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Nash v State of Queensland (Queensland Corrective Services)[2021] QIRC 345

Nash v State of Queensland (Queensland Corrective Services)[2021] QIRC 345

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Nash v State of Queensland (Queensland Corrective Services) [2021] QIRC 345

PARTIES:

Nash, Carol

(Appellant)

v

State of Queensland (Queensland Corrective Services)

(Respondent)

CASE NO:

PSA/2021/213

PROCEEDING:

Public Service Appeal – Appeal against a disciplinary decision

DELIVERED ON:

12 October 2021

HEARD AT:

MEMBER:

On the papers

Pidgeon IC

ORDERS:

Pursuant to section 562C(1)(a) Industrial Relations Act 2016 the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a fair treatment decision – whether the appellant accessed data when not authorised – whether the decision to reduce remuneration of the appellant was fair and reasonable.

LEGISLATION:

Industrial Relations Act 2016, s 562B, s 562C

Public Service Act 2008, s 194

CASES:

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Fenner v State of Queensland (Queensland Police Service) [2021] QIRC 300

Reasons for Decision

  1. [1]
    Ms Carol Nash is employed by the State of Queensland (Queensland Correctional Service) (the Respondent) as a Custodial Corrections Officer at Borallon Training and Correctional Centre (BTCC). On 20 June 2021, following her response to a show cause process, Ms Nash received a decision on disciplinary action to be taken against her. 
  1. [2]
    The disciplinary action followed a disciplinary finding being made in relation to the following allegation of accessing the Integrated Offender Management System (IOMS):
  1. That between 1 January 2019 and 17 April 2019, you, without authority, accessed the IOMS records of several prisoners (as per the Allegation Schedule) outside of the requirement of your official duties.

On the basis of my findings in relation to the allegation, I determined that, pursuant to section 187(1)(b) of the Public Service Act 2008 (the Act), you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a).

  1. [3]
    The decision on disciplinary action provided to Ms Nash states in part:

I have considered very carefully the submissions you make with respect to the proposed disciplinary action.

Given the nature of your conduct, I consider it appropriate for some disciplinary action to be taken against you.  However, having carefully considered your submissions regarding your current classification, including that you possess and AQF-5 Qualification, I have determined to impose the alternative disciplinary action of a reduction in paypoint from an GS2-4 to GS 2-1 for a period of 12 months.[1]

  1. [4]
    The letter goes on to describe the reasons for the decision in some detail and these reasons were further articulated in submissions for this matter.  I will address the reasons for the decision below.
  1. [5]
    Ms Nash provides the following reasons for appeal:
  1. I am appealing this decision on the basis that the disciplinary action taken against me was unfair and unreasonable.
  2. It is not in dispute that I accessed IOMS records of prisoners in the Allegations Schedule, however it is disputed that I accessed IOMS without authority.
  3. The penalty imposed was unfair and unreasonable taking into account the following:
    1. a.
      I have an exemplary work record over more than 10 years of service.
    1. b.
      The Department introduced new training regarding the proper use of IOMS in or around August 2020. This was the first time I received the new training in IOMS.  Importantly, this training occurred after the conduct for which disciplinary proceedings has been taken against me.
    1. c.
      I informed the Department that management at BTCC had given me express authority to access IOMS for, inter alia, educational purposes. I provided names of management, however the Department has seemingly made no attempts to validate my assertion, but rather relied on my failure to provide this explanation during my initial interview.  Importantly, this interview occurred more than 18 months after the accessing of the IOMS occurred.
  4. Given these circumstances, I submit the penalty imposed was disproportionate to the conduct alleged.[2]
  1. [6]
    It appears to me that Ms Nash does not deny that she accessed the IOMS, however, in circumstances where she says she was authorised to do so, she says that the finding that she accessed IOMS 'without authority' was unreasonable and therefore the disciplinary penalty proposed to be taken against her is disproportionate.
  1. [7]
    I am proceeding with the appeal on the basis that it is decision on both the disciplinary finding and the disciplinary action that is being appealed.
  1. [8]
    Therefore, the issues to be decided in this appeal are:
  • Was it fair and reasonable to find that allegation 1 was substantiated?;
  • was it fair and reasonable to find that the conduct subject of allegation 1 constituted misconduct for the purposes of s 187(4)(a) of the Public Service Act 2008 (the PS Act); and
  • if Ms Nash is guilty of misconduct, was the disciplinary action of a reduction in classification level from GS 2-4 to GS 2-1 reasonable?

Is the Appellant entitled to appeal?

  1. [9]
    Section 194 of the PS Act lists various categories of decisions against which an appeal may be made.  Section 194(1)((b) provides that an appeal may be made against

(b) a decision under a disciplinary law to discipline-

(i) a person (other than by termination of employment), including the action taken in discipling the person; ...

  1. [10]
    The appeal notice was filed with the Industrial Registry on 10 June 2021 within 21 days of the decision being received on 19 May 2021. I am satisfied that the decision is one that may be appealed against and that the appeal was lodged with the required time.

Appeal Principles

  1. [11]
    Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
  2. [12]
    Relevantly to this matter, s 562B(4) of the IR Act states that

For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission-

  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  2. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [13]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
  1. [14]
    A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker.
  1. [15]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

  1. (b)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Preliminary matter – additional evidence

  1. [16]
    On 13 July 2021, Ms Nash filed submissions as directed.
  2. [17]
    On 20 July 2021, the Respondent filed submissions in reply.
  3. [18]
    The Directions I issued said that unless any party filed an application by 23 July 2021 for leave to make oral submissions or further written submissions, the matter would be dealt with on the papers.
  4. [19]
    On 23 July 2021, Ms Nash filed a Form 33 – Notice of appointment of agent.
  5. [20]
    By way of email on 28 July 2021, Ms Nash's newly appointed representative made a request for the Commission to consider additional evidence.
  6. [21]
    On 29 July 2021, I issued a further directions order inviting the Appellant to file submissions on why it is appropriate for the Commission to consider evidence not available to the decision maker at the time of the discipline decision.  Due to a number of extensions of time for the Appellant's submissions and a requisite extension provided to the Respondent, final submissions on that matter were made by the Appellant on 25 August 2021 and the Respondent on 6 September 2021.
  7. [22]
    Relevant to the admission of additional evidence not available to the decision maker at the time, the Appellant submissions said:

…where the Commission is not convinced by the evidence that was available to the decision maker at the time, the Applicant respectfully submits that:

  1. a.
    the Commission should exercise its powers pursuant to s 562(4)(b) of the IR Act to inform itself with the evidence of Mr Henderson to decide whether the decision was unfair and or unreasonable.
  1. b.
    that the decision should be set aside and the decision that the appropriate penalty is reprimand having regard for the extenuating circumstances of his direction to educate using the controversial method and that this separately was a real consideration for mitigation that the Respondent refused to engage in, as elaborated below.
  1. [23]
    In summary, the Appellant submits that I should 'consider the evidence by Mr Henderson on the authorised use of IOMS which should provide context and speak to the mitigating circumstances'.
  2. [24]
    In reply to this, the Respondent submits that
  • the fresh evidence on which the Appellant now seeks to rely has, at best, limited relevance to the question of whether the decision under appeal was fair and reasonable;
  • the Appellant does not specify the 'context' or 'mitigating circumstances' about which she says Mr Henderson 'should' provide evidence; and
  • during the disciplinary process the Appellant asserted that Mr Henderson 'encouraged' the use of IOMS for 'educational purposes'
  1. [25]
    The Respondent says that even if the Commission were to take into account fresh evidence from Mr Henderson, and that evidence was consistent with the Appellant's claim he encouraged the use of IOMS for educational purposes, that evidence would not have any material impact on the matters to be determined in the appeal.
  2. [26]
    This is because the Respondent says that the decision-maker accepted that the Appellant may have accessed some of the relevant IOMS records for educational purposes, but did not accept that this was the case for every record accessed.
  3. [27]
    Having considered the submissions of the parties on the matter of additional evidence, I have determined to consider the matter based on the material before me.  This is because my reading of the material makes it clear that Ms Nash's claim that Mr Henderson had encouraged her use of IOMS for educational purposes was considered by the decision-maker. For the reasons which follow, it is clear to me that while some of Ms Nash's access to IOMS may be able to be characterised as for 'educational purposes', Ms Nash's own evidence and submissions indicate that she accessed IOMS for a number of other reasons unrelated to 'educational purposes'.  It was these unauthorised access to IOMS that formed the basis of the disciplinary decision.

Was it reasonable to decide that the allegation was substantiated?

Respondent submissions

  1. [28]
    The allegation refers to the use of IOMS.  IOMS is the electronic database used by QCS for storage and management of confidential prisoner records and information. Ms Nash was required to access IOMS in the course of her duties, for purposes related to her work or duties.
  2. [29]
    On 18 occasions between 3 January 2019 and 4 April 2019, Ms Nash accessed the records of prisoners listed in an allegation schedule.[3]
  3. [30]
    The Respondent says that Ms Nash should not have accessed these records as she did not have a business or work-related purpose to access the records. None of the prisoners in the allegation schedule were current or prospective employees whom Ms Nash would supervise in her Trade Instructor (TI) role at BTCC.
  4. [31]
    With reference to Ms Nash's response to the first show cause notice dated 29 January 2021, the Respondent says Ms Nash:
  • Has consistently, including during the investigation, admitted she accessed the IOMS records of the prisoners in the allegation schedule;
  • has claimed that she accessed the IOMS records predominantly for 'educational purposes' and that this was 'permitted by the guidelines around IOMS';
  • has not particularised what guidelines she was referring to or how she considered that those guidelines permitted IOMS access for this purpose;
  • has said that she did not access the IOMS records without authority and that this excuses her conduct; and
  • the Ms Nash has previously offered a variety of implausible explanations for her access to the IOMS records but appears to now suggest that the only reason for the access was for 'educational purposes'.
  1. [32]
    The Respondent further says that in her response of 29 January 2021, Ms Nash suggests that the perception amongst QCS employees is that access to IOMS for educational purposes was permitted by the guidelines around IOMS but that at her investigation interview Ms Nash acknowledged that 'most people are aware there are limitations and some legislation, policy and procedure around IOMS and what is suitable to look at'.
  2. [33]
    At the interview, the investigator specifically asked Ms Nash to name the managers who she believed actively encouraged her to search IOMS for these reasons but she could not name them and said, 'it was just known, yea, the managers would say "have a read of this".
  3. [34]
    However, in her response of 29 January 2021, Ms Nash named Peter Henderson as a manager who encouraged the use of IOMS for educational purposes. Ms Nash also named Maitland Wright, former Centre Services Manager at BTCC as another staff member who could verify this, however, Mr Wright has since left the Department.
  4. [35]
    The Respondent says that it found this inconsistency reflected poorly on Ms Nash's credit.
  5. [36]
    The Respondent says that the decision maker found that even if he accepted Ms Nash's submissions that it was a standard practice in QCS to search IOMS for educational or training purposes, Ms Nash went beyond accessing the confidential and personal information of prisoners for 'education' purposes, because she also accessed prisoner details such as breach details, case event summaries, offender bed history, case files and offender summaries.
  6. [37]
    In addition to the considerable emphasis Ms Nash placed on accessing IOMS for educational purposes in her response of 29 January 2021, in both that response and in her investigation interview, Ms Nash raised a number of other explanations for accessing the IOMS records of prisoners who were not incarcerated at BTCC such as:
  • assessing whether a prisoner who was not incarcerated at BTCC was suitable for employment at BTCC (although acknowledging that prisoners from other correctional centres are not able to apply for employment at BTCC);
  • because she heard about 'interesting' events or incidents at Townsville Women's Correctional Centre and to 'have a look' at what occurred and who was involved;
  • because she 'mis-keyed' IOMS numbers or letters and someone 'totally random came up', although she could not identify which prisoners in the allegation schedule she had accessed because of a mis-key and acknowledged that if this had occurred she would not have remained in that section for more than a minute or two;
  • to assess 'trends' between men's and women's prisons, and to see what 'trends' happened in Queensland, 'especially the holiday period'; and
  • to see if prisoners' religious or allergy diets had changed and to monitor 'trends' in prisoner diets.
  1. [38]
    The decision-maker found Ms Nash's various explanations for her access to prisoner records from other correctional centres to be implausible and self-serving, and her failure to engage in the investigation and discipline process in an open, honest and frank manner caused him considerable concern.
  2. [39]
    None of the reasons listed at [29] are related to Ms Nash's work duties as a TI and are therefore not authorised.
  3. [40]
    With regard to Ms Nash's submissions that it was only when she 're-trainined' in August 2020 that she understood what the requirements for the use of IOMS were, or that access could only be used for an official purpose relevant to the performance of her duties as a TI, the Respondent says that considering:
  • the training she received on her commencement as a correctional officer;
  • her experience of ten years as a correctional officer; and
  • the IOMS User Agreement which she is required to acknowledge each time she accesses IOMS

The decision-maker was satisfied that the Appellant knew that she could not access the IOMS information of prisoners not incarcerated at BTCC as there was no official reason related to her role justifying such access.

Ms Nash's submissions

  1. [41]
    Ultimately, Ms Nash seeks the Commission set aside the decision to substantiate the allegation.
  2. [42]
    The allegation relates to the alleged access of IOMS from more than 18 months prior to when Ms Nash was first made aware of the allegation.  Ms Nash has maintained throughout the investigation process that she has no specific recall of accessing the IOMS of prisoners on the dates and times outlined in the allegation schedule.
  3. [43]
    However, Ms Nash accepts that given her understanding of the use of IOMS at the relevant time, it is entirely likely that she accessed the IOMS for prisoners outside her centre, and outside her direct duties.
  4. [44]
    Ms Nash says that at all times through the investigation she has been forthright and transparent in giving her best possible explanation for the access despite the clear difficulties entailed in recalling such historical allegations.

Delay

  1. [45]
    The allegation relates to a period from January 2019 – April 2019. The allegation was brought to the Respondent's attention on 16 April 2019.
  2. [46]
    Ms Nash was not made aware of any alleged wrongdoing until around September 2020.  Ms Nash was made aware of the particulars of the allegation when she was interviewed on 2 October 2020.  This was almost 18 months after the Respondent was made aware of the allegation and there has been no justification given as to why this significant delay occurred.
  3. [47]
    This delay significantly prejudiced Ms Nash's ability to cogently or definitively explain why the IOMS had been accessed on those dates.  The delay was neither fair nor reasonable.
  4. [48]
    Despite the delay, Ms Nash gave several possible reasons why she may have accessed the IOMS to the best of her recollection at the time.  It was not fair and reasonable for the Respondent to consistently make adverse inferences against Ms Nash for her inability to provide particulars about her access of IOMS.

Re-training

  1. [49]
    The operational version of the IOMS application is separate to the training version of IOMS designed for staff education. Prior to Ms Nash's alleged wrongdoing, QCS did not, by default, provide access to training IOMS.  This fostered a culture among staff of utilising operational IOMS for staff education.
  2. [50]
    Following a new IOMS training module introduced in or around August 2020, there was a noticeable shift in the understanding about IOMS access. The module reinforced to all staff that they were not permitted to access IOMS outside of their duties, and access was only permitted when it was imperative for the performance of their duties.
  3. [51]
    The training module was introduced and completed by Ms Nash approximately six months after the events in the allegation schedule.  Ms Nash says that this was the first time that she had received training in IOMS since she first commenced employment with QCS on 27 April 2011.
  4. [52]
    The logical conclusion is that the purpose of the retraining was to address the clear misconceptions that existed among QCS employees regarding IOMS and the findings of Operation Impala.

Without authority

  1. [53]
    Prior to the re-training module, it was common for CSO's to be encouraged to use the IOMS in an educative way to assist them in being able to analyse major events that occurred in centres across the state and to see how incident reports and case notes were completed by other CSO's in those situations.
  2. [54]
    Use of operational IOMS for staff education was encouraged by the BTCC Senior Management Team, including Chief Superintendent Peter Henderson. Mr Maitland Wright also encouraged the use of IOMS for educational purposes.
  3. [55]
    Ms Nash provided the Respondent with this information and to date, the Respondent has made no attempts to validate any of Ms Nash's submissions.
  4. [56]
    In the absence of clear confirmation from the Respondent that they have investigated whether Ms Nash was given authorisation to access IOMS outside of her duties, Ms Nash says that I can conclude that the authorisation was given and that she did in fact have authority to access the IOMS of the relevant prisoners.
  5. [57]
    The Respondent has an obligation to investigate Ms Nash's assertion.  It is not acceptable to rely on Ms Nash's inability to recollect the authorisation during the interview as justification for not making further enquiries with Mr Henderson.
  6. [58]
    The Respondent relies on Schedule 2 but has never particularised the time spent accessing prisoner IOMS to validate the inference that Ms Nash was taking an in-depth look at the prisoner profiles.
  7. [59]
    Allegation schedule references 3, 4, 5, 9, 11 and 13 detail Ms Nash accessing the offender summary page.  This is the default landing page after searching for an offender profile. The label 'summary' indicates the short and concise level of information displayed.  The Respondent failed to consider the depth of the access during their investigation and how this would assist the decision maker in forming a view.
  8. [60]
    Allegation schedule references 17 and 18 were both accessed at 3.05pm on 16 April 2019. This short window between switching profiles indicates momentary access, consistent with mistaken access.
  9. [61]
    These examples are provided to demonstrate that it was not that case that Ms Nash was searching through personal information about the prisoner, such as would be the case would someone be assessing this information for the purpose of deriving a benefit or gain.

Respondent in reply

Delay

  1. [62]
    The Respondent rejects Ms Nash's notion that the passage of time that has passed has significantly prejudiced her ability to 'cogently or definitively explain' why she accessed IOMS on the relevant dates.
  2. [63]
    The Respondent submits that where there was only ever an operational need to access IOMS records of prisoners located at BTCC within her duties, Ms Nash's access to IOMS records of prisoners not located at BTCC on the specified dates would have, or should have, been something that she recalled.
  3. [64]
    Further, or in the alternative, Ms Nash has not been significantly prejudiced in her ability to explain her access to IOMS on the relevant dates, where she was able to explain to the Investigator during the interview that:
  • At the relevant times, she was still in touch with Holly from TWCC, where she had worked for seven or eight years, and the Appellant accessed IOMS to 'have a look' at TWCC, even though she was working at BTCC, because an incident involved people she had worked with at TWCC;
  • Ms Nash said she found it very interesting to see what trends happen in Queensland, 'especially the holiday period'; and
  • to see whether prisoners who had moved from BTCC to Palen Creek had changed their diets, if they no longer had an allergic reaction to food that they had when they were at BTCC, or if they had come off a religious diet.

Re-training

  1. [65]
    The Respondent says that Ms Nash ought to have known she could not access the IOMS information of prisoners not incarcerated at BTCC as there was no official reason related to her role as a Trade Instructor at BTCC justifying such access. 
  2. [66]
    The Respondent says that the fact that there was a noticeable shift in the understanding of QCS employees following the 're-training' in or around August 2020 is immaterial to the fact that prior to the 're-training', it was prohibited to access IOMS outside the requirements of one's duties.
  3. [67]
    With regard to Ms Nash's submissions surrounding Operation Impala, that investigation  examined the impacts of unauthorised access and disclosure of information both on agencies and the individuals whose information is accessed or disclosed to third parties without their knowledge or consent.  It sought agencies' views on why their staff continued to access information without legitimate reason to do so and found that one of the main drivers of behaviour was personal interest (curiosity).

Without authority

  1. [68]
    The Respondent submits that the decision-maker impliedly accepted that some of Ms Nash's searches of the IOMS records of prisoners not located at BTCC were for 'educational purposes'.   However this does not explain all of her access to IOMS, particularly when on her own admission, she accessed IOMS for the reasons outlined above at [56].
  2. [69]
    Ms Nash did not particularise the guidelines that permitted use of IOMS for educational purposes. In the interview Ms Nash placed little reliance on educational purposes as a reason for her accessing IOMS and acknowledged that 'most people are aware there are limitations and some legislation, policy and procedure around IOMS what is suitable to look at.'
  3. [70]
    It was open to the decision-maker to find that Ms Nash's attempt to suggest, in her response to the first show cause notice, that her access was predominantly for educational purposes and that QCS employees considered such access to be permitted by the IOMS guidelines was self-serving in order to minimise the seriousness of her conduct.
  4. [71]
    It was not necessary for the decision-maker to address the Appellant's assertions that specific management at BTCC 'encouraged' the use of IOMS for 'educational purposes' as the decision maker was not satisfied that all of the Appellant's searching of IOMS was attributable to 'education purposes'.
  5. [72]
    It is irrelevant to the decision-maker's findings whether or not Ms Nash took an 'in-depth look at prisoner profiles', where there was no purpose to access the IOMS records of prisoners not located at BTCC in any event. 
  6. [73]
    The fact that Ms Nash accessed the 'offender summary page' which she submits is the 'default landing page after searching for an offender' does not diminish the seriousness of Ms Nash's conduct in accessing IOMS records of prisoners not located at BTCC.

Consideration - substantiation of the allegation

  1. [74]
    For the reasons which follow, I have determined that it was reasonable for the decision-maker to be satisfied that Ms Nash, without authority, accessed IOMS records of prisoners in the allegation schedule, who were not located at BTCC between 3 January 2019 and 16 April 2019 outside the requirement of her official duties.
  2. [75]
    At the outset, I will address Ms Nash's submission that her access to IOMS was not without authorisation and that she had been encouraged to use IOMS for educational purposes.
  3. [76]
    To that end, I note that the decision maker came to the view that he did 'not accept this to be true for every instance of your IOMS use identified in the Allegation Schedule'.
  4. [77]
    It is clear that the decision maker did not accept Ms Nash's submission regarding authorisation to use IOMS for educational purposes in circumstances where Ms Nash had also provided reasons for accessing IOMS which included looking at information for personal interest in matters and identifying 'interesting trends'.
  5. [78]
    The decision maker said 'Even if I accept some instances of your IOMS use were for 'educational' purposes and I cannot accept that every instance was for such a reason. Notably, you are unable to identify which instances you say you accessed for "educational" purposes and are therefore unable to identify those occasions on which (you) may have had some, limited, authority.'
  6. [79]
    When considering Ms Nash's responses to the investigator and her responses in the show cause process, it is clear to me that while some of the instances of IOMS access could possibly have been for educational purposes, on Ms Nash's own version of events there were instances when the access was not for such purposes.
  7. [80]
    It is my view that if the authorisation was for educational purposes, Ms Nash would have been able to identify which instances of access were for such a purpose
  8. [81]
    Even if there had been some form of authorisation or approval given for the accessing of IOMS for educational purposes prior to the re-training, the terms and conditions of the IOMS access User Agreement have not changed.
  9. [82]
    Each time Ms Nash entered IOMS, she was required to acknowledge and accept the User Agreement.  As outlined in the second show cause notice, the IOMS User Agreement outlines that:
  • The system is only available for use by authorised users.
  • IOMS may contain confidential and personal information.
  • User access is restricted to information falling within the scope of the user's authorisations.
  • Users must confirm to the Code of Conduct.
  • IOMS usage is monitored.
  • Information gained through access to IOMS means that the user is an authorised person under the Corrective Services Act 2006 (CS Act).
  • Unauthorised access or disclosure is a breach of the Code of Conduct and may also be an offence under the Information Privacy Act 2009 and the Criminal Code Act 1899.
  • Misuse can lead to disciplinary action and may include dismissal.
  1. [83]
    Ms Nash's statement that she automatically and robotically agreed to the terms of use is of concern and brings into question whether she was mindfully considering whether her use was authorised each time she accessed the system to look at the files of prisoners who were not located at BTCC.
  2. [84]
    I do not consider that the delay between the access and the allegations being put to Ms Nash has placed her at a disadvantage.  Ms Nash was provided with the particulars of which files were accessed and the dates that they were accessed.  While she has not been able to address each one specifically, she has been able to furnish the decision maker with explanations regarding her access of files not directly related to her duties and her understanding that she was able to access IOMS for educational purposes.
  3. [85]
    Ms Nash submits that the decision maker has not taken into account the depth of her investigations into each file and that some access was brief, for example, two files accessed within a minute of each other.  It is my view that the decision maker has taken this into consideration and determined that the access was not appropriate, no matter how fleeting. I would also note that there would be information to be gleaned from a patient summary or breach details, even if the files were on the screen for less than a minute. 
  4. [86]
    I find it was open to the decision maker to accept that Ms Nash accessed the files for reasons of personal curiosity and that she did not give the information to anyone else.  I note that this was taken into account by the decision maker in determining the ultimate disciplinary outcome and that the outcome would have been far more serious had the information been used for purposes other than personal interest.
  5. [87]
    I do not accept that the re-training represented a change in policy, as the IOMS guidelines did not change.  I would characterise the re-training as a reasonable response for an employer to take when it has become clear that despite guidelines being in place about the appropriate use of confidential prisoner information, employees are continuing to access the information without authorisation.
  6. [88]
    That the re-training came some months after Ms Nash's unauthorised access of files does not mitigate or excuse her conduct. 
  7. [89]
    In summary, I find it was open to the decision maker to determine that even if he were to accept that there may have been occasions were Ms Nash had some form of authorisation to access IOMS for educational purposes, this was not the case for all of the instances of access. Therefore, the allegation that Ms Nash had accessed the IOMS records of several prisoners outside the requirement of her official duties was able to be substantiated on the balance of probabilities.  This was a fair and reasonable finding when considering Ms Nash's own explanation for her access.

Was it reasonable to decide that disciplinary grounds existed as a result of the conduct subject of the allegation?

  1. [90]
    Having found that the allegation was substantiated, the decision maker needed to consider whether this represented misconduct or another grounds for discipline.
  2. [91]
    Section 187(4)(a) of the PS Act says that misconduct means 'inappropriate or improper conduct in an official capacity'.
  3. [92]
    The meaning of 'misconduct' was considered in the decision of Coleman v State of Queensland (Department of Education) [2020] QIRC 032 where Merrell DP held:

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.

  1. [93]
    The Respondent submits that improper and unauthorised access of confidential information held by public sector agencies is viewed extremely seriously.
  2. [94]
    Ms Nash's submissions did not address the disciplinary finding of misconduct with specificity, though I understand that the position taken is that the allegation should not have been substantiated and therefore there should be no finding of misconduct.  Ms Nash also says that the disciplinary decision is disproportionate to the conduct.
  3. [95]
    In circumstances where the IOMS policy was known to Ms Nash and she was required to acknowledge terms of use each time she logged in, it seems to me that her access of files of prisoners unrelated to her duties at BTCC was a deliberate departure from accepted standards.  Even accepting that it was possible Ms Nash had authorisation to access IOMS for educational purposes for some of the occasions listed in the allegation schedule, it remains the case that Ms Nash had accessed several of the files out of curiosity or to follow a line of investigation she was 'interested in'. 
  4. [96]
    The clear expectation of Ms Nash's employer was that she pay due respect to the terms and conditions surrounding her access to IOMS. Ms Nash's conduct in accessing the IOMS profiles of the prisoners amounts to an abuse of privilege and confidence placed in Ms Nash as a Custodial Corrections Officer.  It was open to the decision maker to determine that this represented misconduct.

Was the decision on disciplinary action reasonable?

Respondent submissions

  1. [97]
    The Respondent acknowledges that Ms Nash's work record of more than 10 years service is unblemished.  However, given that length of service, Ms Nash should not have required specific training about when she was permitted to access IOMS.  Ms Nash ought to have known that her access to IOMS records of prisoners not located at BTCC was not a requirement of her duties at BTCC.
  2. [98]
    The Respondent submits that the decision to impose a penalty reduction in pay point level from GS 2-4 to GS 2-1 for a period of 12 months was fair and reasonable for the following reasons:
  • The conduct was a serious and significant departure from her obligations as a QCS employee, particularly noting the confidential and sensitive information contained in the IOMS;
  • Ms Nash's conduct was not isolated or "one-off", she accessed the IOMS information on 18 occasions;
  • the decision maker considered that even if some instances were for educational purposes, he did not accept that all of the unauthorised access was for educational purposes;
  • the decision-maker was not satisfied that Ms Nash was completely candid in her responses throughout the disciplinary process.;
  • as part of Operation Impala, the CCC issued a guide to assess allegations about misuse of confidential information.  The guide recommends the possible disciplinary outcomes of termination, transfer, suspension or demotions for individuals whose conduct involves a breach of another person's privacy where there was some actual or potential personal benefit, financial gain or commercial advantage to be obtained from accessing the information;
  • where there is no personal benefit to the employee in accessing the records, employees may still be dismissed, transferred, suspended or demoted if there are multiple allegations of access of information;
  • the penalty imposed is towards the lower end of the scale of action available;
  • there was no evidence that Ms Nash accessed the IOMS records of any prisoner with whom she had a personal connection or relationship.  If she had done so, the decision-maker would have considered termination of her employment;
  • the decision-maker was prepared to give Ms Nash the opportunity to regain his trust and acknowledged that the disciplinary action will have a financial impact; and
  • the decision-maker was satisfied that the seriousness of Ms Nash's conduct warranted formal disciplinary action and that the imposition of a penalty lower than that which was imposed would not adequately address the seriousness of the conduct.

Ms Nash's submissions

  1. [99]
    Ms Nash seeks the Commission set aside the disciplinary action imposed and substitute another more proportionate disciplinary action such as a warning or reprimand. Ms Nash contests the proposed penalty and contends that the decision to impose a reduction of remuneration level was neither fair nor reasonable.
  2. [100]
    In summary, Ms Nash says the reason the disciplinary action is neither fair nor reasonable are:
  • Whilst the paypoint reduction is for a period of 12 months, it will take Ms Nash at least three years to progress back to her original classification and she will suffer significant financial impacts as a result such as the impact on her ability to meet week to week financial expenses such as mortgage repayments;
  • Ms Nash has already suffered significant mental and emotional anguish arising out of her suspension since January 2021 and not knowing the outcome of the process for a period of more than six months;
  • Ms Nash has had an unblemished work record over almost ten years of service without any warnings, reprimands or involvement in any other disciplinary matters during that time;
  • the penalty imposed amounts to serious disciplinary action as defined by the Public Service Act, and this will have everlasting effects on the Applicant's employment with QCS and any future employment she seeks with the Queensland Public Service;
  • in submitting that Ms Nash's behaviour was not a 'one-off', the Respondent has failed to consider that Ms Nash committed no further breaches of the policy when retraining occurred in August 2020;
  • given the weight the Respondent seeks to rely on Operation Impala for justifying the serious disciplinary action imposed, Ms Nash points out that the taskforce occurred after the relevant offending period, and places emphasis on situations where there is actual or potential personal benefit, financial gain or commercial advantage;
  • a salient feature of Ms Nash's conduct is that at no time did she disclose any of the information which she has examined in the IOMS to a third party, or seek to derive benefit outside the education purpose which she had accessed IOMS for.

Respondent in reply

  1. [101]
    With regard to Ms Nash's submissions on the disciplinary penalty, the Respondent acknowledges that Ms Nash will be required to re-progress to her original classification level at the conclusion of 12 months. In his letter dated 19 May 2021, the decision maker proposed a less severe disciplinary action than that initially proposed, namely a reduction in classification level from GS 2-4 to GS 2-1, this disciplinary action amounts to a reduction of $391.00 per fortnight rather than the $554.00 under the initial proposal.
  2. [102]
    While Ms Nash submits that Operation Impala occurred after the relevant period of her conduct, the Respondent submits that Operation Impala is extremely pertinent to the matter currently before the Commission. It is accepted that Ms Nash did not disclose any of the information which she examined in IOMS to a third party.  This was considered in determining the ultimate disciplinary action.  If Ms Nash had disclosed information to a third party, the decision-maker would have considered termination of employment to be an appropriate outcome.
  3. [103]
    The Respondent disputes that Ms Nash did not seek to derive any form of benefit or gain outside the 'educational purposes' for which she had accessed IOMS. The responses given in the investigation regarding 'having a look' and assessing 'interesting trends' is not within the requirements of Ms Nash's official duties at BTCC and were to satisfy personal interest.
  4. [104]
    The decision maker took into account Ms Nash's exemplary work history and that there have been no further instances of improper access since April 2019 in his decision to impose a less severe penalty than that proposed in his letter of 19 March 2021.
  5. [105]
    Having regard to the seriousness of the misconduct and that unauthorised access to IOMS regularly results in termination of employment, the reduction in pay point level from GS2-4 to GS2-1 was lenient and took into account all mitigating factors.
  6. [106]
    The suspension of Ms Nash was not a punishment, particularly where Ms Nash was suspended on normal remuneration.[4]

Consideration

  1. [107]
    The initial second show cause notice on disciplinary action proposed a reduction in classification level from GS2-4 to GS1-7.
  2. [108]
    After consideration of the material available to me and the submissions of the parties, it is clear to me that the decision maker had regard to the matters put forward by Ms Nash during the show cause process and that this led to the proposed disciplinary penalty being reduced per decision letter at [3] above.
  3. [109]
    The decision maker noted that he had taken into account in Ms Nash's favour that there was no evidence that she had accessed the IOMS profile of any prisoner with whom she had a personal connection or relationship. The decision maker noted that had Ms Nash done so, termination of employment may have been an appropriate outcome.[5]
  4. [110]
    The decision maker said that he had taken into account the financial impact that the decision would have on Ms Nash and said 'I remain of the view the serious nature of your conduct requires formal disciplinary action being taken against you.'
  5. [111]
    My role in considering this appeal is not to decide what disciplinary action I would have imposed had I been the decision maker.  It is to consider whether the decision regarding disciplinary action to be imposed was fair and reasonable.[6]
  6. [112]
    Hartigan IC in Fenner v State of Queensland (Queensland Police Service) [2021] QIRC 300 refers to the principles of an unreasonable decision as outlined by Ryan J in Gilmour v Waddell & Ors [2019] QSC 170:

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[7]

  1. [113]
    I cannot agree with Ms Nash's submission that the decision maker has not given due consideration to the matters set out at cl 8.5(d) of the disciplinary finding. On the contrary, my review of the material available to me including the show cause disciplinary process and all of the submissions before me indicates that the matters raised by Ms Nash regarding the unfairness or unreasonableness of the disciplinary action to be taken were considered by the decision maker. 
  2. [114]
    The decision maker adjusted the disciplinary action from that proposed, to a lesser, though still serious reduction in classification.  Instead of the originally proposed drop of six pay levels, Ms Nash will drop three pay levels.  After 12 months, Ms Nash will progress back through the pay levels on an annual basis and return to her classification level GS 2-4 after three years rather than the originally proposed six years. This is a significant reduction in the proposed disciplinary action and is an indication that Ms Nash's submissions were seriously considered.
  3. [115]
    I acknowledge Ms Nash's submission that being suspended and not knowing what the outcome of the disciplinary process might be during the six months it took for the process to conclude has been difficult for her. It is the case that a disciplinary process is challenging for those involved, however, Ms Nash has received pay during the suspension and there is nothing to suggest to me that she was not afforded natural justice or that the requirements of Directive 14/20 were not met. 
  4. [116]
    Having determined that it was fair and reasonable for the decision maker to substantiate the allegation and make a disciplinary finding of misconduct, I find that the decision maker's determination the final penalty of a reduction in classification from GS 2-4 to GS 2-1 for a period of 12 months with eligibility for paypoint increments in accordance with the Correctional Employees Award – State 2015 was reasonably justified.

Conclusion and order

  1. [117]
    For the forgoing reasons, I have determined that it was fair and reasonable for the decision maker to make the disciplinary finding of misconduct. Further, I find that the disciplinary decision was fair and reasonable.
  2. [118]
    Pursuant to s 562C(1)(a) of the IR Act, the decision appealed against is confirmed.

Footnotes

[1] The initial proposed disciplinary action in the second show cause notice was a reduction in classification level from GS 2/4 to GS 1/7.

[2] Appeal notice filed 10 June 2021.

[3] Respondent submissions Attachment 2

[4] Public Service Commission Suspension Directive 16/20, cl 1.2.

[5] Disciplinary outcome letter 19 May 2021, page 5.

[6] Industrial Relations Act 2016, s 562B(3).

[7]Gilmour v Waddell & Ors [2019] QSC 170, [207]-[209] as cited in Fenner v State of Queensland (Queensland Police Service) [2021] QIRC 300.

Close

Editorial Notes

  • Published Case Name:

    Nash v State of Queensland (Queensland Corrective Services)

  • Shortened Case Name:

    Nash v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2021] QIRC 345

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    12 Oct 2021

Appeal Status

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

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