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  4. Davey v State of Queensland (Queensland Fire and Emergency Services) - [2022] QIRC 457

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Davey v State of Queensland (Queensland Fire and Emergency Services)[2022] QIRC 457

Davey v State of Queensland (Queensland Fire and Emergency Services)[2022] QIRC 457

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Davey v State of Queensland (Queensland Fire and Emergency Services) [2022] QIRC 457

PARTIES:

Davey, Garry

(Appellant)

v

State of Queensland (Queensland Fire and Emergency Services)

(Respondent)

CASE NO.:

PSA/2022/373

PROCEEDING:

Public Service Appeal - Fair Treatment Decision

DELIVERED ON:

24 November 2022

MEMBER:

HEARD AT:

Merrell DP

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed as a Station Officer at the Rockhampton Fire and Rescue Station – two allegations made against the Appellant concerning his conduct – management action taken – Appellant counselled – Appellant sought internal review by Queensland Fire and Emergency Services of the management action – internal review decision – no further action taken by Queensland Fire and Emergency Services – Appellant appealed internal review decision – whether internal review decision was fair and reasonable – internal review decision was fair and reasonable – internal review decision appealed against confirmed

LEGISLATION:

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

Information Privacy Act 2009, sch 3

CASES:

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

Wirth v Mackay Hospital and Health Service [2016] QSC 39

Reasons for Decision

Introduction

  1. [1]
    Mr Garry Davey is a Station Officer employed by the State of Queensland in the Queensland Fire and Emergency Services ('the Services'). SO Davey is stationed at the Rockhampton Fire and Rescue Station which is located in the Fitzroy Zone of the Central Region of the Services.
  1. [2]
    In November 2021, two other Station Officers from the Central Region each submitted an Individual Employee Grievance ('IEG') against SO Davey.
  1. [3]
    The first IEG alleged that SO Davey:
  • accessed private staff records without permission via the Services' Operations Management System ('OMS');
  • fabricated a mandate and a series of historical events in relation to his recollection of a Station Officers' meeting and the topics of discussion within that meeting; and
  • had acted in an inappropriate manner toward other staff including interactions where he raised his voice and/or pointed his finger at the other staff.
  1. [4]
    The second IEG alleged that SO Davey:
  • fabricated and disseminated an email to staff in an unethical manner; and
  • accessed private staff records.
  1. [5]
    On 21 December 2021, SO Davey was interviewed by Acting Inspector Graham Smith about the above-mentioned allegations.
  1. [6]
    By email dated 20 January 2022 from Acting Superintendent - Fitzroy Zone Commander John Platt, SO Davey was informed that:
  • on the balance of probabilities, the allegation that he accessed the private records of staff in OMS was substantiated, but that he did so in the belief that he was authorised to do so as the manager of the day work officer rotation list, as had been the custom and practice in Area 3, for approximately eight years;
  • on the balance of probabilities, the allegation that he had acted inappropriately towards another staff member was substantiated; and
  • Assistant Commissioner Darryl King was satisfied with the outcome and recommendations ('the 20 January decision').
  1. [7]
    It is common ground that no disciplinary action was taken against SO Davey in relation to the substantiated allegations and that, by way of management action, he was counselled.
  1. [8]
    By email dated 2 February 2022, SO Davey requested an internal review of the substantiated allegations.
  1. [9]
    The outcomes sought by SO Davey from an internal review were that:
  • the two allegations be reinvestigated;
  • findings are made that:

– the first allegation was baseless and vindictive; and

– the second allegation was frivolous and vexatious; and

  • the employees who submitted the IEGs to be informed of that outcome and for him (SO Davey) to be informed of that outcome in writing
  1. [10]
    By email dated 28 February 2022 from Acting Chief Superintendent Clint Tunnie, SO Davey was informed of the decision of the internal review which did not provide for the outcomes sought by SO Davey ('the decision').
  1. [11]
    By appeal notice filed on 11 March 2022, SO Davey appealed against the decision as a fair treatment decision. In his appeal notice, SO Davey, amongst other documents, attached the decision he is appealing against, which was Acting Chief Superintendent Clint Tunnie's decision that SO Davey received by email on 28 February 2022. SO Davey disputes the confirmation, in the decision, of the substantiated findings that:
  • he accessed the private records of staff in OMS ('the first allegation'); and
  • he acted in an inappropriate manner towards another staff member ('the second allegation').
  1. [12]
    SO Davey contends the decision was not fair and reasonable because the Services unfairly determined that the allegations were substantiated.
  1. [13]
    The Services raises no jurisdictional objection to SO Davey's appeal.
  1. [14]
    The issue for my determination is whether the decision appealed against was fair and reasonable.[1]
  1. [15]
    Both parties filed and served submissions in accordance with a Directions Order I issued on 14 March 2022. Neither party requested leave to make oral submissions or any further written submissions.
  1. [16]
    SO Davey was represented by the United Firefighters' Union of Australia, Union of Employees, Queensland ('the Union').
  1. [17]
    The relief sought by SO Davey is:
  • an order '… to reverse the decision of Assistant Commissioner King'; and
  • an order for the record of '… the counselling meeting' to be removed from his employee record.
  1. [18]
    For the reasons that follow, the decision was fair and reasonable and it should be confirmed.

Background

The lead up to the 20 January decision

  1. [19]
    The background to this matter arises out of the following facts which are set out in the Services' submissions. This background has not been substantially disputed by SO Davey in his submissions in reply. Where it has been so disputed by SO Davey, I will refer to that disagreement.
  1. [20]
    On 2 August 2021, a special meeting of Station Officers, requested by the Union, was held at the Services' Rockhampton Area Office. An item on the agenda was rostering principles for Senior Officers ('the SO meeting').
  1. [21]
    On 26 November 2021, SO Davey sent an email to all Senior Officers in the Area advising that, in accordance with the Station Officers' meeting, he had taken over managing the 'Filling Day Work Positions in Area 3 List'. In that same email, SO Davey stated that he had look through OMS, and saw no accruals for working at the day work stations for three particular Station Officers and asked if those three Station Officers could explain why their names were on the bottom of the list.
  1. [22]
    The Services submit that between the special meeting of Station Officers and 1 September 2021, a further discussion about day work rotation occurred between Acting Superintendent Platt (who, at that time, was at his substantive rank of Inspector), SO Davey and SO Guley, the Branch President of the Union. SO Davey contends that between the special meeting of Station Officers and 1 September 2021, a discussion about day work rotation occurred between him and Inspector Platt and he submits that during this discussion, he was given an assurance by Inspector Platt that he (Inspector Platt) would approach the three relevant employees to enquire about why they were at the bottom of the day work rotation list. SO Davey contends that Inspector Platt did not follow through with that commitment because Inspector Platt stated that he did not want to cause turmoil or words to that effect.
  1. [23]
    On 26 November 2021, about an hour and 15 minutes after SO Davey sent the email referred to in paragraph [21] of these reasons, Inspector Platt emailed SO Davey, requesting that SO Davey retract the email he had sent earlier that day because SO Davey's recollection of the Station Officers' meeting was not correct. Inspector Platt attached to his email a copy of the minutes from the Station Officers' meeting. Inspector Platt stated that he was responsible for rostering in the Area and that it is delegated to D Shift to manage. Inspector Platt then stated:

Can I please request that you retract your email explaining that you must have been mistaken, if you fail to do so I will respond on your behalf. I'm sure that you haven't intentionally set out to mislead people or take action outside you [sic] area of responsibility.

  1. [24]
    Mr Davey submitted that he sent his email dated 26 November 2021:
  • in an effort to resolve the matter without having to raise a formal grievance; and
  • to give the three relevant employees an opportunity to explain their side of the story so as to understand why they were placed at the bottom of the day work rotation list.
  1. [25]
    On 26 November 2021, about nine minutes after Inspector Platt sent his email to SO Davey, Inspector Platt sent an email to all employees of the Services at the Rockhampton Station:
  • advising them to disregard the content of SO Davey's email and to expect an email from SO Davey in the coming days to clarify any confusion; and
  • stating that until a review of the current process had been completed, the status quo would remain with no deviation from the existing local processes, procedures or Local Knowledge Templates.
  1. [26]
    On 29 November 2021, two Station Officers from Central Region submitted the IEGs referred to in the introduction of these reasons for decision.
  1. [27]
    On 30 November 2021, the Services' Complaints Assessment Team reviewed the two IEGs and determined that they were suitable for local management action in the Central Region.
  1. [28]
    On 14 December 2021, SO Davey was advised of the two IEGs, and the allegations made against him, by Acting Inspector Smith.
  1. [29]
    A meeting was scheduled for 21 December 2021 to gather information and to provide an opportunity for SO Davey to respond to the allegations. That meeting did take place. SO Davey explained why he accessed the information on OMS, why he thought he was managing the day work rotation list and responded to the other allegations made against him concerning his conduct.
  1. [30]
    By email dated 20 January 2022 from (then) Acting Superintendent Platt, SO Davey:
  • was informed, amongst other things, that following a review of the above‑mentioned allegations (the subject of the two IEGs), the following was '…found':
  • The review confirmed that on the balance of probabilities the allegation that SO Davey accessed the private records of staff in OMS was substantiated;
  • SO Davey did so on the belief that he was authorised to do so as the manager of the day work officer rotation list, as has been custom and practice in Area 3 for approximately 8 years;
  • The review confirmed that on the balance of probabilities the allegation that SO Davey acted in an inappropriate manner towards another staff member was substantiated;
  • was also informed that Assistant Commissioner Darryl King had considered the findings and was satisfied with '…the outcome and recommendations.'; and
  • was provided with hyper-links to:

– the Services' Acceptable Use Policy ('the Policy');

– a Crime and Corruption Commission publication, which included a YouTube video, regarding the misuse of confidential information ('the CCC publication'); and

– the applicable Code of Conduct ('the Code').

SO Davey's request to internally review the 20 January decision

  1. [31]
    SO Davey set out his grounds for an internal review of the 20 January 2022 decision in an email sent on 2 February 2022.
  1. [32]
    SO Davey was dissatisfied that the first allegation - that he accessed private records in OMS - was substantiated, because:
  • he read the Policy, CCC publication and the Code, and he could see no provision that he breached;
  • while he accepted that he looked up Organisation Unit Assignments on OMS as part of the role of managing the day work officer rotation list, he did not believe that to be the private records of employees because he had, in fact, been given access to those records;
  • his access did not contravene the fourth Information Privacy Principle ('IPP 4') being, relevantly, that an agency having control of the document containing personal information must ensure that the document is protected against unauthorised access;[2]
  • he clearly stated to all Station Officers, in his email sent on 26 November 2021, that:

– he looked up the work locations to confirm the employees' positions on the list;

– the three employees did not seem to be in the right spot and asked for advice as to this situation from those employees;

– it was two of those employees who made grievances against him:

  • firstly, about the fact the he had looked up their previous work locations, which he had let them know that he had, in line with managing the day work location rotation; and
  • secondly, by levelling other allegations which occurred up to 5 years earlier which were frivolous and vexatious in nature; and
  • at no time had either of those two employees persons explained how they had been placed on the bottom of the day work list.
  1. [33]
    SO Davey was dissatisfied that the second allegation - that he acted in an inappropriate manner towards another staff member - was substantiated, because:
  • he asked Acting Superintendent Platt when he was to have acted inappropriately towards staff and Acting Superintendent Platt was unable to answer; and
  • in respect of the three instances given where he was supposed to have acted inappropriately:

– one instance was at least five years old, and the IEG was the first time it had been brought up;

– the next instance was 3 years old, and did not involve the employee making the IEG; and

– the final instance was older than one year and was the first time it had been mentioned.

  1. [34]
    SO Davey concluded by stating:

– I addressed these three previously, truthfully and with integrity. I am happy to further explain any of these points once it is detailed which one was substantiated. I acted in line with my rank and position with genuine intentions on all three events. Surely though it is obvious that these three allegations were made as a further attempt to discredit me and in turn avoid explaining how the 2 individuals got themselves on the bottom of the list.

Substantial and direct adverse impact:

I sent out an email, as part of managing the Daywork Rotation List to all Station Officers not to senior management, which I had done many times before while managing the document, asking three persons for some information. In return and I assume as a way of not having to answer the question two complaints were put in against me. I have, as a result, had to defend myself regarding my integrity as well as defend my leadership and professionalism. I take this as great insult and has left a very bad taste in my mouth.

The decision

  1. [35]
    In the decision, Acting Chief Superintendent Tunnie stated:

To further clarify your discussion with A/Supt Platt regarding the outcome of the management action, I provide the following;

Allegation that you breached privacy regulations

  • The management action did not substantiate the allegation that you breached privacy regulations;
  • This determination was made on the basis that you were of the belief that you were the manager of the Area 3 day work process and required to access staff records to fulfill the responsibilities of this role;
  • During the management action you acknowledge that you accessed the personal records of staff members for the purpose of monitoring their daywork hours, as such the management action substantiated that access to personal records was made by yourself outside the responsibilities of your role;
  • It is the Rockhampton Area Commanders responsibility to manage the staffing requirements in Area 3. The function of rostering and the management of the daywork hours count is performed by the Area 3 rosters officer on behalf of the Area Commander, as such, you had no responsibilities that required you to access staff records in OMS for the purpose of monitoring staff daywork hours;
  • In determining the outcome of the complaint you were given the benefit of the doubt in regards to your understanding of your responsibilities and requirement to monitor staff Daywork hours;
  • It was deemed that the most appropriate management action to support you moving forward was to provide you with confirmation of your role in respect to the management of the daywork process in Area 3, and to provide you with counsel on the privacy requirements associated with accessing personal records.

Allegation that you acted in an inappropriate manner towards other staff members on three separate occasions

  • During the management action you acknowledged the occurrence of the events, however did not deem your behaviour to be inappropriate;
  • The staff members in attendance during the incidents perceived your behaviour to be inconsistent with the public sector code of conduct;
  • The management action was unable to identify where any of the above matters had been previously addressed;
  • Taking the age of the incidents into consideration it was deemed that the most appropriate management action to support you moving forward was to provide you with counsel on behavioural expectations in the workplace.
  1. [36]
    I will deal with the parties' submissions in respect of the challenges made by SO Davey to the decision.

 The first allegation

  1. [37]
    SO Davey submitted:
  • he assumes, given he was provided with the CCC publication, the Services allege his actions and conduct were in breach of s 5.5 of the Policy;[3]
  • having regard to the terms of s 5.5 of the Policy, he rejects any assertion that he:

– without authorisation, invaded the privacy of individuals or entities that are creators, authors, users, or subjects of the information resources;

– shared information with parties unauthorised to access the Services' information;

– provided information about, or lists of, members of the Services' workforce, paid and volunteer, to parties outside of the Services; or

– transmitted cardholder data in clear text via emails, instant messaging or social media.

  • the Services have provided him with no evidence to demonstrate that his actions and conduct constituted any of the above, or any other breach of the Policy;
  • he is uncertain about how the CCC publication relates to his circumstances in that the issues from the video of the CCC publication are:

– was he authorised to look up this information?

– did he need to look up the information to perform his job?

– could he justify why he accessed the information?

  • he believes he was authorised to look up the relevant information for the purposes of performing his job managing the list for the Station Officer day work rotation roster, and that provided clear justification for why he accessed the information;
  • clear evidence exists, which has been accepted by the Services, that it has been custom and practice over more than a decade, for the information he accessed to be accessed by the Station Officer responsible for managing the list to ensure it was accurate;
  • the information he accessed was not confidential to the people to whom it was disclosed, it related to the work location of employees and it was disclosed to all Station Officers and the Roster Officer who can also freely access this information in OMS;
  • the information was not disclosed to anyone that did not have a right to know the information;
  • he shared the information with the Station Officer group, who were all impacted by the accuracy of the list, and the Roster Officer (for obvious reasons), and the information was not disclosed to anyone to whom it was not relevant or who did not have the same access to the information as he did;
  • he is concerned that he was counselled for accessing information for a work purpose to which he had unrestricted access;
  • his assumption has always been that if he has access to the information in OMS, and he is using it for a work purpose, that access is authorised;
  • if he is not authorised to access, use and/or disclose information to which he has unrestricted access for a work purpose, he is confused about why he has access to that information, which is inconsistent with IPP 4;
  • if his access, use and/or disclosure of the information was in fact unauthorised or if he misused the information (which he denies), it would not appear that the Services have taken any reasonable steps to prevent unauthorised use or disclosure in that there are no security safeguards in OMS and employees of every rank have unrestricted access to information, including information that may not be directly relevant to the role they are performing;
  • despite raising this concern, no person in the Services has informed him of what is being done to address that matter, yet, he was unfairly counselled for accessing information for a relevant work purpose; and
  • he has reviewed the Code in its entirety, and he is uncertain about what part Davey v State of Queensland (Queensland Fire and Emergency Services) [2022] QIRC 457 allegedly applies to his circumstances and the Services have not attempted to articulate that to him.
  1. [38]
    The Services submitted:
  • the first allegation that was substantiated on the balance of probabilities, was that SO Davey accessed the private records of staff in OMS; however, it was noted that SO Davey did this because he believed that he was managing the day work rotation list;
  • SO Davey told all of the Station Officers who received his email dated 26 November 2021 that he had '…looked through OMS' and in the meeting with Acting Inspector Smith, SO Davey also confirmed that he looked through OMS, such that it was reasonable to find, on the balance of probabilities, that SO Davey did in fact look at other employees' work history in OMS;
  • Davey v State of Queensland (Queensland Fire and Emergency Services) [2022] QIRC 457in determining the appropriate action to take, Acting Superintendent Platt and Assistant Commissioner King took into consideration that SO Davey held the belief that he was managing the day work rotation list and therefore he (SO Davey) believed it was appropriate that he look at other employees in OMS in order to perform this duty;
  • however, there had not been any actual agreement or direction for SO Davey to manage the day work rotation list, therefore it was necessary for SO Davey to be counselled about who was responsible for, and who manages, the list so as to remove any misunderstanding of his responsibilities and so that he understood who was undertaking that work moving forward; and
  • the counselling was done verbally, with the only record being the email advice of the complaint outcomes that was sent by Acting Superintendent Platt on 20 January 2022.
  1. [39]
    It must be remembered that the decision being appealed against is the decision by Acting Chief Superintendent Tunnie. It is that decision that I must review.
  1. [40]
    In his decision, Acting Chief Superintendent Tunnie confirmed, correctly, that there was no substantiation of any allegation that SO Davey breached '… privacy regulations.' By this, I assume Acting Chief Superintendent Tunnie meant IPP 4 given that IPP 4 was raised by SO Davey in his grounds to review the 20 January decision.
  1. [41]
    Apart from that, Acting Chief Superintendent Tunnie's decision is unremarkable.
  1. [42]
    Acting Chief Superintendent Tunnie confirmed that the substantiation of the first allegation was made on the basis that SO Davey was of the belief that he was the manager of the Area 3 day work process and that he required access to staff records to fulfil the responsibilities of that role. In coming to that conclusion, Acting Chief Superintendent Tunnie stated that SO Davey himself acknowledged that he had accessed the personal records of staff members for the purpose of monitoring their day work hours.
  1. [43]
    That is to say, as a matter of fact, there was acknowledgement by SO Davey that he had accessed such records. However, as Acting Chief Superintendent Tunnie stated in the decision, the Services' managers (who were dealing with the IEGs) substantiated that SO Davey's access to personal records was outside the responsibilities of his role. In doing so, Acting Chief Superintendent Tunnie stated that the management gave SO Davey the benefit of the doubt in relation to his (incorrect) understanding of his responsibilities and his (incorrect) requirement to monitor staff day work hours.
  1. [44]
    As findings of clear fact, there is nothing unfair or unreasonable about them.
  1. [45]
    Indeed, in his submissions to this Commission, SO Davey does not submit that his understanding, that it was one of his responsibilities to managing the day work rotation list, was correct. Further, SO Davey does not submit that the position of the Services - being that managing the day work rotation list was not one of his responsibilities - was wrong.
  1. [46]
    SO Davey's submissions are focused on his assumption, based upon the material provided to him in the email sent to him by Acting Superintendent Platt on 20 January 2022, that the Services concluded that he had contravened s 5.5 of the Policy. Acting Chief Superintendent Tunnie did not make such a finding.
  1. [47]
    Acting Chief Superintendent Tunnie confirmed the conclusion, as expressed in Acting Superintendent Platt's email sent on 20 January 2022, that SO Davey's access to the information about the three Station Officers was something that was not authorised based upon SO Davey's mistaken understanding that such access was required as part of his responsibilities. There was no determination made, by any person, that SO Davey had knowingly breached the Policy or the Code. Further, there was no determination that SO Davey knowingly and deliberately breached the Policy or the Code by disseminating confidential information to third parties.
  1. [48]
    Having regard to the terms of Acting Superintendent Platt's email dated 20 January 2022, which included hyper-links to the Policy, the CCC publication and to the Code, it is plainly obvious that those hyperlinks were provided by way of general information to SO Davey so as to assist him understand the Services' general expectations of him, as a leader, in respect of his actions and conduct.
  1. [49]
    At no point in his email did Acting Superintendent Platt expressly state, or, by way of the language he used, imply, that by his conduct, SO Davey had contravened the Policy, had engaged in any misuse of confidential information as referred to in the CCC publication, or had contravened the Code. Indeed, as stated by Acting Superintendent Platt, the hyper-links to the Policy, the CCC publication and to the Code were provided to SO Davey because they '… may assist you in your role.'
  1. [50]
    For these reasons, viewed objectively, the findings which were endorsed by Acting Chief Superintendent Tunnie on his review were fair and reasonable.
  1. [51]
    Furthermore, for the same reasons, the approach taken by Acting Superintendent Platt, which was obviously endorsed by Acting Chief Superintendent Tunnie, namely, to deal with the issue by way of management action, including counselling, was fair and reasonable. This is because there was no finding that SO Davey had knowingly contravened the Policy or the Code or that he had accessed personal information he knew he should not. While SO Davey had accessed the private records of certain employees in OMS, the finding was that SO Davey did this on the mistaken belief he was authorised to access that information due to his mistaken belief that it was his responsibility to manage the day work rotation list.
  1. [52]
    One final point to mention is SO Davey's submissions about the fact he does have access to such private information. SO Davey submitted:
  • he is concerned that he was counselled for accessing information for a work purpose to which he had unrestricted access; and
  • if he is not authorised to access, use and/or disclose information to which he has unrestricted access for a work purpose, he is confused about why he has access to that information, which is inconsistent with IPP 4.
  1. [53]
    Many public sector employees have access to confidential information about other employees and/or members of the public. The fact they have such access is not the issue. The issue is that they should only access such information when authorised to do so as part of performing their duties. I assume that there may be other duties to be performed by SO Davey where he is authorised, in the performance of such other duties, to access OMS. That may explain the fact that SO Davey does have access to OMS. Again, that is not the point. The relevant point, in respect of his present appeal, is that SO Davey accessed private records of other employees in his mistaken belief that he was authorised to do so because of his mistaken belief that he had to perform a particular duty.
  1. [54]
    For these reasons, I am not persuaded that this aspect of the decision of Acting Chief Superintendent Tunnie was other than fair and reasonable.

The second allegation

  1. [55]
    SO Davey submitted:
  • when he was informed that the allegation had been substantiated - that he had acted inappropriately towards another staff member - he enquired (with Acting Superintendent Platt) about which of the three instances were determined to be inappropriate and which were relied upon to substantiate the allegation, but he was not provided with any detail;
  • he is not clear what evidence was relied upon by the Services to substantiate this allegation;
  • he has the right to be informed of that information as without it, the legitimacy of the Services' decision is questionable and it is impossible to determine if he has been afforded natural justice and procedural fairness;
  • each of the instances were between one and five years old and had never been raised with him previously, including one instance that did not even involve the employee who made the IEG; and
  • despite raising concerns that it was known to him that one of the employees who made the IEG disliked him, and he (SO Davey) believed the other employee who made an IEG was using that complaint to bully him, the Services did not appear to consider this in the decision making and no effort was made to explore that concern further.
  1. [56]
    The Services submitted:
  • following SO Davey's request for internal review, it was deemed appropriate to provide SO Davey additional information about this allegation, and why it was substantiated, to assist him to understand the substantiated finding;
  • the additional information was provided to SO Davey on 28 February 2022 by email from Acting Chief Superintendent Tunnie, which contained further specific information about the assessment of this allegation and why it was found to be substantiated, including that SO Davey acknowledged that each of the events occurred, albeit that he did not see his behaviour as inappropriate;
  • an explanation was provided to SO Davey that, because of the age of the incidents, it was deemed that the most appropriate management action to support him moving forward was to provide him with counsel on appropriate behaviours in the workplace;
  • links to the relevant documents were provided in the outcome email from Acting Superintendent Platt;
  • SO Davey was also advised that the provision of this additional information to clarify the outcomes of the IEGs would not impact on his ability to again request an internal review of the IEG outcomes should he remain dissatisfied; and
  • in the circumstances of the two IEGs and the outcome with substantiated allegations, counselling to clarify his duties and outlining what constitutes appropriate workplace behaviours should be considered to be reasonable management action.
  1. [57]
    In terms of SO Davey's submission that he may have been denied procedural fairness, I have had regard to the record of the interview between SO Davey and Acting Inspector Smith that took place on 21 December 2021. That record was an attachment to SO Davey's submissions. In his submissions, SO Davey does not state that any aspect of that record of interview was incorrect.
  1. [58]
    In that interview, Acting Inspector Smith put each allegation about SO Davey's conduct towards other staff members to him, in some detail, for his response. SO Davey provided a response to each allegation.
  1. [59]
    The first allegation concerned the presentation of a Q-step assignment being presented for assessment by an employee who was not one of the two employees who made IEGs. Having regard to the record of interview, even though the matters at the centre of this allegation occurred more than two years prior to the date of the interview, SO Davey was able to respond, in some detail, to Acting Inspector Smith.
  1. [60]
    The second allegation concerned an allegation about SO Davey raising his voice and pointing his finger in a discussion with the complainant about whether or not a firefighter was ready for a practical assessment about a particular appliance after the firefighter had completed the theory component. Again, having regard to the record of interview, even though this matter occurred approximately five years before the date of the interview, SO Davey recalled the event and was able to respond in detail to Acting Inspector Smith.
  1. [61]
    The third allegation concerned SO Davey's request, at a Station Officers' meeting, to attend crew shift meetings where there was to be a discussion about call back for overtime work. The allegation was that while SO Davey was requested not to attend such meetings, he did attend and in one meeting he displayed certain inappropriate behaviours. SO Davey was able to recall the event and was able to give a detailed response to the allegation to Acting Inspector Smith.
  1. [62]
    In terms of natural justice, the fundamental principle is that the right to be heard would ordinarily require the party affected to be informed of the nature and content of adverse material. The content of natural justice is fact specific and an examination of the fairness of the process, in a practical sense, must be examined.[4]
  1. [63]
    Having regard to the detail in which each matter was put to SO Davey, and the fact that he gave reasonably detailed responses to each allegation, it cannot be said, from a practical point of view, that an SO Davey suffered any unfairness in respect of his appreciation of what was being alleged against him.
  1. [64]
    As was found by Acting Chief Superintendent Tunnie, SO Davey acknowledged the occurrence of the events; however, for the reasons SO Davey gave, he did not deem his behaviour to be inappropriate. Obviously, Acting Superintendent Platt did not accept those reasons.
  1. [65]
    Acting Chief Superintendent Tunnie stated, taking the age of the incidents into consideration, it was deemed that the most appropriate management action to support SO Davey moving forward was to counsel him on the expectations about his behaviour in the workplace. In my view, such a course of action - given those circumstances, including the age of the allegations and the circumstances in which SO Davey's conduct occurred - was fair and reasonable. This is because the conduct found to have occurred, was not, on any objective viewing, at the serious end of the scale and did not seem to be the subject of any contemporaneous complaint.
  1. [66]
    I understand SO Davey's submissions about the age of the allegations. Indeed, if a disciplinary process had been commenced against SO Davey about those same allegations, then the age of the matters may have been relevant as to whether or not commencing disciplinary action was the appropriate course in dealing with such matters.
  1. [67]
    However, I do not accept SO Davey's submissions that he does not know what the conduct was that was substantiated. The conduct concerning the three relevant events were put to SO Davey during the interview that took place on 21 December 2021. It would have been preferable for Acting Superintendent Platt, in his email dated 20 January 2022, to have been clearer about the facts that were found to be substantiated or to particularise those events.
  1. [68]
    The fact that Acting Superintendent Platt did not - when regard is had to the fact that one month earlier, the events the subject of that allegation were put to SO Davey in the interview that occurred on 21 December 2021 - does not, in my view, render Acting Superintendent Platt's decision other than fair and reasonable.
  1. [69]
    That is to say, it seems to me, having regard to all the material before me, that it was reasonably obvious to SO Davey which conduct was found to be substantiated by Acting Superintendent Platt. It was the conduct the subject of all three allegations.
  1. [70]
    By the same reasoning, Acting Chief Superintendent Tunnie's decision, endorsing Acting Superintendent Platt's conclusions, is also not rendered other than fair and reasonable.
  1. [71]
    Furthermore, from reading Acting Superintendent Platt's email and acting Chief Superintendent Tunnie's email, it is clear, given the age and nature of the matters found to be substantiated, that the purpose behind the decision to take the management action of counselling SO Davey was to assist him to review his behaviour and to support him as a leader as opposed to responding specifically to his conduct by commencing disciplinary action against him.
  1. [72]
    No doubt, if disciplinary action was commenced against SO Davey or if a disciplinary sanction was imposed, that action may have had a deterrent effect on SO Davey. However, it also would have had serious implications for SO Davey as an employee. Viewed this way, I find that Acting Chief Superintendent Tunnie's decision was fair and reasonable.
  1. [73]
    Finally, the fact that the Services did not explore SO Davey's contentions, that one of the employees who made an IEG disliked him and the other was using the complaint to bully him, is hardly surprising given the decision to deal with the matter by way of counselling. Again, such issues may have been relevant to matters arising out of a formal disciplinary process if such a process had been commenced against SO Davey. However, that was not the case.
  1. [74]
    For these reasons, Acting Chief Superintendent Tunnie's decision on review about the second allegation was fair and reasonable.

Conclusion

  1. [75]
    For the reasons I have given, the internal review decision was fair and reasonable.
  1. [76]
    The decision appealed against is confirmed.

Order

  1. [77]
    I make the following order:

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

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [7].

[2] Item 4 of sch 3 to the Information Privacy Act 2009 relevantly provides: 4 IPP 4 - Storage and security of personal information (1) An agency having control of a document containing personal information must ensure that- (a)the document is protected against— (i)loss; and (ii)unauthorised access, use, modification or disclosure; and (iii)any other misuse; and

[3] Clause 5.5 of the Policy ('Confidentiality and Privacy') provides:

Members of the QFES workforce, paid and volunteer, must not:

  • Without authorisation, invade the privacy of individuals or entities that are creators, authors, users, or subjects of the information resources;
  • Share information with parties unauthorised to access QFES information;
  • Provide information about, or lists of, members of the QFES workforce, paid and volunteer, to parties outside of QFES;
  • Transmit cardholder data in clear text via emails, instant messaging or social media.

[4] Wirth v Mackay Hospital and Health Service [2016] QSC 39, [98] (Bond J).

Close

Editorial Notes

  • Published Case Name:

    Davey v State of Queensland (Queensland Fire and Emergency Services)

  • Shortened Case Name:

    Davey v State of Queensland (Queensland Fire and Emergency Services)

  • MNC:

    [2022] QIRC 457

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    24 Nov 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
Wirth v Mackay Hospital and Health Service [2016] QSC 39
2 citations
Jump To
Cite 1 - [2016] QSC 39
Cite 2 - [2016] QSC 39

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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