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  4. Murray v State of Queensland (Department of Environment and Science) - [2022] QIRC 200

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Murray v State of Queensland (Department of Environment and Science)[2022] QIRC 200

Murray v State of Queensland (Department of Environment and Science)[2022] QIRC 200

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Murray v State of Queensland (Department of Environment and Science) [2022] QIRC 200

Murray, Wayne

(Appellant)

v

State of Queensland (Department of Environment and Science)

(Respondent)

CASE NO:

PSA/2022/558

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

7 June 2022

MEMBER:

HEARD AT:

ORDER:

McLennan IC

On the papers

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:

  1. That the allegation is found to be only partially substantiated.
  1. That the partially substantiated allegation offends only cl 4.4(a) of the Code of Conduct.
  1. The decision-maker should now consider whether management action - or an appropriate and proportionate disciplinary action - should be proposed, that better reflects the now only partially substantiated allegation against Mr Murray.

CATCHWORDS:

LEGISLATION &

OTHER INSTRUMENTS:

CASES:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – where conduct allegation substantiated – where disciplinary action proposed – consideration of disciplinary process – whether disciplinary finding was fair and reasonable – where allegation only partially substantiated

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

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

Code of Conduct for the Queensland Public Service s 4

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)

Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076

Higgins v State of Queensland (Queensland Health) [2022] QIRC 030

Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317

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


Reasons for Decision

  1. [1]
    Mr Wayne Murray (the Appellant) is employed as a Principal Project Officer AO7(4) with the Department of Environment and Science (the Department), State of Queensland (the Respondent).[1] 
  1. [2]
    While Mr Murray commenced with the Department on 29 August 2011,[2] his public service career began in 1994.[3]
  1. [3]
    Mr Murray resides in Brisbane with his wife and two young children.  He is the primary income earner for the family.[4]
  1. [4]
    Mr Murray was suspended with pay on 9 February 2022, effective immediately upon receiving a Notice to Show Cause (SCN-1) alleging his failure to comply with the Department's COVID-19 Vaccination Requirements Policy and Procedure.[5] 
  1. [5]
    Specifically, SCN-1 contained the allegation that:

…in contravention of a direction given to you under the department's COVID-19 Vaccination Policy and Procedure, you have not provided evidence confirming that you have received the required number of doses of an accepted COVID-19 vaccine.

  1. [6]
    Mr Murray was asked to explain both why a disciplinary finding should not be made against him with respect to the above allegation and also why he should not be suspended without pay.
  1. [7]
    Mr Murray responded to SCN-1 on 23 February 2022. 
  1. [8]
    Within his response to SCN-1, Mr Murray posed 16 separate arguments as to why he should not be suspended without pay.  Under one such heading - "MECS Item by you" - Mr Murray included excerpts from a MECS document that had been prepared by the author of SCN-1 sometime earlier.  Essentially, Mr Murray's response quoted the words of the SCN-1 decision-maker back at her - and he concluded thus:

I believe both of your statements to be very fair, sensible and reasonable, however neither of them were afforded to me.  If there are compelling reasons for why neither of your previous statements should not apply to me now, then I should not be suspended without pay.[6]

  1. [9]
    From that point, things went somewhat awry. 
  1. [10]
    On 25 February 2022, a notice to show cause was sent to Mr Murray alleging he had misused departmental information for personal gain by including the excerpts from a MECS document in his response to SCN-1.  The Department erroneously sent that correspondence to Mr Murray's work email address, rather than his personal one.  As Mr Murray was suspended from duty on pay at that time, he did not have access to his work email address.  Mr Murray did not receive that correspondence.
  1. [11]
    On 14 March 2022, further correspondence was apparently once again erroneously sent by the Department to Mr Murray's work email address.  That correspondence stated that Mr Murray was suspended without pay and invited him to show cause why his employment should not be terminated.  Again, Mr Murray did not receive that correspondence.
  1. [12]
    On 22 March 2022, Mr Murray did not get paid.  Understandably, he contacted his manager to find out why.  His manager did not know but assured Mr Murray he would make the appropriate inquiries.
  1. [13]
    On 23 March 2022, Mr Murray received an email and letter from the Department dated 14 March 2022 advising that he was immediately suspended without pay and was to show cause why his employment should not be terminated within seven days.  The email stated that the letter was inadvertently sent to Mr Murray's work email address last week.
  1. [14]
    The correspondence received by Mr Murray on 23 March 2022 also made reference to the 25 February 2022 correspondence.  As recounted above, Mr Murray had not received that correspondence either. 
  1. [15]
    Mr Murray conveyed his serious concerns with that process failure to the Department.  At that point, the Department acknowledged that the email correspondence dated 14 March 2022 and 25 February 2022 had not been delivered to him, as a matter of error.
  1. [16]
    As it transpired, Mr Murray's response as to why he should not be suspended without pay was accepted by the decision-maker.[7]  He continued to be suspended from duty with pay, at least "until 3 June 2022" at which time the decision-maker will again consider the matter afresh.
  1. [17]
    However, while one or more of Mr Murray's 16 arguments succeeded in persuading the decision-maker to continue his suspension with pay at that time, his use of the particular "MECS Item by you" line of defence had some unintended consequences.[8]  That gave rise to a subsequent allegation against Mr Murray - and ultimately the disciplinary finding that is subject of this appeal.
  1. [18]
    With respect to SCN-1 issued on 9 February 2022, Mr Murray submitted that "The Respondent failed to note that I have since fully complied with the COVID-19 Vaccination Requirements Policy and Procedure and the Respondent has now closed this matter and no disciplinary findings nor disciplinary action have resulted."
  1. [19]
    As the Respondent did not seek leave to make oral submissions or further written submissions by 26 May 2022, Mr Murray's assertion that the matters remaining are limited to the two subject of this appeal stands unchallenged.

Decisions subject of this Appeal

  1. [20]
    Mr Murray stated that he appeals two disciplinary decisions made by the Department, asserting the decisions were unfair and unreasonable.[9]

Appeal against the Disciplinary Finding

  1. [21]
    In correspondence dated 14 April 2022 (the decision letter), the decision-maker[10] advised Mr Murray that she found the following allegation against him to be substantiated:

It is alleged that you used the Ministerial and Executive Correspondence System (MECS) to access an item containing official and confidential information for personal gain.

  1. [22]
    On the basis of that disciplinary finding, the decision-maker advised Mr Murray that she considered that he "may have contravened, without reasonable excuse, a standard of conduct applying under an approved code of conduct, namely the Code of Conduct for the Queensland Public Service" (the Code of Conduct), pursuant to s 187(1)(f)(ii) of the PS Act.
  1. [23]
    As Mr Murray has correctly observed, s 187(1)(f) of the PS Act does not contain a sub-section (ii).  Further, s 187(1)(f) states that an employee may be disciplined if the chief executive is reasonably satisfied the employee has "contravened, without reasonable excuse, a provision of this Act".  It is in fact s 187(1)(g) that provides grounds for discipline includes circumstances where the chief executive is reasonably satisfied the employee has "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action." 
  1. [24]
    The decision letter goes on to insert the particular section of the Code of Conduct Mr Murray was found to have offended, that is:

4.4 Ensure appropriate use and disclosure of official information

…we will:

a.treat official information with care and use it only for the purpose for which it was collected or authorised

…

c.not use confidential or privileged information to further personal interests

  1. [25]
    It can be inferred then that the error is the incorrect reference of s 187(1)(f)(ii).  It appears the correct reference would instead be s 187(1)(g). 
  1. [26]
    The same error was made in the Notice to Show Cause on the Disciplinary Findings and Suspension Without Remuneration (SCN-2) correspondence.[11]
  1. [27]
    Some confusion was created by that referencing error.  That is unhelpful.  With respect to Mr Murray's response to the disciplinary findings, he has legitimately complained that "It remains unclear if I have in fact contravened a provision of an Act or an approved code."[12]  Fairness to Mr Murray necessitates that he be accurately informed as to the precise provision he was alleged to have offended.  Indeed, cl 8.3(b)(iii) of the Directive mandates that the relevant reference be provided.
  1. [28]
    Notwithstanding that impediment, I note though that Mr Murray did provide a lengthy response addressing both the Disciplinary Findings and Suspension Without Remuneration elements.[13]
  1. [29]
    In the decision letter, the decision-maker communicated her determination that the allegation was found to be substantiated (the disciplinary finding).
  1. [30]
    The decision-maker advised Mr Murray that he may appeal that disciplinary finding to the Commission within 21 days, if he believed it to be unfair and unreasonable.
  1. [31]
    By filing this Appeal on 5 May 2022, Mr Murray has adopted that course.

Appeal against the Proposed Disciplinary Penalty

  1. [32]
    Having determined the allegation against Mr Murray to be substantiated, the decision-maker stated she would give serious consideration to the proposed disciplinary action of "a reduction of one pay point for a period of 12 months."[14] 
  1. [33]
    In proposing that particular disciplinary penalty, the decision-maker stated that she had regard to s 188 of the PS Act and the factors set out in cl 8.5(d) of Directive 14/20: Discipline (the Directive).
  1. [34]
    The decision-maker further stated "In accordance with the principles of natural justice, no final determination of the disciplinary action to be taken has been made, or will be made, until you have had the opportunity to respond."[15]
  1. [35]
    It can be seen that the decision criteria elements included in the decision letter have been drawn from cl 8.5(d) of the Directive, as appropriate.
  1. [36]
    The decision-maker advised Mr Murray that he may appeal the proposed disciplinary penalty - a reduction of one pay point for a period of 12 months - to the Commission within 21 days, if he believed it to be unfair and unreasonable.
  1. [37]
    By filing this Appeal on 5 May 2022, Mr Murray has adopted that course.

Other matter

  1. [38]
    The decision letter also advised Mr Murray of the decision-maker's determination that his suspension from duty would continue with remuneration at this time.

Appeal details

  1. [39]
    On 5 May 2022, Mr Murray filed an Appeal Notice with the Industrial Registry.  Mr Murray indicated that a copy of the decision he sought to appeal was attached and that he had received that decision on 14 April 2022.[16]
  1. [40]
    The outcome Mr Murray seeks from this appeal is "for the Commission to set aside both decisions and either have them substituted with another decision or return the decision back to DES with a copy of the decision on appeal, along with any directions considered appropriate."[17]
  1. [41]
    On 12 May 2022, I issued a Directions Order that stayed the Review Decision until the determination of this appeal or further order of the Commission.

Jurisdiction

  1. [42]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made.
  1. [43]
    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. [44]
    As detailed above, the decision letter communicated three distinct matters to Mr Murray:
  1. Decision on disciplinary finding

That a disciplinary finding had been made to substantiate the following allegation against Mr Murray:

It is alleged that you used the Ministerial and Executive Correspondence System (MECS) to access an item containing official and confidential information for personal gain.

  1. Proposed disciplinary penalty

That serious consideration was being given to a proposed disciplinary penalty but that no final determination on that had been yet made:

…a reduction of one pay point for a period of 12 months

  1. Decision on suspension without remuneration

That a decision was made to continue Mr Murray's suspension from duty with pay at this time.

…I have decided to continue to suspend you from duty with remuneration until 3 June 2022, at which time I will consider the issue of suspension afresh.

  1. [45]
    As noted at paragraph [20]-[37], Mr Murray seeks only to appeal against the disciplinary finding and the proposed disciplinary penalty.
  1. [46]
    Turning first to my consideration of whether the disciplinary finding is appealable, the decision-maker clearly advised Mr Murray that she had made a decision to substantiate the allegation against him.  Mr Murray complained that decision was unfair and unreasonable. 
  1. [47]
    On that basis, I consider the disciplinary finding decision to be appealable under s 194(1) (b)(i).
  1. [48]
    With respect to whether the proposed disciplinary penalty is appealable, the decision-maker stated that she was "currently giving serious consideration" to the matter.  It was explained that "no final determination of the disciplinary action to be taken has been made, or will be made, until you have the opportunity to respond."  In my view, it is apparent by those words that a decision on the discrete point of the disciplinary penalty has not yet been made.  I do note though that the decision letter inaccurately informed Mr Murray that "You may lodge an appeal against my decision to propose a reduction of one pay point level for a period of 12 months under the appeal provisions of the PS Act within 21 days of receipt of this letter."  I accept Mr Murray's submission that he "suspected at the time that this was not possible and even suggest this in my correspondence to the Commission on the 5th May 2022…"  It is clear to me though that, having been told the proposed disciplinary penalty was appealable by the decision-maker, Mr Murray proceeded to file his appeal against those two 'decisions' out of an abundance of caution as to protecting his rights. 
  1. [49]
    For those reasons, I consider the proposed disciplinary penalty is not "a decision under a disciplinary law to discipline" in accordance with s 194(1)(b)(i) of the PS Act.  Neither do I consider it to be "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)" in accordance with s 194(1)(eb) of the PS Act.  Simply, a course of action merely proposed is not a decision at all.
  1. [50]
    At the point where the decision-maker communicates her decision to impose a particular disciplinary penalty, it may be appealed – but that time has not yet come.  Previous decisions of the Commission have found that correspondence constituting a show cause notice or pertaining to proposed disciplinary action is not capable of being appealed.  I have had regard to such decisions as: Graffunder v State of Queensland (Queensland Health),[18] Hutchison v State of Queensland (Queensland Health)[19] and Higgins v State of Queensland (Queensland Health).[20]  Those decisions provide further explanation of why a proposal is not appealable, should that be of assistance to the parties.  I have followed that reasoning here. 
  1. [51]
    Mr Murray has been an employee of the Respondent at all times relevant to this appeal.
  1. [52]
    In these circumstances, I am satisfied only that the disciplinary finding decision can be appealed.  I will proceed to consider the appeal of that particular decision.

Timeframe to Appeal

  1. [53]
    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. [54]
    The decision letter was given to Mr Murray on 14 April 2022 and the Appeal Notice was filed with the Industrial Registry on 5 May 2022. Therefore, I am satisfied that the Appeal Notice was filed by Mr Murray within the required timeframe.

Appeal principles

  1. [55]
    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."[21] This is the key issue for my determination. 
  1. [56]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[22]

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. [57]
    A public service appeal under the IR Act is not by way of rehearing,[23] but involves a review of the decision arrived at and the decision–making process associated therewith. 
  1. [58]
    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.[24]
  1. [59]
    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. [60]
    In deciding this appeal, s 562C of the IR Act provides that the Commission may:
  • confirm the decision appealed against;
  • set the decision aside and substitute another decision; or
  • 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. [61]
    The parties filed written submissions in accordance with the Directions Order issued on 12 May 2022.
  1. [62]
    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. [63]
    Section 187 of the PS Act relevantly provides (emphasis added):

187Grounds for discipline

(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  1. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

  …

(4) In this section—

…

relevant standard of conduct, for a public service employee, means—

(a)a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

…

  1. [64]
    Section 188 of the PS Act relevantly provides (emphasis added):

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. [65]
    The Directive relevantly provides (emphasis added):

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

  1. (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:

  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
  1. (v)
    the employee's explanation (if any)
  1. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (vii)
    the impact on the employee's ability to perform the duties of their position
  1. (viii)
    the employee's potential for modified behaviour in the work unit or elsewhere
  1. (ix)
    the impact a financial penalty may have on the employee
  1. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (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:

  1. (i)
    the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice
  1. (ii)
    excluding a termination decision, information that the employee may appeal the decision on disciplinary action
  1. (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:

  1. (i)
    the revised disciplinary action is objectively less onerous than the original action proposed, or
  1. (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
  1. (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.

Relevant provisions of the Code of Conduct

  1. [66]
    The Code of Conduct for the Queensland Public Service (the Code of Conduct) relevantly provides:

4.4 Ensure appropriate use and disclosure of official information

…we will:

a.treat official information with care and use it only for the purpose for which it was collected or authorised

…

c.not use confidential or privileged information to further personal interests

Questions to be Decided

  1. [67]
    The question to be decided in this case is whether or not the disciplinary finding was fair and reasonable.  That question is informed by several considerations.

Was it open to the decision-maker to substantiate the allegation, on the balance of probabilities?

  1. [68]
    On 14 April 2022, the decision-maker[25] advised Mr Murray that the following allegation was substantiated:

It is alleged that you used the Ministerial and Executive Correspondence System (MECS) to access an item containing official and confidential information for personal gain.

  1. [69]
    It is not in dispute between the parties that:
  • Mr Murray is permitted access to MEC documents;
  • Mr Murray did access an item in the MEC system on 2 February 2022;
  • the MEC item accessed by Mr Murray was a briefing note to the Director-General and attachments, relating to the development of the Department's Chief Health Officer Directed COVID-19 Vaccination Requirements Policy and Procedure (now superseded); and
  • the MEC item accessed by Mr Murray was classified "DES-Official" at the time he accessed it.
  1. [70]
    Therefore the relevant matters in dispute between the parties are:
  • whether or not the MEC item accessed by Mr Murray contained "confidential information"; and
  • whether or not the MEC item was accessed by Mr Murray for "personal gain".

Did the MEC item contain "confidential information"?

  1. [71]
    The Respondent submitted that:
  • the MEC item accessed by Mr Murray was misclassified "DES-Official", rather than "DES-Sensitive" due to an administrative error (there is no contention that error was caused by Mr Murray);
  • the misclassification of the MEC item meant Mr Murray's search and access level enabled him to open it;
  • Mr Murray ought to have known that it was not appropriate for him to access the MEC item, as it was "a brief to the Director-General that he had not been involved in writing, had no requirement to access as part of his role and should have identified that he should not access this item";
  • the particular MECS item was referenced in the policy as a record of its approval;
  • Mr Murray "completed the Department's Information Security and Information Privacy eLearning modules within the last 12 months and should therefore be familiar with his obligations regarding departmental information"; and
  • Mr Murray has been employed in the public service since 1994.  In that time, he has worked in Executive Officer and Manger roles involving a "requirement to manage a team with a correspondence mailbox and supervise staff using MECS daily, even if you were not in the system each day.  This means that you should understand the system and its security requirements."  Whilst working at AO7 and AO8 classifications for the past eight years, Mr Murray has been required to respond to a range of confidential matters, briefs and submissions within the MEC system.  The Respondent asserted that "When you opened the MECS item you would have seen that it was a DG Brief and should have identified this was a confidential item that you should not access – regardless of the security level attached."
  1. [72]
    Mr Murray submitted that:
  • the Department "failed to store official information securely and limit access to those persons requiring for legitimate purposes.  Because of this failure, anyone in the department was able to access the MEC item – including me...";
  • the CTS number of the particular MEC item accessed by Mr Murray was included in the CHO Directed COVID-19 Vaccination Policy and Procedure that was made available to all staff.  That inclusion enabled Mr Murray to search the document reference number within the MEC system.  When he did so, Mr Murray was able to open and view the document;
  • "…at the time of access, I did not know who the author was or who the recipient was, and did not know this until I actually accessed it.  Whilst it was addressed to the Director-General, I believed this was for approval only and that all Department staff were able to access the item as the CHO Directed COVID-19 Vaccination Policy and Procedure was relevant to all staff";
  • he was "likely to have completed the Department's Information Security and Information Privacy training within the last 12 months, but this training is brief, light on detail and contains little or no information about MECS or to guide decision making for when the Department fails to correctly classify and store information"; and
  • he does not believe that the Department provided him with training in using the MEC system, however Mr Murray is unable to access his training records at this time.
  1. [73]
    I consider that Mr Murray acted responsibly and appropriately in first reading the CHO Directed COVID-19 Vaccination Policy and Procedure (the policy) that was made available to all staff.  There is no issue with that.
  1. [74]
    While Mr Murray stated that he is now fully compliant with that policy, he explained his original concerns with getting vaccinated.  In light of his concerns, I do not consider it was unreasonable of Mr Murray to dive deeper by reading the other materials that had been referenced in the policy.   It is uncontroversial that the policy distributed to staff contained a CTS reference number within it – and that Mr Murray searched for the document, saw that it was marked "DES-Official", could open the document given his access level and did so.
  1. [75]
    It is clear that Mr Murray could not have known the contents of the document until he actually opened it. 
  1. [76]
    I also acknowledge Mr Murray's argument that "Whilst it was addressed to the Director-General, I believed this was for approval only and that all Department staff were able to access the item as the CHO Directed COVID-19 Vaccination Policy and Procedure was relevant to all staff." 
  1. [77]
    Ultimately, I have some sympathy for Mr Murray on this point.  He was vaccine hesitant and conscientiously read the policy.  He wanted to find out more and so searched the CTS number of the document referenced within the MEC system.  Mr Murray observed that document was classified "DES-Official" and so understood that his access level permitted him to read it.  The Department has attributed the misclassification to an administrative error but there is no suggestion that was caused by Mr Murray.  Upon reading the document and noting that it was addressed to the Director-General, Mr Murray stated that he "…believed it was for approval only and that all Department staff were able to access the item as the CHO Directed COVID-19 Vaccination Policy and Procedure was relevant to all staff."  Mr Murray sensibly conceded that he was likely to have completed the Department's Information Security and Information Privacy training within the last 12 months, however qualified that with the assertion that "…this training is brief, light on detail and contains little or no information about MECS or to guide decision making for when the Department fails to correctly classify and store information."  Neither party has provided particulars of the training program to the Commission, nor has the Respondent sought leave to make any further submissions in reply as invited in the Directions Order issued 12 May 2022.  However, Mr Murray's claim does have a ring of truth – the Department's training module is unlikely to contain such a section.  Even if I am wrong on that point and it did so however, I would also accept that Mr Murray may have considered he could read by exception a particular document referenced within the policy advertised to all staff directly relevant to a condition of his employment.  That assumption would have been confirmed at the point that Mr Murray found the document in the MEC system and saw it classified "DES-Official."
  1. [78]
    Finally, the Department only discovered that Mr Murray had accessed the MECS item because he quoted from that document in his response to the show cause notice dated 23 February 2022.  Mr Murray has long experience with the State and Federal public service, over some 29 years.[26]  If he truly knew the document accessed was confidential, Mr Murray would be unlikely to draw that to his employer's attention and incur the wrath of a further show cause notice on an additional allegation, in my view.  That would be silly. 
  1. [79]
    I also considered the significance of the issue of timing here.  Mr Murray accessed the MECS item a week prior to being issued with the show cause notice alleging his failure to comply with the policy and advising that he was to be suspended with pay at that time.  Mr Murray would be unlikely to access a confidential document to avoid the possibility of a disciplinary finding and proposed outcome that he had not yet been made aware of.
  1. [80]
    On the balance of probabilities, I find that Mr Murray did not know that the MEC item he accessed was "confidential information".

Did Mr Murray access the MEC item for "personal gain"?

  1. [81]
    The Respondent submitted that:
  • Mr Murray accessed the MEC item on 2 February 2022;
  • the Department issued Mr Murray with a notice to show cause on 9 February 2022.  That notice alleged failure to comply with the policy and advised Mr Murray that he was suspended from duty with pay;
  • Mr Murray responded to the show cause notice on 23 February 2022;
  • in the show cause notice about the allegation of accessing the MEC item dated 25 February 2022, the decision-maker particularised the "personal gain" to Mr Murray as "…using the information to excuse your non-compliance with the COVID-19 Vaccination Policy and Procedure";[27] and
  • the Department stated Mr Murray accessed the MEC item for personal gain, "namely, seeking to avoid a discipline finding and penalty" by using excerpts of the document to respond to a show cause process.[28]
  1. [82]
    Mr Murray submitted that:
  • his "access to MECS item was done so only in an attempt to better understand the DES vaccine mandate policy being introduced in the future within DES, and not for personal gain";
  • "DES has repeatedly failed to outline particulars of the facts considered by the chief executive for the part of the allegation that relates to 'personal gain'.  At no point during this disciplinary process has DES provided any evidence of personal gain despite me asking for it during the show cause period and during my response to disciplinary findings and proposed disciplinary action.  The absence of this evidence should not be understated as it forms a key element of their allegation that must be proven on the balance of probability.  It is well known that findings of fact on the balance of probabilities, must include the evidence relied upon to reach the finding – DES has failed in this regard";[29] and
  • he has gained nothing from accessing the MECS item other than harm to his health and wellbeing.
  1. [83]
    I have earlier explained why I believe that Mr Murray accessed the MECS item classified as "DES – Official", that is to read around the policy and deepen his understanding.
  1. [84]
    I have also earlier addressed the significance of the timing of Mr Murray's access to that MECS item, that is a week before he received a show cause notice alleging he had not complied with the vaccine policy.
  1. [85]
    As I have noted earlier, Mr Murray's response contained 16 arguments as to why the Department should not suspend him without pay for non-compliance with the vaccine policy at that time – the best reason perhaps being his final statement that "…upon receiving the Novavax vaccine, and giving evidence to DES over the coming days, will, according to the advice that I have received, make me compliant with the policy."   In short, Mr Murray did not need to use the argument of "MECS Item by you" to avoid either the disciplinary finding or the possibility of being suspended without pay.  At the eleventh hour, Mr Murray had taken action to become compliant with the policy. 
  1. [86]
    The decision letter dated 14 April 2022 restated Mr Murray's response to the allegation as including "You state that searching for information about the vaccine mandate was to clarify the requirements and not for personal gain."  I note that the "Analysis" section of the decision letter focuses almost exclusively on whether Mr Murray understood the MEC system.  The decision-maker does not address the aspect of "personal gain" in the reasoning she provided.
  1. [87]
    I have carefully considered the precise wording of the allegation - that Mr Murray was alleged to have "…used the Ministerial and Executive Correspondence System (MECS) to access an item containing official and confidential information for personal gain."  On the balance of probabilities, was it fair and reasonable for the decision-maker to find that Mr Murray accessed the item for personal gain?  Given Mr Murray accessed the MECS item a week before receiving the show cause notice about not being compliant with the policy at that time, I have earlier concluded that he accessed the MECS item to gain more information about the vaccination policy.  I have also noted that the decision-maker's reasoning does not include any explanation as to why she concluded that Mr Murray accessed the MECS item "for personal gain".
  1. [88]
    On the balance of probabilities, I find that Mr Murray did not access the MECS item for "personal gain."

Finding

  1. [89]
    For the reasons explained above, I do not agree that it was fair and reasonable for the decision-maker[30] to find the following allegation against Mr Murray to be substantiated:

It is alleged that you used the Ministerial and Executive Correspondence System (MECS) to access an item containing official and confidential information for personal gain.

  1. [90]
    Having so determined, it follows that the proposed disciplinary action of "a reduction of one pay point for a period of 12 months"[31] would also fall – although that is not itself a 'decision' and therefore is not appealable at this time.
  1. [91]
    At its highest, I accept only that Mr Murray:

…used the Ministerial and Executive Correspondence System (MECS) to access an item containing official information.

That clearly did occur on the evidence before me.  At no time was that concealed by Mr Murray.

I find the allegation against Mr Murray to instead be partially substantiated.

Was Mr Murray's action a breach of the Code of Conduct?

  1. [92]
    On 14 April 2022, the decision-maker had concluded that Mr Murray's conduct offended a particular provision of the Code of Conduct:

4.4Ensure appropriate use and disclosure of official information

…we will:

a.treat official information with care and use it only for the purpose for which it was collected or authorised

…

c.not use confidential or privileged information to further personal interests

  1. [93]
    I have not agreed with the decision-maker that Mr Murray used the MEC system to access an item containing "confidential information for personal gain".  Therefore, it follows that I also do not agree that Mr Murray could be said to have offended s 4.4(c) above.
  1. [94]
    Turning now to whether Mr Murray could be said to have offended s 4.4(a) above, he did use the MEC system to access an item containing "official information".  Mr Murray's access level permitted him to view that item.  I have accepted that Mr Murray did so in order to further inform himself about the vaccination policy.  By virtue of the particular MECS item accessed being referenced by CTS number within the policy, I also have sympathy for Mr Murray's argument that he (albeit mistakenly) thought that he could read the information by way of background to the policy distributed to all staff. 
  1. [95]
    If that had been the extent of it, I would not make any further comment on the matter.  However, Mr Murray has taken an unnecessarily and unhelpfully combative approach in serving the decision-maker's words back at her within his show cause response.  That was an error of judgement.  Mr Murray's decision has undoubtedly contributed to the continuation of the disciplinary process into the second allegation, that is now subject of this appeal.

Finding

  1. [96]
    For those reasons, I do not consider that Mr Murray has treated official information with care and used it only for the purpose for which it was collected or authorised. 
  1. [97]
    Mr Murray's actions have still offended s 4.4(a) of the Code of Conduct in my view.

Was the disciplinary finding decided in accordance with the prescribed process?

  1. [98]
    There were a few departures from the prescribed process in this case.
  1. [99]
    Clause 8.3 Show cause process for disciplinary finding of the Directive mandates that the written details of the allegation include three components but only one of those was adequately addressed. 
  1. [100]
    The disciplinary ground under s 187 of the PS Act that was said to have applied to the allegation was not accurately recorded (s 187(1)(f)(ii) of the PS Act, rather than s 187(1)(g) based on the extract that followed).  That is also required under cl 8.4 and was not accurately recorded in the decision letter either.
  1. [101]
    As I have also explained above, the grounds upon which the decision-maker had substantiated the allegation did not address all elements of it.  Her 'Analysis' focused only on why she believed Mr Murray would have had a good understanding of the MEC system, given his length of service, classification level and roles worked in - the aspect of "personal gain" was not addressed, for example.
  1. [102]
    Clause 8.3 further provides that "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…"  In this case, Mr Murray was provided with 14 days in which to provide his response.  I note that the decision letter stated that "In my letter emailed 23 March 2022, you were afforded a period of 14 days from the date of your receipt of that letter to provide a response to the allegations.  You responded in a letter received 6 April 2022."  I accept that Mr Murray could have asked for more than 14 days to respond, but did not. However, I also consider a period longer than the bare minimum may have been appropriate in circumstances where Mr Murray's pay had stopped, the earlier two correspondences had been emailed in error to his work email address that he could not access, he believed he was facing termination of employment with just seven days to respond, and was extremely stressed about the above combination of events in circumstances where Mr Murray is the primary financial provider for his young family.

Do grounds for discipline arise?

  1. [103]
    In this Decision, I have disturbed the decision-maker's findings with respect to the allegation substantiated against Mr Murray.  I have decided that Mr Murray can be found only to have:

…used the Ministerial and Executive Correspondence System (MECS) to access an item containing official information.

I have found the allegation to be only partially substantiated.

That significantly reduces the gravity of the previous disciplinary finding, that was subject of this appeal.

  1. [104]
    I have also considered the partially substantiated allegation against the Code of Conduct provision Mr Murray was said to have offended.  I have decided that Mr Murray can be found only to have breached this particular sub-section:

4.4Ensure appropriate use and disclosure of official information

…we will:

a.treat official information with care and use it only for the purpose for which it was collected or authorised

That also significantly reduces the gravity of the previous disciplinary finding, that was subject of this appeal.

  1. [105]
    The question now is whether Mr Murray's action establishes grounds for discipline under s 187(1)(g) of the PS Act?  That is informed by the following considerations:

a)Is the Code of Conduct that Mr Murray is alleged to have breached a relevant standard of conduct?

Section 187(4)(a) of the PS Act defines a relevant standard of conduct for a public service employee as meaning "a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994." 

The Code of Conduct is a relevant standard of conduct, as defined.

b)Can the chief executive be reasonably satisfied that Mr Murray has–

  • Contravened a relevant standard of conduct?
  • Does not have a reasonable excuse for doing so?
  • Is the contravention sufficiently serious to warrant disciplinary action?

I have earlier found that Mr Murray has contravened a relevant standard of conduct, although only to the extent of cl 4.4(a), as detailed at paragraph [105] above.

I have addressed the matter of whether Mr Murray had a reasonable excuse for doing so, at paragraphs [95] – [96] above.

The question remains as to whether the contravention is "sufficiently serious to warrant disciplinary action".  My findings at paragraphs [104] – [105] above significantly reduces the gravity of the decision-maker's previous disciplinary finding, that was subject of this appeal.  While I have earlier explained that the proposed disciplinary action is not one that is appealable at this time, it follows nonetheless that any penalty proposed (if at all) subsequent to this Decision would also be significantly reduced. 

  1. [106]
    Bearing in mind the disciplinary findings I have made in this case, the process blemishes described and Mr Murray's submissions regarding the decision-maker's proposed disciplinary finding, it is appropriate in my view that this matter be returned to the decision-maker to now decide whether management action – or an alternative appropriate and proportionate disciplinary penalty - should now be proposed for Mr Murray's response.
  1. [107]
    I would remind the parties that cl 8.5(d) of Directive 14/20 contains the factors to be considered in (my emphasis) "proposing appropriate and proportionate disciplinary action."[32]  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
  1. (v)
    the employee's explanation (if any)
  1. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (vii)
    the impact on the employee's ability to perform the duties of their position
  1. (viii)
    the employee's potential for modified behaviour in the work unit or elsewhere
  1. (ix)
    the impact a financial penalty may have on the employee
  1. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (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.

Conclusion

  1. [108]
    The decision-maker's determination to substantiate the allegation against Mr Murray was not fair and reasonable.
  1. [109]
    I have instead found the allegation against Mr Murray to be partially substantiated. 
  1. [110]
    I have considered the now partially substantiated allegation against the Code of Conduct provision Mr Murray's conduct was said to have offended.  I have determined that the partially substantiated allegation offends only cl 4.4(a) of the Code of Conduct. 
  1. [111]
    My decision significantly reduces the gravity of the previous disciplinary finding, that was subject of this appeal.
  1. [112]
    As I have observed, there were also some procedural blemishes in this particular matter.  Mr Murray has submitted that has caused him a level of stress.  I accept that to be the case.
  1. [113]
    I have determined that the proposed disciplinary action is not appealable at this time.
  1. [114]
    The decision-maker should now consider whether management action - or an appropriate and proportionate disciplinary action - should be proposed, that better reflects the now only partially substantiated allegation against Mr Murray.
  1. [115]
    I order accordingly.

Orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:

1. That the allegation is found to be only partially substantiated.

2. That the partially substantiated allegation offends only cl 4.4(a) of the Code of Conduct.

3. The decision-maker should now consider whether management action - or an appropriate and proportionate disciplinary action - should be proposed, that better reflects the now only partially substantiated allegation against Mr Murray.

Footnotes

[1] Appeal Notice filed 5 May 2022, 1; Respondent's submissions filed 18 May 2022, 1 [2] – [3].

[2] Respondent's submissions filed 18 May 2022, 1 [1].

[3] Ibid Attachment H, page 2; Letter from Ms S. Chrisp, Deputy Director-General, Corporate Services, Department of Environment and Science to Mr W. Murray, 14 April 2022.

[4] Respondent's submissions filed 18 May 2022, Attachment C, 20.

[5] Ibid Attachment A; Letter from Ms V. Van Der Laak, Chief Human Resources Officer, Department of Environment and Science to Mr W. Murray, 9 February 2022

[6] Respondent's submissions filed 18 May 2022, Attachment C, 20.

[7] Respondent's submissions filed 18 May 2022, Attachment H, 4; Letter from Ms S. Chrisp, Deputy Director-General, Corporate Services, Department of Environment and Science to Mr W. Murray, 14 April 2022

[8] See paragraph [8] of this Decision.

[9] Appeal Notice filed 5 May 2022, Schedule 1, 1.

[10] Ms Susan Chrisp, Deputy Director-General, Corporate Services.

[11] Letter from Ms V. Van Der Laak, Chief Human Resources Officer, Department of Environment and Science to Mr W. Murray, 25 February 2022

[12] Appeal Notice filed 5 May 2022, Schedule 1, 2.

[13] Respondent's submissions filed 18 May 2022, Attachment G; Letter from Mr W. Murray to Ms V. Van Der Laak, Chief Human Resources Officer, Department of Environment and Science (undated).

[14] Respondent's submissions filed 18 May 2022, Attachment H, 3; Letter from Ms S. Chrisp, Deputy Director-General, Corporate Services, Department of Environment and Science to Mr W. Murray, 14 April 2022.

[15] Ibid.

[16] Appeal Notice filed 5 May 2022, 3.

[17] Appeal Notice filed 5 May 2022, Schedule 1, 4.

[18] [2022] QIRC 076.

[19] [2021] QIRC 317.

[20] [2022] QIRC 030.

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

[22] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[23] 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).

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

[25] Ms Susan Chrisp, Deputy Director-General, Corporate Services.

[26] Respondent's submissions filed 18 May 2022, Attachment C, 1.

[27] Ibid Attachment F, 1.

[28] Ibid 3, [25].

[29] Appeal Notice filed 5 May 2022, Schedule 1, 2.

[30] Ms Susan Chrisp, Deputy Director-General, Corporate Services.

[31] Respondent's submissions filed 18 May 2022, Attachment H, 3; Letter from Ms S. Chrisp, Deputy Director-General, Corporate Services, Department of Environment and Science to Mr W. Murray, 14 April 2022.

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

Close

Editorial Notes

  • Published Case Name:

    Murray v State of Queensland (Department of Environment and Science)

  • Shortened Case Name:

    Murray v State of Queensland (Department of Environment and Science)

  • MNC:

    [2022] QIRC 200

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    07 Jun 2022

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
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76
2 citations
Jump To
Cite 1 - [2022] QIRC 76
Cite 2 - [2022] QIRC 76
Higgins v State of Queensland (Queensland Health) [2022] QIRC 30
2 citations
Jump To
Cite 1 - [2022] QIRC 30
Cite 2 - [2022] QIRC 30
Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317
2 citations
Jump To
Cite 1 - [2021] QIRC 317
Cite 2 - [2021] QIRC 317
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

Cases Citing

Case NameFull CitationFrequency
Murray v State of Queensland (Department of Environment and Science) [2022] QIRC 3852 citations
1

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