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  4. Murray v State of Queensland (Department of Environment and Science) - [2022] QIRC 385

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Murray v State of Queensland (Department of Environment and Science)[2022] QIRC 385

Murray v State of Queensland (Department of Environment and Science)[2022] QIRC 385

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Murray v State of Queensland (Department of Environment and Science) [2022] QIRC 385

PARTIES:

Murray, Wayne

(Appellant)

v

State of Queensland (Department of Environment and Science)

(Respondent)

CASE NO.:

PSA/2022/637

PROCEEDING:

Public Service Appeal - Appeal against disciplinary decision

DELIVERED ON:

7 October 2022

MEMBER:

Merrell DP

HEARD AT:

On the papers

ORDERS:

The orders contained in paragraph [22] of these reasons for decision.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – Appellant employed as a Principal Project Officer in the Department of Environment and Science – following an earlier appeal under ch 7, pt 1 of the Public Service Act 2008, disciplinary finding made Industrial Commissioner that the Appellant had contravened, without reasonable excuse, cl 4.4 of the Code of Conduct for the Queensland Public Service by using the Ministerial and Executive Correspondence System to access an item containing official information – disciplinary action subsequently taken against Appellant, pursuant to s 188 of the Public Service Act 2008, in the form of a reprimand – appeal against disciplinary action – whether disciplinary action was fair and reasonable – disciplinary action was not fair and reasonable because Respondent acted contrary to Industrial Commissioner's order to give Appellant notice of proposed disciplinary action – disciplinary action set aside, matter returned to decision maker with a copy of these reasons and directions given to decision maker

LEGISLATION:

Code of Conduct for the Queensland Public Service, cl 4.4

Discipline - Directive: 14/20, cl 8.6

Industrial Relations Act 2016, s 562C

Public Service Act 2008, s 187 and s 188

CASES:

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

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

Reasons for Decision

Introduction

  1. [1]
    Mr Wayne Murray is employed by the State of Queensland in the position of Principal Project Officer, classification AO7, in the Department of Environment and Science ('the Department').
  1. [2]
    By letter dated 9 June 2022 from Ms Susan Crisp, Deputy Director-General, Corporate Services, of the Department, disciplinary action was taken against Mr Murray, pursuant to s 188 of the Public Service Act 2008 ('the PS Act'). The disciplinary action taken was a reprimand ('the decision').
  1. [3]
    By appeal notice filed on 30 June 2022, Mr Murray, pursuant to ch 7, pt 1 of the PS Act, appealed against the decision.
  1. [4]
    The decision was taken against Mr Murray following on from a disciplinary finding decision which was substituted by another Member of this Commission from an earlier appeal made by Mr Murray pursuant to ch 7, pt 1 of the PS Act. The substituted decision was that pursuant to s 187(1)(f)(ii) of the PS Act, Mr Murray contravened, without reasonable excuse, a standard of conduct applying under an approved code of conduct, namely, cl 4.4 of the Code of Conduct for the Queensland Public Service ('the Code'), by his use of the Ministerial and Executive Correspondence System ('MECS') to access an item containing official information.[1] That decision of the Commission was made on 7 June 2022, two days before the decision was made against which Mr Murray currently appeals.
  1. [5]
    The issue for my determination is whether the decision appealed against, and the decision‑making process associated with that decision, was fair and reasonable.[2]
  1. [6]
    For the reasons that follow, the decision was not fair and reasonable. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 ('the IR Act'), I will order that the decision be set aside, the matter be returned to the decision maker with a copy of these reasons for decision on appeal, and with directions that Mr Murray be given notice of the proposed reprimand, the reasons for the proposed reprimand, and an opportunity to respond to that proposed disciplinary action before a disciplinary decision is made.

Background

  1. [7]
    The background to this matter is set out in the following paragraphs of the Department's submissions:

Discipline process and finding

  1. [6]
    On 9 February 2022, the Appellant received a first show cause notice (attachment A) alleging failure to comply with the department's COVID-19 Vaccination Requirements Policy and Procedure (attachment B) and was placed on suspension with pay.
  1. [7]
    The Appellant provided a response to this show cause notice on 23 February 2002 [sic] (attachment C).
  1. [8]
    In his response the Appellant provided two quotes from a briefing note to the Director‑General written by the Chief Human Resources Officer. A MECS access report for this item shows the Appellant accessing the item at 12:53pm on 2 February, opening the brief and other attachments (attachment D) relating to the development of the department's Chief Health Officer Directed COVID-19 Vaccination Requirements Policy and Procedure (attachment E) (now superseded by the COVID-19 Vaccination Requirements Policy and Procedure).
  1. [9]
    The Director-General brief was stored in the department's Ministerial and Executive Correspondence System (MECS) and due to an administrative error, was classified as DES‑Official rather than DES-Sensitive - meaning that the Appellant's search and access level enabled him to open the item and access the document.
  1. [10]
    The Delegate in this matter formed the view that this constituted a possible breach of the Code of Conduct principle 4.4 Ensure appropriate use and disclosure of official information.
  1. [11]
    On 25 February 2022 a notice to show cause was sent to the Appellant asking him to respond to the allegation that he misused departmental information, in that he had inappropriately accessed a Director-General briefing note and used this information to respond to a show cause process, i.e., for personal gain.
  1. [12]
    The Appellant provided a response to the show cause notice on 6 April 2022 (attachment G).
  1. [13]
    The Delegate made a finding that the allegation was substantiated based on the Appellant's admission that he had found the MECS reference number in the CHO Directed COVID‑19 Vaccination Policy and Procedure and searched this reference within the MECS system

i. The MECS item was referenced in the Policy as a record of its approval.

  1. [14]
    The Delegate advised the Appellant of the finding and proposed a penalty of a drop of one increment for a period of 12 month [sic] in a second show cause notice (on discipline action) sent to the Appellant on 14 April 2022 (attachment H) giving him seven days to respond to the proposed penalty.
  1. [15]
    The Appellant responded on 21 April 2022 (attachment l) however the delegate's decision was stayed pending the outcome of Mr Murray's appeal PSA/2022/558.
  1. [16]
    Following the appeal decision, the delegate reviewed their decision as directed by Commissioner McLennan's decision and imposed a lower discipline penalty of a reprimand on 9 June 2022.
  1. [8]
    In her decision, Industrial Commissioner McLennan relevantly stated:

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:

  1. 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. [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. [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.[3]
  1. [9]
    The orders made by Industrial Commissioner McLennan were:

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.
  1. [10]
    As stated above, Industrial Commissioner McLennan's decision was made on 7 June 2022 and the decision was made on 9 June 2022.

Mr Murray's submissions

  1. [11]
    Mr Murray, in his written submissions, made a number of arguments as to why the decision was not fair and reasonable.
  1. [12]
    However, given the history of the matter as set out above, Mr Murray's first argument is of utmost relevance. Mr Murray submitted:
  1. I do not believe that I was given a further opportunity to comment on the appropriateness of the new proposed action before a final decision on the disciplinary action was made and communicated to me on 9th June 2022 as required in the [sic] s 8.6 of the Disciplinary Directive 14/20.
  1. [13]
    Clause 8.6 of the Discipline - Directive: 14/20 ('the Directive') relevantly provides:

8.6 Decision on disciplinary action

  1. (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.
  1. (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.
  1. (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.[4]

The Department's submissions

  1. [14]
    The Department relevantly submitted:
  1. [20]
    The Appellant states that the imposition of a reprimand is unfair and unreasonable because he wasn't given a further opportunity to comment on the alternative penalty - the Respondent states that the appeal decision asked the department to reconsider the proposed penalty which occurred and resulted in a change to the lowest disciplinary penalty available to the decision maker. The department submits this complies with Clause 8.6 (c) (i) of the Discipline Directive (14/20) as the imposed penalty of a reprimand is objectively less onerous than the originally proposed penalty of a reduction in increment for 12 months.
  1. [21]
    While the appeal decision required the Respondent to reconsider the proposed penalty, there was nothing in the decision that overturned the discipline finding completely. Therefore the delegate was entitled to consider the appropriate disciplinary action to be applied.

The decision was not fair and reasonable

  1. [15]
    In my view, the Department's submissions must be rejected.
  1. [16]
    The order of Industrial Commissioner McLennan, made pursuant to s 562C(1)(c) of the IR Act, was that the decision maker was to consider whether management action, or an appropriate and proportionate disciplinary action, should be proposed that better reflected the partially substantiated allegation against Mr Murray. That order was consistent with the reasons given in paragraphs [106] and [114] of the Industrial Commissioner's reasons as emphasised earlier.
  1. [17]
    That is to say, the express order made by Industrial Commissioner McLennan was, relevantly, that the decision maker had to consider if an appropriate and proportionate disciplinary action '… should be proposed'. The only logical purpose of proposing such appropriate and proportionate disciplinary action was to give Mr Murray the opportunity to respond to such proposed disciplinary action.
  1. [18]
    The Department failed to comply with the order made by Industrial Commissioner McLennan. The Department's submissions about the effect of cl 8.6(c)(i) of the Directive are wrong when consideration is given to the intervening order made by Industrial Commissioner McLennan.
  1. [19]
    For these reasons, the decision was not fair and reasonable.

Conclusion

  1. [20]
    The question in this case was whether the decision was fair and reasonable.
  1. [21]
    For the reasons given above, the decision was not fair and reasonable.

Orders

  1. [22]
    I make the following orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

  1. (a)
    the decision appealed against is set aside;
  1. (b)
    the matter is returned to the decision maker with a copy of these reasons for decision on appeal;
  1. (c)
    the decision maker is directed:
  1. (i)
    to provide the Appellant, within seven (7) days of the date of this order, a letter specifying:
  1. the disciplinary action now being proposed to be taken against the Appellant pursuant to s 188(1) of the Public Service Act 2008, namely, a reprimand ('the proposed reprimand'); and
  1. the reasons for the proposed reprimand; and
  1. (ii)
    to provide the Appellant a period of seven (7) days from his receipt of the letter, referred to in paragraph (c)(i) of these orders, to show cause, in writing, why the proposed reprimand should not be taken; and
  1. (iii)
    to comply with the directions contained in paragraphs (c)(i) and (ii) of these orders before a final decision on the proposed reprimand is made and communicated to the Appellant.

Footnotes

[1] Murray v State of Queensland (Department of Environment and Science) [2022] QIRC 200, [103] and [104] (Industrial Commissioner McLennan).

[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [6] (Deputy President Merrell).

[3] Emphasis added.

[4] Emphasis added and footnote omitted.

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 385

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    07 Oct 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
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
2 citations
Jump To
Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311
Murray v State of Queensland (Department of Environment and Science) [2022] QIRC 200
2 citations
Jump To
Cite 1 - [2022] QIRC 200
Cite 2 - [2022] QIRC 200

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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