements for personal reasons. The expenses were reimbursed at some point between October 2017 and March 2018 after the issue was raised with Ms O'Connor by Mr Cunneen in his letter of 13 September 2017.
  1. [25]
    Under cross-examination, Ms O'Connor agreed that she had made the change to her travel arrangements on 29 March 2017, that she had paid for the accommodation on her departmental credit card and that the arrangements were made for a private, personal matter.  However, Ms O'Connor appeared to maintain a position that she did not know that she was going to need to stay in Brisbane for emergent reasons when she emailed Ms Jackson to advise of the trip on 31 March, despite having herself changed the travel plans on 29 March.[33] 
  1. [26]
    While I note that Ms O'Connor was concerned for her daughter's health and wanted to spend time with her, it is clear that Ms O'Connor made the changes to her travel arrangements well in advance of any emergent situation or deterioration in her daughter's health and did so without authorisation.  I further note Ms O'Connor's evidence that she did not have any money on the Sunday night she spent in Cairns[34], however, as was found in the disciplinary process, this does not excuse the unauthorised use of the department credit card for personal expenditure.
  1. [27]
    With regard to Ms O'Connor allowing Mr Mau to use DATSIP office space without paying rent, Ms O'Connor said that she had received approval from a Mr Nick Twist to allow Mr Mau to use the office. No evidence of approval was provided in these proceedings.
  1. [28]
    The cross-examination of Ms O'Connor extensively traversed the events that formed the basis of the disciplinary history and the responses provided at the time by Ms O'Connor.  There was no evidence before the Commission to bring into question the validity of any of the previous disciplinary processes.

Background and Disciplinary Process which led to Ms O'Connor's termination

  1. [29]
    The IR Act requires me to consider whether Ms O'Connor was told the reason for her dismissal[35] and whether she was given the opportunity to respond to the allegations.[36]  Below, is a summary of the disciplinary process that led to Ms O'Connor's termination.  It is clear that Ms O'Connor had both an opportunity to respond to the allegations and that she was informed of the reason for her dismissal.
  1. [30]
    On 19 September 2018, Dr Ian Mackie directed the Ethical Standards Unit [ESU] to investigate two fresh allegations against Ms O'Connor. Following the investigation, each allegation was substantiated in an ESU report released on 23 October 2018.[37] It was these allegations which led to the termination of Ms O'Connor's employment.
  1. [31]
    On 24 September 2018, Ms O'Connor was advised that the matters subject of the allegations had been referred to the Crime and Corruption Commission for further assessment and that they had also been assessed as a 'public interest disclosure' pursuant to the Public Interest Disclosure Act 2010 (Qld).  Ms O'Connor was advised of the strict confidentiality requirements and that she should not discuss the allegations with anyone other than her support person, union representative or ESU investigator.[38]
  1. [32]
    On 8 November 2018, Dr Mackie initiated the show cause disciplinary process in relation to the allegations. The letter to Ms O'Connor directed her to parts of the ESU investigation report relied on. Ms O'Connor was advised that if substantiated, each allegation could constitute grounds for discipline pursuant to s 187(1)(b) of the PS Act, namely misconduct or s 187(1)(f)(ii), being contravention without reasonable excuse of standards of conduct under the Code of Conduct. Ms O'Connor was also advised of her obligation to preserve confidentiality.[39]
  1. [33]
    Ms O'Connor commenced a period of planned leave on 9 November 2018 and was due to return on 10 December 2018. Prior to commencing her leave, Ms O'Connor had failed to comply with a direction to relocate from the manager's office.  Ms O'Connor left the office locked with her belongings in it and took the key.[40]  Ms O'Connor agreed that Ms Page had asked her to move offices but says that she had not moved office because she was involved in the traditional adoption consultation and that she had informed Ms Page and, newly appointed Acting Manager, Mr Morseu that she would move when she returned from leave.[41]
  1. [34]
    Mr Morseu changed the locks to the manager's office and relocated Ms O'Connor's things to another office.  He did this with the permission of Ms Page.[42] 
  1. [35]
    On 15 November 2018, Ms O'Connor attended at the Thursday Island office whilst on leave and found that her items had been moved from the manager's office. Ms O'Connor gave evidence that that she felt the way her things were moved did not demonstrate respect for her.[43] Mr Morseu says that Ms O'Connor confronted him about the movement of her belongings from the manager's office and said words to the effect of 'I will get Milton onto you' or 'I will get Milton to come into the office and take care of you'. Milton Savage is Ms O'Connor's partner.  Later that same day, Ms O'Connor returned to the office in the company of Mr Savage.[44]
  1. [36]
    Ms O'Connor has a different view of what occurred and says that Mr Morseu assaulted her and swore at her and that she reported this to the police.[45]
  1. [37]
    On 16 November 2018, Mr Morseu says that Ms O'Connor returned to the office and told him that Mr Savage had reported him to the Director-General and the Minister.  Later that day, two police officers attended the office and took a statement from Mr Morseu.[46]
  1. [38]
    In December 2018, the above matters were referred to the ESU for investigation.
  1. [39]
    On 18 December 2018, Ms O'Connor was suspended on full pay as a result of attempts made by her to identify who had made the complaints the subject of allegations against her, being public interest disclosures, and advice received from ESU that there were further new allegations against Ms O'Connor that had been referred to the Crime and Corruption Commission.[47]
  1. [40]
    Following two agreed extensions of time, Ms O'Connor submitted her show cause response by letter of 11 January 2019.[48]
  1. [41]
    By letter dated 12 February 2019[49] delivered by email on 13 February 2019, Ms O'Connor was notified that both allegations were found to be substantiated, and Mr Mackie was considering the penalty of termination of employment.
  1. [42]
    By agreed extension, on 1 March 2019, Ms O'Connor delivered her response.  That response was prepared by Ms O'Connor's then legal representatives, Robertson O'Gorman.[50]
  1. [43]
    A few days after 1 March 2019, Dr Mackie met with Dr Sarra, Director-General, and advised that he considered it was appropriate Dr Sarra make the final decision as to penalty, given the seriousness of the matter and the applicant's seniority.[51]
  1. [44]
    On 17 May 2019, a briefing note endorsed by Dr Mackie was delivered to Dr Chris Sarra.  The briefing note outlined the background of the show cause disciplinary matter, and included various documents, including a draft penalty letter and a letter of advice from Crown Law of 3 May 2015.[52]
  1. [45]
    That same day, Dr Mackie met with Dr Sarra and discussed the show cause disciplinary process and the possible penalty of termination. Dr Sarra then spent some time considering the matter, including the briefing note and attachments.[53]
  1. [46]
    Some hours later, Dr Sarra then signed the briefing note and also signed the attached penalty letter.[54] Dr Sarra determined that Allegation One could only be partially substantiated on the evidence, that is, only the allegation as to inappropriate access and utilisation of sick leave entitlements to attend the Adelaide conference between 9 and 14 August could be substantiated. Dr Sarra considered that Ms O'Connor's actions constituted 'misconduct' pursuant to s 187(1)(b) of the PS Act. Dr Sarra determined that termination was the appropriate penalty.
  1. [47]
    Shortly after this, Dr Sarra then directed Dr Mackie to initiate the cessation of Ms O'Connor's tenancy of the Thursday Island residence, and to send the draft letter regarding the tenancy which had been enclosed with the briefing note.[55]
  1. [48]
    The disciplinary process regarding the matters mentioned above at [35]-[39] was discontinued.
  1. [49]
    There is no evidence before me to suggest that Ms O'Connor was not afforded procedural fairness in relation to the two allegations that were the subject of the disciplinary process and with regard to the proposed disciplinary action of termination.

Did Ms O'Connor inappropriately utilise sick leave between 9 and 14 August 2018 when she attended a conference in Adelaide representing the Port Kennedy Association?

  1. [50]
    Ms O'Connor gave evidence that she was aware of and understood the Code of Conduct. It is not in dispute that Ms O'Connor had attended Code of Conduct training, or that someone in her role as either Regional Director or Principal Project Officer should be aware of the Code of Conduct. Further, the evidence demonstrates that on numerous occasions, the expectations and obligations of Ms O'Connor regarding managing conflicts of interest and the Code of Conduct had been brought to her attention.  While Ms O'Connor pointed out that there are many family and cultural relationships in the community she lives and worked in, she also agreed that conflicts of interest had to be disclosed and managed.[56]
  1. [51]
    Ms O'Connor says that she was not well enough, mentally and emotionally, to be at work during the period the conference was happening. She says that she told that to the doctor and the doctor agreed that she needed to be in a different environment and do activities different to what she normally does at work.[57] 
  1. [52]
    Ms O'Connor's statement for these proceedings addresses her thinking regarding attendance at the conference:

[48]I believed that attending this conference would be good for my mental health and work related stress/anxiety, as I had lived in Adelaide for a significant amount of time prior to moving to Thursday Island and had friends and close community supporters there who could support me.

[49] Women's business and leadership, the topic of the conference are areas of particular interest and cultural importance to me, they do not cause me stress. I also had no particular responsibilities at the conference, and it was to be largely a social occasion so far as I was concerned. However, I was particularly light-headed due to my blood pressure medication at this time and found thinking straight to be difficult. As such I was not certain whether I would be attending the conference in Adelaide over the weekend until the morning of Friday 10 August 2018, though I ensured I would be able to go if I felt it was necessary for my mental health.

[51] It is very difficult and expensive to travel from Thursday Island to Adelaide, due to the extremely remote nature of Thursday Island. In order to reach Adelaide, or any major Australian city, it is necessary to take a ferry to Horn Island…then a flight from Horn Island to Cairns, then connecting flights from Cairns. Another opportunity to have an expenses paid trip to Adelaide was unlikely to come around any time in the near future.

[52] On 9 August 2018 I attend the CWC and had a consultation with Dr Andrew Scott, I was very upset and was crying uncontrollably, he asked me to sit down and try to calm down. He then provided me with a medical certificate…

[53] On 9 August 2018 I was provided with a medical certificate to cover the period from 9 August 2018 to 14 August 2018.

[54] On 9 August, as shown by the clinical notes from my consultation referred to above, I was very upset and not able to think straight and was still unsure as to whether I would be attending the conference in Adelaide over the weekend.

[55] I am capable of sending emails using my work email address using my Ipad at home and did send emails relating to the trip to Adelaide from my work email address that day.

[56] On the morning of Friday 10 August 2018, I was too unwell to attend work due to my stress/anxiety and realised that for the sake of my mental health I needed to attend the conference in Adelaide over the weekend, the potential health benefits of engaging with topics that are cultural and spiritually important to me, socialising with like minded indigenous women and spending time with old friends from who I had been isolated for over a decade was too great for me to not.

[57] I did attend the conference in Adelaide over the weekend, it was an enjoyable social experience that was very helpful for my mental state and work related anxiety/stress.[58]

  1. [53]
    During cross-examination, Ms O'Connor said that she decided to take sick leave to attend the conference because she had been on sick leave for weeks or months due to the stress she was experiencing at work. Ms O'Connor was of the view that there was no problem with travelling to Adelaide for the conference because she would be in a different environment and with different people and it was the work environment and relationships that were causing her to feel unwell. 
  1. [54]
    Despite the above at [52], it is clear that Ms O'Connor knew that she was going to be travelling to Adelaide for the Better Boards conference from at least 7 or 8 August 2018. Ms O'Connor says that the opportunity for her to attend arose because the Deputy President of PKA and the manager of PKA were unable to attend. Ms O'Connor was attending the conference as the President of PKA. The evidence demonstrates that the plans were being made for Ms O'Connor to travel to Adelaide from 8 August, in fact, Ms O'Connor signed the PKA Request for Travel form herself and had sent an email querying expenses paid to her. Ms O'Connor obtained the medical certificate after the travel arrangement had been made.[59]
  1. [55]
    Ms O'Connor's evidence is that the last period of sick leave she had taken was from 30 July to 3 August 2018.[60]  Ms O'Connor was back at work from 5 August 2018, prior to taking sick leave and attending the conference from 10 August 2018.
  1. [56]
    Ms O'Connor provided to the employer her medical certificate dated 9 August 2018 at 8.11am on 10 August 2018 via email, the same morning that she travelled to Adelaide to attend the conference. However, the email makes no mention of the Adelaide conference:

Hi Kylie

Due to these allegations and its impact on my health and wellbeing, I am being examined by a treating doctor on a weekly basis with a set of plan activities.

Some days/weeks I am okay, some days I am not well. Please find attached a doctors certificate dated from 9/08 – 14/08/18.

I know that I will feel safe, secure and confident as well as my staff members when we know that there will be relevant positive actions taken to resolve these issues from our Director-
General.

Thanks

Luisa[61]

  1. [57]
    An email to Dr Ian Mackie from Mr Cunneen dated 14 August 2018 forwarded a chain of previous email communications with HR and attached:
  • QANTAS e-ticket itinerary for the applicant for her flight from Horn Island to Adelaide on 10 August 2018 issued and paid for on 7 August 2018;
  • email communication from Nazareth Matthew of PKA and 'Annie' at Torres Business Solutions Pty Ltd, copied to the applicant, sent at 5.46pm on 7 August 2018 regarding payment of the applicant's airfare from Adelaide to Cairns;
  • email communications between the applicant (using her Departmental email account) and 'Annie' at Torres Business Solutions Pty Ltd on 8 and 9 August 2018 concerning payment of her travel advance in respect of the Adelaide trip, and attaching the travel advance calculation sheet.  This was a PKA document. It recorded the dates of travel as being 10 to 14 August 2018 and the purpose of travel being the Better Boards Conference in Adelaide. It also noted Ms O'Connor's position as PKA president;
  • further email communications between the applicant (using her Department email account), Nazareth Matthew of PKA and 'Annie' at Torres Business Solutions Pty Ltd on 9 August 2018 (notably during work hours) regarding travel arrangements and expenses for the Adelaide conference;[62]
  • email from the applicant to Kylie Robins sent at 8.11am on 10 August 2018 attaching a medical certificate from Dr Andrew Scott dated 9 August 2018 and certifying that Ms O'Connor "has a medical condition and is unfit for work from 09/08/2018 to 14/08/2018"; and
  • email communications from Vivien Takai (Administration Officer, Torres Regional Office) setting out the TRO Staff Movements Records for Thursday 9 August, Friday 10 August 2018 and Monday 13 August 2018.
  1. [58]
    Further evidence before Dr Ian Mackie was the ESU report of 23 October 2018, together with attachments, including the transcript of interview with Ms O'Connor on 10 October 2018, the conflict of interest declaration of 22 March 2018 and Ms O'Connor's response of 11 January 2019.
  1. [59]
    The ESU investigation interview transcript shows that Ms O'Connor agreed that it could be perceived that she took the sick leave in order to go on the trip.[63]
  1. [60]
    In that interview, Ms O'Connor said that her doctor had not specifically recommended she attend the conference in Adelaide.  She said that the activities recommended to her were "walking every day, reading, getting into something I'm really happy with, that I'm, you know that, activities that are not related to my work. Not specifically say the conference or anything, no".[64]
  1. [61]
    In the case of Marshall v Commonwealth of Australia,[65] the court reinstated an employee who had been dismissed after it was discovered he had applied to be a contestant on a reality television show during a period of sick leave from work.  However, the employee's absence from work was supported by detailed medical evidence from both his doctor and his psychologist.  In that case, the treating medical practitioner gave evidence that the employee was unfit for work but fit to participate in the reality television show. The doctor gave evidence that participation in the television show possibly could have been beneficial to the employee.[66]
  1. [62]
    Ms O'Connor has no such detailed medical evidence to support her claims.  Similarly, there is no evidence to support Ms O'Connor's assertion in her second show cause letter that her thinking was impaired as a result of stress. Ms O'Connor did not produce any medical evidence or call her doctor as a witness in these proceedings. There is no evidence before me that Ms O'Connor was advised by a doctor to attend the Adelaide conference or that she had in fact told a doctor that she was going to attend the Adelaide conference. 
  1. [63]
    The Respondent directed me to Ms O'Connor's first show cause response of 11 January 2019, where she stated:

Yes, I travelled during what is considered normal work hours to be able to attend this Saturday conference. I understand that in this instance, I may have used my sick leave entitlement inappropriately I have acknowledged this mistake and have since vehemently apologised. It was not my intention to inappropriately use the sick leave…[67]

  1. [64]
    Ms O'Connor did not properly answer questions put to her under cross-examination regarding her failure to inform the Department that during the period of time the medical certificate had been provided for she would be travelling to Adelaide to attend a conference. For example, when asked if she had not told the employer about her intention to attend the conference because she knew that the sick leave would be rejected if she told them the true purpose of her absence, Ms O'Connor said, "You are entitled to say what you have to say. I'm not agreeing neither here nor there".[68]
  1. [65]
    Ms O'Connor was at work during the week leading up to the conference.  It seems that during that week, the opportunity arose to attend the conference and arrangements were made for her attendance. Ms O'Connor sought a medical certificate the cover the dates of the conference and the travel to and from the conference. She attended the conference in her role as the President of the PKA. Ms O'Connor informed the employer she was sick on the morning that she travelled. The email to the employer did not make reference to the conference she was attending.  There is no evidence before the Commission that the doctor diagnosed Ms O'Connor with work-related stress or that the doctor recommended attendance at the conference or had said that Ms O'Connor was well enough to undertake PKA work but not DATSIP work.[69] Ms O'Connor was aware of the need to manage her conflict of interest. Ms O'Connor should have applied for recreation leave or unpaid leave to attend the conference. The only conclusion I can reach on the evidence before me is that Ms O'Connor inappropriately utilised sick leave entitlements to attend the conference in Adelaide.

Does the inappropriate use of the sick leave entitlements constitute 'misconduct' within the meaning of s 187(1)(b) of the PS Act?

  1. [66]
    The Respondent directed me to support in the caselaw that misuse of sick leave will constitute misconduct sufficient to justify the termination of employment.  In the case of Walker v Bowtie Removals and Storage Pty Ltd,[70] the employee, Ms Walker booked airline tickets to attend a wedding in Perth.  Ms Walker visited a medical practitioner the night before she was due to travel and received a medical certificate certifying that she would be unfit for her normal duties for the three days commencing the next day. The period of the medical certificate coincided with the period of leave which Ms Walker required for her travel to Perth.
  1. [67]
    Ms Walker left a message on the answering machine of her employer the morning prior to departing for Perth.  She did not inform her employer that she would be travelling to Perth while on sick leave and she had not previously applied for annual leave for the trip. The manager was already aware of Ms Walker's booked flights to Perth as he'd seen the flight tickets on the work printer a week earlier.
  1. [68]
    Investigations of Ms Walker's work emails undertaken by the employer found that Ms Walker had pre-planned the trip.  There were a series of permanently deleted emails which related to Ms Walker's trip to Perth.
  1. [69]
    Ms Walker was summarily terminated.  The Fair Work Commission concluded that the termination did not constitute an unfair dismissal:

The matrix of circumstances described in those parts of the evidence that were common ground, together with the deconstruction of many of the applicant's explanations of her conduct under close cross-examination, lead me to conclude that it was, considered in the context of the [Small Business] Code, fair for the respondent to dismiss the applicant without notice or warning in circumstances where Mr Leadbeater believed, on what I am satisfied were reasonable grounds – going fundamentally to good faith, fidelity and trust – that the applicant's conduct was sufficiently serious to justify immediate dismissal.[71]

  1. [70]
    Ms O'Connor's case has similarities to that of Ms Walker's with regard to pre-planned travel, seeking a medical certificate to cover the time of the travel, informing the employer of the illness and not the travel. 
  1. [71]
    What Ms O'Connor's case also has, is a reasonably recent disciplinary history with regard to medical certificates and pre-arranged changes to travel arrangements without approval.  Ms O'Connor had only recently been demoted following a disciplinary process in which serious allegations had been substantiated.
  1. [72]
    Following her recent demotion, Ms O'Connor should have been hyperaware of the need to manage conflicts of interest and to be sure to be complying with the Code of Conduct.  Instead, Ms O'Connor appears to have made a calculated decision to take sick leave to travel to the conference and to omit the fact that she was travelling to Adelaide for the conference from the email to her employer informing them that she was sick. It is simply not possible to accept a version of events consistent with Ms O'Connor, a senior employee, being genuinely unaware that it was 'not on' to take sick leave to attend a conference unrelated to work.  Ms O'Connor's actions constituted a deliberate departure from accepted standards[72] and apparent indifference to the requirements of her as a public servant. This is made all the more serious by the surrounding circumstances of her recent employment history.  This substantiated allegation is rightly characterised as misconduct under the Act.

Did Ms O'Connor fail to manage a conflict of interest with respect to secondary employment by a. routinely utilising departmental resources for non-work related employment and b. regularly performing non-work related activities during work hours, including to support PKA?

  1. [73]
    Ms O'Connor submits that in her role she had a limited budget and limited human resources to fairly and justly look after the communities of the Torres Strait.  She said that it is necessary to build a rapport and work with other organisations and other community organisations and that this was the case whether she had the volunteer position of being president of one of the community organisations.[73]
  1. [74]
    During cross-examination, Ms O'Connor was asked about her understanding of the Code of Conduct, and specifically, conflict of interest.  Ms O'Connor said that she understood conflict of interest and what it says in the policy but that it needs to be understood in the light of cultural responsibilities in the community. Ms O'Connor said that everybody is related in the Torres Strait and that you might have your husband, your father, or your brother in a leadership position where you need to contact them for business to do with the department.[74]  Ms O'Connor said:

MS O'CONNOR: …I've brought this out in our – in our discussions as the fact that, oh, it's a conflict of interest because it happens, and there are a lot of examples in the departments up there where a husband and wife working together in one in one department, or a husband and a brother and a sister, that's conflict of interest, okay, the issues brought up, but with understanding of culture. It's a little community. Everybody's related to each other. But it doesn't necessarily mean you're in collusion, or you're working together to get something, because one is representing a different department, a different community, and the other person might be representing their own department, but you have to come together in light of what needs to be implemented. Okay. And that should be regarded as trust as long as it's been disclosed. Yes.

MR MURDOCH: Well, you accept that it has to be disclosed; correct?

MS O'CONNOR: Correct.

MS MURDOCH: Yes. And once it's disclosed it has to be managed?

MS O'CONNOR: It has to be managed. But the management of it has to be given the right perspective. Rather than having a different person coming up and – with the report done – the trust as well with those who are managing that….[75]

  1. [75]
    The evidence before the Commission demonstrates that Ms O'Connor had been spoken to about the risk of potential conflict of interest between her position with DATSIP and her involvement with PKA as early as April 2016.[76]
  1. [76]
    Ms O'Connor had specifically been directed not to use her Departmental email account to send PKA-related emails.[77]
  1. [77]
    The conflict of interest declaration Ms O'Connor had signed on 22 March 2018 included a statement in Ms O'Connor's own handwriting that she would "avoid conducting PKA work during my work hours".[78]
  1. [78]
    Ms O'Connor also raised a concern about the Department accessing her emails and compiling them. Ms O'Connor appeared to suggest that her confidentiality had been breached and that there was an agenda to get the emails to build a case against her. It was put to Ms O'Connor that the department's policy was that the content of any email that was composed, transmitted or received by the Department's systems was considered to be owned by the Department. Ms O'Connor said that she could see that now.[79]
  1. [79]
    Ms O'Connor was questioned about the emails at length while under cross-examination.   In summary, her responses included
  • that she had told PKA staff members not to send emails to her DATSIP email address but they still do;[80]
  • there is some work that relates to both PKA and DATSIP;
  • that she had a PKA email address;
  • that she could have responded to or dealt with emails using the PKA email address;
  • that she understood that she could not deal with emails sent to her DATSIP address in any way other than through the DATSIP email;
  • that it was correct to say that one would imagine that if people continued to email PKA matters to her DATSIP address, she would email them back saying 'Please stop. Don't do this anymore.'
  • that she could have forwarded PKA emails to her PKA address to deal with them from there in her own time.[81]
  1. [80]
    The ESU report was accompanied by a large number of print outs of emails sent and received by Ms O'Connor relating to PKA business.[82]  While it is the case that not all of the emails were sent during work time and that some of the emails were sent while Ms O'Connor was on sick leave, all of the emails were sent or received on Ms O'Connor's DATSIP email address.  This constitutes a use of departmental resources for non-departmental purposes.
  1. [81]
    Ms O'Connor's previous discussions and her conflict of interest declaration form had involved a commitment to deal with PKA matters in her own time at lunch or out of hours. Initially under cross-examination, Ms O'Connor indicated that her lunch break was usually taken from 12.00pm until 1.00pm or 1.00pm until 2.00pm. However, as questioning continued about emails sent outside of the hours 12-2.00pm, Ms O'Connor suggested that her lunch breaks were at a range of different times and that she was able to work flexibly as she didn't have to complete time sheets as Regional Director.[83]
  1. [82]
    It was put to Ms O'Connor that she was making up the story about working flexibly to excuse the fact that she was sending PKA emails when she was meant to be doing her Department work.[84]  Ms O'Connor responded:

That's your opinion. You can say what you have and I have my own point of view because I know what's happening and I know what I did, the pressure that I have to work under with my staff.[85]

  1. [83]
    Mr Michael Tarnawsky, a digital forensic specialist, provided a report analysing Ms O'Connor's work emails.[86]  Ms O'Connor was asked about the report:

MR MURDOCH: So you don't challenge what Mr Tarnawsky says, do you?

MS O'CONNOR: It doesn't mean that I agree with it.

MR MURDOCH: Well, which – which part of his report don't you agree with?

MS O'CONNOR: There's a few things in his reports, it's just working towards the agenda for the department to prove that I've done what they're saying I'm doing.

MR MURDOCH: You're not suggesting that Mr Tarnawsky is part of some departmental agenda, are you?

MS O'CONNOR: I'm not saying that. I'm not saying that at all. But he has no idea who I am and I don't know who he is. So of course he's going by it – through will all the brief as I've seen with all the statement that was – I read through and the colluding of information with a number of staff members in the department working together and exchanging information with a number of staff members in the department working together and exchanging information on the fact that, 'This has happened and this,' so ---

…..

MR MURDOCH: Okay. Well, to be fair to you, can I suggest that, between May and August of 2018, that 32 per cent of the emails that you sent on your department email account were non-work related?

MS O'CONNOR: You can say that.

MR MURDOCH: Well, what's your response?

MS O'CONNOR: I'm not responding – I'm not saying yes or no because that's a general comment you say to me to agree to it, "Say yes," I'm not.

MR MURDOCH: And I – if I ask you similar questions in respect of other things in Mr Tarnawsky's report, will you give me the same answer?

MS O'CONNOR: Well, I'm not going to agree to a yes or no to that.[87]

  1. [84]
    In conducting her own re-examination, Ms O'Connor reiterated the submission made in her show cause letter prepared by her solicitor, that it would be inappropriate to use the percentage of PKA-related emails sent using her work email address or during work time to determine that this was the percentage of work time in total used for PKA work. Ms O'Connor stated that there was much more to her role than sending emails.[88]
  1. [85]
    Ms O'Connor's statement for these proceedings says that the fact that 48%[89] of the emails on her work email account in a certain period related to PKA is partly to do with people ignoring her requests not to use it, and partly because sending emails was only a small aspect of her role as Regional Director, in which her main role was to supervise others in the office and to be out in the community building links with the community and hosting visiting dignitaries.[90]
  1. [86]
    Ms O'Connor also reiterated her evidence that when she was Regional Director, she did not have to fill in a time sheet and was able to work flexibly.[91]
  1. [87]
    One of the witnesses called by Ms O'Connor was Mr Orme.  Mr Orme worked in the Thursday Island office with Ms O'Connor for a period of time and his evidence was that he had at no point observed Ms O'Connor doing any PKA work during work hours.[92]  However, under cross-examination, Mr Orme said that[93]
  • he generally worked different hours to Ms O'Connor;
  • he sat separately from Ms O'Connor in a different office and could not observe what she was doing;
  • he could not hear what Ms O'Connor was discussing on the telephone when he was in the office unless it was a loud conversation;
  • he did not have access to Ms O'Connor's department emails; and
  • he usually left the office before Ms O'Connor and his statement that Ms O'Connor often worked late was based on an occasional observation when he would go past the office on his way out to dinner and notice the lights on in the office, but he could not be sure that it was Ms O'Connor in the office.
  1. [88]
    Ms O'Connor asked Mr Cunneen if he had sought access to her emails in response to a complaint from Ms Pauline Ahwang.  Mr Cunneen replied that he hadn't.[94]  Mr Cunneen's evidence was that in his role, he had a duty of care to ensure that continuity of work in the office was maintained.  Mr Cunneen said that he asked the HR area to monitor Ms O'Connor's emails and 'alert, or let the management team know, if there are special meetings, or requirements that the DATSIP office have to respond to' while Ms O'Connor was away.[95]
  1. [89]
    The ESU report expresses the following opinions:

Ms O'Connor is of the belief that she fulfilled her obligations when, in March 2018, she disclosed a possible conflict of interest with her Port Kennedy Association duties. Ms O'Connor struggled to comprehend her responsibility to appropriately manage any conflict of interest in the public interest.

Based on the available evidence, the allegation that Ms O'Connor failed to manage a conflict of interest with respect to secondary employment obligations is capable of being substantiated on the balance of probabilities.[96]

  1. [90]
    As stated above, Ms O'Connor's second show cause notice is critical of the ESU investigation and analysis of the emails. However, it also states:

4.1 Matters which are conceded

Notwithstanding the above submissions, Ms O'Connor concedes the following factual matters:

  • That occasionally and inadvertently she has used her DATSIP email for the purposes of communicating with others in her role with the PKA;
  • That PKA related visitors have, occasionally, attended on her at DATSIP for periods which have extended beyond her lunch break.[97]
  1. [91]
    With regard to the allegation, Ms O'Connor's first show cause response says:

I consider this allegation to be fair but unreasonable given our geographical isolation, reliance on inferior telecommunications and information technology systems compared to that of mainland towns and cities and the fact that our local NGOs are reliant upon skilled people, with local knowledge and capability are few and far between.[98]

  1. [92]
    The Department says that the evidence before Dr Ian Mackie as at the second show cause letter (12 February 2019) was relevantly:
  1. a.
    the ESU report of 23 October 2018, together with attachments, including the transcript of the interview with Ms O'Connor on 10 October 2018, the conflict of interest declaration of 22 March 2018, the email archives extracted from Ms O'Connor's computer for the period 1 May 2018 to 10 August 2018; and
  1. b.
    the applicant's response on 11 January 2019.[99]
  1. [93]
    The evidence before Dr Chris Sarra as at the date of signing the penalty letter (17 May 2019) comprised:
  1. a)
    The briefing note singed by Dr Ian Mackie dated 16 May 2019, together with attachments;[100]
  1. b)
    ESU report of 23 October 2018;[101]
  1. c)
    Ms O'Connor's response of 1 March 2019.[102]
  1. [94]
    The evidence before the decision makers regarding this allegation established that:
  • Ms O'Connor was aware of the potential conflict of interest between her employment and her role as President of PKA and the need to manage that conflict;
  • that Ms O'Connor had said she would manage the conflict of interest by dealing with PKA matters in her own time i.e. lunch and after hours;
  • according to the ESU investigator, of the sample analysed, 48% of the emails sent by the applicant related to matters involving PKA;
  • the most frequent email communication was with the manager of PKA, Ms Kali McKeown; and
  • Ms O'Connor was attending to PKA matters while on sick leave.[103]
  1. [95]
    The BDO report prepared by Mr Tarnawsky addresses the concerns the second show cause response raised with the ESU report. The findings of that report are compelling. During the period 1 May 2018 to 31 August 2018:
  1. a.
    Sent emails: 32% (197 of 617) were non work-related; 27% (166 of 617) were PKA related.
  1. b.
    Received emails: 38% (1,168 of 3,085) were non work-related; 28% (850 of 3,085) were PKA related.[104]
  1. [96]
    A further breakdown of these emails was undertaken to analyse the number of non-work emails sent and received by Ms O'Connor in the period 1 May 2018 and 31 August 2018. 
  1. [97]
    What is clear is that notwithstanding the instructions given to her, Ms O'Connor continued to send and receive PKA emails and apparently undertake work for PKA during work hours using her Department email account on a regular and routine basis.  Ms O'Connor also sent emails using her Department account outside of work.
  1. [98]
    A review of the emails also makes it clear that Ms O'Connor was not simply forwarding on or sending quick responses.  There are a number of occasions where it is clear that before sending an email, Ms O'Connor has read or reviewed material or made phone calls related to the content of the email.[105] 
  1. [99]
    While Ms O'Connor says that she was discouraging people from writing to her about PKA matters using her Departmental email, there is no evidence to demonstrate that this occurred. Specifically, there are no emails in the bundle of emails attached to the ESU report that demonstrate that Ms O'Connor asked anyone to stop sending her emails on the Department system.
  1. [100]
    It is also clear that Ms O'Connor was doing this despite a range of interventions by the employer to remind her that this was inappropriate. This includes the meeting on 7 April 2016 with Mr Cunneen and Ms Bianchi, followed up by Mr Cunneen at a subsequent meeting.[106]
  1. [101]
    The disciplinary letter of 27 March 2017[107] made specific reference to Ms O'Connor's obligations under the Code of Conduct and relevantly included extracts of the Code of Conduct, namely, Principle 1, clause 1.5 and 1.2.
  1. [102]
    Ms Simon Jackson said that she counselled Ms O'Connor against performing PKA work within work hours and using Department resources, in particular her work email account[108] on multiple occasions during the period November 2016 to December 2017 when she was supervising Ms O'Connor.  Ms Jackson said that Ms O'Connor had told her that she understood that her role in the PKA meant that there was a possibility that a conflict of interest could arise with her role within the Department if the PKA and the Department were both involved in a particular initiative.[109]
  1. [103]
    On or shortly before 22 March 2018, Mr Cunneen and Ms Katie Holm (Chief Operating Officer of the Department) met with Ms O'Connor to discuss her involvement in PKA and how that could be perceived as a conflict of interest.  Mr Cunneen says that the importance of properly managing the conflict was discussed.[110] Further on the discussion, Mr Cunneen says:

I recall that my discussion with Ms O'Connor and Ms Holm lasted for quite some time, and that I walked through with Ms O'Connor the reasons why it was important for her to manage conflicts of interest, and to ensure that she did not perform PKA work during her Departmental hours of work and using Queensland Government resources … I recall Ms O'Connor stating in response that she understood everything that I had said and that she would complete a conflict of interest form and provide a copy to me.[111]

  1. [104]
    I have already noted that Ms O'Connor completed and signed a conflict of interest declaration form.
  1. [105]
    Ms O'Connor failed to manage a conflict of interest with respect to secondary employment by a. routinely utilising departmental resources for non-work related employment and b. regularly performing non-work related activities during work hours, including to support PKA.

Does Ms O'Connor's failure to manage a conflict of interest with respect to secondary employment by a. routinely utilising departmental resources for non-work related employment and b. regularly  performing non-work related activities during work hours, including to support PKA constitute 'misconduct' within the meaning of s 187(1)(b) of the Public Service Act 2008 (Qld)?

  1. [106]
    The Respondent directed my attention to cases offering guidance regarding conflict of interest and misuse of an employer's ICT systems.
  1. [107]
    In Noble v Community Accommodation & Respite Agency Inc[112]an employee was dismissed for alleged conduct contravening her employment contract and policies concerning Staff Code of Conduct and ICT use.  The alleged conduct included conducting private work during work hours and using the employer's ICT resources, including her work email, to communicate with her private clients.
  1. [108]
    In Harris v Luka Financial Pty Ltd,[113] Mr Harris was summarily dismissed from his position as a financial adviser after it was discovered that Mr Harris had been conducting a side business utilising the IT resources of his employer.  The Fair Work Commission concluded that "the conduct of the applicant whereby he engaged in undisclosed secondary employment performing work as a contract paraplanner, constituted misconduct and provided valid reason for the dismissal of the applicant".[114]
  1. [109]
    Ms O'Connor was repeatedly reminded of the need to manage her conflict of interest, including being told quite specifically to stop using the Department email system for PKA business. 
  1. [110]
    Ms O'Connor knew of the potential conflict of interest and only months before this allegation was investigated, had self-identified that a strategy for dealing with the conflict was to do non-work related PKA work in her own time, outside of work hours or at lunch time.
  1. [111]
    Ms O'Connor had only recently been demoted following a disciplinary process establishing that she had inappropriately used government property and resources by allowing a member of the public to utilise office space within the Torres Regional Office without authorisation.
  1. [112]
    The disciplinary penalty letter provided to Ms O'Connor included the following:

As Regional Director, you hold a leadership position of significant trust and your conduct should be appropriate and proper in both an official and private capacity where this could reflect seriously and adversely on the public service. Further, you have an obligation to use public resources only in accordance with official polices and to adhere to the policies, organisational values and organisational documents of your employing agency. I strongly believe your actions are inconsistent with the nature and responsibilities of your role and which fall below the standard of behaviour expected of a senior and experienced public service employee. Further I am of the view that by minimising your actions, you indicate an unwillingness to understand the serious breach of trust invested in your and the potential for your actions to seriously jeopardise the public and client confidence in the government and the department.

  1. [113]
    If there were ever a time for Ms O'Connor to focus her mind on managing her conflict of interest and taking all necessary steps to delineate between her Department work and her PKA work, it was following the imposition of a most serious of disciplinary penalties.  Instead, Ms O'Connor continued to utilise the Departmental email account for PKA work and sending and receiving emails on a regular basis during work time as though it was 'business as usual'.
  1. [114]
    Ms O'Connor appeared to be indifferent to the repeated directions given to her regarding the conflict of interest that existed with regard to her PKA role. This indifference also resulted in a breach of the expected standards of the Code of Conduct listed in the first show cause letter:
  1. a.
    Standard 1.2: Manage conflicts of interest
  1. b.
    Standard 3.1: Commit to our roles in the public service
  1. c.
    Standard 4.1: Ensure diligence in public administration
  1. d.
    Standard 4.3: Ensure appropriate use of official resources, public property and facilities.[115]
  1. [115]
    It is my view that Ms O'Connor's failure to manage her declared conflict of interest as evidenced by her ongoing utilisation of departmental resources for non-work related employment and regularly performing non-work related activities during work hours does constitute misconduct.

Other matters

  1. [116]
    There was a persistent theme in Ms O'Connor's evidence regarding relationship problems that existed between Ms O'Connor and various DATSIP colleagues and an 'agenda' to remove her from her position. 
  1. [117]
    Further to this, at various times, Ms O'Connor talked about the way things were done in the Department and her experience of working for DATSIP and living in the Torres Strait.
  1. [118]
    Many of Ms O'Connor's statements throughout the hearing were not directly relevant to the allegations which led to her dismissal or the matters which led to previous disciplinary actions taken against her. However, for completeness, I have attempted to capture some of Ms O'Connor's evidence and submissions below.

Relationship with Ms Jackson, Mr Cunneen and Ms Ahwang

  1. [119]
    Ms O'Connor agreed that Ms Jackson was her supervisor when she became Executive Director.  Ms O'Connor understood that Ms Jackson was the person from whom she had to seek permission or authority in respect of taking leave. Ms O'Connor said that she had told Mr Cunneen that she was uncomfortable with the way Ms Jackson spoke to her and that she could have spoken to Ms Jackson about departmental policies and procedures but that there was animosity between herself and Ms Jackson. Ms O'Connor also made reference to being uncomfortable working with Ms Jackson and 'biases from Ms Jackson'.[116] Ms O'Connor said that she knew she could speak to Mr Cunneen if she could not speak to Ms Jackson.[117]
  1. [120]
    Under cross-examination regarding the matters listed at [15](d), Ms O'Connor said that Ms Jackson and Mr Cunneen had been speaking to an administration officer "who reports and was watching me all the time".[118] Ms O'Connor identified the administration officer as Ms Ahwang.  Ms O'Connor also said that she was "conscious of the fact that all emails were monitored" and that the Department "can take any email".[119]
  1. [121]
    In response to a question regarding Ms O'Connor taking part in an interview that was posted to Facebook, the following exchange took place:

MR MURDOCH: You accept now though, don't you, that, at the very least, it was poor judgment on your part engaging in that interview with him?---

MS O'CONNOR: Maybe that's what you said. That's how you perceive and how Allen Cunneen and Simone Jackson saw that. And of course they'll perceive it that way because they have an agenda to fulfil: "Get rid of Ms O'Connor." That's what they were working at. So they will look at every other thing that's supposed to be seen in the light of positivity, positive or encouragement, of course it will be nasty.[120]

  1. [122]
    When being cross-examined about the warning that disciplinary penalty of demotion imposed following the allegations at [15(d)] may be incorporated into the consideration of any future disciplinary action that may be initiated against her, Ms O'Connor said, "Mr Cunneen, and Ms Jackson, and Ms Pauline Ahwang are all working together. And the fact that every other issues that they are going to put, and Ms Dunning said there. And I know that Mr Cunneen knows Ms Dunning very well".[121]
  1. [123]
    Ms O'Connor was asked if she was making an allegation of bias against Ms Dunning. She replied:

MS O'CONNOR: No. I am not saying that. What I am saying, there is an agenda to be met here. There is an agenda. So we need to address it according to the policies of the department, and look for the allegation of bullying and everything like that, and this is what has been done here. In the fact that, yes, you can prove all the little things that come under there, or that issue there. And of course, this is bad news as well, apart from the demotion. This instrument was used for demotion in June 2018, and is clearly said that this will be used towards another one.

MR MURDOCH:So you were put on notice, weren't you, that going forward your behaviour was going to be scrutinised?—

MS O'CONNOR: That is what it says there.

MR MURDOCH: And if there was a further lapse, the findings here would be taken into account, in considering what to do about that further lapse; you understood that?---

MS O'CONNOR: That is what it says there.[122]

  1. [124]
    Ms O'Connor mentioned Ms Ahwang a number of times.  When being cross-examined about her use of her DATSIP email for PKA related activities during work time, and specifically an email from a Belfinna Ahwang, the following exchange took place

MR MURDOCH: Yes. And that's not during lunch break time, is it?---

MS O'CONNOR: Two twenty-eight, as I said earlier, there's sometimes I take my lunch late or I start late. So not – and the other point is I don't control these people and Belfinna is the sister of Pauline Ahwang, okay? And they have worked together as well in the attack towards me and you have no idea because we live up there. We know what the issues are. So she said that knowing that I've talked to the board directors and the staff not to send email. I've been in there for a meeting not to send email. And, of course, there are people you can't control. They just do that deliberately, another addition to how the department will add on their list of things to attack Luisa and get her out. And that's the thing here.

MR MURDOCH: So are you suggesting that Ms Ahwang – this was a setup email?---

MS O'CONNOR: I'm suggesting that this is part of the fact that I can't control the fact that people send emails to me after telling them not to and, in person, face-to-face, we've had part of the subject. And I can produce the fact that I've gone in there and can be witnessed by the manager as well and talked to them not to send email but they still do, so.[123]

'Agenda' and 'Witch hunt'

  1. [125]
    Throughout the hearing and in her closing submissions, Ms O'Connor made additional submissions that her dismissal was harsh, unjust and unreasonable because the decision to terminate her was premeditated and she was not afforded sufficient procedural fairness.[124] 
  1. [126]
    Ms O'Connor submitted that she was not given support or resources to do her job. At various times she referred to her role being 'token'.  She also said that her termination was 'predetermined' and says that there was a 'witch hunt' based on 'collusion between departmental employees at different levels in an attempt to substantiate the allegations that eventually resulted in the disciplinary action being taken.'[125] Ms O'Connor says she was not in the 'in crowd' and that she was subjected to insubordination and disregard.[126] 
  1. [127]
    Ms O'Connor had also made reference to an 'agenda'.  Mr Murdoch asked Ms O'Connor why, if she was truly concerned about there being an agenda, she did not challenge the outcome of the disciplinary process by way of an appeal.[127]  Ms O'Connor initially answered that she did appeal.[128]  Ms O'Connor then said that she was not sure if she appealed.[129] Ms O'Connor then said that she didn't lodge an appeal because 'within the time of the demotion, (there) was another three set of allegations against her'.[130] It was put to Ms O'Connor that the 21 day appeal period for the disciplinary action of demotion had expired before the new allegations were put to her.  Ms O'Connor said that she was not sure and mentioned the passage of time and the changes of her legal representatives.[131]
  1. [128]
    Ms O'Connor provided no evidence to support her claims that the process was predetermined or that collusion occurred. Departmental officers met or communicated by email to discuss matters regarding Ms O'Connor's conduct in the circumstances that have been outlined in the statements and evidence of those Departmental officers involved in Ms O'Connor's disciplinary process. This appears to me to have been done in a confidential manner and according to proper process. Such communication cannot be considered collusion.
  1. [129]
    It was entirely appropriate for Mr Cunneen to ask that a member of his team monitor Ms O'Connor's emails to ensure that DATSIP work could continue in her absence. Likewise, it was entirely appropriate to undertake investigations into the circumstances surrounding Ms O'Connor's travel to the Adelaide conference while on sick leave from work.
  1. [130]
    Ms O'Connor appears to be of the view that those who raised the complaints about her conduct did so because they were targeting her.  The problem I have with this is that wherever or from whomever the complaints or concerns came, when they were investigated, they were found to have been substantiated. Had Ms O'Connor reflected on the conduct that led to the earlier cautions, disciplinary findings and penalty, she would not have continued the ways of working that led to the final two allegations being substantiated and the penalty of dismissal being imposed.

Application of the Code of Conduct to colleagues and supervisors

  1. [131]
    Ms O'Connor stated during the hearing that others had behaved in similar ways and that she appeared to state that she had been treated differently. Ms O'Connor said she understood the additional requirements that the Code of Conduct places on managers and supervisors.  She said that she found it hypocritical that she was supposed to follow the Code of Conduct but that she would look to her line supervisor and see they are not following it.[132]  The statement of Grant Sarra made reference to the allegations against Ms O'Connor and said he believed those accusations to be trivial by the standards of the region, when non-indigenous managers did the same things in the past, no one cared and nothing was done.[133] When asked if, regardless of her views of others, Ms O'Connor still had to comply with the Code of Conduct, Ms O'Connor agreed but said that she thought people in higher and more powerful positions can do what they want.[134]
  1. [132]
    There is no evidence before me that there was differential treatment given to others. Ms O'Connor was clearly aware of the Code of Conduct as it applied to her.  It seems to me that Ms O'Connor's supervisors and colleagues who gave evidence for this proceeding understood the Code of Conduct and were concerned to ensure that there was compliance with all requirements.

Ms O'Connor's personal health and well-being

  1. [133]
    Ms O'Connor gave evidence that she had been extremely unwell and had attended the doctor to discuss her work related anxiety and stress.[135] The statement of Milton Savage says that Ms O'Connor's demotion had impacted her mental health. He said that her body language showed how stressed she was at the time and that she had told him it was due to her work.[136] The statement of Dianne Hughes discussed a particular day when Ms O'Connor was unwell.[137]  The statement of Charles Passi says that shortly after her demotion he could see that it had severely affected her mental health, that she was very upset and he could see tears in her eyes.[138]
  1. [134]
    Ms O'Connor provided her Patient Health Summary for these proceedings.[139] There are multiple references throughout the records to her complaining to the doctors about work related stress and requesting medical certificates for time off work. While I accept that Ms O'Connor found this to be a difficult time and reported work-related stress to her doctors, none of Ms O'Connor's treating practitioners were called as witnesses and there was no medical evidence before the Commission that diagnosed work-related stress or connected work-related stress to the ongoing use of the Departmental email system or the regular engagement with PKA work via email during work hours. 
  1. [135]
    At various times Ms O'Connor spoke about feeling like she was left out of communications and that there was no support given to her after she was demoted.[140]    It is clear that Ms O'Connor was dissatisfied with a range of issues pertaining to workplace communication and relationships with a number of her colleagues and spoke about the personal impact that the demotion had on her.  However, there was no evidence provided by Ms O'Connor as to how this caused or could excuse the conduct subject of the two allegations leading to her dismissal.

Was the termination harsh, unjust or unreasonable?

  1. [136]
    Ms O'Connor says that she was not offered procedural fairness and says that the basis for this submission is that her response to the allegations made against her were not given due consideration.[141] Specifically, Ms O'Connor refers to the particulars of the allegations relating to her alleged attendance at the Healing Foundation forum and the after hours official function.  However, it is the case that these aspects of the allegation were not upheld in the final decision making.  The final decision of Dr Sarra with regard to activities undertaken when on sick leave from the Department was in relation to the attendance at the Adelaide conference.[142]
  1. [137]
    The Respondent submits that the Commission should be slow to disrupt the autonomy of the decision making process in circumstances where the decision maker, the Director-General, Dr Chris Sarra has exercised discretion after proper consideration and on reasonable grounds.[143]
  1. [138]
    The Respondent points to the significant history of prior disciplinary action in respect of Ms O'Connor. The disciplinary outcome of the prior processes escalated over time form a written caution to demotion.  As has been rehearsed above, the demotion only occurred some months before the allegations subject of the show cause process in this proceeding being put to Ms O'Connor.
  1. [139]
    It was put to me that Ms O'Connor was "very, very fortunate to not be dismissed"[144]  following the disciplinary process leading to her demotion.  It is the case that the substantiated conduct of Ms O'Connor with regard to those allegations of dishonestly altering a medical certificate and dishonestly claiming travel allowances was very serious.
  1. [140]
    The Respondent says that the termination of Ms O'Connor's employment was the only viable option because of a complete breakdown of trust and confidence in her. In saying that, the Respondent points to the clear evidence that Ms O'Connor has acted with deliberate dishonesty in her dealings with her supervisors. This dishonesty, the Respondent says, is exemplified with respect to the fraudulent alteration of a medical certificate and the unauthorised travel in the prior disciplinary process.
  1. [141]
    Ms O'Connor questioned Dr Mackie under cross-examination about his decision to recommend her termination to Dr Sarra:

MS O'CONNOR: So, but – but the – the question that I've – I want to ask, given all of that I'm coming to, is the fact you've recommended to Dr Sara the – given all of that – the termination of Ms O'Connor?---

DR MACKIE: And, if you're asking me to justify that decision, I'm happy to.

MS O'CONNOR: No. Yes, yes please?---

DR MACKIE: Well, on the basis of where else were we to go. You know, there was a previous investigation into your behaviour. You were demoted for that. I acknowledge that's hard to discount that knowledge. And I think it's relevant to this consideration. So, when you were found to be in breach; as you were, and you admitted that, you offered excuses like you were stress, I took that into account, but I don't think that was a mitigating excuse. The recommendation was to terminate because what would be the option. That's what, yeah, I would put to you in return. What would be the option? To demote you further? What would be the option? Really, there's no – no option but to offer you an opportunity to show cause why you should not be terminated. And that's – that offer was made to you.[145]

  1. [142]
    Ms O'Connor further questioned Dr Mackie:

MS O'CONNORI – thank you. I also want to bring up a point, you can say – answer me or not, the fact that the – the – the process that was happening at the time occurred, that I know that the Department, even though it's – it's called Aboriginal and Torres Strait Islander Partnerships, but it had the thing about women. Women is another issue. In – in strong women who can stand up and articulate themselves. I know that there was also a couple of Indigenous women have been dismissed not long after that. So, I'm the one on the firing line at the time to – to move me. Apart from the all the allegation here, all put forward and all of that, but you can tell me that I'm wrong in that. But that the perception that's out in the community, as well, and within the Department. That those women, Indigenous women, move them out?---

DR MACKIE: So, I reject that totally. And I would ask you to consider what you are actually saying to me. You're saying that you're a woman, and you're a Torres Strait Islander, so that should be an explanation for your breaches of the Code of Conduct, and your transgressions in this case. And – and I don't believe that they are reasonable explanations for that which you'd engaged in.[146]

  1. [143]
    It is clear that there has been a breakdown in the employment relationship that led to the Director-General, Dr Chris Sarra concluding that termination was the appropriate disciplinary penalty.  Dr Sarra's statement in this matter addresses the issue:

I considered that by her conduct, Ms O'Connor had irreparably destroyed the trust and confidence in her employment in relationship with the Department, and I had no confidence that Ms O'Connor would comply with the Code of Conduct and act appropriately, if her employment continued.[147]

  1. [144]
    The statements of Ms Jackson and Ms Page, both of whom supervised Ms O'Connor at different times indicate a level of frustration regarding Ms O'Connor.  Ms O'Connor questioned Ms Jackson about the support Ms O'Connor received from her as manager:

MS O'CONNOR: And the other – other point that I was getting at, was the relationship between you and I, did fall by the wayside in the – just the management – in our relationship because from my point of view, it did?---

MS JACKSON: Well, I'm sorry to hear that, Luisa ---

MS O'CONNOR: Yes?--- ---

MS JACKSON: I guess I've had a 25-year government employment history and at the bottom of almost every piece of correspondence I sent you was almost begging you to make contact with me to seek my advice and counsel before you continued to make some poor decisions, and that was the cycle. As I reiterated before, I was the chair of the panel that appointed you to the position. No one wanted you to succeed more than me, and I offered at every opportunity for you to come to me for assistance, and you would not, and to be frank with you, I don't know what more I could have done. I called you. I supervised you. I mentored you. I went to the Torres Strait. I sent you links to all the policies. I engaged you at every opportunity and you never engaged me back. So I'm confident there was no dereliction in my duties and in fact I'm more than confident that I really, really tried hard.

  1. [145]
    Ms Terri Page, Regional Director, Cape and Torres Strait Region, was Ms O'Connor's direct supervisor at the time of termination of her employment.  Ms Page's statement for these proceedings expressed concerns about Ms O'Connor's failure to progress her work and a lack of reasonable excuse for not undertaking work she had been directed to do.[148] Ms Page said that during the period that she was Ms O'Connor's supervisor, she found that Ms O'Connor was rarely contactable, and during periods she was not on leave, she would often be out of the office when Ms Page contacted her to speak with her.[149]  Ms Page says in her statement that she could not trust Ms O'Connor to behave appropriately if she were to be reinstated and continue in the Thursday Island Office. Ms Page said "I consider that Ms O'Connor displayed a repeated disregard for my directions to her during the time of my supervision, and I consider that such a pattern of behaviour would likely continue if Ms O'Connor were reinstated".[150]
  1. [146]
    While Ms Page did not become Ms O'Connor's manager until after she was demoted, she was her supervisor from July 2018.  Ms Page did not have any involvement with ESU investigation, nor did she discuss the findings with Ms Smith or Mr Mackie.[151] Ms Page's evidence is instructive as to the way Ms O'Connor was going about her work following her demotion and adds to other evidence before the Commission that Ms O'Connor did not appear to change her behaviour or work practices following the previous disciplinary process.
  1. [147]
    Ms O'Connor cross-examined Ms Page during the hearing regarding her role as Ms O'Connor's supervisor:

MS O'CONNOR: Coming back to – to the statement you provided, what I can see there was the – the fact that the trust, trust and – two issues, trust and safety wasn't there. We've given the statement you gave her from Mr Cunneen in outlining the fact that you have to watch me in – in – when you take over as the responsibility for you, the Torres Straits. You have to keep an eye on Luisa O'Connor. Was that – am I true in saying the issue of trust wasn't there?---

MS PAGE: No. I have would say, Luisa, that I approached the way I managed yourself the same was as I approach any of my staff and obviously, one of the projects that we actually asked you to undertake, which was the ISD, required a large amount of trust and a reliance on your local knowledge.[152]

  1. [148]
    The Respondent submits that the seniority of Ms O'Connor's position is also relevant and says that the high standard expected of a Principal Project Officer, and the level of trust and responsibility placed in that position, particularly given the remote location of the Thursday Island office are material considerations.[153]
  1. [149]
    The Respondent further points to Ms O'Connor's conduct after the show cause process commenced, including her failure to follow the direction to move out of the manager's office and what it says is her threatening conduct to Mr Morseu. The Respondent says that this behaviour further exemplifies the complete breakdown in the employment relationship and a resistance of Ms O'Connor to reform.[154]
  1. [150]
    Dr Sarra said that he eventually came to the view that he needs employees who will demonstrate highly ethical behaviour:

I arrived at a point in my head where I figured that in a senior Indigenous leadership role, we needed highly ethical workplace behaviour and that was important to be able to demonstrate that we had people who could demonstrate that on behalf of the department to the community, and I don't – and in particular, in the context of what we were modelling to young people and who they could aspire to be as young Indigenous people coming up, and I have always maintained in this role and every other circumstance that in se – as Indigenous people in senior roles, we need to model the highest level of ethical behaviour so that – and that's why, when I said confidently I had considered those things, that was very much at the forefront of my consideration.[155]

  1. [151]
    Dr Sarra said that the decision weighed heavily on him, however he considered that overall his 'old people' would be comfortable with the decision he reached to terminate Ms O'Connor's employment.

…also in a cultural context, I would ask myself, "Would my old people be happy with the decision that I've made and for the reasons that I've turned to in my mind?"  and I – I'm confident that my old people would be comfortable with the decision that I made.[156]

  1. [152]
    The Respondent says that it is acknowledged that the termination of employment involves adverse consequences for Ms O'Connor including the loss of her entitlement to continue to reside in her present residence, being a property reserved for Department employees. However, the Respondent points out that the terms of the Employee Housing policy are that there is no guaranteed ongoing entitlement to such accommodation beyond five years in any event.
  1. [153]
    While Ms O'Connor's evidence for these proceedings addresses the matter of housing and the difficulties she faces finding alternative accommodation on Thursday Island,[157] I note that Ms O'Connor has said that she no longer seeks reinstatement, but the maximum compensation available.  The house Ms O'Connor resides in is Departmental housing available to her only as an employee of the Department and Ms O'Connor is not seeking a return to work.
  1. [154]
    I have considered the impact on Ms O'Connor of the housing situation on Thursday Island but in circumstances where being a long term employee of the Department and resident of Thursday Island does not guarantee ongoing access to departmental housing, I do not find that this situation serves to make the decision to terminate her employment harsh, unjust or unreasonable.
  1. [155]
    I understand that Ms O'Connor has found this process difficult, to say the least.  I have listened carefully to her submissions and her evidence about her experiences in her role and working in the Torres Strait.  None of Ms O'Connor's submissions serve to excuse or properly explain the conduct subject of the allegations which led to her termination.
  1. [156]
    The evidence demonstrates that Ms O'Connor was the subject of lengthy history of other disciplinary action.  It also demonstrates that despite the disciplinary history and support provided to her, Ms O'Connor was either unwilling or unable to amend her conduct to that expected of her in her role. 
  1. [157]
    Both of the allegations are capable of being substantiated and represent misconduct within the meaning of s 187(1)(b) of the PS Act. Ms O'Connor was comprehensively made aware of the conduct expected of her and yet chose to depart from these accepted standards. There was an extensive investigation and show cause process in which Ms O'Connor was able to seek legal advice to support her to provide her response.  On the basis of the investigation and the responses provided by Ms O'Connor, Dr Mackie made the recommendation to Dr Sarra that Ms O'Connor's employment be terminated.  Dr Sarra gave compelling evidence at the hearing regarding his thought process and the final decision.
  1. [158]
    The termination was not harsh, unjust or unreasonable. It was a fair decision made following a lengthy and considered disciplinary process.
  1. [159]
    The application is dismissed.

Footnotes

[1] Exhibit 23: Statement of Dr Chris Sarra signed 21 December 2020.

[2] Exhibit 13: Statement of Dr Ian Mackie signed 21 December 2020, [26]-[29], [117]-[122], IM-08.

[3] T5-18, ll 4-7.

[4] Laegal v Scenic Rim Regional Council [2018] QIRC 136.

[5] [2018] QIRC 136.

[6] (1993) 144 QGIG 914.

[7] [2018] QIRC 136, [66].

[8] [2020] QIRC 032, (Coleman).

[9] Ibid, [62].

[10] Ibid, [69].

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

[12] Exhibit 1: Letter from Acting Executive Director Lawrence Swan to Ms O'Connor dated 3 October 2014.

[13] Exhibit 21: Statement of Allen Cunneen 21.12.2020, [22]-[24]; AC-01.

[14] Exhibit 18: Statement of Simone Jackson 13.01.2021, [37]-[39]; SJ-7.

[15] Exhibit 19: Statement of Kathy Dunning18.01.2021, [8]-[50]; KD-3 (first show cause letter); KD-7 (second show cause letter); and KD-10 (penalty letter).

[16] Exhibit 19, [44]-[50].

[17] Exhibit 21, [50]-[54].

[18] Exhibit 21, [55]-[56]; AC-05.

[19] T1-28, ll 1-7; T1-35, ll 16-19.

[20] Industrial Relations Act 2016, s 320(c).

[21] Exhibit 2: Statement of Ms Luisa O'Connor signed 16 October 2020, [9], [10],[13], [29].

[22] Exhibit 1: Caution letter is an example of such a warning.

[23] Exhibit 19, page 232.

[24] T1-22.

[25] T1-23, ll 1-3.

[26] T1-26.

[27] T1-29, ll 12-16.

[28] T1-36, ll 5-15.

[29] Exhibit 22: Supplementary statement of Allen Cunneen 19.01.2021, AC-13.

[30] Exhibit 19, KD-4.

[31] Exhibit 2, [14].

[32] Exhibit 18, SJ-17; SJ-18; and SJ-19.

[33] T1-38, l 17 - T1-41, l 38.

[34] T1-44, ll 9-27.

[35] Section 320(a).

[36] Section 320 (c)(ii).

[37] Exhibit 13, [26]-[29]; IM-08.

[38] Statement of Terri Page 21.12.2020, [41]-[46]; TP-10; see also Exhibit 13: statement of Dr Ian Mackie 21.12.2020, [24]; IM-07.

[39] Exhibit 13, [35]-[47]; Exhibit 15, [43]-[45].

[40] Exhibit 15, [24]-[26]; TP-01; Exhibit 20: Statement of Danny Morseu 23.12.2020 [9]-[12].

[41] T1-95, ll 15-30.

[42] Exhibit 15, [27]; TP-02.

[43] T1-96, ll 19-35.

[44] Exhibit 20, [13].

[45] T1-97, ll 1-37.

[46] Exhibit 20, [18]; DM-01.

[47] Exhibit 13, [55]-[67]; IM-03.

[48] Exhibit 13, [68]; IM-14.

[49] Exhibit 13, [85]-[91]; IM-16.

[50] Exhibit 13, [95]-[99]; IM-17

[51] Exhibit 13, [100]-[105]; IM-14.

[52] Exhibit 23, [19]-[25]; CS-03.

[53] Exhibit 23, [26]-[35]; Exhibit 13.

[54] Exhibit 23, [50]-[52]; CS-03.

[55] Exhibit 23, [54].

[56] T1-17 - T1-18

[57] T1-88 - T1-89

[58] Exhibit 2.

[59] Exhibit 13, IM-01 Medical Certificate of 9 August 2018 signed by Dr Andrew Scott.

[60] Exhibit 2, Attachment 4, page 32.

[61] Exhibit 13, IM-01 email from Ms O'Connor to Ms Robins 10 August 2018.

[62] Exhibit 13, IM-01.

[63] Exhibit 14: Statement of Donna Smith 24.12.2020, DS-08.

[64] Exhibit 14, DS-08, pp 17-18.

[65] [2012] FMCA 1052.

[66] Ibid [32]-[33].

[67] Exhibit 13, IM-14.

[68] T1-93, l 20.

[69] Exhibit 2, Attachment 4, page 32.

[70] [2012] FWA 2851.

[71] Ibid [22].

[72] Coleman, [69].

[73] T1-9, ll 14-18.

[74] T1-18, ll 3-8.

[75] T1-18, ll 10-29.

[76] Exhibit 21: Statement of Allen Cunneen 21.12.2020, [22]-[24]; AC-01.

[77] Exhibit 21, [23].

[78] Exhibit 21: AC-05.

[79] T1-92 ll19-26.

[80] T1-70, L46 - T1-71, L3.

[81] T1-71, L22 - T1-72, L3.

[82] Exhibit 13, IM-08 Attachments 13 and 14.

[83] T1-76, ll 29-39.

[84] T1-85, ll 6-9.

[85] T1-85, ll 9-11.

[86] Exhibit 17: Statement of Michael Tarnawksy 18.12.2020, MT-01.

[87] T1-85, ll 29-41; T1-85, L45 to T1-86, L6.

[88] T2-11 L42 – T2-12, L10.

[89] This is a number based on the original ethical standards unit report.  The number is revised in the BDO report prepared for this proceeding.

[90] Exhibit 2, [26].

[91] T2-12, ll 10-15.

[92] Exhibit 12: Affidavit of Richard Matthew Orme 16.10.2020, [4].

[93] T4-16 – T2-19.

[94] T4-16, ll 18-19.

[95] T4-16, ll 5-14.

[96] Exhibit 13, IM-08: ESU report 23.10.2018, p 23.

[97] Exhibit 13, IM-17.

[98] Exhibit 13, IM-14.

[99] Exhibit 13, IM-14.

[100] Exhibit 23, CS-03.

[101] Exhibit 13, IM-08.

[102] Exhibit 13, [111].

[103] Exhibit 13, IM-08: Attachment 14.

[104] Exhibit 17, MT-03.

[105] Exhibit 13, IM-08.

[106] Exhibit 21, [22]-[24]; AC-01.

[107] Exhibit 18: Statement of Simone Jackson 13.01.2021, SJ-7.

[108] Exhibit 18, [88].

[109] Exhibit 18, [83].

[110] Exhibit 21, [51].

[111] Exhibit 21, [53].

[112] [2018] FWC 6875.

[113] [2020] FWC 5402.

[114] Ibid [51].

[115]Exhibit 13, IM-08.

[116] T1-79, L45 - T1-80, L2.

[117] T1-15, L26 - T1-16, L20.

[118] T1-54, ll 11-15.

[119] T1-55, ll 29-35.

[120] T1-59, ll 5-11.

[121] T1-59, ll 39-43.

[122] T1-59, ll 44-T1-60, L 12.

[123] T1-80, ll 30-45.

[124] T5-16, ll 4-8.

[125] T5-16, ll 11-14.

[126] T5-16, ll 18-19, ll 21-24.

[127] T1-60, ll 14.

[128] T1-60, ll 16-21.

[129] T1-61, L11.

[130] T1-61, ll 26-31.

[131] T1-62.

[132] T 1-19, ll 7-12.

[133] Exhibit 10, [10].

[134] T1-19, ll 16-20.

[135] Exhibit 2, [31]-[40], [41]-[46]

[136] Exhibit 11, [5].

[137] Exhibit 8.

[138] Exhibit 6, [9].

[139] Exhibit 2, Attachment 4.

[140] T1-94.

[141] T5-17, ll 24-28.

[142] T18-23 ll 9-21.

[143] Respondent's written closing submissions, undated, [177].

[144] T2-24, ll 37-38.

[145] T2-31, ll 11-25.

[146] T2-31, ll27-41

[147] Exhibit 23, [48].

[148] Exhibit 15, [60].

[149] Exhibit 15, [61].

[150] Exhibit 15, [66].

[151] Exhibit 15, [49]-[50].

[152] T2-46, ll 38-46.

[153] Respondent's written closing submissions, undated, [182].

[154] Ibid [183].

[155] T4-27, ll l8-17.

[156] T4-27, ll 18-21.

[157] Exhibit 2, [6]-[8], Attachments 1-3.

Close

Editorial Notes

  • Published Case Name:

    O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • Shortened Case Name:

    O'Connor v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • MNC:

    [2021] QIRC 123

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    14 Apr 2021

Appeal Status

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

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.