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Narbeth v State of Queensland (Queensland Health)[2021] QIRC 400

Narbeth v State of Queensland (Queensland Health)[2021] QIRC 400

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Narbeth v State of Queensland (Queensland Health) [2021] QIRC 400

Narbeth, Kelly-Anne

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/374

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

25 November 2021

MEMBER:

HEARD AT:

ORDER:

McLennan IC

On the papers

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

CATCHWORDS:

LEGISLATION & OTHER INSTRUMENTS:

CASES:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – where conduct allegations substantiated – where disciplinary action imposed – where disciplinary action was subject to an internal review – where internal review decision confirmed disciplinary action decision – consideration of disciplinary process – whether disciplinary action was fair and reasonable – consideration of natural justice

Criminal Code 1899 (Qld) s 408E

Industrial Relations Act 2016 (Qld) s 451, s 562A, s 562B, s 562C, s 564, s 567

Public Service Act 2008 (Qld) s 187, s 188, s 194

Directive 14/20 Discipline cl 8

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

NOM v Director of Public Prosecutions & Ors [2012] VSCA 198

Reasons for Decision

  1. [1]
    Ms Kelly-Anne Narbeth (the Appellant) is employed as a Clinical Nurse NG6.1 in the Operating Theatre & Central Sterile Supply Department at Mackay Base Hospital, Mackay Hospital and Health Service, State of Queensland (MHHS; the Respondent).[1]
  1. [2]
    Ms Narbeth was originally employed by the Respondent between 6 January 2014 until 4 January 2016, and was reemployed on 3 October 2017.[2]
  1. [3]
    On 11 March 2021, the Respondent issued Ms Narbeth with a show cause notice (the Show Cause Notice) pertaining to "information received regarding alleged inappropriate access to a patient record and inappropriately utilising your role to gain confidential information about a person known to you" (the Conduct).[3] The author of the Show Cause Notice is Mr Terence Seymour, Executive Director People at MHHS.
  1. [4]
    The Conduct was alleged to have occurred over the course of several days between May 2019 and June 2020.[4]
  1. [5]
    The allegations that arose from the Conduct were articulated as follows:

 Allegation one

It is alleged that you inappropriately and without authorisation accessed the patient record of [the Patient] on multiple occasions for which a genuine work-related reason cannot be established.[5]

…

Allegation two

It is alleged that you utilised your role within Queensland Health to gain confidential information about [the Patient], for a legal matter which is not connected with your employment.[6]

(Allegation One and Allegation Two)

  1. [6]
    Ms Narbeth provided a written response to the Show Cause Notice on 21 April 2021.[7]
  1. [7]
    On 21 July 2021, Mr Seymour issued correspondence to Ms Narbeth that advised the following:[8]
  • Allegation One "is substantiated on the balance of probabilities";
  • Allegation Two "is substantiated in part on the balance of probabilities" because "in the absence of corroborating evidence" Mr Seymour could not "substantiate that the access was directly connected to a legal matter" in which Ms Narbeth is involved.
  • With respect to both allegations, Mr Seymour determined that Ms Narbeth contravened s 187(1)(b) of the Public Service Act 2008 (Qld) (PS Act) as he is "reasonably satisfied" Ms Narbeth was "guilty of misconduct, being inappropriate or improper conduct in an official capacity."
  • Mr Seymour is giving serious consideration to the disciplinary decision of:

Reduction in classification level and consequential change of duties, specifically to a Registered Nurse (NG5.7).

(the Disciplinary Finding Decision)

  1. [8]
    On 11 August 2021, Ms Narbeth provided a written response to the proposed disciplinary action.[9] Ms Narbeth acknowledged her fault in relation to Allegation One but disputed that Allegation Two could be substantiated.[10] Further, Ms Narbeth suggested the following alternative disciplinary action:

I would undertake extra training in ethics, and information security, complete any my learn updates required within a specified timeframe. Or any other training and education you feel would be appropriate,

I would remain as Nurse Grade 6 Level 1 with a forfeiture of remuneration increment for 12 months, and

  I receive a written warning about my actions.[11]

  1. [9]
    On 16 August 2021, Mr Seymour advised Ms Narbeth of his decision:

  … I have determined to impose the following disciplinary action under section 188(1) of the Act:

  • Reduction in classification level and consequential change of duties, specifically to a Registered Nurse (NG5.7).[12]

(the Disciplinary Action Decision)

  1. [10]
    The Disciplinary Action Decision also stated the following:

A record of this action will be retained on a separate confidential disciplinary file and may be a factor in the consideration of any future disciplinary processes initiated against you. Your personnel file will contain only a notation that a separate disciplinary file exists.

Please be aware that the disciplinary finding/s and the disciplinary action taken in this matter, may be considered by the decision maker in any future disciplinary processes when determining what, if any, disciplinary action should be taken in that case.[13]

  1. [11]
    At the request of the Queensland Nurses and Midwives Union (QNMU), Mr Seymour subsequently reviewed his Disciplinary Action Decision. On 24 September 2021, Mr Seymour confirmed the Disciplinary Action Decision.
  1. [12]
    At the request of the QNMU, Ms Lisa Davies-Jones, Chief Executive of the MHHS reviewed "all the information".[14] On 7 October 2021, Ms Davies-Jones determined that the Disciplinary Action Decision is appropriate (the Review Decision).[15]
  1. [13]
    On 28 October 2021, Ms Narbeth filed an Appeal Notice at the Industrial Registry. Ms Narbeth indicated that a copy of the decision she sought to appeal was attached and that she had received that decision on 7 October 2021 - that is, the Review Decision.[16] Ms Narbeth "seeks that the decision on penalty is set aside."[17]
  1. [14]
    On 28 October 2021, I issued a Directions Order that stayed the Review Decision until the determination of this appeal or further order of the Commission.

Jurisdiction

  1. [15]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(b)(i) of the PS Act provides that an appeal may be made "against a decision under a disciplinary law to discipline – a person (other than by termination of employment), including the action taken in disciplining the person."
  1. [16]
    The Review Decision involved a reconsideration of the disciplinary penalty imposed under the Disciplinary Action Decision and Ms Davies-Jones ultimately decided to confirm the imposition of a reduction in classification level and consequential change of duties under s 188(1) of the PS Act.[18] On that basis, I consider the Review Decision to be "a decision under a disciplinary law to discipline" in accordance with s 194(1)(b)(i) of the PS Act.
  1. [17]
    Ms Narbeth has been an employee of the Respondent at all times relevant to this appeal.
  1. [18]
    I am satisfied that the Review Decision can be appealed. 

Timeframe to Appeal

  1. [19]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [20]
    The Review Decision was given to Ms Narbeth on 7 October 2021 and the Appeal Notice was filed with the Industrial Registry on 28 October 2021. Therefore, I am satisfied that the Appeal Notice was filed by Ms Narbeth within the required timeframe.

Appeal principles

  1. [21]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[19] This is the key issue for my determination.  Subsection (4) provides that for an appeal against a decision about disciplinary action, the commission:
  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [22]
    A public service appeal under the IR Act is not by way of rehearing,[20] but involves a review of the decision arrived at and the decision–making process associated therewith. 
  1. [23]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.[21]
  1. [24]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

  1. [25]
    In deciding this appeal, s 562C of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Submissions

  1. [26]
    The parties filed written submissions in accordance with the Directions Order issued on 28 October 2021.
  1. [27]
    I have carefully considered all submissions and materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.

 Relevant provisions of the PS Act

  1. [28]
    Section 187 of the PS Act relevantly provides (emphasis added):

 (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

    …

 (4) In this section—

  misconduct means—

  (a) inappropriate or improper conduct in an official capacity; or

   …

  1. [29]
    Section 188 of the PS Act relevantly provides:

188 Disciplinary action that may be taken against a public service employee

  1. (1)
    In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action—

  • termination of employment
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other public service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
  • a reprimand

 Relevant provisions of the Directive

  1. [30]
    Directive 14/20 Discipline (Directive 14/20) relevantly provides:

  8.   Discipline process

  8.1  Section 190 of the PS Act provides that in disciplining a public service employee or former public service employee, a chief executive must comply with the PS Act, this directive, and the principles of natural justice.

  8.2  The chief executive must demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process.

  8.3  Show cause process for disciplinary finding

    (a)   The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):

    (b)   Written details of each allegation in clause 8.3(a) must include:

      (i)   the allegation

      (ii)  the particulars of the facts considered by the chief executive for the allegation

      (iii)  the disciplinary ground under section 187 of the PS Act that applies to the allegation.

    (c)   A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.

    (d)  The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.

    (e)   If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

  8.4  Decision on grounds (disciplinary finding)

    (a)   A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.

    (b)   The chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding.

    (c)   For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.

    (d)  The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.

    (e)   If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.

If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.

  8.5  Show cause process for proposed disciplinary action

    (a)   The chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action).

    (b)  The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented.

    (c)   The disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 188 of the PS Act.

    (d)  In proposing appropriate and proportionate disciplinary action, the chief executive should consider:

       (i)  the seriousness of the disciplinary finding

       (ii)   the employee's classification level and/or expected level of awareness about their performance or conduct obligations

       (iii)   whether extenuating or mitigating circumstances applied to the employee's actions

      (iv)  the employee's overall work record including previous management interventions and/or disciplinary proceedings

       (v)  the employee's explanation (if any)

      (vi)   the degree of risk to the health and safety of employees, customers and members of the public

       (vii)  the impact on the employee's ability to perform the duties of their position

  (viii)  the employee's potential for modified behaviour in the work unit or elsewhere

      (ix)  the impact a financial penalty may have on the employee

       (x)  the cumulative impact that a reduction in classification and/or pay-point may have on the employee

      (xi)  the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

    (e)   A show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated.

    (f)   The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.

    (g)   If the employee does not respond to a show cause notice on disciplinary action, or does not respond within the nominated timeframe in clause 8.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.

  8.6  Decision on disciplinary action

    (a)   A chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken.

    (b)  The chief executive must inform the employee of the decision in writing, including:

      (i)  the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice

      (ii)  excluding a termination decision, information that the employee may appeal the decision on disciplinary action

      (iii) for a termination decision, information that the employee may lodge an application for reinstatement under the Industrial Relations Act 2016.

    (c)  A chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:

      (i) the revised disciplinary action is objectively less onerous than the original action proposed, or

      (ii)  the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or

      (iii) the employee has suggested the disciplinary action as an appropriate alternative penalty.

     (d)  Disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public service employee has expired or any appeal lodged is finalised.

Grounds of Appeal

  1. [31]
    Ms Narbeth's appeal is brought on the basis that:
  • the Respondent has not provided evidence supporting the assertion Ms Narbeth "accessed confidential information about a patient for a legal matter";
  • the aforementioned lack of evidence has denied Ms Narbeth natural justice as she has "had no opportunity to offer a defence"; and
  • if it is found that natural justice has been denied, then the disciplinary action is unfair and unreasonable.
  1. [32]
    In her reply submissions filed 19 November 2021, Ms Narbeth appeared to raise a fresh ground of appeal with reference to correspondence she received on 7 December 2020 from Mr Ivan Franettovich, Executive Director Operations Mackay (the 7 December 2020 Correspondence).[22] Ms Narbeth takes issue with several aspects of that correspondence which I will also consider.[23]
  1. [33]
    In determining whether the Review Decision was fair and reasonable, I will consider the following matters:
  1. Did the Respondent fail to provide evidence supporting Allegation Two?
  1. Was the determination that Allegation Two be substantiated in part fair and reasonable? 
  1. Was Ms Narbeth denied natural justice?
  1. What impact, if any, does the 7 December 2020 Correspondence have on the reasonableness of the decision-making process?
  1. Is the disciplinary action fair and reasonable? 
  1. [34]
    The decision being appealed against is the Review Decision. Subject to her review of all the information, Ms Davies-Jones concluded that Mr Seymour's Disciplinary Action Decision was appropriate. The grounds of appeal turn largely on the findings made by Mr Seymour in the Disciplinary Finding Decision and Disciplinary Action Decision which were ultimately accepted in the Review Decision. Therefore, in determining whether that Review Decision was fair and reasonable, I will also be considering the reasonableness of the Disciplinary Action Decision.

Did the Respondent fail to provide evidence supporting Allegation Two?

  1. [35]
    Ms Narbeth refutes Allegation Two in its entirety[24] and argues that the Respondent has provided no evidence "that connects the access of confidential information about a patient, to a legal matter which is not connected to the Appellant's employment."[25]
  1. [36]
    The Department submits that Allegation Two partially relied upon information presented by the QNMU in a letter dated 15 December 2020, specifically:

[The Patient], complainant to this matter is party to a separate Federal Circuit Court matter of which Ms Narbeth has been mentioned, and which may require her appearance, as such, Ms Narbeth is unable to provide a detailed response to your concerns at this time.[26]

  1. [37]
    In the Show Cause Notice, Mr Seymour stated "It is reasonably believed that your access to [the Patient's] patient record occurred in the lead up to or during legal proceedings with [the Patient] of which you are involved."[27] Ms Narbeth contends this statement "is solely an opinion and not evidence to support the allegation that the Appellant accessed confidential information about a patient for a legal matter."[28]
  1. [38]
    Ms Narbeth acknowledges she was a witness in a Federal Circuit Court proceeding that involves the Patient and that pertains to domestic violence, but submits she has not provided any evidence to the court that is relevant to the Patient's medical history.[29] Ms Narbeth submits that during a discussion with the QNMU on 24 September 2021, Mr Seymour "acknowledged that there had been no evidence provided by the Respondent in regard to the court matter" referred to in Allegation Two and "confirmed he had relied upon the balance of probabilities".[30]
  1. [39]
    Allegation Two alleges Ms Narbeth used her role to gain confidential information about the Patient "for a legal matter". This wording indicates the information was obtained for the purpose of the legal matter or because of the legal matter. The comment made by the QNMU indicates that Ms Narbeth and the Patient were both involved, to some extent, in the same Federal Circuit Court proceeding. This indicates the Patient was known to Ms Narbeth outside of work and it was not unreasonable for Mr Seymour to consider that fact during the disciplinary process. Indeed, evidence of the fact Ms Narbeth knew of the Patient outside of work tends to indicate a potential motive for Ms Narbeth to utilise her position to gain confidential information about the Patient. That is, in comparison to a situation where no link could be drawn. 
  1. [40]
    Notwithstanding the above, the second limb of Allegation Two suggests the information was obtained for the purpose of the legal matter which indicates Ms Narbeth set about to gain confidential information for more than just personal interest. I agree with Ms Narbeth that the mere fact she and the Patient are involved in the same legal matter is not strong enough evidence to substantiate the allegation she engaged in the Conduct "for a legal matter". To substantiate that limb, more evidence is required - Mr Seymour conceded on that point. However, for the reasons that follow, the lack of evidence with respect to the second limb of Allegation Two is not fatal to the reasonableness of the Disciplinary Action Decision and subsequent Review Decision. 

Was the determination that Allegation Two be substantiated in part fair and reasonable? 

  1. [41]
    Ms Narbeth contends that Allegation Two cannot be substantiated, even in part, "without any evidence to support the view that the Appellant accessed confidential information about a patient for a legal matter" (emphasis added).[31]
  1. [42]
    Ms Narbeth referred to the case of NOM v DPP & Ors in which it was noted that:

… standard of proof must be responsive to the gravity of the facts in issue and the consequences of the ultimate decision.[32]

  1. [43]
    Ms Narbeth contends that the decision to substantiate Allegation Two failed to reach the standard of proof "as it has not been based on very clear and cogent evidence."[33]
  1. [44]
    Mr Seymour's assessment and finding in relation to Allegation Two is reproduced below (emphasis added):

Assessment

…

As outlined in my findings to allegation one, I have determined that you did access [the Patient's] medical records on numerous occasions and that there was not a legitimate work-related reason for this access. On this basis, you did gain confidential information about [the Patient] who is known to you. I am of the view that you were only able [sic] gain this confidential information about [the Patient] through your role within Queensland Health. However, in the absence of corroborating evidence I cannot substantiate that the access was directly connected to a legal matter in which you are involved.

Accordingly, I have determined that allegation two is substantiated in part on the balance of probabilities.

Finding

On the basis of the partial substantiated finding in relation to allegation two, I have determined that you have contravened section 187(1)(b) of the PSA in that I am reasonably satisfied you are guilty of misconduct, being inappropriate or improper conduct in an official capacity. In particular, you utilised your role within Queensland Health to gain access to confidential information about [the Patient] (a person known to you).

…

Show cause as to proposed disciplinary action

On the basis of my findings in relation to Allegations against you and my determination that the above discipline ground exists, I am now considering whether disciplinary action should be taken against you.

…

  1. [45]
    The basis for Allegation Two is that Ms Narbeth "utilised" her "role within Queensland Health to gain confidential information" about the Patient.[34] Stemming from Allegation Two is the proposition that the confidential information gained was "for a legal matter".[35] Although the Respondent was unable to substantiate that Ms Narbeth's motivation for accessing the information was connected to a legal matter, it was able to substantiate that her motivation "was not reasonably connected to her normal duties as a Registered Nurse."[36]
  1. [46]
    Ultimately it was determined that Ms Narbeth was guilty of misconduct under s 187(1)(b) of the PS Act.[37] In the Show Cause Notice, Mr Seymour indicated such a finding would be open to him if he found that Ms Narbeth knew or ought to have known she was prohibited from viewing patient records of which she had no legitimate reason to access but did so without reasonable excuse.[38] Mr Seymour concluded that Ms Narbeth "inappropriately accessed and obtained confidential information" on the balance of probabilities.[39] Therefore, although Mr Seymour could not substantiate Ms Narbeth's motivation for accessing the information, he was able to substantiate that the access was not reasonably connected to Ms Narbeth's normal duties as a Registered Nurse.[40]
  1. [47]
    For the reasons outlined above, I reject the argument that partial substantiation of Allegation Two renders it not fair or reasonable. Accessing the Patient's records to gain confidential information about her in and of itself is significant enough to amount to misconduct under s 187(1)(b) of the PS Act. The explanation set out in the Disciplinary Action Decision was fair and reasonable and upon review of all the information, it was fair and reasonable for Ms Davies-Jones to accept the Disciplinary Action Decision for the reasons outlined therein.

Was Ms Narbeth denied natural justice?

  1. [48]
    Ms Narbeth contends she has been denied natural justice because she was denied "the ability to test an assumption made by the writer when no evidence was provided that would support that assumption".[41] I disagree for the reasons that follow. In the Show Cause Notice, Mr Seymour articulated the QNMU's advice that Ms Narbeth and the Patient were both involved in the same Federal Circuit Court proceeding and Mr Seymour's belief that Ms Narbeth accessed the Patient's record in the lead up to or during that proceeding.[42] As I have concluded, it was reasonable for Mr Seymour to consider and contemplate that Ms Narbeth's mutual involvement in the proceeding with the Patient may be linked to the Conduct.
  1. [49]
    The comment made by the QNMU in relation to the Federal Circuit Court proceeding was evidence that tended to support that link and was put to Ms Narbeth in the Show Cause Notice. In her response to the Show Cause Notice, Ms Narbeth addressed that evidence.[43] In consideration of Ms Narbeth's response, Mr Seymour determined the evidence obtained by the Respondent was not enough to ultimately substantiate Allegation Two in its entirety. For those reasons, I disagree that Ms Narbeth was denied the ability to test Allegation Two.
  1. [50]
    Ms Narbeth also contends she has been denied natural justice because Mr Seymour was both the writer of the Show Cause Notice and the Disciplinary Action Decision and "has shown the appearance of bias in the process by providing an opinion before allowing the Appellant to provide a response to the allegations."[44] It is often the case that the writer of a show cause notice and the ultimate decision maker is the same person. Regardless, the Disciplinary Action Decision was subject to review by Ms Davies-Jones. I have already found that it was reasonable for Mr Seymour to contemplate there may be a link between the Federal Circuit Court proceeding and the Conduct. The belief Mr Seymour had at the time of the Show Cause Notice was appropriately put to Ms Narbeth so that she could respond. Ultimately, that belief was challenged on the basis of a lack of evidence and Mr Seymour conceded on that point. It is not unusual for the reasonably held beliefs of the decision-maker to be put to an individual during the disciplinary process. In fact, it would be unfair for those beliefs to be withheld. For those reasons, I reject the argument that Mr Seymour has shown the appearance of bias.
  1. [51]
    Ms Narbeth further contends she has been denied natural justice because Ms Davies-Jones "provided no indication that she turned her mind to the validity of the evidence that was the distinction between allegation one and two, that is, the Appellant accessed confidential information for a legal matter"[45] and has "failed to fully review all the facts of the matter".[46] Ms Davies-Jones outlined that she reviewed all of the information including Ms Narbeth's view that the penalty imposed is unreasonable before reaching the conclusion that Mr Seymour's decision is appropriate.[47] Ms Davies-Jones concluded:

The patient concerned, [the Patient] had a reasonable expectation to privacy and confidentiality when accessing the services of Mackay Base Hospital, as to all members of the public. It has been substantiated that Ms Narbeth on numerous occasions inappropriately and without authorisation accessed [the Patient's] confidential medical record for which a genuine work-related reason has not been established. The matter has been determined as corrupt conduct and I consider that Ms Narbeth has unacceptably and without reasonable excuse breached [the Patient's] (a person known to Ms Narbeth) reasonable expectation to privacy. Furthermore, Ms Narbeth has breached the trust instilled in her as Public Servant, a Registered Nurse and an employee of Mackay Hospital and Health Service by inappropriately accessing confidential and protected information.[48]

  1. [52]
    I have already concluded that Mr Seymour's determination that Allegation Two is substantiated in part was fair and reasonable. Mr Seymour clearly outlined the validity of the evidence and how he reached his conclusion. Ms Davies-Jones reviewed the same information before Mr Seymour, as have I, and we have reached the same conclusion. In the review of the Disciplinary Action Decision, it was not necessary for Ms Davies-Jones to outline all the facts of the matter again to the extent that Mr Seymour did, particularly considering how thorough Mr Seymour's consideration was. Ms Narbeth has not pointed me to any requirements that Ms Davies-Jones failed to meet in the Review Decision and I reject that Ms Narbeth was denied procedural fairness on that basis.
  1. [53]
    Finally, Ms Narbeth contends she has been denied procedural fairness because in deciding the disciplinary penalty, "the Respondent considered that both allegations had been substantiated."[49] To the contrary however, Mr Seymour explicitly concluded that Allegation Two could only be substantiated in part, outlined his finding "on the basis of the partial substantiated finding" and presented his proposed disciplinary action "on the basis of my findings in relation to Allegations against you".[50] The Disciplinary Action Decision made no reference to the second limb of Allegation Two following Mr Seymour's conclusion that it could not be substantiated. Ms Narbeth has not presented any evidence to support the contention that the Respondent acted on a consideration that both allegations had been fully substantiated.[51]

What impact, if any, does the 7 December 2020 Correspondence have on the reasonableness of the decision-making process?

  1. [54]
    In her reply submissions, Ms Narbeth referred to and annexed the 7 December 2020 Correspondence which had not been previously provided up until that point.[52] Ms Narbeth makes the following submissions:[53]
  • At the time of the 7 December 2020 Correspondence, "the Respondent was aware of the nature of the concerns ultimately put to the Appellant in a discipline process but made the decision to manage the matter via a less formal approach."
  • In the 7 December 2020 Correspondence, the Respondent did not put specific allegations to the Appellant, nor provide particulars to support their concerns - including in relation to the relationship between the Patient and the son of Ms Narbeth's work colleague.
  • Ms Narbeth did not provide a detailed response to the Respondent at that time because of the lack of evidence presented.
  • The Respondent failed to commence a disciplinary process after receiving the CCC assessment and after "having audited the access of the Appellant to a patient's records" which indicates "the Respondent had made the decision that this matter did not meet the threshold required to commence a disciplinary process and was therefore not a serious disciplinary matter."
  1. [55]
    Having reviewed the 7 December 2020 Correspondence, I observe that Mr Franettovich referred Ms Narbeth to the subject of the correspondence, being he is "in receipt of information that suggests you have inappropriately accessed medical records of a patient, namely [the Patient]."[54] He then refers to and annexes the ieMR record log and lists the occasions on which the inappropriate access was indicated.
  1. [56]
    Relevantly, the 7 December 2020 Correspondence states:

I understand that [the Patient] is a former domestic partner of [Mr X] and that there is a child or children of the relationship, of which your friend and colleague, [the Colleague], is grandmother.

…

I am concerned there may not be a genuine work-related reason for the above access, and that your conduct may not meet the standards of professional conduct as set out in the Code of Conduct for the Queensland Public Service and Public Sector Ethics Act 1994 (Qld). It may also constitute a breach of clause 3.1 of MHHS policy 'Access to Patient Integrated Electronic Medical Records (ieMR) Document ID: C-PRO 538 V1.0' (copy enclosed).

…

Before I decide how to proceed in this matter, I would like to give you an opportunity to respond. You may choose to provide me with your recollection of events and/or any information you believe is relevant to the issues raised in this letter.

…

I reiterate I am only considering this matter at this stage. No decision has been made as to what, if any, further action will be taken in relation to this matter. If, after considering your response I determine further action is required, I will contact you again to provide details of the further action.

  1. [57]
    In my view, the 7 December 2020 Correspondence was issued to open discussion with respect to what the ieMR records had indicated. Having conducted the ieMR audit, the Respondent reasonably put to Ms Narbeth the specific dates on which the access occurred under her login and also presented the Respondent's understanding of how the Patient may be known to Ms Narbeth. I believe at that stage the Respondent would have been prepared to informally discuss the matter in contemplation of there being a simple explanation. For example, Ms Narbeth may have responded with a list of genuine-work related reasons for the access.
  1. [58]
    As explained above, it was reasonable for the Respondent to put to Ms Narbeth that there is a link between her and the Patient through her friend and colleague. That inclusion was likely included in an attempt to jog Ms Narbeth's memory of the Patient and access to the Patient's records. Alternatively, it would have been open to Ms Narbeth to advise she was unaware of the Patient's relationship to her colleague or that in her view, Mr Franettovich's understanding of the relationship was incorrect.
  1. [59]
    The concern presented in the 7 December 2020 Correspondence is clearly that Ms Narbeth "inappropriately accessed medical records" without a "genuine work-related reason". The particulars of that concern were provided in the form of dates on which the access was said to have occurred. Ms Narbeth argues that the correspondence lacked particularity, however the facts of this case are rather simple - Ms Narbeth accessed medical records of a particular patient on particular dates without a work-related purpose. Further, it was open to Ms Narbeth to request the further particulars she believed she required.
  1. [60]
    I do not accept that the Conduct is any less serious because the Respondent determined to instigate the discussion with a less formal approach than a Show Cause Notice. Ultimately, concerns may be met with reasonable explanations and therefore a formal Show Cause Notice may not have been necessary. In this case, even after the Show Cause Notice was issued and Ms Narbeth was afforded the opportunity to respond, the Respondent still held concerns about the seriousness of the Conduct. The contention that the 7 December 2020 Correspondence suggests the Respondent had already determined the Conduct was not a "serious disciplinary matter" is baseless. 

Is the disciplinary action fair and reasonable? 

  1. [61]
    In her response to the Disciplinary Finding Letter, Ms Narbeth stated:

In making your decision to impose a penalty of a reduction in my classification level, it would be reasonably assumed that you have considered that you substantiated allegation 2. It is therefore reasonable that, if this allegation had not been substantiated, a lesser penalty may have been considered.[55]

  1. [62]
    Ms Narbeth argues that should I determine the Respondent made an error in substantiating Allegation Two, a lesser penalty should apply.[56] Ms Narbeth also broadly submits that the disciplinary action is unfair and unreasonable.[57] The Department submits that the Disciplinary Action Decision took into consideration that Allegation One was substantiated in full and Allegation Two was only substantiated in part.[58] I have already accepted the Respondent's contention in this regard above.
  1. [63]
    Section 188 of the PS Act provides that (emphasis added):

In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

  1. [64]
    The chief executive must be satisfied that the disciplinary action is "reasonable in the circumstances".[59]
  1. [65]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[60]

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.

The pluarity in Li said:

… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power...

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

  1. [66]
    Clause 8.5(d) of Directive 14/20 contains the factors to be considered in "proposing appropriate and proportionate disciplinary action."[61]  Those factors are:
  1. (i)
    the seriousness of the disciplinary finding
  1. (ii)
    the employee's classification level and/or expected level of awareness about their performance or conduct obligations
  1. (iii)
     whether extenuating or mitigating circumstances applied to the employee's actions
  1. (iv)
    the employee's overall work record including previous management interventions and/or disciplinary proceedings

  (v)   the employee's explanation (if any)

  (vi)  the degree of risk to the health and safety of employees, customers and members of the public

  (vii)  the impact on the employee's ability to perform the duties of their position

   (viii)  the employee's potential for modified behaviour in the work unit or elsewhere

  (ix)  the impact a financial penalty may have on the employee

  (x)  the cumulative impact that a reduction in classification and/or pay-point may have on the employee

  (xi)  the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

  1. [67]
    Ms Narbeth submits she is the sole income earner for two children in her primary care and that one of her children has medical conditions and requires extra supports. Ms Narbeth submits that a reduction in her grade level will have significant financial impacts and she will need to increase her hours to make up for the financial loss which will in turn reduce her capacity to provide support to her children. Ms Narbeth also contends there are psychological impacts associated with reduction in grade level which may affect her professional image and capacity to gain respect within her unit.[62]
  1. [68]
    Ms Narbeth suggested the following alternative disciplinary action:

I would undertake extra training in ethics, and information security, complete any my learn updates required within a specified timeframe. Or any other training and education you feel would be appropriate,

I would remain as Nurse Grade 6 Level 1 with a forfeiture of remuneration increment for 12 months, and

  I receive a written warning about my actions.[63]

  1. [69]
    I appreciate and take into consideration Ms Narbeth's personal circumstances as outlined above but note that such personal impacts must be considered against other factors.
  1. [70]
    The Conduct occurred over the course of the following dates:
  • 17 May 2019;
  • 20 May 2019;
  • 3 June 2019;
  • 28 June 2019 and
  1. [71]
    Ms Narbeth completed the mandatory training module 'Ethics, Integrity and Code of Conduct (MAN02)' through 'My Learn' in October 2017, 2018 and 2019.[65] On 30 October 2017, Ms Narbeth undertook a mandatory training module regarding information security essentials (MAN07 Information Security) and was the recipient of an email sent by the Executive Director People titled 'Inappropriate Access to and Use of Private and Confidential Information' on 8 October 2019.[66] That email pertained to the "obligation to protect against inappropriate access and misuse of confidential information, including potential consequences for any breaches."[67] I agree with Mr Seymour that given Ms Narbeth's training and the information provided to her, she ought to have been aware of her obligations regarding appropriate utilisation of patient records.[68]
  1. [72]
    Ms Narbeth submits she has had no previous disciplinary action against her while working for Queensland Health, nor has she had conversations or verbal warnings about inappropriate use of medical records or access to the best of her knowledge.[69] In that sense, it can be said to be an isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours). However, I cannot ignore that the Conduct was carried out repeatedly over several days and in one instance, the Conduct occurred four times within the same day.[70] 
  1. [73]
    Initially Ms Narbeth submitted she could not recall accessing the Patient's records on some of the occasions, that she had accessed the Patient's "information for the correct reasons" and proposed that someone else may have utilised her login for clinical purposes because Ms Narbeth had not logged off correctly.[71] After Mr Seymour outlined further particulars, Ms Narbeth conceded she had accessed the Patient's records and that the Patient had not been directly in her care. In circumstances where Ms Narbeth resisted the opportunity to make sensible concessions with respect to the substance of the allegations throughout the process, the Respondent may well have had reasonable concerns that if faced with a similar situation, even with the benefit of additional training or clarification of expectations, Ms Narbeth was at risk of behaving in a similar way. Noting the period of time over which the Conduct was carried out, it seems likely that the Conduct would have continued had this disciplinary process not ensued.
  1. [74]
    In determining what disciplinary action is reasonable and proportionate in the circumstances, I note the seriousness of the Conduct is reflected in the Crime and Corruption Commission's (CCC) assessment that the Conduct was 'corrupt' and could constitute an offence of computer hacking under s 408E of the Criminal Code 1899 (Qld).[72] I acknowledge the CCC did not require the Respondent to provide an outcome to the CCC[73] but this fact does not render the Conduct any less serious.
  1. [75]
    With respect to Ms Narbeth's financial situation and in response to her proposed alternative action, the Department contends that Ms Narbeth was permanently appointed as a Clinical Nurse NG6.1 on 8 December 2020 and that on 1 October 2021, Ms Narbeth received a 2.5% pay increase in accordance with the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB10) 2018.[74] It is the Department's submission that Ms Narbeth was not due to increment to the next pay point until November 2021 and no financial penalty would effectively be imposed until this time.[75] On that basis, the Department contends that "withholding an increment level for 12 months would be a minimal financial penalty".[76] I agree with Mr Seymour that "Accessing confidential information for purposes not directly connected to your role is incredibly serious" and as such, a reduction in increment or additional training is not proportionate to the seriousness of the Conduct.[77] That is particularly the case where training had already been undertaken.
  1. [76]
    In my mind, the reasonableness of the Disciplinary Action Decision and Review Decision turns largely on the following conclusion drawn by Mr Seymour:

Members of the public have a right to privacy and expect that their private medical information will not be accessed without proper cause. By inappropriately accessing confidential information your actions may seriously damage the community's trust in the health system and the privacy of their records. The gravity of your actions on several occasions is a serious departure from acceptable workplace conduct and I am of the view that you have breached the honesty, trust and integrity that is placed in your role as a registered nurse.[78]

  1. [77]
    Given the serious nature of the Conduct and having regard to the knowledge Ms Narbeth ought to have had, I find the Disciplinary Action Decision and Review Decision are fair and reasonable.
  1. [78]
    I note that a reduction in classification level is a form of disciplinary action that does not prohibit an employee from seeking progression in the future. In light of the nature of the substantiated allegations, I accept the imposition to be a fair and reasonably proportionate and necessary disciplinary action with a view to deterring similar behaviour.

Conclusion

  1. [79]
    I find that the Review Decision to impose a reduction in classification level is appropriate and proportionate in the particular circumstances.  I find the decision appealed against to be fair and reasonable.
  1. [80]
    I order accordingly.

Order:

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

Footnotes

[1] Appeal Notice, 28 October 2021, [1].

[2] Ibid [2].

[3] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 11 March 2021, 1.

[4] Respondent's Submissions, 12 November 2021, [5].

[5] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 11 March 2021, 2.

[6] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 11 March 2021, 4.

[7] Letter from Ms K. Narbeth to Mr T. Seymour, 21 April 2021. 

[8] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 21 July 2021.

[9] Letter from Ms K. Narbeth to Mr T. Seymour, 11 August 2021. 

[10] Ibid. 

[11] Letter from Ms K. Narbeth to Mr T. Seymour, 11 August 2021. 

[12] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 16 August 2021.

[13] Ibid.

[14] Letter from Ms L. Davies-Jones, Chief Executive, MHHS to Mr C. Smith, QNMU, 7 October 2021.

[15] Ibid.

[16] Appeal Notice, 28 October 2021, 3.

[17] Appeal Notice - Schedule 1, 28 October 2021, [23].

[18] Letter from Ms L. Davies-Jones, Chief Executive, MHHS to Mr C. Smith, QNMU, 7 October 2021.

[19] Industrial Relations Act 2016 (Qld) s 562B(3).

[20] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[21] Industrial Relations Act 2016 (Qld) s 567(2).

[22] Appellant's Submissions in Reply, 19 November 2021, [6]-[12].

[23] Ibid.

[24] Appeal Notice, 28 October 2021, [10].

[25] Appellant's Submissions, 5 November 2021, [6].

[26] Respondent's Submissions, 12 November 2021, [5].

[27] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 11 March 2021, 5.

[28] Appellant's Submissions, 5 November 2021, [10].

[29] Letter from Ms K. Narbeth to Mr T. Seymour, 21 April 2021. 

[30] Appeal Notice, 28 October 2021, [16].

[31] Appellant's Submissions, 5 November 2021, [17].

[32] [2012] VSCA 198, [103].

[33] Letter from Ms K. Narbeth to Mr T. Seymour, 11 August 2021. 

[34] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 11 March 2021, 4.

[35] Ibid.

[36] Respondent's Submissions, 15 November 2021, [8].

[37] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 21 July 2021.

[38] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 11 March 2021, 5.

[39] Letter from Mr T. Seymour to Ms K. Narbeth, 16 August 2021.

[40] Respondent's Submissions, 12 November 2021, [8].

[41] Appellant's Submissions, 5 November 2021, [11].

[42] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 11 March 2021, 5.

[43] Letter from Ms K. Narbeth to Mr T. Seymour, 21 April 2021. 

[44] Appellant's Submissions, 5 November 2021, [12]-[13].

[45] Appellant's Submissions, 5 November 2021, [15].

[46] Ibid [16].

[47] Letter from Ms L. Davies-Jones to Mr C. Smith, 7 October 2021.

[48] Ibid.

[49] Appellant's Submissions, 5 November 2021, [18].

[50] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 21 July 2021.

[51] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 16 August 2021.

[52] Appellant's Submissions in Reply, 19 November 2021, [6].

[53] Ibid [7]-[12].

[54] Letter from Mr I. Franettovich to Ms K. Narbeth, 19 November 2021.

[55] Letter from Ms K. Narbeth to Mr T. Seymour, 11 August 2021. 

[56] Appellant's Submissions, 5 November 2021, [19].

[57] Ibid [22].

[58] Respondent's Submissions, 12 November 2021, [10].

[59] Public Service Act 2008 (Qld) s 188.

[60] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[61] Directive 14/20 Discipline cl 8.5(d).

[62] Letter from Ms K. Narbeth to Mr T. Seymour, 11 August 2021. 

[63] Ibid. 

[64] Letter from Mr T. Seymour, Executive Director People, MHHS to Ms K. Narbeth, 21 July 2021.

[65] Respondent's Submissions, 12 November 2021, [3]; I note the paragraph numbers in the Respondent's Submissions restarted at [1] part way through the document.

[66] Letter from Mr T. Seymour to Ms K. Narbeth, 11 March 2021; Letter from Mr T. Seymour to Ms K. Narbeth, 16 August 2021.

[67] Respondent's Submissions, 12 November 2021, [4]; I note the paragraph numbers in the Respondent's Submissions restarted at [1] part way through the document.

[68] Letter from Mr T. Seymour to Ms K. Narbeth, 16 August 2021.

[69] Letter from Ms K. Narbeth to Mr T. Seymour, 11 August 2021. 

[70] Letter from Mr T. Seymour to Ms K. Narbeth, 11 March 2021, 2.

[71] Letter from Ms K. Narbeth to Mr T. Seymour, 11 August 2021. 

[72] Respondent's Submissions, 12 November 2021, [10].

[73] Appellant's Submissions in Reply, 19 November 2021, [5].

[74] Respondent's Submissions, 12 November 2021, [7]-[8]; I note the paragraph numbers in the Respondent's Submissions restarted at [1] part way through the document.

[75] Ibid [9].

[76] Ibid [10].

[77] Letter from Mr T. Seymour to Ms K. Narbeth, 16 August 2021.

[78] Letter from Mr T. Seymour to Ms K. Narbeth, 16 August 2021. 

Close

Editorial Notes

  • Published Case Name:

    Narbeth v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Narbeth v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 400

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    25 Nov 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Nom v DPP [2012] VSCA 198
2 citations
Jump To
Cite 1 - [2012] VSCA 198
Cite 2 - [2012] VSCA 198

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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