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Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2)[2021] QIRC 403

Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2)[2021] QIRC 403

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2) [2021] QIRC 403

PARTIES: 

Smith, Diana

(Appellant)

v

State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

(Respondent)

CASE NO.:

PSA/2021/251

PROCEEDING:

Public Service Appeal - Appeal against discipline decision

DELIVERED ON:

1 December 2021

MEMBER:

HEARD AT:

Merrell DP

On the papers

DATES OF WRITTEN

SUBMISSIONS:

Respondent's written submissions filed on 13 August 2021 and Appellant's written submissions filed on 9 September 2021

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the disciplinary finding decision dated 20 April 2021 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the discipline decision dated 9 June 2021 is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against, made on 15 July 2021, is revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – disciplinary action taken against appellant pursuant to s 188 of the Public Service Act 2008 – appeal by appellant against disciplinary finding decision and discipline decision – claims disciplinary finding decision is not open on the evidence and that the disciplinary decision was disproportionate in all circumstances – disciplinary finding decision fair and reasonable – disciplinary finding decision confirmed – discipline decision fair and reasonable in all the circumstances – discipline decision confirmed

LEGISLATION:

Directive 14/20: Discipline, cl 8.5

Industrial Relations Act 2016, s 562B, s 562C and s 566

Public Service Act 2008, s 137, s 187, s 188, s 197 and s 201

CASES:

Australian Building and Construction Commissioner v Ingham [2020] FCA 1632

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Nesbit v Metro North Hospital and Health Service [2021] ICQ 005

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397

Reasons for Decision

Introduction

  1. [1]
    Ms Diana Smith is employed as a Litigation Support Officer ('LSO') within the Office of the Child and Family Official Solicitor ('OCFOS') which is part of the Department of Children, Youth Justice and Multicultural Affairs ('the Department'). The classification of Ms Smith's position is AO3. Presently, Ms Smith is paid at pay-point 4 of that classification level.
  1. [2]
    By letter dated 20 April 2021, Ms Shannan Quain, Chief Human Resources Officer/Executive Director, People and Culture of the Department, informed Ms Smith that in respect of the two allegations made against her, one allegation was partially substantiated and the other allegation substantiated ('the disciplinary finding decision').
  1. [3]
    By further letter dated 9 June 2021, Ms Quain informed Ms Smith that pursuant to s 188(1) of the Public Service Act 2008 ('the PS Act') she was imposing on Ms Smith the disciplinary action of the forfeiture or deferment of a remuneration increment or increase from AO3, pay-point 4, to AO3, pay-point 2 ('the discipline decision').
  1. [4]
    By appeal notice filed on 15 July 2021, Ms Smith appealed against the discipline decision. Ms Smith contends that the disciplinary action is disproportionate because of a number of reasons. However, having regard to the reasons for Ms Smith's appeal attached to the appeal notice, it is also the case that Ms Smith appeals against the disciplinary finding decision.
  1. [5]
    By directions order dated 15 July 2021, I stayed the discipline decision until the determination of Ms Smith's appeal or further order of the Commission. I also made orders for the Department and Ms Smith to file and serve written submissions in respect of the appeal.
  1. [6]
    Both parties have complied with the directions order and filed and served written submissions in respect of the appeal. Neither party has requested an oral hearing. For these reasons, I have determined Ms Smith's appeal on the papers.
  1. [7]
    Section 197 of the PS Act provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the Industrial Relations Act 2016 ('the IR Act') by the Commission. The principles applicable under the former s 201 of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions in ss 562B(2) and 562B(3) of the IR Act.[1]
  1. [8]
    I must decide the appeal by reviewing the decisions appealed against.[2] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing, but involves a review of the decision arrived at and the decision‑making process associated therewith.[3] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for my determination is whether the decisions appealed against were fair and reasonable.[5]
  1. [9]
    For the reasons that follow, I confirm the disciplinary finding decision and the discipline decision.

Background

  1. [10]
    By letter dated 24 September 2020, Ms Quain informed Ms Smith that she had received information which raised allegations about her (Ms Smith's) conduct. Ms Quain further advised Ms Smith that the allegations were referred to the Department's Professional Standards Unit which, on 8 September 2020, referred the matter to the Crime and Corruption Commission ('the CCC') for assessment and that the matter remained under assessment with the CCC. By that same correspondence, Ms Quain informed Ms Smith that, as the delegate of the chief executive of the Department, she was exercising discretion to suspend Ms Smith from duty on full pay, pursuant to s 137(1)(a) of the PS Act, effective immediately until 16 October 2020.
  1. [11]
    By further correspondence from Ms Quain dated 4 November 2020, Ms Quain provided Ms Smith with an opportunity to respond to five concerns about Ms Smith's work performance as part of Ms Quain's assessment of those concerns. Two of the five concerns which Ms Smith was required to respond to included:
  • an explanation as to why Ms Smith did not apply due care in fulfilling her duties as a LSO by failing to update the Department's Integrated Client Management System ('ICMS') to reflect a child's current status in a timely and accurate manner; and
  • confirmation about whether or not Ms Smith had been undertaking secondary employment in relation to private (acupuncturist and herbal medicine) businesses operated by herself or her husband, and details in administering the business during work hours with the Department, her primary employer.
  1. [12]
    By correspondence dated 10 December 2020, Ms Smith availed herself of that opportunity to respond to the abovementioned concerns ('Ms Smith's 10 December response'). In responding to the second concern referred to immediately above, Ms Smith stated that she had never answered a call from any of her husband's patients during work hours, that she always let any calls go to the message bank, and that it was her husband's responsibility to speak with his patients at the end of the day.

The two allegations made against Ms Smith

Allegation One

  1. [13]
    By letter dated 5 March 2021, Ms Quain advised Ms Smith of two allegations made against her. The first allegation was that between 18 December 2019 and 23 June 2020, Ms Smith repeatedly failed to apply due care in performing the duties of her role as a LSO, which placed a child in care at imminent risk of harm ('Allegation One').
  1. [14]
    Full particulars of Allegation One, and relevant documents, were provided to Ms Smith.
  1. [15]
    The particulars of Allegation One were:

Particulars

  1. On 18 December 2019, you participated in a telelink with other regional LSOs, chaired by Ms Bernadette Smith, Practice Manager, OCFOS, to discuss expectations, timeframes and urgency associated with tasks expected to be completed by LSOs. On the following day, the LSO team, including yourself, were emailed the final document titled 'LSO tasks and processes' (Attachment 4). The document states that LSOs are expected to create a new Child Protection Order (CPO) event in ICMS when the matter is being referred to the Director of Child Protection Litigation (DCPL). Another important requirement of the LSO role is to assist lawyers to refer matters to DCPL and upload Court Outcome Forms (COF) to ICMS so the Child Safety After Hours (CSAH) team are aware of the status of a child's court order.
  1. Between 7 April 2020 to 20 April 2020, you were absent from the workplace on unplanned leave.
  1. During your unplanned leave, other LSOs were requested to undertake your role and whilst assisting with processing COF, found that 120 COFs were outstanding, some dating back to March 2020.
  1. On 23 April 2020, you had a supervision meeting with your line manager, Mr Scott Kerrigan, Senior Lawyer, OCFOS and were advised of the outstanding 120 CFOs. In addition, Mr Kerrigan also identified that there were 32 matters adjourned at Maroochydore Children's Court on 30 March 2020 (the supervision notes are incorrectly dated 30 April 2020) some of which appear not to have been updated.
  1. As a result of these outstanding tasks, Mr Kerrigan outlined his expectations of you moving forward, which included but were not limited to the following:
  1. Advise Mr Kerrigan if you are not meeting the expected timeframes for completing tasks.

ii. COFs must be completed by the end of the next business day after they are uploaded to ICMS by the DCPL.

iii. ICMS records need to be up to date to accurately show whether a child is in our custody.

iv. Advise Mr Kerrigan if you are overwhelmed with your workload.

v. Your core work hours are between 9am and 5pm unless approved by prior agreement. Mr Kerrigan provided you with a copy of the supervision notes and the expectations discussed at your supervision meeting on 23 April 2020 (Attachment 5).

  1. On 11 May 2020 at 11:16am, you and other staff (not LSOs) were sent an automatic court share email regarding a DCPL referral for Subject Child (SC), [redacted] The email stated, inter alia, that the current Temporary Custody Order (TCO) expiry date was 12 May 2020. At 3:25pm, you and other staff (not LSOs) were sent another email from Mr Graham Murray, Assistant Director, DCPL, stating that the Chief Executive (CE) had assessed that SC [redacted] care and protection needs are best met by wav of a CPO granting Long Term Guardianship (LTG) to the CE until the day before SC [redacted] 18th birthday (Attachment 6).
  1. Under the heading 'Litigation Timetable' the email states 'Noting the current orders, any application which DCPL decides to make will need to be filed by 3.00 pm on 12 May 2020, to enliven the provisions of the CPA 1999 s99.'
  1. You were the only LSO listed in the abovementioned emails. The 'LSO tasks and processes' document states that CPO events are to be created on ICMS as soon as the DCPL referral is received. Despite receiving numerous email reminders, ICMS records show that despite the sealed application being made on 12 May 2020, you did not enter the CPO event for SC [redacted] until 19 May 2020 (seven days after the event).
  1. On 13 May 2020 at 1:14am, the SC's mother, Ms [redacted] called CSAH enquiring if the TCO had expired. CSAH could not locate any information or updated orders or contact the on call OCFOS officer. Ms [redacted] was advised to contact the Redcliffe CSSC when it opened.
  1. A case note written on 13 May 2020 by the Child Safety Officer (CSO) at the Redcliffe CSSC for SC [redacted] states she placed a call to SC [redacted] carer, Ms [redacted] (SC [redacted] grandmother) who advised that that SC's mother called her at approximately 1:00am that morning stating there were no orders and she wanted to visit the SC. The SC's mother was advised not to visit, however approximately one hour later, she entered [name deleted] [redacted] house without her knowledge or consent. The SC's mother was found asleep on the couch with SC [redacted] The SC's mother was repeatedly asked to leave and eventually did but told the SC's grandmother that there was no order in relation to SC [redacted] custody.
  1. On the same case note, records indicate that SC [redacted] father Mr [redacted] sent a number of abusive texts to the case manager stating that he 'might go see [redacted] as there was no court order or 'paperwork'. In the messages, Mr [redacted] swears at the CSO, repeatedly refers to her as 'maggot' and is critical of her intelligence because he has not been served the paperwork.
  1. ICMS records indicate that 'the family is a very high risk domestic and family violence family and the department is in the process of applying for a LTG order for [redacted].
  1. Mr Kerrigan sent you an email on 18 May 2020, in relation to a number of outstanding CPO events that had not been created in ICMS, despite some applications being filed almost one month ago (Attachment 7).
  1. During supervision on 23 May 2020 (the supervision notes are incorrectly dated 21 May 2020), Mr Kerrigan discussed the referral matter of SC [redacted] and the significant delay, of seven days, in updating the CPO event in ICMS. This resulted in the CSAH CSO providing incorrect information to SC [redacted] mother about the court order status of her child. Mr Kerrigan provided you with two other examples of referrals from DCPL which had not been actioned by you, as you claimed that you had not received them, when in fact you had (Attachment 8).
  1. You were advised by Mr Kerrigan at this supervision meeting of the concerns and consequences of not updating or closing events in ICMS in a timely manner, as per the LSO tasks and processes document. Mr Kerrigan also highlighted the serious consequences for a vulnerable child or young person if ICMS did not reflect the current and correct status of a child/ren in care.[6]
  1. [16]
    Ms Quain further advised Ms Smith that having considered the information currently available to her in respect of Allegation One, there may be grounds for Ms Smith to be disciplined including, pursuant to s 187(1)(g) of the PS Act, that Ms Smith may have contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, in particular cl 3.1(e) of the Code of Conduct for the Queensland Public Service ('the Code of Conduct') which provides:

3.1 Commit to our roles in public service

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.

We will:

…

e. adhere to the policies, organisational values and organisational documents of our employing agency.

Allegation Two

  1. [17]
    The second allegation was that between August 2019 and September 2020, Ms Smith failed to declare secondary employment in relation to her connection with her husband's acupuncturist business and/or WildQi and/or declare a conflict of interest, which was seen to impact negatively on the performance of her duties ('Allegation Two').
  1. [18]
    Full particulars of Allegation Two, and relevant documents, were provided to Ms Smith.
  1. [19]
    The particulars of Allegation Two were:

Particulars

  1. During the latter half of 2019, Mr Kerrigan observed you to be excessively taking calls and texting on your personal phone, during work hours. You had reported to Mr Kerrigan that you did not have the capacity to complete your workload and the reason for not being able to meet timeframes was due to emergent work arising.
  1. As a result of the above observation, Mr Kerrigan sent an email dated 21 August 2019 to the team, reminding staff of their obligations to declare any conflict of interest, including secondary employment.
  1. You responded on 22 August 2019 by email, stating 'Hi Scott, as per below request, I have read the documents and aware of my obligations, and I am not involved in any other work or volunteering' (Attachment 9).
  1. An internet search revealed that your personal mobile number of [number deleted], which is the same mobile number listed in Aurion, the department's payroll/personnel system, is the contact number for the following businesses:

i.  An acupuncturist business in Coolum, Queensland located on website www.whitecoat.com.au in the name of Mr Michael Smith, based at [address deleted] (Aurion records indicate that Mr Michael Smith is your husband. Aurion records indicate that your residential address matches the above location) (Attachment 10).

ii.  Wildqi on the website http://www.WildQi.com.au - an online store that sells herbal and alternative medicines. On the WildQi website under Contact us, it lists your personal mobile number as the contact during the hours of 10am to 4pm, Monday to Friday, which is the same hours you are engaged with the department, your primary employer (Attachment 11).

  1. In your opportunity to respond letter dated 10 December 2020, you state:

I am not involved in my husband's acupuncture business … I have never answered a call from any of my husband's patients during work hours. I have always let any calls go to message bank and it is my husband's responsibility to speak with his patients at the end of the day. My husband runs his WildQi website as a hobby and he is responsible for any contact ... I do not have any involvement in this.

  1. On 26 August 2020, Ms Kara Hegarty, former Senior Advisor (Investigations), Professional Standards, phoned the mobile number [number deleted] listed for WildQi at 9:32am under the pseudonym 'Cassie'.
  1. The phone was answered by a female person identifying herself as Diana (whom I understand is you). During the nine-minute conversation, you provided 'Cassie' with the following information:

i.  You confirmed that the number called was attached to a commercial business selling health food goods including 'wild oregano oil'.

ii. You advised the business was pronounced 'Wild-Chee'.

iii. You recommended clove oil and later oregano oil ('our oil') to address Cassie's pain.

iv. You described all products on the website and stated that many customers had given good feedback about using the capsules for gut health.

v. You noted your mother used oregano capsules.

vi. You directed 'Cassie' to different sections of the website 'Research link' and wished Cassie good luck stating, 'I'll look out for your order if you end up going that way.'

  1. In order to estimate the time you had been involved with WildQi, an internet search completed by Professional Standards ascertained that your personal mobile had been the contact number for WildQi since February 2019.
  1. However, further research indicates that the same contact number and business hours are captured in the internet archive as far back as 27 February 2015.
  1. On 4 September 2020, Ms Susan Hardy, Senior Business Partner HR/ER, Business Partnerships contacted the acupuncture business run by your husband, Mr Michael Smith on the contact number listed on the White Coats Website, known as your personal mobile number [number deleted], seeking an appointment.
  1. A female person identifying herself as Diana (believed to be you) answered the call and advised Ms Hardy that Mr Smith was fully booked until mid-November 2020, however you recommended another acupuncturist, Ping Smith in Mooloolaba.
  1. Ms Hardy spoke to you for approximately 10 minutes at 12:55pm, and asked if Mr Smith had a COVID-safe plan in place, to which you replied that Mr Smith was a member of the Australian Acupuncture and Chinese Medicine Association (AACMA) and that they had provided guidelines for all practitioners in regards to a COVID-safe plan.
  1. An internet search shows that Michael Smith is a current member of the AACMA and the address matches your home address listed in Aurion, [address deleted].
  1. On two occasions, you answered your personal mobile number during work hours, in relation to your husband's acupuncture and WildQi businesses, which is the contact number for both businesses. To date, you have not declared secondary employment or declared a conflict of interest. Further, you advised Mr Kerrigan on 22 August 2019, that you are not involved in any other work.
  1. [20]
    Ms Quain further advised Ms Smith that, having considered the information currently available to her in respect of Allegation Two, there may be grounds for Ms Smith to be disciplined including, pursuant to s 187(1)(b) of the PS Act, that Ms Smith may be guilty of misconduct, that is inappropriate or improper conduct in an official capacity, within the meaning of s 187(4)(a) of the PS Act.
  1. [21]
    Ms Quain invited Ms Smith to respond in writing, within 14 days of her receipt of Ms Quain's letter, as to why a disciplinary finding should not be made against her in relation to Allegation One and Allegation Two.

Ms Smith's response dated 25 March 2021

  1. [22]
    By letter dated 25 March 2021, Ms Smith responded to Ms Quain's correspondence dated 5 March 2021.

Allegation One

  1. [23]
    In summary, Ms Smith submitted that:
  • she recognised that she may not have been as productive at work during the initial stages of the COVID-19 pandemic, due to a myriad of factors including her husband's serious ill health, IT/network issues, assisting other clusters during unplanned leave and her own unplanned leave;
  • between December 2019 and March 2020, she undertook additional tasks in conjunction with her usual tasks;
  • the 32 outstanding COFs at the Maroochydore Children's Court from 30 March 2020 (four business days before her unplanned leave) were due to LSOs waiting on direction from the Court regarding adjournments during the COVID‑19 pandemic;
  • she received advice from Ms Bernadette Smith, Practice Manager, OCFOS, on 27 March 2020 to use 1 July 2020 as the 'fake date' to adjourn all matters that the courts declared as a future date;
  • the new ICMS forms did not allow for changes to be made to the initial court date in a CPO application, the consequence of which was that she (Ms Smith) had to delete and re-enter all the new CPOs with the new court date of 1 July 2020, which Ms Smith submitted was time-consuming and resulted in her having to do that part of her work twice;
  • as a result of her unplanned leave in April 2020, she did have outstanding tasks and that normally for any planned leave, she ensures her tasks were settled and duties up-to-date at the time of going on leave, however, she was unable to do that when she went on a period of unplanned leave in April 2020;
  • upon her return from leave, she was in 'catch-up' mode, however, more and more COFs needed to be completed and that period was incredibly stressful, particularly because her husband was very unwell;
  • there were IT issues from 5 May 2020 until 18 May 2020 and then again in June 2020 in respect of which she made a number of calls to IT Services to resolve the issues, some of the issues were Department-wide and these issues made the completion of her day-to-day tasks very difficult;
  • she received hundreds of CourtShare emails and alerts (the majority of which did not require her to action) and had a system to 'park' them so she could sort the ones relevant to her; and Mr Kerrigan was aware of this and it was agreed that she would create two rules in Outlook to capture Referrals and Filed CPO applications, which she did do;
  • she agreed that she received an email from Mr Murray on 11 May 2020 at 3.25 pm regarding the SC the subject of Allegation One and she also acknowledged that the LSO tasks and processes document states that CPO events are to be created on ICMS as soon as the DCPL referral is received, however, the expectation for 'as soon as' is often unrealistic with so many competing demands;
  • she is devasted by the allegation that her actions placed a child in care at imminent risk of harm;
  • there was no possible way for her to have updated the CPO event in ICMS prior to the incident at the CSAH on 13 May 2020 at 1.00 am as DCPL did not upload the filed CPO application until approximately 11.40 am on 13 May 2020, which was 10 hours after the incident occurred;
  • the information provided in the DCPL filed CPO application is what is required when adding the CPO application into ICMS and Mr Kerrigan's email dated 18 May 2020 supports her assertion that the application was put on CourtShare on 13 May 2020;
  • she disagreed with the allegation that her failure to complete the COF for the SC the subject of Allegation One resulted in the CSAH providing incorrect information about the court order status of the SC; and
  • she acknowledged and apologised that it took her four business days to update the CPO and accepted full responsibility that she did not action that part of the CPO event as quickly as required and that in the future, she would be very mindful of dates, timeliness, checking emails from CourtShare regularly and prioritising CPO applications over COFs.
  1. [24]
    By way of conclusion, Ms Smith submitted:

In future I would endeavour to maintain a high standard of efficiency, being mindful of deadlines and completion/prioritisation of my own work first (rather than taking on additional tasks for others), to ensure, as much as possible, that these concerns do not arise again in future and for my actions to continue to positively contribute to the safety of children in care.

Allegation Two

  1. [25]
    In summary, Ms Smith submitted that:
  • it was not until Allegation Two came to light that she realised she had not interpreted the meaning of a conflict of interest correctly;
  • she acknowledged the importance of real or perceived conflict of interest, however, as she had not engaged in any other employment, she did not feel the performance of her duties in her primary role as a LSO would have been negatively impacted;
  • the calls and texts she received and made in November 2019 were between her and her husband who was unwell and that his condition worsened in April 2020;
  • she gave Mr Kerrigan a commitment that she would try to keep calls/texts to her husband during breaks/lunch where possible and she acknowledged that there were emergent times where she had to speak to her husband about health matters during work times;
  • her advice to Mr Kerrigan in late 2019 - that she did not have the capacity to complete her work - was taken out of context somewhat in that:
  • she stated to Mr Kerrigan that she needed to stop helping other LSOs and clusters because her own work was suffering and that was the reason she did not have capacity to complete her own work; and
  • she discussed with Mr Kerrigan that the impact on her work was also due to all the other clusters transitioning to iDOCS and seeking advice from her as the Maroochydore CSSC was the first to transition;
  • she volunteered multiple times to cover Ms Renee Vermey's LSO position while Ms Vermey was unwell in late 2019 and early 2020;
  • the additional impact that delayed her work during November/December was her returning from her planned annual two weeks recreation leave to work that had not been done, or only partly completed, in her absence, which necessitated her having to 'catch up' while also needing to complete her current work, a matter of which Mr Kerrigan was aware;
  • she always understood that a conflict of interest related to running a competing business outside primary employment; and
  • because she did not work in either of her husband's businesses, she '… had never even given it a second thought that either of the businesses impacted my work, as in my honest opinion, they never have. My husband ran his own businesses and this never impacted on my ability to perform my duties.'
  1. [26]
    By way of conclusion, Ms Smith submitted:

However, given that I am now aware of this perceived conflict of interest, I now understand that it is something to be formally declared and managed in accordance with the department's conflict of interest policy.

I realise now that I had the wrong interpretation and I apologise unreservedly for my incorrect assumption. I honestly did not deliberately withhold any information from the department in this regard; it was simply my incorrect interpretation and subsequent assumption that it did not apply to my situation.

I recall the "Cassie" phone call as my husband was in the midst of an event where he was experiencing breathing difficulty (a common symptom of heart failure). He asked if I would get the phone and, of course, I did to assist him. That day was particularly concerning for Mr Smith and myself and we contacted his GP four times that day as well as QML for his blood pathology (see phone record picture below). I apologise that I had not mentioned this in my previous response, but amongst all the other accusations that I was responding to, and the ongoing stress that this whole process has put me through, I did not recall it at the time of my initial response in December.

…

Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2) [2021] QIRC 403

I am unsure of the phone number that was used by Ms Hardy and therefore, cannot compare the call with my phone record. I have double-checked my phone and the only call received at 12.55pm was on 3 September. I have no record in my phone of any contact at 12.55pm on 4 September. I am not sure why this is different to the date of the call provided in your letter. My phone records the 3 September conversation as lasting for 49 seconds. I am unsure why there is a discrepancy there and, regardless, I acknowledge now, that I should not have answered the call, notwithstanding my husband being very ill through this period of time.

Mr Smith was not seeing any patients at that time, however, he had decided that, to maintain his business optics, he would advise any potential new patient that he was booked out in order to maintain his ability to re-commence his business once he felt able to start up again. As a health practitioner, he felt it would not be prudent to relay his current health challenges to potential patients as this may influence their decision to seek his services into the future. He referred these requests to other practitioners.

Not knowing who was calling, I answered the phone and spoke briefly to the caller. My husband had recently spoken to me about the new information provided by his Association regarding COVID safe plans for those practitioners who had already chosen to return to treating patients. I recalled that information and passed it onto the caller. I reiterate, that throughout the entire COVID period, Mr Smith had shut his acupuncture business down completely and was not seeing any clients.

I appreciate that the department would have assumed that Mr Smith was so busy that he needed to refer new patients to other practitioners, however, this was simply a method to maintain his status as a viable and relevant care provider and I acknowledge that there may have been a misunderstanding due to the advice provided.

In hindsight, I should have let both calls go to voicemail, however, at the time I just responded and dealt with the situations as they presented as I felt compelled to assist and support my husband. I sincerely apologise for this, and hope you can afford me some latitude considering the extenuating circumstances I was faced with.

My husband has since removed my phone number from all sites related to his acupuncture practice and website.

The disciplinary finding decision dated 20 April 2021

  1. [27]
    By letter dated 20 April 2021, Ms Quain informed Ms Smith of her decision about Allegations One and Two.

Allegation One

  1. [28]
    Ms Quain:
  • noted the evidence provided in Ms Smith's response to support the IT/network issues she had experienced during the COVID-19 pandemic;
  • acknowledged that the abovementioned issues coupled with Ms Smith's husband's health issues would have been stressful and challenging for her on a personal and professional level;
  • stated that she (Ms Quain) was of the view that Mr Kerrigan and other LSOs did their best to support Ms Smith, including Mr Kerrigan providing Ms Smith with various support strategies to assist her to manage her workload and prioritise tasks accordingly;
  • with regard to the incident on 13 May 2020 in relation to the child the subject of this allegation, acknowledged Ms Smith's response and additional information which proved that Ms Smith was not able to update the CPO event in ICMS until the DCPL uploaded the filed CPO application which was completed at approximately 11.40 am on 13 May 2020, some 10 hours after the incident and while the events that transpired for the child were regrettable, she (Ms Quain) was satisfied that Ms Smith's actions did not place the child in care at imminent risk of harm;
  • remained concerned by the significant volume of outstanding matters and observed that Ms Smith provided no explanation in her response for the 120 outstanding CFOs, some dating back to March 2020 and that by her (Ms Smith's) own admission, Ms Smith acknowledged that:
  • in accordance with the LSO tasks and processes document, she was required to create a CPO event on ICMS as soon as the DCPL referral was received; and
  • it took four business days for her to complete that for the child the subject of this allegation;
  • stated that in her (Ms Smith's) supervision meeting with Mr Kerrigan on 23 April 2020, a number of expectations and strategies were put in place to address the outstanding tasks, including:
  • advising Mr Kerrigan if she was not meeting the expected timeframes for completing tasks;
  • COFs must be completed by the end of the next business day after they are uploaded to ICMS by the DCPL;
  • ICMS records needed to be up-to-date to accurately show whether a child is in '… our custody'; and
  • advising Mr Kerrigan if she was overwhelmed with her workload.
  1. [29]
    Ms Quain then stated:

As you highlight, Mr Kerrigan sent you an email dated 18 May 2020, which supported that the DCPL filed the CPO application on 13 May 2020. However, this email also highlighted a number of outstanding CPO events that had not been created by you in ICMS, despite some of the DCPL applications being filed almost one month ago. You continually have to be reminded by Mr Kerrigan that you are not updating or closing events in ICMS in a timely manner, as per the LSO tasks and processes document. You are expected to communicate issues with your workload and when you are not meeting expected timeframes with your line manager, Mr Kerrigan in a timely manner to ensure that your lack of actions do not inadvertently place a child in care at imminent risk of harm. As such, I am of the view that you have repeatedly failed to apply due care in performing the duties of your role as an LSO.

Based on the information available to me, I consider this allegation is partially substantiated on the balance of probabilities.

  1. [30]
    Ms Quain found that Ms Smith had contravened s 187(1)(g) of the PS Act, in that Ms Smith contravened, without reasonable excuse, cl 3.1(e) of the Code of Conduct.

Allegation Two

  1. [31]
    Ms Quain:
  • stated that considering all information she had before her, she was not satisfied that Ms Smith was not aware of her obligation to declare a potential, perceived or real conflict of interest;
  • did not accept Ms Smith's assertion that she had not interpreted the meaning of a conflict of interest correctly;
  • referred to Mr Kerrigan's email dated 21 August 2019 to all OCFOS staff, including Ms Smith, at the Maroochydore CSSC, which:
  • requested that staff read the Department's Conflict of Interest Policy and to ensure that all staff, including Ms Smith, were aware of their ethical obligations with regard to secondary employment or conduct/volunteer work which may give rise to a conflict of interest, or perceived conflict of interest; and
  • provided examples to assist staff to understand what may be deemed a conflict of interest, which relevantly included '… assisting family members with running their personal business/es during core business hours';
  • referred to the fact that Ms Smith, in her reply email dated 22 August 2019, stated that she read the documents, was aware of her obligations and that she was not involved in any other work or volunteering; and
  • referred to Ms Smith's iLearn learning transcript which indicated that Ms Smith completed conflict of interest training on 16 December 2019 and that at no time following the training, did Ms Smith disclose a personal interest to Mr Kerrigan which could, now or in the future, be seen as influencing the performance of her official duties.
  1. [32]
    Ms Quain then stated:

With regard to your involvement with your husband's acupuncturist and WildQi businesses, I acknowledge your response where you deny any involvement in either of your husband's businesses. I do not accept your assertion that you do not work in either of your husband's businesses. Firstly, your personal mobile number of [number deleted] is listed as the main contact number for both businesses. Further, your personal mobile number is listed as the contact for WildQi during the hours of 10am to 4pm, Monday to Friday, which is the same hours you are engaged with the department, your primary employer. In your opportunity to respond letter dated 10 December 2020, you state:

I am not involved in my husband's acupuncture business … I have never answered a call from any of my husband's patients during work hours. I have always let any calls go to message bank and it is my husband's responsibility to speak with his patients at the end of the day. My husband runs his WildQi website as a hobby and he is responsible for any contact…I do not have any involvement in this.

However, in your response to me dated 25 March 2021, you admit to answering two phone calls from Ms Hegarty and Ms Hardy. Following your conversation with Ms Hardy on 3 September 2020 (I note this date was incorrectly[7] provided in my letter to you dated 5 March 2021), you then sent a follow up text to Ms Hardy on 4 September 2020 at 9:59am referring her to another acupuncturist, Ping Smith. I also want to highlight that your conversation with Ms Hegarty lasted for 9 minutes and you recommended various natural oils to address the 'pain'. Such information cannot be provided to clients without extensive knowledge and experience in the field of natural medicine which would infer that you have in fact provided this type of information previously. On at least three occasions, you have answered phone calls and sent a text in relation to both of your husband's businesses. Based on this information, I have a reasonable view that you have been involved and are working in both of your husband's businesses. I have no doubt that running two businesses whilst undertaking your primary employment with the department as an LSO would have contributed to your workload issues and negatively impacted on the performance of your duties.

  1. [33]
    Ms Quain informed Ms Smith that she considered Allegation Two substantiated on the balance of probabilities and determined that Ms Smith contravened s 187(1)(b) of the PS Act, in that Ms Smith was guilty of misconduct, namely, inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act.
  1. [34]
    Ms Quain then informed Ms Smith that having determined that the above disciplinary grounds existed, she was giving serious consideration to imposing the disciplinary action of a forfeiture or deferral of a remuneration increment or increase from AO3/4 to AO3/2.
  1. [35]
    Specifically, Ms Quain stated that if she (Ms Quain) determined to implement that proposed penalty, Ms Smith would be, at the time of implementation, placed on the AO3/2 increment and that after a period of 12 months, she would progress to AO3/3 and after a further 12 months, she would progress to the AO3/4 classification which she held prior to the commencement of the disciplinary process.
  1. [36]
    Ms Quain gave Ms Smith seven calendar days from the date of Ms Smith's receipt of her letter to show cause why the abovementioned disciplinary action should not be imposed.

The discipline decision dated 9 June 2021

  1. [37]
    Ms Smith responded by letter dated 17 May 2021.
  1. [38]
    In her response, Ms Smith:
  • restated that she was not and has never been involved in the running of either of her husband's businesses and therefore neither of those 'very small enterprises' have ever affected her ability to do her job;
  • acknowledged that the use of 'our mobile number' may have led to the appearance that she had involvement in her husband's businesses but that they changed from the home number to the mobile number simply to enable her husband to conveniently send text messages to his patients after hours and have since reverted back to their home number as advised in her previous response;
  • stated she had no other direct involvement in her husband's businesses that could be construed as running two businesses from home at the same time as being employed in the Department and that she answered the calls (referred to in the particulars for Allegation Two) in a humanitarian capacity to assist her very ill husband at the time; that if she has breached the Conflict of Interest Policy, she apologises but gave an assurance that any involvement in her husband's businesses was purely a humanitarian support as he was incapacitated at those times and that she had enrolled in the conflict of interest module in iLearn and had reviewed all information and slides thoroughly;
  • submitted that the proposed penalty of reducing her remuneration by two levels, being $180 per fortnight, would cause extreme financial stress in respect of her superannuation and in respect of her retirement and hardship to her family because she was in the final stages of her career and there would be little or no opportunity for her to increase her pay level through recruitment or promotion;
  • claimed little consideration was given to the extenuating circumstances of her husband's cardiac event and subsequent cardiac failure and the detrimental effect it had last year on her ability to fully focus on her work;
  • stated that:
  • due to her husband's ill health, she is the primary income earner for her family and has been since the start of the COVID-19 pandemic in March 2020 and that as his health continues to deteriorate and in the event he should pass away, she will need all the financial support possible;
  • she has since returned to the workplace with a flexible working from home arrangement and that she is able to perform her duties to a high level of proficiency both in the workplace and remotely;
  • because she does not work in the public domain, she does not feel that '… any of my alleged actions have no adverse effects or potential impacts to public or client confidence';
  • she has worked for the Department for over 14 years and was able to demonstrate an exemplary work record with no prior disciplinary or management intervention;
  • she answered the telephone in a humanitarian capacity, did not provide professional medical information and was '… simply sharing friendly advice to a supposedly interested party' and that she had never worked in her husband's businesses and was not employed by him in any capacity; and
  • refuted Ms Quain's inference that she was running two businesses as her husband was entirely responsible to his patients, she only answered two calls and a follow‑up text on his behalf due to his incapacity and that Ms Quain's finding seemed 'somewhat prejudiced' as it is not factually based, and was more a judgement developed on the basis of a balance of probability.
  1. [39]
    By way of conclusion, Ms Smith stated:

You have stated that I have provided no explanation to the 120 outstanding COFs (some dating back to March). The incident happened early April. The transition to working remotely happened prior to that. As previously explained, I felt unsupported by Mr Kerrigan as I was required to source my own equipment and he offered no assistance to me in this transition. Please re-visit my response dated 25 March where I highlight in detail the many additional tasks I performed over and above the usual daily requirement of COFs and the 55 emergent orders and 48 new CPOS that were completed in the weeks prior. Transitioning to WFH was difficult at best with multiple IT and hardware issues which has also been detailed in my previous reply.

Thank you for your acknowledgement of the mitigating circumstances, the stressful, challenging and very difficult period my family faced in 2020. We have been fully transparent providing you with access to my husband's most private and personal health details. I remain very concerned that you are still strongly considering a financial penalty given all these extenuating circumstances.

Bearing in mind the detriment I would suffer as a result of the penalty you have proposed, and that the disciplinary process is designed to manage risk to the department and to develop staff, not purely as a punitive tool, I propose that a form of reprimand would be more appropriate and managerial support through training and development would be the most beneficial outcome to ensure the ongoing positive and productive relationship that I have had with my employer for over 14 years.

  1. [40]
    By decision dated 9 June 2021, Ms Quain imposed the disciplinary action of a forfeiture or deferment of a remuneration increment or increase from AO3/4 to AO3/2.
  1. [41]
    Ms Quain's reasons were:
  • she (Ms Quain) considered Ms Smith's extenuating circumstances and the financial impact that her decision will have on Ms Smith, however, she remained highly concerned about the seriousness of Ms Smith's actions and Ms Smith's inability, even after refresher conflict of interest training, to acknowledge that she had a potential or perceived conflict of interest in that in accordance with the Department's policy, a conflict of interest occurs when one's private interests interfere, or appear to interfere, with the performance of official duties;
  • she did not accept Ms Smith's assertions that she answered the phone during working hours in a humanitarian capacity, particularly given the duration of the phone call with 'Cassie' and that she (Ms Quain) held serious concerns that Ms Smith considered recommending various natural oils to address pain as '… simply shared friendly advice';
  • Ms Smith's behaviour and conduct in a private capacity which occurred during working hours with her primary employer was unethical and inappropriate and she (Ms Quain) did not accept Ms Smith's assertion that she was not involved in her husband's businesses;
  • while she (Ms Quain) acknowledged that in some instances the phone calls were likely related to her husband's health issues, she was of the view that Ms Smith's excessive phone usage could also be attributable to the running of her husband's businesses; and the reason for that was that Ms Smith's personal mobile phone number was the same mobile phone number listed on the respective websites for both of her husband's businesses and that further, the WildQi website listed the contact hours of 10.00 am to 4.00 pm Queensland time, and therefore it was reasonable for her to conclude that Ms Smith would have received and taken phone calls to her personal mobile phone during working hours such that Ms Smith's misconduct impacted adversely on her responsibility to carry out her official duties; and
  • having considered the seriousness of Ms Smith's misconduct and Ms Smith's submissions that she was in the final stages of her career, was the primary income earner, that the penalty may have a negative impact upon her superannuation and her length of service and disciplinary history, she (Ms Quain) did not consider those matters provided extenuating or mitigating circumstances that outweighed the serious consequences of Ms Smith's actions.

Ms Smith's grounds of appeal and submissions

  1. [42]
    In summary, Ms Smith contends that:
  • the penalty of reducing her remuneration by two levels, over two years, being a loss of approximately $180 per fortnight, would cause extreme and ongoing financial stress and hardship to her family;
  • the penalty is not proportionate to the proven evidence available to Ms Quain of any wrongdoing;
  • her husband remains in an unstable cardiac status, which is irreversible and must be managed on a daily basis as there is a considerable risk of his premature death which will change the situation of her financial security substantially;
  • it is unconscionable to be penalised approximately $9,000, including the reduction in her superannuation because '… I allegedly did not declare a conflict of interest, when I was not aware of the requirement to make this declaration, as my husband's business never interfered in any way with my official work';
  • Ms Quain has not given adequate consideration to:
  • cl 8.5(d)(ix) and (x) of the Directive 14/20: Discipline ('the Directive'), which provides that in proposing appropriate and proportionate disciplinary action, the decision maker should consider the impact a financial penalty may have on the employee and the cumulative impact that a reduction in classification and/or pay-point may have on the employee, in that the financial penalty will have a severe cumulative effect, which would include the negative impact on her superannuation now and into retirement; and
  • cl 8.5(d)(iii) of the Directive which provides that in proposing appropriate and proportionate disciplinary action, the decision maker should consider whether extenuating or mitigating circumstances applied to the employee's actions, in that there has not been appropriate consideration given to Ms Smith's husband's cardiac event and subsequent cardiac failure and the detrimental effect those events had in 2020 on her ability to focus fully on her work, particularly given that the Department was provided with full access to her husband's treating specialist; and
  • because some of the particulars in Allegation One were not capable of substantiation, the penalty is not proportionate to the matter that was able to be substantiated, namely, Allegation Two.
  1. [43]
    Ms Smith also challenges the finding of fact made by Ms Quain in respect of Allegation Two. Ms Smith submits that:
  • when she answered the call from 'Cassie', which she stated she did on behalf of her husband during a worrying medical event at the time, she stated to the caller, and reiterated several times, that she was not a medical professional, was not providing medical or professional advice and reassured the caller that she was simply sharing her 'lived experience' and that of her family, particularly her mother who benefited greatly with taking a supplement;
  • the call from 'Cassie' was taken 12 months after the requested declaration of a conflict of interest, was not taken in a workplace setting, was taken during the time she was still working from home when her husband was not working and where her husband had not seen any patients since March 2020;
  • the other call from the Department was answered during her lunch break, on the day after she had taken sick leave due to severe migraines, and was taken in circumstances where she was protecting her ill husband by maintaining his right to privacy and maintaining his 'business optics' by advising the caller he was fully booked and referred the caller to a colleague of her husband;
  • both calls were answered as her husband, at the time, was incapable of taking calls, she did that for '… purely humanitarian reasons,' both calls occurred a full year after the August 2019 email requesting the declaration of any conflicts of interests and that the two calls represent the entirety of her involvement with her husband's business;
  • she replied to the August 2019 email stating she had no conflict of interest to declare because she had never had any involvement in her husband's business and there was never a time when her husband's business had any impact on her work in that she never considered that her husband, being an acupuncturist, had any impact whatsoever on her job as a LSO;
  • the fact that the mobile phone number on her husband's website was the same as her mobile phone number does not in any way provide evidence that she had ever answered calls for her husband's business during her working hours; and
  • she refuted '… Ms Quain's supposition that I was spoken to on numerous occasions by Mr Kerrigan' about her excessive phone calls because, in the timeframe of 18 months, she was afforded only three supervision meetings with Mr Kerrigan when she should have had fortnightly meetings, such that she was unsure as to how Ms Quain arrived at the conclusion that she was 'repeatedly told' about excessive phone calls.
  1. [44]
    Ms Smith also challenges, in respect of Allegation Two, the finding made by Ms Quain that working in her husband's businesses contributed to her workload issues. In making these submissions, Ms Smith also seems to challenge the partial substantiation of Allegation One, namely, that she (Ms Smith) repeatedly failed to apply due care and perform the duties of her role as a LSO. Ms Smith submits that the alleged reduction in her output was not due to her being involved in secondary employment, but was due to other factors including:
  • her husband's poor health and the necessary management of it;
  • the transition during the initial impact of COVID-19 to work from home; and
  • multiple and daily ICT issues and system downtime as the Department's ICT services tried to adapt to the entire Department working remotely.
  1. [45]
    By way of conclusion, Ms Smith submits:
  • her detailed responses and '… verifiable facts' have been dismissed by Ms Quain as not providing enough evidence of mitigating and extenuating circumstances;
  • the Department has reached its conclusion of 'guilt and penalty' by extrapolating that two phone calls constitute her running her husband's business for the past years which was untrue and that Ms Quain's decision was based on '… the balance of probabilities';
  • all other accusations levelled at her have been disproven and she is very upset she continues to be unfairly targeted and subjected to progressive duress which has resulted in her need to seek ongoing psychological therapy, in respect of which a confidential copy of her treating psychologist's report would be available at the request of the Commission;
  • her overall work record, including the lack of any previous management interventions and disciplinary proceedings, and her contribution and commitment to her team has not been fully taken into account by Ms Quain;
  • the 'perceived lapse' in her output has been thoroughly explained through the extenuating circumstances, particularly regarding her husband's threat to his life and ongoing management of his cardiac failure; and
  • while she is aware of the gravity of not declaring a conflict of interest and that discipline could be appropriate in that circumstance, that is not entirely applicable to her as she has '… thoroughly encompassed all aspects in regards to this alleged conflict of interest' in that, given all other accusations have been unsubstantiated and disproven, she feels that the severity of the penalty is disproportionate in addition to not being afforded any other management support or options such as retraining.

The Department's submissions

  1. [46]
    The Department submitted that in reaching the conclusion to partially substantiate Allegation One, Ms Quain considered that issues with ICT and the health of Ms Smith's husband may have contributed to her backlog of work; however, her improper involvement in her husband's businesses also exacerbated her workload issues.
  1. [47]
    In relation to Allegation Two, the Department submitted that:
  • in August 2019, Ms Smith received a copy of the Department's Conflict of Interest Policy, was asked to declare any conflicts of interest such as secondary employment or operating personal businesses and that, at that time, her conflict of interest training was up-to-date;
  • Ms Smith confirmed that she was aware of her obligations and had no conflict to declare;
  • concern was raised with Ms Smith regarding excessive personal mobile phone use during work hours and that, through discrete inquiries, the Department became aware that her mobile phone number was the only contact number for her husband's two businesses, and upon contacting the phone number listed on the relevant websites, it became apparent that Ms Smith was accepting calls related to both businesses during working hours;
  • during the conversation with 'Cassie,' which was a nine minute conversation, Ms Smith described all the products available for purchase through WildQi and gave multiple product recommendations with the apparent intention of selling products from WildQi;
  • in relation to the second phone call, the information shared over the course of that call was commercial in nature, including her husband's professional membership, the applicable COVID-19 safe plan and her husband's booking availability, and therefore that phone call was not taken on 'humanitarian grounds' due to her husband's health;
  • in Ms Smith's response dated 25 March 2021, she admitted that she gave her supervisor a commitment to try to keep calls/texts to breaks/lunch where possible, such that her submission that she had not been spoken to numerous times about her mobile phone usage should be rejected;
  • by her own admission, Ms Smith took a phone call for each of her husband's businesses whilst at work with the Department and her own phone number was listed online as the sole contact number for both businesses between the hours of 10.00 am and 4.00 pm, being her hours of work with the Department during the period in question;
  • while her husband's medical condition may have rendered him unable to accept calls related to his businesses, that resulted in Ms Smith being required to do so on his behalf and a conflict of interest should have been declared; and
  • Ms Quain gave consideration to the impact of Ms Smith's husband's health, but was unable to accept that this released Ms Smith from the obligation to declare a conflict of interest related to her assistance with the commercial operations of her husband's businesses during working hours.
  1. [48]
    The Department then submitted that the disciplinary penalty was appropriate, reasonable and proportionate because:
  • Ms Quain considered the extenuating circumstances of Ms Smith's husband's health condition at great length, in accordance with the Directive;
  • Ms Smith was granted a full-time working from home arrangement until 24 September 2020 to accommodate her caring responsibilities and to ensure her family's safety from COVID-19, whereas her colleagues returned to the workplace on or before 17 July 2020;
  • while significant consideration was given to how the stress of Ms Smith's husband's health may have affected her work performance and conduct, that was not considered to mitigate her liability for disciplinary action in respect of either allegation;
  • it is recognised that the penalty will have an impact on Ms Smith's remuneration and superannuation contributions for two years, however, that penalty is proportionate to the serious misconduct in which Ms Smith has engaged;
  • Ms Smith's failure to take due care in her work and her apparent inability to recognise the significant public safety risks associated with her performance warranted a serious disciplinary penalty;
  • despite now acknowledging her involvement in her husband's businesses, Ms Smith continues to deny that she has a declarable conflict-of-interest; and
  • her lack of disciplinary history fails to outweigh the seriousness of the disciplinary findings and the extended timeframe over which the conduct has occurred.
  1. [49]
    In her submissions in reply, Ms Smith repeated most of the submissions she made in her principal submissions. In particular, in support of her claim that she is the sole income earner for her family, Ms Smith submitted that her husband's businesses do not generate a taxable income and that his website does not generate any profit. Ms Smith further submitted that she disputed that she acknowledged any involvement in her husband's businesses, being a conclusion drawn by the Department because Ms Smith answered the two telephone calls from employees of the Department.

The disciplinary finding decision was fair and reasonable

Allegation One

  1. [50]
    Having regard to the disciplinary finding decision, and the submissions made by both parties, my view is that the disciplinary finding decision for Allegation One was fair and reasonable. There are a number of reasons for this.
  1. [51]
    First, the particulars of the original allegation focused, in particular, on an incident on 13 May 2020 in relation to a particular child. After considering Ms Smith's response, Ms Quain was satisfied that Ms Smith's actions did not place the child at imminent risk of harm.
  1. [52]
    Secondly, Ms Quain noted the evidence provided in Ms Smith's response to support the IT/network issues she had experienced during the COVID-19 pandemic and acknowledged that issue, coupled with Ms Smith's husband's health issues, would have been stressful and challenging for her on a personal and professional level.
  1. [53]
    Thirdly, despite the above two conclusions reached by Ms Quain, she (Ms Quain) remained concerned by the significant volume of outstanding matters and observed that:
  • Ms Smith provided no explanation in her response for the 120 outstanding COFs, some dating back to March 2020; and
  • her supervisor, Mr Kerrigan, met with her on 23 April 2020 where a number of expectations and strategies were put in place for Ms Smith to address the outstanding tasks, including the requirement for her to advise Mr Kerrigan if she was not meeting the expected timeframes for completing tasks and advising Mr Kerrigan if she was overwhelmed by her workload.
  1. [54]
    Fourthly, in her response to the facts alleged in Allegation One, Ms Smith submitted that, in the future, she would endeavour to maintain a high standard of efficiency, to be mindful of deadlines and to complete or prioritise her own work first.
  1. [55]
    Ms Quain's decision that Allegation One was partially substantiated was based on Ms Smith's lack of explanation for the 120 outstanding COFs. Indeed, no clear explanation was provided by Ms Smith in her response, dated 25 March 2021, about that particular allegation. Having regard to the lack of explanation by Ms Smith in her response, dated 25 March 2021, about the 120 outstanding COFs and Ms Smith's undertaking to, in the future, endeavour to maintain a high standard of efficiency, be mindful of deadlines and to complete or prioritise her own work first, it was open to Ms Quain to find that Ms Smith had contravened, without reasonable excuse, cl 3.1(e) of the Code of Conduct in respect of that particular allegation.

Allegation Two

  1. [56]
    The second allegation was that between August 2019 and September 2020, Ms Smith failed to declare secondary employment, and/or a conflict of interest, in relation to her connection with her husband's two businesses which was seen to impact negatively on the performance of her duties.
  1. [57]
    In my opinion, the evidence establishes, on the balance of probabilities, that this allegation was made out on the evidence before Ms Quain and that, as a consequence, her disciplinary finding decision about Allegation Two was fair and reasonable. There are a number of reasons for this.
  1. [58]
    First, it is undisputed that Ms Smith's mobile phone number was listed for Ms Smith's husband's acupuncturist business and for Ms Smith's husband's WildQi business. In respect of the latter, the website listed Ms Smith's personal mobile number as the contact during the hours of 10.00 am and 4.00 pm, Monday to Friday being a time she would ordinarily be working in the Department.
  1. [59]
    Secondly, a particular of the second allegation was that in the second half of 2019, Mr Kerrigan observed Ms Smith excessively taking calls and texting on her personal phone during working hours (prompting him to email all staff reminding them of their obligations to declare any conflict of interest including secondary employment). Ms Smith submitted that, in November 2019, her calls and texts were between her and her ill husband, but submitted no telephone records to Ms Quain that tended to prove that submission. If Ms Smith was excessively taking calls and texting on her personal phone during working hours, then clearly that would impact negatively on the performance of her duties.
  1. [60]
    Thirdly, on 26 August 2020 and on 3 September 2020, two separate employees of the Department called Ms Smith's mobile phone number, being the advertised number for Ms Smith's husband's two businesses, and Ms Smith answered the telephone. In relation to the telephone contact on 26 August 2020, a significant amount of information was provided by Ms Smith to the departmental employee about the WildQi business. Similarly, in relation to the second telephone contact on 3 September 2020, it seems to me that there was a significant amount of information exchanged over the time of that telephone call (approximately 10 minutes) about the COVID-19 safe plan for that business, and Ms Smith's husband's availability to provide services.
  1. [61]
    Fourthly, the uncontested assertion from the Department was that Ms Smith had received training in conflicts of interest, was reminded of her obligation to declare any conflicts of interest, including secondary employment and that, in response, Ms Smith had advised her supervisor, Mr Kerrigan, that she was aware of her obligations and that she was not involved in any other work or volunteering. Clearly, on the evidence, that response was not the case. The strong evidence in support of Ms Quain's conclusion about Allegation Two is that it was Ms Smith's mobile phone number that was the contact mobile phone number for the two businesses. On the uncontested assertion from Ms Quain, it was Ms Smith's personal mobile number which had been the contact number for WildQi since at least February 2019.
  1. [62]
    Fifthly, the first telephone call from a departmental employee taken by Ms Smith lasted nine minutes. In my view, that is inconsistent with Ms Smith's submission that the first call was taken purely for humanitarian support to assist her husband because he was experiencing breathing difficulty. If Ms Smith's husband was experiencing breathing difficulty on that day, it is unlikely that Ms Smith would have had a detailed nine minute conversation with a potential customer of her husband's business. The second phone call from a departmental employee lasted 10 minutes. Ms Smith said it was taken to maintain Mr Smith's 'business optics'. That is a clear admission that Ms Smith was answering telephone calls to one of her husband's businesses to assist in the maintenance of the goodwill he had built up in the business. Further, her admission is directly inconsistent with Ms Smith's 10 December response (referred to in paragraph [12] of these reasons) that she always let any calls go to the message bank.
  1. [63]
    Sixthly, on the evidence before Ms Quain, it was open to her to infer, as she did, that Ms Smith had been involved in, and was working in, both her husband's businesses whilst undertaking her primary employment with the Department as a LSO. A decision maker may draw an inference provided the facts proved give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, so that the choice between them is a mere matter of conjecture.[8] The facts before Ms Quain were:
  • Mr Kerrigan's observation, in the second half of 2019, of Ms Smith excessively taking calls and texting on her personal phone during working hours and the absence of any evidence demonstrating that such calls and texts, in November 2019, were between her and her ill husband;
  • Ms Smith's personal mobile number being the advertised contact number for both of Mr Smith's businesses and Ms Smith's personal mobile number being the contact number for WildQi since February 2019;
  • Ms Smith answering a telephone call, from a departmental employee, to her mobile number in respect of WildQi on 26 August 2020; and
  • Ms Smith answering another telephone call, from a departmental employee, to her mobile number in respect of her husband's acupuncture business on 3 September 2020.
  1. [64]
    The abovementioned facts give rise to a reasonable and definite inference that Ms Smith was working in both her husband's businesses whilst undertaking her primary employment with the Department as a LSO.
  1. [65]
    Finally, given that Ms Smith has been an employee in the public service for 14 years, it seems to me unlikely that Ms Smith would be unaware of her obligations to at least declare that there would be a conflict of interest by her being a contact for at least one of her husband's businesses during her departmental working hours. Indeed, it is uncontested that, Mr Kerrigan, by his email dated 21 August 2019 to all OCFOS staff, including Ms Smith, requested those employees to read the Department's Conflict of Interest Policy. Given that uncontested assertion, it is unlikely that Ms Smith was not fully aware of her obligations to report a conflict of interest.
  1. [66]
    For these reasons, in my opinion, it was open to Ms Quain to find, on the balance of probabilities, that Allegation Two was made out and that Ms Smith had engaged in misconduct within the meaning of s 187(1)(b) of the PS Act.

The disciplinary decision was fair and reasonable

  1. [67]
    I am persuaded that the disciplinary decision was fair and reasonable.
  1. [68]
    There are a number of reasons for this.
  1. [69]
    First, the aim of a disciplinary proceeding, such as this, is for the protection of the public[9] and the maintenance of public confidence.[10] Some sanction must be imposed in respect of the disciplinary findings made by Ms Quain. Although, incorrectly in my view, Ms Quain has expressed the disciplinary action she has imposed as a forfeiture or deferral of a remuneration increment or increase, the reality is that the disciplinary action imposed is a reduction in Ms Smith's remuneration.
  1. [70]
    Secondly, in making a decision about disciplinary action, Ms Quain stated that she had considered Ms Smith's extenuating circumstances and the financial impact that her decision may have on her, but she (Ms Quain) stated (in relation to Allegation Two) that she remained highly concerned about the seriousness of Ms Smith's actions and Ms Smith's inability, even after refresher conflict of interest training, to acknowledge that she had a potential or perceived conflict of interest. Ms Quain stated that in accordance with the Department's policy, a conflict of interest occurs when one's private interests interfere, or appear to interfere, with the performance of official duties. Even in paragraph 25 of Ms Smith's grounds of appeal, Ms Smith did not accept that a conflict of interest had existed for which she was required to make a disclosure to her employer. In addition, Ms Quain found that Allegation One was partially substantiated.
  1. [71]
    Thirdly, in her letter to Ms Smith dated 5 March 2021, in which Ms Quain sets out both allegations and the particulars of both allegations, Ms Quain did not foreshadow what disciplinary action may be taken against Ms Smith if both allegations were found to be proven. It was only after Ms Quain made the disciplinary finding decision that she indicated that she was giving serious consideration to imposing a reduction in remuneration.
  1. [72]
    Fourthly, in making the disciplinary decision, it seems to me that Ms Quain did take into account the extenuating circumstances and financial impact the proposed disciplinary action would have on Ms Smith. Ms Quain stated that she weighed those extenuating circumstances, including that Ms Smith was in the final stages of her career, was the primary income earner for her family, that the penalty may have a negative impact on her superannuation, as well as her unblemished disciplinary history with the Queensland public service and the Department. Ultimately, Ms Quain determined that those matters did not outweigh the serious consequences of Ms Smith's actions.
  1. [73]
    On an objective consideration of the disciplinary decision, there is no reason for me not to accept that Ms Quain did take the extenuating and mitigating circumstances raised by Ms Smith into account. In my view, it was open to Ms Quain, and therefore was fair and reasonable, for Ms Quain, having regard to the seriousness of the disciplinary finding in respect of Allegation Two, to conclude that the disciplinary penalty of the reduction in Ms Smith's remuneration did not outweigh the serious consequences of her actions. Ms Smith should not have been involved in any aspect of her husband's businesses during the time she was at work with the Department. Similarly, Ms Smith should have declared to the Department that she was involved in her husband's businesses during her work time. Ms Smith did not do so.
  1. [74]
    Ms Smith has not persuaded me that the disciplinary decision made by Ms Quain was not proportionate to the conduct in which Ms Quain found Ms Smith had engaged.

Conclusion

  1. [75]
    The questions in this appeal were whether the disciplinary finding decision and the disciplinary decision made by Ms Quain were fair and reasonable.
  1. [76]
    For the reasons I have given, the disciplinary finding decision and the disciplinary decision were fair and reasonable.
  1. [77]
    Both decisions are confirmed. To avoid any doubt, I will revoke the stay of the disciplinary decision I ordered on 15 July 2021.

Orders

  1. [78]
    I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the disciplinary finding decision dated 20 April 2021 is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the discipline decision dated 9 June 2021 is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against, made on 15 July 2021, is revoked.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 ('Morison'), [4]‑[5] (Deputy President Merrell).

[2] Industrial Relations Act 2016 s 562B(2).

[3] Morison (n 1) [6].

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

[5] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[6] The acronyms used in this extract will be used for in the remainder of these reasons for decision.

[7] Ms Smith, on the sixth page of her response dated 25 March 2021, noted the discrepancy as to the date as between 3 and 4 September 2020, and said her phone recorded that the only call she received at 12.55 pm was on 3 September 2020 and it was for 49 seconds. However, as best as I can see, that record was not provided to Ms Quain. No phone call records were provided by Ms Smith to the Commission. In any event, Ms Smith did not dispute the nature of the conversation with the departmental employee that occurred on that day.

[8] Australian Building and Construction Commissioner v Ingham [2020] FCA 1632, [136] (Rangiah J).

[9] Nesbit v Metro North Hospital and Health Service [2021] ICQ 005, [99] (Davis J, President).

[10] Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397, 412 (Brennan J).

Close

Editorial Notes

  • Published Case Name:

    Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2)

  • Shortened Case Name:

    Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2)

  • MNC:

    [2021] QIRC 403

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    01 Dec 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
Australian Building and Construction Commissioner v Ingham [2020] FCA 1632
2 citations
Jump To
Cite 1 - [2020] FCA 1632
Cite 2 - [2020] FCA 1632
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Nesbit v Metro North Hospital and Health Service [2021] ICQ 5
2 citations
Jump To
Cite 1 - [2021] ICQ 5
Cite 2 - [2021] ICQ 5
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Police Service Board v Morris (1985) HCA 9
2 citations
Jump To
Cite 1 - (1985) HCA 9
Cite 2 - (1985) HCA 9
Police Service Board v Morris & Martin (1985) 156 CLR 397
2 citations
Jump To
Cite 1 - (1985) 156 CLR 397
Cite 2 - (1985) 156 CLR 397

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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