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  4. Harris v State of Queensland (Department of State Development, Manufacturing, Infrastructure and Planning) - [2022] QIRC 483

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Harris v State of Queensland (Department of State Development, Manufacturing, Infrastructure and Planning)[2022] QIRC 483

Harris v State of Queensland (Department of State Development, Manufacturing, Infrastructure and Planning)[2022] QIRC 483

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Harris v State of Queensland (Department of State Development, Manufacturing, Infrastructure and Planning) [2022] QIRC 483

PARTIES:

Harris, Delano 

(Appellant)

v

State of Queensland (Department of State Development, Manufacturing, Infrastructure and Planning)

(Respondent)

CASE NO:

PSA/2022/746

PROCEEDING:

Public Service Appeal – Appeal against a disciplinary decision

DELIVERED ON:

14 December 2022

HEARD AT:

On the papers

MEMBER:

Pidgeon IC

ORDERS:

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 – appeal against a disciplinary decision – whether the decision was fair and reasonable – whether disciplinary action was appropriate and proportionate – where disciplinary finding decision fair and reasonable – where disciplinary finding decision confirmed

LEGISLATION AND OTHER INSTRUMENTS:

Public Service Act 2008 ss 137, 187, 194

Industrial Relations Act 2016 ss 562B, 562C

Directive 14/20: Discipline cl 8

CASES:

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Gilmour v Waddell & Ors [2019] QSC 170

Reasons for Decision

Background

  1. [1]
    Mr Delano Harris (the Appellant) is employed by the State of Queensland (Department of State Development, Manufacturing, Infrastructure and Planning) (the Respondent) as an Information and Communications Technology Infrastructure Officer (AO5) in the Department's Information Technology Services division. The Appellant has been employed by the Department since 20 May 2019 and was permanently appointed on 20 August 2019.
  1. [2]
    On 17 October 2021, the Respondent engaged Graham Newton, Partner, McGrathNicol Advisory (the investigator) to investigate the following concerns regarding the Appellant's conduct:
  1. (a)
    accessing Departmental information e.g. his access and use of information using the account of former employee Adrian Dicker (Mr Dicker);
  1. (b)
    his use of the Department's ICT device e.g. performing Google searches; and
  1. (c)
    his use of his Departmental ICT device to access information.[1]
  1. [3]
    The Appellant participated in an interview with the investigator in relation to the allegations on 29 November 2021 and the investigator subsequently provided the Respondent with his Investigation Report on 16 December 2021.
  1. [4]
    On 8 February 2022, Mr Michael McKee, Deputy Director-General, Corporate, wrote to Mr Harris advising that based on the material made available to him through the Investigation Report, he decided to suspend Mr Harris on full remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (the PS Act).
  1. [5]
    The Appellant's legal representative at the time, Mr Bradley Ellacott of Saines Legal, responded to Mr McKee's correspondence on 7 March 2022 addressing the allegations raised by the Department. 
  1. [6]
    On 5 April 2022, Mr McKee wrote to the Appellant advising that he had determined to continue the suspension from duty on full remuneration pursuant to s 137(1)(b) of the PS Act.
  1. [7]
    Further, by letter dated 10 June 2022, the Respondent commenced a show cause process. In this correspondence, Mr McKee advised the Appellant that his suspension with normal remuneration would continue and provided the Appellant with fourteen days to show cause as to why disciplinary findings should not be made in relation to the following allegation:

The Allegation - On 5 October 2021, you engaged in inappropriate and unauthorised conduct when you accessed emails sent from Craig Vandermeer to Peter Hills, sent between the period 28 September 2021 to 5 October 2021 and stored the CSV file of your searches, without authority.

  1. [8]
    Mr Harris provided his response on 23 June 2022. Shortly thereafter on 15 July 2022, Mr McKee requested clarification on some of the matters raised in Mr Harris' response to the show cause letter. The Appellant was provided further information obtained from Mr David Walker, Director ICT Operations, and he was invited to respond to that information. Mr Harris replied on 15 July 2022.
  1. [9]
    Following this exchange of correspondence, Mr McKee wrote to the Appellant on 25 August 2022 advising that he found on the balance of probabilities, the allegation was capable of being substantiated. He made a disciplinary finding of misconduct pursuant to ss 187(1)(b) and 187(4)(a) of the PS Act. In this letter, Mr McKee provided the Appellant fourteen days to show cause why he should not receive the proposed disciplinary action of termination.
  1. [10]
    On 7 September 2022, Mr Harris both lodged an appeal notice with the Industrial Registry to appeal the disciplinary finding and responded to the second show cause letter. The Appellant remains suspended on normal remuneration.[2]

Is the Appellant entitled to appeal?

  1. [11]
    Section 194 of the PS Act lists various categories of decisions against which an appeal may be made. Section 194(1)(b) provides that an appeal may be made against:
  1. (b)
    a decision under a disciplinary law to discipline —
  1. (i)
    a person (other than by termination of employment), including the action taken in discipling the person;

…

  1. [12]
    The appeal notice was filed with the Industrial Registry on 7 September 2022 within 21 days of the decision being received on 25 August 2022. I am satisfied that the decision is one that may be appealed against and that the appeal was lodged with the required timeframe.

Appeal principles

  1. [13]
    Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [14]
    Relevantly to this matter, s 562B(4) of the IR Act states that:

For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission —

  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [15]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [16]
    A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [17]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [18]
    Directive 14/20: Discipline (the Directive) addresses the relevant factors to be considered in proposing appropriate and proportionate disciplinary action:

8.  Discipline process

…

8.5  Show cause process for proposed disciplinary action

…

  1. (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 might 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

…

  1. [19]
    The meaning of 'misconduct' was considered in Coleman v State of Queensland (Department of Education) where Merrell DP held:

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[3]

The decision letter

  1. [20]
    Mr Michael McKee (Deputy Director-General) wrote to Mr Harris on 25 August 2022 to inform him of the disciplinary finding. That letter is 25 pages long. The letter outlines the procedural steps undertaken in considering the allegation and Mr Harris' responses.  Mr McKee says that following Mr Harris' first show cause response of 24 June 2022, the Respondent sought further information to clarify some of the matters Mr Harris raised. Mr Harris was given a further opportunity to respond to information resulting from those further inquiries and took that opportunity by provision of a response on 20 July 2022.
  1. [21]
    Pages 2 to 11 of Mr McKee's letter summarise Mr Harris' responses dated 23 June 2022 and 20 July 2022.  Mr Harris' reasons for appeal and show cause responses will be discussed below.
  1. [22]
    Pages 12 to 22 of the letter provide Mr McKee's findings with regard to the allegation.  Again, the Respondent's submissions and reasons for making the finding that the allegation was substantiated and gave rise to grounds for discipline under ss 187(1)(b) and 187(4)(a) of the PS Act will be discussed below.
  1. [23]
    Essentially, Mr Harris does not deny that he accessed the emails sent from Craig Vandermeer to Peter Hills, sent between the period 28 September 2021 to 5 October 2021 or that he stored a CSV file of the searches.  However, Mr Harris disputes that this access was without authority and therefore inappropriate or unauthorised.
  1. [24]
    Mr McKee's letter of 25 August 2022 also informs Mr Harris that consideration is being given to the disciplinary action of termination of employment. No decision has been made at this point regarding disciplinary action and so that is not a matter for this appeal.
  1. [25]
    There are two questions to be answered in order to determine Mr Harris' appeal.  The first is, was it fair and reasonable to substantiate the allegation?  The second is, was it fair and reasonable to determine that the substantiated conduct gave rise to a finding of misconduct under the PS Act?

Mr Harris' reasons for appeal

  1. [26]
    Mr Harris' notice of appeal filed on 7 September 2022 sets out his grounds of appeal by way of a schedule attached to the appeal notice.
  1. [27]
    Mr Harris says that the decision is unfair and unreasonable. Mr Harris' reasons for appeal were not logically structured and were, at times, repetitive.  I have attempted to summarise and group the submissions together under relevant headings:

Subconscious provision of misinformation in the investigation interview

  • During the external investigation interview, the Appellant says he subconsciously provided misinformation in response to the investigator's question about the folder titled 'MessageTraceSearchResult_2021-10-05T02_21_19.csv' (the CSV file). Mr Harris says he initially did not recall the name of the folder and continued to incorrectly explain and describe how to perform a content search throughout that part of the interview.
  • During the period of the interview, Mr Harris submits that he was mentally fatigued and provided misinformation when he said that he had access to the full bodies of email messages to Mr Hills and Mr Vandermeer; advised he would not have read the emails, only skimmed over them and ignored contents of the message body; claimed he accidentally downloaded the emails of Mr Hills and Mr Vandermeer in the form of a PST file; said he wanted to find information relating to the External Review; and said he wanted to find out if any new work assignments had potentially been assigned to his team due to the sparse communication issues his team was experiencing during COVID and changes in the Department employment structure.

Reason for the external review

  • The investigation report mentions the reason the Department wanted to have an external review was that he accessed the information related to Mr Hills and Mr Vandermeer.  The Appellant says this is not true but rather the external review was sparked by Mr Harris being required to access a terminated employee's administration account.
  • During the relevant period of time, Mr Harris contends there were matters of workplace conflict between Mr Harris and an ICT Customer Support manager regarding certain processes not being followed.  The Appellant says the Customer Support manager was managing a Joiners, Movers and Leavers process which included running audit reports within the Active Directory system to obtain a list of terminated users' information and the last time the accounts had been accessed.
  • After the discovery that Mr Harris had accessed the terminated administration account of an employee, Mr Harris claims he was required to have a meeting with Mr Vandermeer and Mr Hills to explain his purpose for accessing the former administration account of the employee. According to the Appellant, this resulted in the collection of his corporate device and a forensic report was performed.
  • As part of the forensic report, Mr Harris submits that the investigator noticed the CSV file. The Appellant says this was not the original reason for the External Review that led to an ongoing PID investigation.
  • The External Review was announced on 18 October 2021 and the message trace happened prior to 5 October 2021.

Mr Harris never accessed physical mailboxes

  • Mr Harris says the forensic report performed on his machine and the investigation report confirms that he never accessed the physical mailboxes, performed any content searches, or used any PowerShell commands to access (nor attempt to access) the full body of email messages to Mr Hills and Mr Vandermeer.
  • Due to fatigue, Mr Harris says his responses in the interview evolved and expanded, not making logical sense.
  • Mr Harris contends that he was not afforded the chance to explain the reason he was required to perform a message trace for the purpose of a periodic monitor or explain the reason the CSV file was discovered on his corporate machine. The Appellant says he only had the chance to address this during the show cause process.
  • Mr Harris claims he has never accessed any employee's mailbox (nor attempted to do so) without the owner's approval because it could provide him with access to full body messages that may contain high level information.

Mr Harris was performing periodic monitoring and troubleshooting

  • Due to the frequency of support tickets and verbal information issues the email system was experiencing with mail flow, malicious email threats, email address spoofing and email phishing, Mr Harris says he was required to perform a periodic monitor in the form of a message trace between any employee with a work-related device for a work-related purpose.
  • As explained in the show cause response prepared by his lawyers, the reason Mr Harris claims he accessed the emails was not just because of issues with the email system but also to use the opportunity to learn if there was any work-related information that may be assigned to his team in the coming weeks because there was sparse communication between him and Mr Hills.
  • Further, the Appellant submits that every technician conducts troubleshooting differently. Mr Harris says he used his troubleshooting skills to confirm the safety of his superiors, Mr Hills and Mr Vandermeer, by inspecting the CSV file and confirming that they were not impacted by mail flow issues or receiving malicious email threats.
  • Mr Harris says he accidently referred to a 'content search' rather than a 'message trace'.
  • A message trace only provides the status of email delivery and the subject/headline.

The Google Search

  • With regard to the Google searches undertaken regarding the use of PowerShell commands to access mailbox information, Mr Harris says that when he told the investigator that the Google search was performed to assist two employees, Ms Blee and Ms Pettersen, he was mentally fatigued and unaware that the timeframes did not match.
  • With reference to the allegation regarding the Google search, Mr Harris says that the purpose of the Google search was to find out new technical information such as PowerShell commands and technical information to be on the 'front end' to resolve technical issues.
  • Mr Harris says he seeks to continuously learn and improve and if he does not keep up with the current trend, he will get left behind as a technical professional.
  • According to the Appellant, no manager he works for implements a continuous learning improvement plan, so Mr Harris has been required to educate himself by performing Google searches, using PluraSight and sometimes watching YouTube videos.
  • Mr Harris' Google searches were performed during normal work hours, onsite and related to his profession as ICT Infrastructure Officer and therefore cannot be considered anonymous.
  • The Google searches were performed for the purpose of continuous learning.

It is unfair that the allegations changed between his suspension and the show cause notice

  • Mr Harris says it is unfair that the second allegation changed between the suspension and the on 8 February 2022 and the show cause notice on 10 June 2022.

There is no official procedure or requirement to be followed before performing periodic monitoring of email inboxes

  • Mr Harris says that since he started, the Department does not have 'any official procedural document that accommodates and/or any links to existing policies or procedures around the processes (to be undertaken) before being required to perform a periodic monitoring to support a Critical Systems such as "Email System" or any other Critical System.'
  • Mr Harris says the Department does not have procedural documents and links advising that owner and Deputy Director-General approvals are required before granting access to another employee's mailbox or via a content search since it can provide access to high level information such as full body messages and attachments.
  • Mr Harris says that if the email system is a 'critical system' and requires to be fully operational indefinitely, his job responsibility is to ensure the system is performing correctly to ensure mail flow is reaching its intended destination. Mr Harris says that sometimes this requires a CSV file to be downloaded to inspect the email address for malicious email attempts.
  • Mr Harris says that Mr Walker, 'only in an email' advises certain processes are required to be followed before performing a message trace without any documentation which confirms that these are written processes.
  • Mr Harris does not accept information provided only by email to be 'official procedural documentation'.
  • Mr Harris say that there is no procedural document to advise the process required when searching another person's mailbox nor when required to perform a content search to search the mailbox of another employee.
  • Mr Harris says that the message trace was performed prior to 5 October 2021 but that he was not approached to attend the meeting regarding the access to the account of Mr Dicker and advised his work-related device would be collected for the external review until 18 October 2021. Therefore, he could not have known that he would be under an external review.
  • While Mr McKee says that the meeting scheduled on 6 October 2021 regarding work conflicts was a motivating factor for performing the Google searches, the timing of the Google Searches was not related to the CSV file from the periodic monitor performed on 5 October 2022.

The Respondent's submissions

Procedural fairness

  1. [28]
    The Respondent's submissions set out the history of the matter and state that it is clear from the factual background that Mr Harris has been afforded procedural fairness with regard to the disciplinary process.
  1. [29]
    In terms of Mr Harris' complaint that it was not fair for Mr McKee to reframe the allegation, the Respondent says that it was open to Mr McKee, upon review of the material available to him, to reframe the allegations put to Mr Harris as part of the disciplinary process. The Respondent further notes that Mr McKee determined to put only one allegation to Mr Harris.
  1. [30]
    With reference to the decision letter of 25 August 2022, the Respondent says that Mr McKee carefully and thoroughly considered the available evidence in making the disciplinary findings. The Respondent says that it was open to Mr McKee to make a finding that on the balance of probabilities, the allegation was substantiated. 

Mr Harris accepted the conduct but denied the allegation

  1. [31]
    The Respondent notes that Mr Harris does not dispute that on 5 October 2021, he conducted a search of emails sent from Mr Vandermeer to Mr Hills for the period 28 September 2021 to 5 October 2021.  Mr Harris also did not dispute that he extracted the metadata of the search as a CSV excel file and downloaded the file to his Departmental ICT device at 12.21pm on 5 October 2021.
  1. [32]
    The Respondent says that as Mr Harris accepted the conduct, but denied the allegation, Mr McKee correctly identified that the issue for consideration was whether the conduct in undertaking the search was inappropriate and/or unauthorised.
  1. [33]
    The Respondent says that in making his decision, Mr McKee carefully considered all of the material available to him, including: the Investigation Report, transcript of Mr Harris' interview with the investigator on 29 November 2021, the letter from Mr Harris' legal representative on 7 March 2022, the response from Mr Harris of 23 June 2022 and the further response of Mr Harris dated 20 July 2022. The Respondent also points to additional steps taken by Mr McKee to seek clarification about issues raised by Mr Harris and to put further information to him for inquiry and comment.
  1. [34]
    The Respondent says that it was open to Mr McKee to give consideration to any inconsistencies in the explanation during the course of the investigation and disciplinary process.  Mr Harris has provided no evidence or particulars to support his claim, as raised in submissions for this appeal, that he 'subconsciously provided misinformation in response to the investigator's questions regarding his conduct'.
  1. [35]
    The Respondent says that the interview with the investigator was on 29 November 2021 and that it was open to Mr Harris at any point after the interview to clarify his evidence and correct any misunderstandings. Mr Harris received the interview transcript as part of Show Cause Notice 1 and at no point until this appeal has he notified the Department of his concerns that he provided misinformation to the investigator.
  1. [36]
    The Respondent says that Mr Harris has maintained throughout the disciplinary process that at least one of the reasons he conducted the search of the emails between Mr Vandermeer and Mr Hills was to identify if any miscommunicated work would be assigned to the ICT infrastructure team. 
  1. [37]
    The Respondent says that Mr Harris' claim that he gave misinformation in the interview because he was mentally fatigued has not been raised by him prior to this appeal and that he did not raise procedural concerns during the interview process.  The interview commenced at around 12.40pm and concluded at around 3.15pm with a break at around 2.20pm.  Neither Mr Harris, nor his support person raised concerns during the interview about Mr Harris' capacity to continue to engage in the interview. No concerns about the interview process were raised in the correspondence from Mr Harris' solicitor or in Mr Harris' written responses to the show cause notice.
  1. [38]
    The Respondent says that the fact that Mr Harris is attempting to provide new explanations for his conduct and responses during the investigation in this appeal reflects poorly on his credit and further supports Mr McKee's findings in relation to the honesty and accuracy of Mr Harris' response to the allegation. Throughout the decision, Mr McKee clearly raised concerns with the discrepancies between the responses given by Mr Harris in the investigation interview and the subsequent responses provided in the letter from the solicitor and his written responses to the first show cause notice (SCN1).
  1. [39]
    The Respondent says that Mr Harris' submissions in the Appeal about his awareness of an external review do not align with the evidence he gave in the investigation. During the investigation, Mr Harris said that he was conducting a search of the emails to 'find emails that related somewhat to my external review'. Mr Harris has offered no explanation on why he made this statement in November 2021 but now says that he was not aware of the external review and the email search was not related to the external review.
  1. [40]
    The Respondent says the submissions Mr Harris has put forward in this appeal are an attempt to rectify the ongoing discrepancies throughout the investigation and disciplinary process, being matters which were identified by Mr McKee and relied upon in reaching his decision.
  1. [41]
    The Respondent says that it was open to Mr McKee to rely on Mr Harris' interview with the investigator on 29  November 2021 in reaching his decision. Further, the Respondent says that it was open to Mr McKee to take into consideration the discrepancies between the evidence provided by Mr Harris in the investigation and the explanations provided in the other correspondence and responses.
  1. [42]
    The Respondent says that the issues Mr Harris raises about workplace conflict, the workload of the ICT team and the role of the ICT Infrastructure Officer to seek learning opportunities were all matters raised during the process and taken into account by Mr McKee. The concerns raised by Mr Harris about an alleged lack of policies and procedures was also given due consideration.  The Respondent says that Mr Harris has not advanced those submissions further in the appeal to demonstrate a basis on which the Commission should be satisfied that the decision was 'unfair and unreasonable'.

Mr Harris' submissions in reply

  1. [43]
    Prior to filing his submissions in reply, Mr Harris made a request to provide additional evidence in support of his appeal. This additional evidence was in the form of four pieces of audio evidence which were not available to the decision-maker at the time the disciplinary decision was made. I considered Mr Harris' request and the submissions of the Respondent and determined that I would not allow that additional evidence to be submitted.  I communicated this decision and my reasons for precluding that material at a mention of the matter on 21 October 2022.

Mr Harris raises concerns about an allegation which was taken no further and makes allegations regarding workplace conflict and bullying

  1. [44]
    The first part of Mr Harris' submissions discusses an allegation which was not taken further and which is not the subject of the discipline decision under appeal.[4]
  1. [45]
    Mr Harris then goes on to discuss 'workplace conflicts' which he says he has 'valid grounds to believe made me a target resulting in the commencement of my external review'.  These conflicts involve Ms Devi and Mr Vandermeer.[5] 
  1. [46]
    Mr Harris also says that he had raised concerns about a colleague being awarded a higher duties opportunity and that Mr Harris thought that this was not fair in circumstances were Mr Harris and Mr McPhee 'already equally shared the A06 level position without being offered any opportunity to earn A06 level pay during the vacancy'.[6]
  1. [47]
    Mr Harris says that even if he 'was not targeted due to these work related conflicts, the commencement of his external review was already unfair and unreasonable considering his conduct of accessing the terminated account was appropriate and authorised which was originally confirmed to be justified in the meeting on 18 October 2021 and later in SCN1'.[7]
  1. [48]
    Mr Harris makes an allegation involving his experience of 'covert bullying behaviour' from Ms Devi'.[8]

Mr Harris says that the decision to reframe the allegation in Show Cause Notice 1 was unfair and unreasonable

  1. [49]
    Mr Harris says that he disagrees with the Respondent's submission that it was open to Mr McKee to reframe the allegations and only put one allegation to him as part of the disciplinary process.
  1. [50]
    Mr Harris says that the allegation in SCN1 regarding 'Google searches' was not included in the reframed allegation and that if the purpose of reframing the allegation was to put one reframed allegation against him, it should have included the Google searches.
  1. [51]
    Mr Harris says that it is arguable that Mr McKee did not carefully and thoroughly consider all material available to him when reaching his final decision. With regard to Mr McKee's statement that he is 'finding it difficult to reconcile' Mr Harris' 'denial accessing the content of the emails with evidence he gave during the investigation outlined.'  Mr Harris repeats his submission that he 'never conducted any searches of email in the way I was describing a content search during the interview'.  Mr Harris again points to the investigation interview where he says he inadvertently provided misinformation.[9]
  1. [52]
    Mr Harris says that it is unfair for Mr McKee to base his decision on 'misinformation I have provided as it does not provide an accurate nor credible explanation as to why I performed a periodic monitor using a message trace on 5 October 2021'. Mr Harris says that it is unfair for Mr McKee to allege that he 'performed a periodic monitor using a message trace between Mr Vandermeer and Mr Hills on 5 October 2021'. Mr Harris says that a message trace determines the 'status of email delivery' and that it is not possible for it to be used to conduct a search of emails.[10] 
  1. [53]
    Mr Harris says that it was unfair for Mr McKee to change the allegation to not include 'Google searches' and this indicates inconsistencies in his findings.  Mr Harris says that this reflects poorly on Mr McKee's credit and 'demonstrates that he has been heavily biased throughout the disciplinary process, by mainly relying on misinformation from the interview and the investigation report'.[11]
  1. [54]
    Mr Harris says that Mr McKee considers Mr Harris' submissions regarding workplace conflict, the workload of the ICT team and the role of the ICT Infrastructure Officer to seek learning opportunities, as well as 'an alleged lack of policies and procedures' but gives these submissions no merit.[12]
  1. [55]
    Mr Harris says that the investigator should have attempted to identify or clarify that he was referring to a PST file instead of a CSV file in the interview. Mr Harris says that the investigator had 'countless of times to clarify my answers'. Mr Harris says that on the 'balance of probabilities, Ms Durand, only concentrated on what she wanted to hear which was that 'I extracted a bulk list of emails' instead of taking the time to clarify if my answers were corresponding to her questions in relation to a .CSV file'.[13]
  1. [56]
    Mr Harris says that while he explained in the investigation interview that he was conducting the search of emails to 'find emails that related somewhat to my external review', this cannot have been correct when the search for emails occurred on 5 October 2021 and he was 'only advised of my external review on 18 October 2021'.  Mr Harris says that the investigator failed to identify that it would have been impossible and unrealistic for him to be aware of the external review on 5 October 2021 when he did not know of it.[14]
  1. [57]
    Mr Harris says that it is clear from the audio and transcript of the interview that he was 'just randomly answering questions that are not making logical sense during this period of the interview'.  Mr Harris says that after he explained that the reason for 'conducting the emails were in relation to my external review, I then explain that it was to identify any miscommunicated work'.  Mr Harris says that at this time he was 'subconsciously recalling events regarding shortage of staffing, heavy workloads, and lack of communication with Mr Hills. Mr Harris says that 'it is plain and clear that as the interview came to an end, I was mentally exhausted causing me to confuse the sequence of events whilst explaining a content search instead of a message trace'.  Mr Harris says that his has not attempted to provide new explanations for his conduct but rather 'simply pointed to the truth of the matter'.[15]
  1. [58]
    Mr Harris says that while the Acceptable Use of ICT Service Facilities and Devices Procedure refers to downloading unauthorised material and storing files and records which are not for officially approved purposes, this does not apply to him because there is no 'procedural document' that advises that approval is required before performing a periodic monitor in relation to troubleshooting mail flow issues with the email system and being required to access an audit log that is the CSV. Mr Harris appears to say that any reliance by Mr McKee on explanations about processes and procedures is not reasonable if it does not relate to 'an official procedural document'.[16]
  1. [59]
    Mr Harris says that it was unfair and unreasonable for Mr McKee to base his decision on 'misinformation from the interview and the investigation report because both have noncredible evidence explaining I performed searches of emails between Mr Hills and Mr Vandermeer by using a content search' and 'due to the fact that I am describing a content search in the interview, I was never able to answer the question to why I performed a periodic monitor by using a message trace and the reason for the discovery of Message Trace…'.[17]
  1. [60]
    Mr Harris says that Mr McKee's decision was made in reliance on the evidence from the interview, Investigation Report and email correspondence between Ms Butler and Mr David Walker. Mr Harris says that he has provided substantial evidence to demonstrate that he unintentionally provided misinformation. Mr Harris says that he has provided evidence to support that he 'performed a periodic monitor using a message trace between Mr Hills and Mr Vandermeer on 5 October 2021 to confirm the status of email delivery' in relation to 'issues being reported verbally and in support tickets' and that this is not the same as conducting a 'search of emails'.  Mr Harris says that a 'search of emails' aligns more accurately with the search he has 'explicitly proven I did not perform'.[18]
  1. [61]
    Mr Harris says that his evidence provides clear and substantial evidence of regular reports regarding mail flow issues and malicious email attempts requiring periodic monitoring to be performed to check the health, status, and safety of the email system.  Mr Harris says that the Department has no 'existing official procedural documents' regarding the requirements to be undertaken prior to performing a message trace. Mr Harris points to the Acceptable Use of ICT Service Facilities and Devices Procedure which states, 'information stored or created on the Department email exchange…is subject to scrutiny and monitoring at any time'.  Mr Harris says that this 'explicitly supports' that he never acted without authority as it implied that the periodic monitor does not require authorisation.  Mr Harris says that it is significant to note that a 'message trace' provides no access to high level information.
  1. [62]
    Mr Harris has attached hundreds of pages of material in support of his submissions. I have reviewed all of this material even if I do not mention it. Attachments 1 through to 5 to Mr Harris' submissions address workplace bullying, conflict with Ms Devi, and concerns he had about a colleague being offered higher duties instead of him.  Attachment 6 contains an email confirming that a meeting had been held about the Dicker allegation and that it was necessary to conduct an external review and verification of Mr Dicker's tablet.[19] As has been noted, the Dicker allegation was not pursued and is not the subject of this appeal. Attachment 8 contains a series of emails Mr Harris says represent bullying by Ms Devi and the allocation of 'impossible tasks'.
  1. [63]
    Attachment 9 contains a series of screenshots where various staff members are given 'praise' from Ms Devi and Mr Harris points out that he was not praised. This attachment also contains an email from Mr Harris to Ms Devi asking why he was not acknowledged and a reply from Ms Devi thanking him for raising his concern and explaining her position. In addition, this attachment includes a document called '20 subtle signs of bullying at work' and Mr Harris has highlighted sections and written Ms Devi's name next to these sections.
  1. [64]
    Attachment 10 is a 17-page document attached to an email in which Mr Harris makes complaints about bullying and harassment. These matters are not directly relevant to the allegation subject of the decision under appeal and so I while I have reviewed the document, I will not describe it here. The next email trail in the bundle is from two days after the complaint email and its associated attachment were sent.  It includes a request from Mr Harris for an update on the external review of his device and provision of information to Mr Harris of a specialist contact to support him following his complaint.
  1. [65]
    Mr Harris' legal representative initiated contact with the Respondent by way of a letter dated 7 March 2022, prepared by Saines Legal. That letter raised a range of issues including the potential for Mr Harris to pursue a general protections application or initiate an industrial dispute or a stop bullying application. At page 6 of that letter, Mr Harris provides an explanation for the mailbox access matter involving the emails of Mr Vandermeer and Mr Hills:

Again, where the Allegations lack sufficient particulars, our client presumes this relates to him having observed the metadata of the emails of Mr Vandermeer and Mr Hills. 

As expressed in our instructions, our client was required to perform an increased workload, and Mr Vandermeer and Mr Hills assumed senior positions.  Given the variety of roles Mr Vandermeer and Mr Hills performed, communication was unfortunately sparse between them and our client. As our client was sent tickets by both Mr Vandermeer and Mr Hills, this sparse communication would result in tickets not being communicated, instructions being communicated to only our client or Mr McPhee (not both), tickets being communicated shortly before deadlines, and queries being sent to the incorrect person.

In an attempt to resolve this, our client naively viewed that he would monitor the subject lines of Mr Vandermeer's and Mr Hills' incoming emails to anticipate upcoming tickets.

In light of his grievances within the department, the change in its structure, and communication issues, our client, in a misguided way, attempted to proactively resolve the issues he was facing in an independent manner.  Our client understands this monitoring of metadata was inappropriate and regrets this decision.

Our client has expressed his regret, that he understands this monitoring brings into question his trust, and that he should have spoken to Mr Vandermeer and Mr Hills to communicate his perceived issues with their communication.  Our client is willing to apologise to those involved, participate in mediation, and/or participate in further training if the Department views such is appropriate.

  1. [66]
    Mr Harris has annotated and highlighted this show cause response and has added the following text for my consideration:

I followed the legal advise (sic) of my lawyer at the time.  I did explain I provided misinformation by describing a content search. I performed no actualy (sic) searches of email. His legal advise was to apologise in order to lead to a reconcile. This was the reason I've provided the Microsoft Documentation. Forensics report never shows any signs of a content search nor I grant my network accounts. Full Access to either parties mailbox. A message trace only provides a audit log report on status of delivery. No high level information can be viewed on the subject line.

  1. [67]
    In response to that correspondence, the Respondent wrote to Saines Legal on 6 May 2022. This letter noted that, the Investigation Report was still being considered and no discipline process had commenced. The letter further stated that at that stage, it was not considered 'necessary or appropriate' to consider the response to the allegations. The letter also responded to the Appellant's potential claims in the form of a general protections application, an industrial dispute or an application for an order to stop bullying.  Mr Harris has annotated this letter, but as those applications or matters are not before me in considering whether it was fair and reasonable to substantiate the allegation, I have reviewed the material but will not include it here.
  1. [68]
    Mr Harris attaches the transcript of the interview which, in part, asked him to explain the mailbox issue.  I have reviewed the transcript.
  1. [69]
    Mr Harris has attached a hand annotated version of his show cause response. With regard to the email inbox allegation, Mr Harris says the following:

I deny that there was not a work-related purpose for performing a monitor of correspondence between Mr Vandermeer and Mr Hills between the dates 28 September to 5 October 2021, and state that:

  1. Further to my response provided in the investigation and the letter written from my previous lawyer Mr Ellacot, the work-related purposes for performing the periodic monitor between Mr Vandermeer and Mr Hills were two-fold.
  1. At the time, our team was both low staffed causing communication issues around work related activities and our team received several support tickets relating to the email system experiencing the following issues during the months September 2021 and October 2021:
  1. several employees were reporting issues with the unsuccessful sending and receipt of email messages with or without attached files; and
  1. several employees were reporting potential malicious email attempts being described as email spoofing.  Email addresses appearing to be sent from original senders internal or externally; but email address identified looked weird.
  1. several employees were reporting potential email phishing.
  1. Unfortunately I am unable to confirm the exact number of tickets related to the above issues at this time, however from my recollection I would have witnessed and worked on 1 to 2 support tickets per business week either in Cherwell Ticketing System and/or Service Now.  Some requestors reported the issues verbally instead of raising a ticket.
  1. All issues raised major concerns that our email system was experiencing issues and a potential malicious threat either internally or externally and I believe that I had an obligation ad responsibility to my superiors Mr Vandermeer and Mr Hills to ensure they were not experiencing the same issues as listed above.
  1. Consequently I performed the periodic message trace to 'kill two birds with one stone'.  Firstly, to ensure the safety of Mr Hills and Mr Vandermeer email addresses and to ensure they were not subject to email spoofing, nor phishing, nor experiencing issues sending or receiving email between one another.  Secondly, I used the opportunity to discover if any miscommunicated work would be assigned to the ICT infrastructure team (as stated in the written response from Mr Ellacott).
  1. The periodic monitor in the form of a message trace and extraction of a 7-day message trace report between the random dates 28 September 2021 – 5 October 2021 was performed by utilising default settings of 7 days, as this is the usual period to search to ascertain if there is an error in sending and receiving emails.
  1. The search conducted was not intended to nor did it, generate metadata that included the body of a message, and I deny reading and/or opening any emails identified in the search. The only information generated by the search was:
  1. To and from email addresses;
  1. The success or otherwise of the message (e.g., sent or failed to send); and
  1. the subject line of the message;

In support of this the department's email system, content search system (Microsoft Security & Compliance Centre), and the forensic report performed on my work-related device will prove I never accessed or never had access to, the actual emails between Mr Vandermeer or Mr Hills from the report.

  1. [70]
    The show cause response goes on to explain the difference between a message trace and a content search. Mr Harris explains that when a message trace is performed, 'no actual access to the email itself is granted.  A message trace denies you access to read the body of the message and/or any attachments that may be included in the actual email message'.
  1. [71]
    Mr Harris goes on to explain that he believed that he acted appropriately and within the policies of the Department. Mr Harris states that his intention was genuine in nature and 'was in no way related to Ms Devi or the meeting on 6 October 2021'.
  1. [72]
    There are many more documents provided with Mr Harris' response. I have reviewed these documents and find that they are either referred to throughout his material or are not directly relevant to the question before me.

Respondent's submissions in reply

  1. [73]
    The Respondent filed its reply submissions on 31 October 2022.  These submissions are written in reply to Mr Harris' submissions and material.  As Mr Harris' submissions and material are largely reflective of his reasons for appeal and matters raised by him in various responses and pieces of correspondence, the Respondent's reply submissions are similar in content to its initial submissions.
  1. [74]
    The Respondent reiterates that a number of the matters raised by Mr Harris are not relevant to the decision under appeal. The Respondent reiterates that allegations regarding access to Dicker's inbox were not pursued in the disciplinary process and therefore cannot form part of the appeal.
  1. [75]
    With regard to the matters Mr Harris raises regarding workplace conflicts, the Respondent strongly denies that the decision to commence an external investigation resulted from this conflict.  The Department submits that the decision to commence the investigation was reasonably available to Mr McKee on the evidence available and in any case, the decision to commence the external investigation is not the issue for determination in this Appeal.
  1. [76]
    The Respondent relies on its earlier submissions that Mr McKee acted in accordance with the requirement of the PS Act and the relevant Directive. Mr McKee determined to put to Mr Harris an allegation that represented the alleged conduct which he was reasonably satisfied gave rise to a ground for discipline.
  1. [77]
    The Respondent says that Mr Harris has not established a basis on which the Commission should be satisfied that Mr McKee did not carefully and thoroughly consider all material available to him when reaching his decision.
  1. [78]
    With regard to Mr Harris' submission that it was unfair for Mr McKee to rely on the information provided by Mr Harris during the investigation, and that the information Mr Harris provided was 'misinformation', the Department says that it was entirely reasonable for Mr McKee to take into account responses provided by Mr Harris in the investigation interview. 
  1. [79]
    The Respondent says that Mr McKee carefully considered the arguments raised by Mr Harris in this Appeal, to the extent that they were raised during the disciplinary process. Mr McKee considered Mr Harris' submission that he did not access the body of the emails and that he conducted a message trace rather than a content search.  Mr McKee's decision carefully sets out the basis for his findings and the reasons he gave weight to certain evidence over others.
  1. [80]
    The Respondent says that the relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors[20] as follows:

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.[21]

  1. [81]
    With regard to Mr Harris' submission that he was suffering from mental exhaustion during the interview, the Respondent says that Mr Harris has not provided information about the alleged reasons for the mental exhaustion or explained why neither he, nor his support person raised concerns during or following the interview. Mr Harris has also not addressed the reasons why he did not subsequently attempt to correct the evidence he gave during the investigation.
  1. [82]
    The Respondent says it was open to Mr McKee to consider the responses Mr Harris provided in the interview when the interview happened in closer proximity to the conduct.  Further, the Respondent says that it was open to Mr McKee to have concerns about Mr Harris' credibility in circumstances where the evidence given in the investigation differed to the submissions provided during the disciplinary process.
  1. [83]
    With regard to Mr Harris' submissions that he did not know if the external review until 18 October 2021 and therefore it could not have been a motivation for the alleged conduct, the Respondent says that the investigator clarified in the interview that Mr Harris was talking about the external investigation rather than the external review and that Mr Harris confirmed this.
  1. [84]
    Mr Harris says that it was unfair for the Respondent to rely on information provided by Mr Walker in emails. The Respondent says that Mr Harris provided detailed submissions with regard to Mr Walker's emails and that it was reasonable for Mr McKee to rely on the emails from Mr Walker in circumstances where Mr Harris was provided with an opportunity to respond to those emails.
  1. [85]
    The Respondent denies the allegation that Mr McKee was biased in his decision making as alleged by Mr Harris or at all. With regard to Mr Harris' submissions that the investigator did not thoroughly and carefully investigate the allegations against him, the Respondent says that Mr Harris raised no concerns regarding deficiencies in the investigation during the disciplinary process.
  1. [86]
    The Respondent submits that many of the attachments Mr Harris provided with his submissions are either not relevant to the Appeal or were not documents available to the decision-maker at the time the decision was made and therefore the Commission should either not consider the material or give it limited weight.
  1. [87]
    With regard to the attachments Mr Harris provides in support of his submission that he ran the message trace of emails in response to ongoing IT issues, the Respondent says that the attachments do not identify a particular influx of issues on or around 5 October 2021 when the search was conducted. Further, the attachments establish that the ordinary procedure within the Department, when issues were experienced by staff, was to escalate those concerns in writing to IT.
  1. [88]
    The Respondent says that it is clear from the decision that Mr McKee was aware of his role as decision-maker and provided clear reasons on why he reached the decision.  The Department submits that the decision was fair and reasonable based on the evidence available to Mr McKee and that the decision was made in accordance with the requirements of the PS Act.

Consideration

  1. [89]
    I understand that in his appeal submissions and in correspondence from his lawyers to the Respondent prior to the show cause process, Mr Harris raises concerns that could be construed as an adverse action complaint regarding workplace conflicts. However, this appeal requires me to consider the decision under review, which is the substantiation of the allegation and the disciplinary finding. As is noted above, Mr Harris accepts that he undertook the conduct but says that he had a reasonable excuse for doing so. I am satisfied that on the evidence available to Mr McKee, it was open to him to commence the disciplinary process on the basis of the alleged conduct, regardless of what other things may have been going on in the workplace. If Mr Harris believes that the disciplinary process was commenced in retaliation for workplace conflicts, he needs to consider other avenues to have that matter addressed.
  1. [90]
    I also understand that Mr Harris is aggrieved that the allegation subject of this decision and appeal was not the one originally being investigated and that the access to the email inboxes of Mr Vandermeer and Mr Hill was only discovered during the investigation of the Dicker matter. I have considered the material available to me and note that following the investigation, the allegations against Mr Harris narrowed significantly as a result of his submissions being taken into account by the decision-maker. The allegations were reframed and this was the proper thing for Mr McKee to do in the circumstances. Mr Harris was given the opportunity to respond to the reframed allegation and did so. Following his first response, the Mr McKee sought further information. This further information was provided to Mr Harris and he availed himself of the opportunity to provide a response to that information. The material before me demonstrates that Mr Harris has received procedural fairness.
  1. [91]
    It is not in dispute that Mr Harris ran a message trace on the messages between Mr Vandermeer and Mr Hills. Mr Harris agrees that he did this. The issue for my consideration is whether the message trace was inappropriate or unauthorised, thus giving rise to a ground for discipline.
  1. [92]
    I am approaching consideration of the matter by way of addressing the reasons Mr Harris says that the decision was unreasonable. Mr Harris filed lengthy submissions and a large number of attachments. I have reviewed all of this material and to the extent that it was relevant to the question before me, I have taken it into consideration, even if I do not mention it in these reasons for decision.

Provision of 'misinformation' in the investigation interview

  1. [93]
    I understand Mr Harris' submissions to be that he experienced mental exhaustion during the interview and that as a result, he provided wrong answers or misinformation to the investigator.  I note that Mr Harris did not raise concerns about exhaustion either during or after the interview or in his show cause notice. Mr Harris had a support person present at the interview and it appears that the interview was concluded in one afternoon which included a break. Mr Harris clearly participated in the interview and provided answers to the questions the investigator was asking.  In circumstances where no concerns were raised during the interview, directly after it, or in the show cause responses, I do not have enough evidence available to me to conclude that Mr Harris was mentally exhausted during the interview.
  1. [94]
    Mr Harris is particularly focused on the information he provided addressing a 'content search' rather than a 'message trace'. Mr Harris has made it clear that one search involves access to the body of an email which would involve a capacity for the person conducting the search to read the contents of the email. The search Mr Harris conducted of the emails sent by Mr Vandermeer to Mr Hills was a 'message trace' and this meant that what Mr Harris was able to see was the number of emails, the date and time they were sent and the subject line of the email. 
  1. [95]
    Mr McKee addresses Mr Harris' submissions about the difference between the message trace and a content search from paragraph 35 of his reasons for decision. Having considered the responses given in the investigation interview and the show cause response, Mr McKee finds that he is 'satisfied on the balance of probabilities that it is more likely than not that you accessed or intended to access the body of the emails'.  Mr McKee goes on to say at paragraph 38:

In any event, even if you did not access the body of the emails, I am not satisfied that your conduct would otherwise be justified or authorised.

…

Significantly, some of the emails you accessed, which you were not a recipient of, had 'private discussion' as the subject line of the email.  You were not the intended recipient of these emails, and it was not appropriate for you to use your IT access to identify these emails.  I consider the search you performed was a significant breach of your obligations to ensure access to Department records is limited to access for a legitimate business purpose.

  1. [96]
    I do not find that any confusion regarding the difference between a content search and a message trace serves to make the decision of Mr McKee unfair and unreasonable. The allegation referred to access to emails.  It is clear that in undertaking the message trace, Mr Harris had accessed the emails sent by Mr Vandermeer to Mr Hills, albeit that he may have had access to only 'high level' information such as the time of sending, number of emails and the subject line of the email.  It is not in dispute that Mr Harris accessed the emails for the purposes for undertaking the message trace.
  1. [97]
    I do not find that mental exhaustion or fatigue during the interview could serve to explain why Mr Harris would concoct a response that involved him giving a description of his activities as involving 'skimming' the contents of the email if he had never done such a thing. Further, Mr Harris went on to give specific reasons as to why he would want to access the emails, these reasons included wanting to find out information about the potential assignment of work and changes to the Department employment structure and wanting to find out information regarding the 'external review'.
  1. [98]
    There is a point in the transcript where the investigator clarifies with Mr Harris whether he is referring to the external review or the external investigation. A key point of Mr Harris' submissions is that the external review could not be a reason for his search because a review of the dates suggests that he did not know about the external review at the time of the email search.  Even if I accept that Mr Harris did not know about the external review at the time he undertook the email search, Mr Harris' own evidence and submissions suggest that there were a number of issues going on that had been subject of complaints from him and issues of workplace conflict. I find that on the balance of probabilities, while it may not have been with direct reference to the external review, Mr Harris had an interest in whether there were discussions occurring between Mr Vandermeer and Mr Hills regarding Mr Harris and used the email trace to inform himself regarding any such communications occurring by email.
  1. [99]
    Mr Harris says that one of the reasons he undertook the message trace was 'periodic monitoring' due to the system experiencing mail flow, malicious email threats, email address spoofing and email phishing. Mr Harris says that this made the performance of a message trace a work-related activity. I accept the Respondent's submissions that there is no evidence that there were significant issues with the email system being experienced at the time that Mr Harris undertook the search. Mr Harris' explanation that he was undertaking the search on Mr Vandermeer's and Mr Hill's emails because they were senior employees and it was important to make sure their emails were safe and working effectively lacks credibility when the evidence demonstrates that neither Mr Vandermeer nor Mr Hills had complained that their emails were not being delivered or had expressed a concern about their emails.
  1. [100]
    The evidence further demonstrates that performing message traces without either seeking a request to do so or informing the employees involved was not a part of Mr Harris' role.  The timeframe of the message trace and the date it was undertaken fell at a time contemporaneous to a meeting being held with Mr Harris regarding matters in the workplace. On the balance of probabilities, I do not accept that Mr Harris undertook the message trace as any kind of 'periodic monitoring' of the system.
  1. [101]
    There have been submissions made about a Google search that was undertaken by Mr Harris to discover how to use Powershell Commands to access mailbox information. It appears clear that Mr Harris undertook the Google search at around the time he ran the message trace subject of the allegation. I understand Mr Harris' submission that he undertook the Google search as part of his self-education and development, however, I find it was open to Mr McKee to take into account the timing of the Google search in the context of the conduct subject of the allegation. While this may indicate that Mr Harris was seeking alternative ways of accessing email inboxes to look at the emails of Mr Vandermeer and Mr Hills, I do not find that these particulars of the allegation, nor Mr McKee's reference to them in the decision, carry great such weight that they impacted significantly on Mr McKee's decision.
  1. [102]
    Another argument put forward by Mr Harris appears to be that his access of Mr Vandermeer's and Mr Hills' email inboxes for the purposes of conducting the message trace could not have been unauthorised because there is no 'official procedural document' that states process required before performing the monitoring of emails on the system. Mr Harris rejects the advice provided to Mr McKee by Mr Harris that there is a process to be followed when performing a search of another employee's emails.
  1. [103]
    As I understand Mr Harris' submission, there are warnings given to employees that their emails may be monitored and this essentially puts them on notice that monitoring may occur and also provides implied authorisation for people such as himself to conduct searches of email without necessarily seeking authorisation from a supervisor or informing the employee of the search. In his show cause response, Mr Harris acknowledges that under normal circumstances a ticket is required to be submitted before performing an action for an end user.  However, Mr Harris also says that he is unaware of any policy or procedure that exists explaining a ticket must be created for performing a periodic monitor. Mr Harris said that his motivation was 'protecting his superiors' information'.
  1. [104]
    With regard to Mr Harris' submissions about a deficiency of policy precluding him from conducting the message trace, the decision of Mr McKee relevantly states:
  1. As a public service employee and an employee of the Department, you have an obligation to comply with relevant policies and procedures applying to you including, but not limited to, the Code of Conduct for the Queensland Public Service, the Department's Acceptable Use of ICT Services, Facilities, and Devices Policy, the Department's Acceptable Use of ICT Services, Facilities, and Devices Procedure, and the Department's ICT Compliance Policy.  I am satisfied that you were aware or ought to have aware, of your obligations to comply with these policies and procedures.
  1. As an ICT Infrastructure Officer, you are responsible for the implementation, management and operations of computer systems related to operating systems, servers, and end-user workstations in the Department.  Part of your role involves special privileges which enable you, among other things, access to the email accounts of staff of the Department.

…

  1. As an employee of the public service, you hold a special position of trust and confidence.  As an ICT Infrastructure Officer, you are given additional privileges, specifically access to the Department's IT system.  During the interview with the investigator, you described your access to the domain controller as the 'Ivy League of the access because it gives you access to everything'. I am satisfied that you were aware, or ought to have been aware, of the unique privileges afforded to you in your position and the trust and confidence placed in you to only use your access in accordance with the Department's policy and procedures.  I am satisfied that you were aware, or ought to have been aware, that it was expected you would only use your access when required as part of your role and for a legitimate business purpose.

…

  1. [105]
    In the context of the policy framework applying to Mr Harris as an employee, Mr McKee then goes on to analyse the reasons given by Mr Harris in the investigation interview and in his show cause response for accessing the emails sent from Mr Vandermeer to Mr Hills.  Mr McKee gives consideration to the reason provided by Mr Harris for the first time in the show cause process, that his access to the email inbox was to ensure Mr Vandermeer and Mr Hills were not subject to email spoofing or phishing or experiencing issues sending or receiving emails between each other and notes that this explanation was not raised by Mr Harris in the investigation or in the correspondence from his solicitor in March 2022. Mr McKee decides that the other reasons provided by Mr Harris, throughout the investigation and disciplinary process are the more likely reason for his access to the inbox.  Mr McKee says in paragraph 20 of the reasons for decision, '… I can only conclude from the admissions you made during the investigation that you conducted these searches for personal reasons.'
  1. [106]
    At paragraph 27 of the reasons for decision, Mr McKee refers to Mr Walker's advice that it is not a usual part of any role to remote into a server and manually check for anomalies or errors as there are nearly 200 servers and to do this would be an inefficient use of time.  It was reasonable for Mr McKee to conclude that he was not satisfied that it was expected that Mr Harris would conduct a search of the nature that he did without first raising his concerns with supervisors and discussing the best approach to troubleshoot his concerns.
  1. [107]
    I find it was open to Mr McKee to reject Mr Harris' explanation that he was running the message trace to ensure the safety and proper delivery of emails and to determine that the other reasons he gave were more likely. Having determined that Mr Harris accessed the emails for personal reasons, it was open to Mr McKee to consider that the access was unauthorised. 
  1. [108]
    If the access was for personal reasons, it was simply outside of the policy and procedures. Had Mr McKee determined that the access was for the purpose of checking the security and proper delivery of emails, but that Mr Harris had not sought proper authority, Mr Harris' arguments regarding the existence or otherwise of a policy or procedure to be followed in performing a message trace may carry some weight. But having decided that this was not the reason for the performance of the message trace, there was no further need to consider the procedures for seeking authority to undertake a message trace.
  1. [109]
    A further reason Mr Harris gives for conducting the search is that there was 'sparse' communication regarding work to be allocated to him and that he was concerned that he would miss work that had been assigned to him or the ICT infrastructure team.  I do not accept that concerns about communication of tasks from a line manager or others is an acceptable or authorised method of finding out information about what work has been allocated and if Mr Harris had been left out of any emails. This submission lacks credibility when the evidence appears to be that Mr Harris was not in the regular habit of conducting email searches to clarify work tasks and there is no evidence that he had raised his concern about communications with Mr Vandermeer and sought permission to run a message trace as a solution to the perceived communication problem.
  1. [110]
    Given the information provided by Mr Harris at the investigation interview, in the show cause process and subsequently in this appeal, I find it was open to Mr McKee to find that it was difficult to reconcile the evidence of Mr Harris at each juncture of the disciplinary process.  The problem for Mr Harris is that in the interview, he gives a rational and plausible explanation of wanting to access emails that related to his external review but then later, after checking the dates, seeks to recant this.  Even if the message trace undertaken on 5 October 2021 was not in relation to the external review, Mr Harris reveals that he considers such a message trace to be a way that he might seek information about matters pertaining to him.
  1. [111]
    With regard to the motivation for the performance of the message trace, Mr McKee relevantly states:

In my letter dated 10 June 2022, I raised concerns about the timing of the search on 5 October 2021 in circumstances where there was a meeting scheduled for you, Mr Vandermeer, Mr Hills and Ms Sasibala Devi on 6 October 2021. The purpose of the meeting was for Mr Vandermeer to proactively address apparent workplace conflict between yourself and Ms Devi.  At your request, Mr Hills was invited to the meeting.

  1. [112]
    Mr McKee goes on to say that on the balance of probabilities, he considers it likely that the meeting scheduled on 6 October 2021 was a factor in Mr Harris' decision to run the search on 5 October 2021.  Mr McKee says that he is not persuaded the timing can be explained as a coincidence and says that he is not satisfied that Mr Harris has provided a sufficient explanation for the timing of the search. This finding was open to Mr McKee. In my view, that timeline of events makes it more likely that the access was not for an authorised purpose and was likely related to Mr Harris' concerns about matters other than the security and safety of the email system, for example, the workplace conflict issues he was experiencing or the meeting to be held on 6 October 2021. 
  1. [113]
    There is no evidence before me that Mr McKee has not taken into consideration all material provided to him by Mr Harris.  The decision letter is very detailed and addresses the matter raised by Mr Harris.  I find that for the reasons Mr McKee gives in that decision, it was open to him to determine that the allegation was substantiated and gave rise to a ground for discipline.
  1. [114]
    Mr McKee then went on to consider the ground for discipline most applicable to the conduct of Mr Harris in accessing the emails without authorisation. Mr McKee determined that the conduct met the definition of misconduct.
  1. [115]
    Mr McKee sets out his findings from page 12 of 25 of the decision letter. With regard to the finding that the substantiated allegation constituted misconduct, Mr McKee relevantly states:
  1. Overall, considering the material available to me, on the balance of probabilities, I am satisfied that you had no authorised or work related purpose for conducting the search for email correspondence between Mr Vandermeer and Mr Hills on 5 October 2021 or storing the data of your search.
  1. I am satisfied that your conduct in accessing emails sent between Mr Vandermeer and Mr Hills between 28 September 2021 and 5 October 2021, and storage of the metadata related to those emails, was without authority and for unauthorised purposes. I consider your conduct was highly inappropriate and seriously improper.
  1. I acknowledge there is a high threshold to be met before I can find conduct amounts to misconduct. Misconduct, compared to other inappropriate and improper conduct, requires a deliberate departure from accepted standards, serious negligence to the point of indifference or an abuse of the privilege and confidence enjoyed by a public service employee.
  1. I am satisfied that your conduct was not because of mere negligence, error of judgement or innocent mistake.  Instead, your conduct was the result of a conscious and deliberate act, which is far removed from normal accepted standards and behaviours expected of Departmental employees. Indeed, your actions were an abuse of the privilege and confidence bestowed on you as an employee of the Department, and an abuse of the additional IT access privileges afforded to you as an ICT Infrastructure Officer.
  1. In the circumstances, I do not consider finding your conduct to amount to a breach of the Code of Conduct sufficiently reflects the seriously inappropriate nature of your conduct.  On the evidence available to me and for the reasons set out above, on the balance of probabilities, I am satisfied you engaged in conduct which was a deliberate departure from accepted standards and demonstrated, at the very least, an abuse of the privilege and confidence placed in you by the Department (in relation to your IT access)

Based on my findings in relation to the Allegation, I have decided that pursuant to section 187(1)(b) of the PS Act you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PS Act.

  1. [116]
    Having considered the substantiated conduct and the reasoning of Mr McKee as evidenced in the decision of 25 August 2022, I am of the view that the finding of misconduct was reasonable and is confirmed.

Order

  1. [117]
    I make the following order:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] Respondent's submissions filed 23 September 2022, [3].

[2] Ibid [16]-[17].

[3] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [62].

[4] Appellant's submissions filed 24 October 2022 discussing the Dicker allegation, [1]-[4].

[5] Appellant's submissions filed 24 October 2022, [7].

[6] Ibid [8].

[7] Ibid [9].

[8] Ibid [11].

[9] Ibid [14].

[10] Ibid [15].

[11] Ibid.

[12] Ibid.

[13] Ibid [16].

[14] Ibid [17].

[15] Ibid [18].

[16] Ibid [20].

[17] Ibid [21].

[18] Ibid [22b]

[19] Email from Mr Craig Vandermeer to Mr Delano Harris dated Monday 18 October 2021 at 1.49.10 pm.

[20] [2019] QSC 170.

[21] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Harris v State of Queensland (Department of State Development, Manufacturing, Infrastructure and Planning)

  • Shortened Case Name:

    Harris v State of Queensland (Department of State Development, Manufacturing, Infrastructure and Planning)

  • MNC:

    [2022] QIRC 483

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    14 Dec 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
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
2 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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