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  4. Barrett v State of Queensland (Department of Agriculture and Fisheries) - [2023] QIRC 127

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Barrett v State of Queensland (Department of Agriculture and Fisheries)[2023] QIRC 127

Barrett v State of Queensland (Department of Agriculture and Fisheries)[2023] QIRC 127

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Barrett v State of Queensland (Department of Agriculture and Fisheries) [2023] QIRC 127

PARTIES: 

Barrett, Janine Louise

(Appellant)

v

State of Queensland (Department of Agriculture and Fisheries)

(Respondent)

CASE NO:

PSA/2022/561

PROCEEDING:

Public Sector Appeal – Appeal against a disciplinary decision

DELIVERED ON:

9 May 2023

MEMBER:

HEARD AT:

Hartigan DP

On the papers

ORDER:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decisions appealed against are confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decisions appealed against made on 12 May 2022 be revoked.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – appeal against disciplinary finding and disciplinary action decision –– where some allegations substantiated and partially substantiated – consideration of penalty – whether penalty was proportionate to substantiated conduct – whether the decision was fair and reasonable – where the respondent raises jurisdictional objection – where appeal regarding the disciplinary finding decision filed out of time – whether extension of time should be granted – jurisdictional objection dismissed – decisions fair and reasonable – decisions confirmed – stay of decisions revoked

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562B(2), s 562B(3), s 562C and s 566

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

Public Sector Act 2022 (Qld), s 91, s 92, s 131 and s 134

Directive 14/20: Discipline, cl 8

CASES:

A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations [2019] ICQ 16

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176

Reasons for Decision

Introduction

  1. [1]
    Ms Janine Louise Barrett is employed by the State of Queensland (Department of Agriculture and Fisheries) ('the Department') as a PO5 Principal Veterinarian.
  1. [2]
    Ms Barrett commenced employment with the Department in 2005 and has been in the PO5 role since 2 March 2009.
  1. [3]
    On 24 August 2021, the Appellant was asked to show cause with respect to two (2) allegations about her conduct and behaviour.
  1. [4]
    The Department subsequently issued a decision substantiating and partially substantiating some of the allegations and requested Ms Barrett to show cause as to why disciplinary action should not be taken against her. Ms Barrett submitted a written response, and a disciplinary action decision was subsequently issued.
  1. [5]
    On 9 May 2022, Ms Barrett filed a notice of appeal against the decision substantiating the allegations and the decision imposing disciplinary action pursuant to s 194(1)(b)(i) of the Public Service Act 2008 (Qld).[1] Ms Barrett relies on the following grounds in support of her appeal, as relevantly summarised:
  1. (a)
    the fortnightly deduction of a monetary penalty (fine) ''creates an excessive, disproportionate and unwarranted burden'' especially considering issues surrounding inflation; and
  1. (b)
    that the allegations were not capable of being substantiated because the emails ''did not contain offensive content that justifies the findings''.
  1. [6]
    On 12 May 2022, this Commission ordered that the decision subject of the appeal be stayed until determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('IR Act'). The parties were directed to file in the Industrial Registry and serve on each other, written submissions in respect of the appeal. The Department filed its submissions on 26 May 2022 and addressed in some detail why it contends the appeal was filed out of time. On 2 June 2022, the Appellant filed submissions in reply which addressed the reasons for the delay in filing her application.
  1. [7]
    The appeal is made pursuant to s 134 of the Public Sector Act 2022 (Qld) ('PS Act') which provides that an appeal under Ch. 3, Pt 10 of the PS Act is to be heard and determined pursuant to Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [8]
    Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [9]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it takes its meaning from the context in which it appears.[2] An appeal under Ch. 3, Pt 10 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  2. [10]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

Jurisdiction objection

  1. [11]
    The Department, in its written submissions, raised the jurisdictional objection that the appeal of the Disciplinary Finding Decision[4] was out of time.
  1. [12]
    I will deal with the Department's written submissions that the appeal with respect to the Disciplinary Finding Decision has been filed out of time first.

Discretion to hear an appeal out of time

  1. [13]
    Section 564(2) of the IR Act bestows a discretion on the Commission to allow an appeal to be started within a longer period. In this regard, s 564(2) of the IR Act provides as follows:
  1. Time limit for appeal

…

  1. (2)
    However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.

…

  1. [14]
    Section 564(2) of the IR Act was considered by President Martin J in the matter of A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations[5] ('A1 Rubber') as follows:

On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey in the following way:

“This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period.” [citations omitted]

  1. [15]
    Accordingly, an appellant bears the burden of establishing that the justice of the case is one in which the Commission's discretion should be exercised.
  1. [16]
    In the matter of Hunter Valley Developments Pty Ltd v Cohen,[6] Wilcox J set out a number of principles that can act as a useful guide in determining whether to exercise a discretion to extend a time frame to allow a person to lodge an application or an appeal. These principles need not be considered in an exhaustive manner. The principles include, as relevantly summarised:
  1. (a)
    whether the appellant demonstrated an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;
  1. (b)
    whether the appellant has taken any action, other than by lodging an appeal which would go towards the consideration of whether an acceptable explanation for the delay has been furnished;
  1. (c)
    whether the respondent will suffer any prejudice from the delay;
  1. (d)
    merits of the substantive matter; and
  1. (e)
    fairness between the parties.
  1. [17]
    Accordingly, I will exercise the discretion as provided by s 564(2) of the IR Act, having regard to the above principles.
  1. [18]
    The Department submits that the Disciplinary Finding Decision was provided to the Appellant on 30 November 2021 and that the appeal has been filed approximately 20 weeks late.
  1. [19]
    However, Ms Barrett points to the contents of the Disciplinary Finding Decision that advised her of her appeal rights as follows:

If you believe that my decision that Allegation 1 and Allegation 2(c) are substantiated and Allegation 2(e) is partially substantiated (i.e., disciplinary finding decision) is unfair and unreasonable, you may lodge a fair treatment appeal under the appeal provisions of the PS Act. Alternatively, you may decide to wait until I have made a decision about the proposed disciplinary action and appeal both the disciplinary finding and disciplinary action. 

  1. [20]
    Ms Barrett states that, in accordance with the advice provided she waited to appeal both the Disciplinary Finding Decision and the Disciplinary Action Decision at the same time.
  1. [21]
    I am satisfied that the Disciplinary Finding Decision outlined the process to appeal which included providing Ms Barrett with an option to wait until Ms Barrett had received the Disciplinary Action Decision to appeal both decisions at the same time. It is neither fair nor reasonable for the Department to now criticise Ms Barrett for taking such steps.
  1. [22]
    I am satisfied that Ms Barrett has provided a reasonable explanation for the delay, if such an explanation was even required by Ms Barrett in the circumstances.
  1. [23]
    Accordingly, I dismiss the jurisdictional objection as Ms Barrett properly relied on the advice of the Department and subsequently filed the appeal within 21 days of receipt of the Disciplinary Action Decision.

The decision

  1. [24]
    The two allegations put to Ms Barrett for her response in the show cause notice were as follows:

Allegation One

You engaged in inappropriate and unprofessional dialogue with AHA regarding the E. canis assessment of a Queensland/NT dog.

Allegation Two

You sent emails which may be viewed as inappropriate and unprofessional and not conducive to a harmonious workplace:

  1. (a)
    emails between you, Wafa Shinwari and a number of other department staff dated 1 June 2021 to 26 May 2021
  2. (b)
    emails dated 1 June 2021 about AHA's request to raise an invoice
  3. (c)
    emails dated 3 June 2021 about rabies vaccine approval
  4. (d)
    emails dated 3 and 4 June 2021 about your flexible work arrangement
  5. (e)
    emails dated 7 June 2021 about the E.canis QLD/NT dog.
  1. [25]
    By letter dated 30 November 2021, Ms Barrett was advised by the decision maker that allegation 1 and 2(c) had been substantiated, while allegation 2(e) was found to be partially substantiated (the "Disciplinary Finding Decision").
  1. [26]
    By letter dated 19 April 2022, the decision maker determined to impose a disciplinary penalty pursuant to s 188(1) of the PS Act on Ms Barrett (the "Disciplinary Action Decision")[7]. The decision maker proposed the penalty below:
  • the fortnightly deduction of a monetary penalty (fine) from her fortnightly salary for a six-month period, to the value of the difference between P05(4) and P05(3) (rounded to $100 gross); and
  • not undertaking any higher duties for a period of 12 months.
  1. [27]
    In reaching the decision on the penalty, the decision maker had regard to the following matters:

My considerations as to the appropriate penalty

In making this decision on the appropriate penalty, I have had regard to your lengthy service with the Department of 17 years with no formal disciplinary history. However, I do not consider this to outweigh the seriousness of your conduct, particularly considering the previous management actions taken in 2015 and 2018-19.

Furthermore, as a public servant and employee of the Department at the P05 classification level, you are expected to comply with relevant policies, procedures and statutory obligations that apply to you, including the Code. As a public service officer, you are required to treat clients and your co-workers with courtesy and respect and to always conduct yourself in a professional manner. In accordance with the seniority of your P05 role, you are expected to lead by example and behave appropriately with all employees and external clients. I consider that, given the training and support already provided to you (including but not limited to Code of Conduct training you undertook in 2017, 2018, 2020 and 2021), you ought to have been aware of the expectations of behaviour and the communications style that is required of you.

I note in your response that you take some responsibility for your actions and appear to accept some of the findings against you, although I remain concerned by your commentary regarding your scientific writing style and making excuses for the way you communicated. You also indicate that others have misunderstood your intent in written communication and that it is therefore not your responsibility. I believe you have a lack of insight into the impact your communication style has on others, the way your direct approach can be interpreted and the impact it has on the relationships you have with your colleagues and stakeholders. However, I do note the mitigating circumstances you have identified and note your frustration with your relationship with Dr Crook and obtaining decisions.

I remain firmly of the opinion that a paypoint decrease is the most appropriate penalty. Having regard to the potential ongoing future implications, I note that the delays in finalising this matter which have been outside the control of the department will now also have the same stated impact on a lesser paypoint decrease duration. Accordingly, I turned my mind to the alternative penalty that is equivalent of a paypoint decrease to minimise the potential ongoing impacts in a paypoint decrease.

I have reduced the severity of the penalty accordingly and I believe that the amended penalty is reasonable, appropriate and proportionate to the seriousness of the disciplinary finding, after having regard to previous actions taken and your demonstrated ability to improve your behaviour following corrective action.

It is important that you are aware of the seriousness with which the department views your conduct. You should be aware that any further substantiated allegations of a breach of the Code will be viewed very seriously and may result in the termination of your employment.

Please note that a record of this action will be retained on a separate confidential disciplinary file and may be a factor in the consideration of any future disciplinary process initiated against you. Your personal file will contain only the outcome of the disciplinary action and a notation that a separate disciplinary file exists.

…

Relevant legislation and directive

  1. [28]
    Section 131 of the PS Act provides for decisions against which appeals may be made as follows:

131  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

…

  1. (c)
    a disciplinary decision

…

  1. [29]
    Section 91 of the PS Act sets out the grounds for discipline as follows:

91 Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  1. (f)
    contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (g)
    contravened, without reasonable excuse, a provision of this Act; or
  1. (i)
    this Act, other than section 39 or 40; or
  1. (ii)
    another Act that applies to the employee in relation to the employee’s employment; or
  1. (h)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. [30]
    Section 92 of the PS Act identifies the disciplinary action that may be taken against a public service employee as follows:
  1. Meaning of disciplinary action
  1. (1)
    Disciplinary action is any action relating to employment, including, for example, any of the following actions—
  1. (a)
    termination of employment;
  1. (b)
    reduction of classification level and a consequential change of duties;
  1. (c)
    transfer or redeployment;
  1. (d)
    forfeiture or deferment of a remuneration increment or increase;
  1. (e)
    reduction of remuneration level;
  1. (f)
    imposition of a monetary penalty;
  1. (g)
    if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments;
  1. (h)
    a reprimand.
  1. (2)
    However, disciplinary action consisting of a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
  1. (3)
    Also, disciplinary action consisting of an amount directed to be deducted from a particular periodic remuneration payment of an employee—
  1. (a)
    must not be more than half of the amount payable to or for the employee in relation to the payment; and
  1. (b)
    must not reduce the amount of salary payable to the employee in relation to the period to less than—
  1. (i)
    if the employee has a dependant—the Queensland minimum wage for each week of the period; or

 

  1. (ii)
    otherwise—two-thirds of the Queensland minimum wage for each week of the period.
  1. (4)
    In this section—

 Queensland minimum wage see the Industrial Relations Act 2016, schedule 5.

  1. [31]
    Directive 14/20: Discipline came into effect on 25 September 2020. Discipline Directive 05/23 ('Directive 05/23') became operative on 1 March 2023 and supersedes Directive 14/20.
  1. [32]
    Clause 9.5(d) of the Directive 05/23 sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:
  1. (i)
    the seriousness of the disciplinary finding
  1. (ii)
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  1. (iii)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  1. (iv)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  1. (v)
    the employee’s explanation (if any)
  1. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (vii)
    the impact on the employee’s ability to perform the duties of their position
  1. (viii)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  1. (ix)
    the impact a financial penalty may have on the employee
  1. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

Whether the decision was fair and reasonable

  1. [33]
    I will now consider whether the decision to substantiate and partially substantiate the allegations and the decision to impose the proposed disciplinary action on Ms Barrett were fair and reasonable.

The Disciplinary Finding Decision

The finding in relation to allegation one

  1. [34]
    Allegation one and the particulars relied on in support of the allegation are set out in the Show Cause Notice – Decision on Disciplinary Finding and Proposed Disciplinary Action as follows[8]:

…

My findings regarding Allegation 1

I have had regard to all the material before me in relation to Allegation 1 and have determined that Allegation 1 is substantiated on the balance of probabilities on the following basis:

  • It is not in dispute that at the relevant time you were employed by the department as Principal Veterinary Scientist (Surveillance), Biosecurity Queensland (POS).
  • You completed Code of Conduct and Ethical Decision-Making training most recently on 13 May 2021.
  • As a public service officer, you are required to treat your co-workers with courtesy and respect and to always conduct yourself in a professional manner. You are expected to behave appropriately with all employees, clients and customers.
  • This allegation originated by a complaint from AHA, an external organisation to which the department provides advice. The relationship between AHA and the department is an important part of the business conducted by the department.
  • I have considered your Response and note your detailed explanation and the technicalities leading to your raising your concerns with AHA I acknowledge that your correspondence with AHA is factual, detailed and informative in its content and this is not the concern. It is not in dispute that there were issues to be raised in relation to the reporting of the E cams result with AHA What is in dispute, is the manner in which you raised those issues with AHA.
  • You note that it appears your correspondence has been interpreted differently or received in a way other than the way you intended, but you do not appear to have a clear understanding of the reason for this. You acknowledge that in your emails to AHA, you persistently disagreed with AHA's position. You apologise for using bold and coloured font in an attempt to make your emails easier to read for busy readers.
  • However, you do not seem to understand how your communication style has caused offence, is not appropriate and is not respectful. I note that you have a limited understanding and low degree of self-awareness of why your responses were not acceptable. You have not shown real insight into the way in which you inflamed a sensitive situation by your direct and aggressive communication style, instead you focus on why the content of your emails can be justified.
  • I agree with the statement in your Response that it is not unprofessional in itself to disagree with a colleague, however it must be done sensitively. I do not believe you have approached your communication in a sensitive manner.
  • It is not in dispute that you have a role to play in liaising with AHA. However, it must be noted that your communication style has caused AHA to not want to deal with you and have asked to have a different point of contact. This is an uncomfortable situation for the department to be in and potentially embarrassing for the CVO.
  • Furthermore, I do not believe it is appropriate that you believed that AHA would escalate the matter to Dr Crook if they did not receive an adequate response from you. In your stated role of providing advice to AHA, you are acting as the departmental representative to manage these matters to avoid unnecessary escalation to Dr Crook. It would be your role to resolve these matters as best you could and escalate to Dr Crook internally when her decision is required.
  • I appreciate the gravity of the conflict of interest that you raise. However, this is a matter to be discussed internally, with a position determined prior to providing advice to an external party. It does not provide an excuse for you to correspond with others in a way that can cause offence.
  • When responding to the suggestion that the content of your emails is 'inflammatory, abusive, threatening, offensive, harassing, likely to cause offence or socially unacceptable', you deny that this is the case and again refer to the pure content of your emails as being satisfactory.
  • It is my view that you have engaged in unauthorised use of email facilities as per the Use of ICT Services, Facilities and Devices Policy in that your emails were likely to cause offence. I am not able to find that they were inflammatory, abusive, threatening, harassing or socially unacceptable. Your emails were not respectful or appropriate and do not recognise that others have the right to hold views that may differ from your own.
  • I have determined that the manner in which you wrote to AHA is inappropriate, argumentative, condescending, unprofessional, critical and not respectful. The tone of your emails is not acceptable, particularly when writing to an audience external to the department. I do not believe you have demonstrated why you have a reasonable excuse for engaging in written correspondence of this nature.
  • I find that Allegation 1 is substantiated on the balance of probabilities.

On the basis of my findings in relation to Allegation 1, I have determined that pursuant to section 187(1)(g) of the Act that you are liable for disciplinary action because you have contravened, without reasonable excuse, a standard of conduct applying to you, namely, Clauses 1.1(c); 1.S(a); 3.1(e); and 4.5(a) of the Code of Conduct for the Queensland Public Service (the Code) in that you engaged in inappropriate and unprofessional dialogue with AHA regarding the E. canis assessment of a Queensland/NT dog.

  1. [35]
    Ms Barrett contends that, with respect to allegation one and the finding, that the emails sent were likely to cause offence:

…

  1. (a)
    The fact that Ms Sear's manager, Ms Samantha Allan complained to Dr Crook on Ms Sears and AHA's behalf is not, of itself evidence that a reasonable person with appropriate knowledge about the National Animal Health Surveillance Program was likely to have taken offense to these emails.
  1. (b)
    While Animal Health Australia is an external body, it was established to coordinate government and industry working together to deliver animal health and biosecurity. It is regarded and interacted with as a 'government in confidence' partner i.e an 'insider'.
  1. (c)
    It is clear from Ms Allen's email that her perception of offence was based on a series of errors of fact and misunderstandings about the circumstances. This is demonstrated by her statements as follows.
  1. 'The disease was detected in the NT initially, and after moving, a subsequent dog was found positive In Qld.' National reporting is done on an incident l:>asis. As indicated in the laboratory reports, all tests on samples collected in the NT for this dog ('Old Boy') were negative, see attachments 2(ii) and 2(ii)(a) to 2(ii)(e). E canis was not detected in this dog until 2 weeks after it had moved to Queensland and the evidence is not sufficient to conclude this infection was part of the earlier NT incident.
  2. 'For the purposes of NAHIP reporting there was an agreement between the official state representatives of NT (Liz Stedman) and QLD (Greg Williamson) that (he case would be recorded as an NT detection, and that is how the data is reflected in the database currently.' It was not true that the data in the database reflected that the infection of 'Old Boy' was an infection acquired in the NT. Reported positive NT delta related to the positive results of two other dogs and Dr Williamson had reported the dog, then known as 'Theo', as positive in Queensland with a comment about the location at which the infection was acquired.
  3. 'Janine believes she is speaking for Qld, but she is not on our record as the Qld NAHIP rep'. As indicated in attachment 3, I was speaking as Biosecurity Queensland's approved policy representative for Queensland. My role in the NAHIP was well known tp AHA's NAHIP coordinator Ms Sears and the CVO, Dr Crook.
  4. Janine has been arguing with my staff... over the reporting of the case. This data point was particularly significant (the first detection of E. canis in Queensland, having implications for the state's disease status). Deletion of this highly significant disease detection would undermine the integrity of the national surveillance system. I was persistent in not agreeing to a request that I knew to be based on errors of demonstrable objective scientific facts that I believed posed a threat to integrity.
  5. ..'this unprofessional and unpleasant behaviour' was my tenaciously maintaining the integrity of Queensland's data, consistent with my role and responsibilities.  I tried, over 'earlier discussions' and three subsequent emails (2(ii)), to indicate to AHA/ Ms Sears that their request that the positive Qld record be deleted from the database was not supported by objective laboratory data . My intention was to prompt AHA to recognise the errors and withdraw their request without the matter being escalated to the Chief Veterinary Officer. Inexplicably, despite the detailed, accurate and labor tory-report­ supported content of my email (see attachment 2(ii)) AHA did not recognised the errors on which their request was based and escalated, rather than withdrew, the  request.
  1. (d)
    In  her complaint Ms Allen also resorted to making two unjustified accusations about which she ought to have known she had insufficient knowledge.
  1. 'Greg appears to have been excluded from the conversation'. This was untrue. Dr Williamson and I worked together to agree on how to report the Queensland data and discussed the request (attachments 3(ii) and 7). He was also included in all subsequent emails to AHA about their request, as indicated in 2(ii).
  2. 'Janine has been arguing with ...and I think  NT as well over the reporting of the case'. This was untrue. I had had no contact with the NT about this case.
  1. (e)
    AHA's request that Queensland approve a change to Queensland data in the national dataset to something specifically identified by AHA was itself inappropriate and unprofessional. Jurisdictions have sovereignty over their data. While AHA manages the program and database on behalf of the jurisdictions (and industries), and it is common and desirable that AHA raise inconsistencies and suspected errors with jurisdictions for them to review and resolve, AHA should not seek to influence or determine the nature of the data itself, nor pressure public officers to make particular decisions via threats of going to their 'boss'.
  1. (f)
    Both the NT and AHA/Ms Sears later recognised and agreed that the originally submitted Queensland data was correct, making the request void, see attachments 3 and 3(ii).

…

  1. [36]
    The decision maker had regard to the submissions Ms Barrett made with respect to the factual content of the emails. Relevantly, it is acknowledged by the decision maker that the correspondence is factual, detailed and informative in its content but further notes that was not the concern. The concern was the means by which Ms Barrett communicated these matters.
  1. [37]
    It was found that Ms Barrett inflamed a sensitive situation by her direct and aggressive communication style. In this regard, the decision maker referred to Ms Barrett's use of bold and coloured font and Ms Barrett's persistent disagreement with AHA's position. The decision maker also found that the tone of the emails were not acceptable.
  1. [38]
    I consider on the information available to the decision maker including on a clear reading of the relevant emails, that it was open on the information available to make the above findings and to determine that allegation one was substantiated.

Allegation two

  1. [39]
    The decision maker substantiated allegation 2(c) and partially substantiated 2(e).[9]
  1. [40]
    Allegations 2(c) and 2(e) were relevantly, in the following terms:

Allegation Two

You sent emails which may be viewed as inappropriate and unprofessional and not conducive to a harmonious workplace:

…

  1. (c)
    emails dated 3 June 2021 about rabies vaccine approval

…

  1. (e)
    emails dated 7 June 2021 about the E.canis QLD/NT dog.

…

  1. [41]
    The decision maker found allegation 2(c) to be substantiated. The basis for this finding were the words used in the email itself and a conclusion that the email was disrespectful to Dr Cook. I consider that the language used by Ms Barrett, together with the tone of the language,[10] supports the finding that the emails were inappropriate and unprofessional as they were disrespectful towards Dr Cook.
  1. [42]
    Allegation 2(e) is partially substantiated on the basis that, one of the two email communications relied on (email dated 7 June 2021 at 1:24pm) was found to be offensive and disrespectful. Relevantly, the decision maker, having regard to the terms of the email concluded that the manner in which Ms Barrett raised the potential conflict of interest was done in a threatening manner. A review of the email, including consideration of the language and tone adopted in the email, supports a conclusion that there was information available to the decision maker which supports the decision made. There is no apparent error taken in the approach adopted by the decision maker.
  1. [43]
    For these reasons, I do not consider that Ms Barrett has discharged the duty that rests on her to establish that the decision was not fair and reasonable. Consequently, I am satisfied that the decision to substantiate allegations 1 and 2(c) and partially substantiate allegation 2(e) was fair and reasonable.

The Disciplinary Action Decision

  1. [44]
    Initially the Department proposed disciplinary action in the form of the imposition of the following[11]:
  • reduction of paypoint from PO5(4) for 12 months; and
  • you will not be able to undertake any higher duties for a period of 12 months.
  1. [45]
    It was also proposed that the following management action be imposed:
  • attend six sessions with an organisational psychologist or other learning activity relating to understanding social cues and how to engage in effective, professional written communication, to complement the previous similar sessions you undertook in relation to interpersonal communications; and
  • update your Performance and Development Agreement with standards relating to respectful written and verbal communication in the workplace; and
  • develop a communication protocol in conjunction with Dr Mollinger, Dr Thompson and Dr Crook in the interests of meeting business needs; and
  • develop a way of reporting issues of integrity to your managers in a manner that is not judgemental or accusatory.
  1. [46]
    After receipt of Ms Barrett's submissions with respect to penalty, the Department amended its position and now proposes the following disciplinary action:
  • You will have a fortnightly monetary penalty (fine) deducted from your fortnightly salary for a six-month period, to the value of the difference between PO5(4) and PO5(3) (rounded to $100 gross per fortnight); and
  • You will not be able to undertake any higher duties for a period of 12 months.
  1. [47]
    The decision also included the following management action:
  • You are to attend six sessions with an organisational psychologist or other learning activity relating to emotional intelligence and how to engage in effective, professional written communication, to complement the previous similar sessions you undertook in relation to interpersonal communications; and
  • You are to update your PDA with standards relating to respectful written and verbal communication in the workplace; and
  • You are to develop a communication protocol in conjunction with Dr Mollinger, Dr Thompson and Dr Crook in the interests of meeting business needs; and
  • You are to develop a way of reporting issues of integrity to your managers in a manner that is not judgemental or accusatory.
  1. [48]
    Ms Barrett contends that the proposed financial penalty is not fair or reasonable as it is ''disproportionate and [an] unwarranted burden for so subjective a finding''.
  1. [49]
    In proposing the penalty decision, the Department not only had regard to Ms Barrett's submissions in her show cause response, as evidenced by the Department reducing the time period for the disciplinary action, but also had regard to other matters including previous incidents involving Ms Barrett engaging in similar conduct as the substantiated conduct in this matter. The response to those other matters required the imposition of previous management action by the Department. For these reasons, the Department considered Ms Barrett should have been aware of the expectations of behaviour and communication style required of her.
  1. [50]
    The Department also had regard to Ms Barrett's length of service together with her history of no prior formal disciplinary matters. However, it was ultimately determined that these considerations did not outweigh the seriousness of the conduct, particularly in the context of management action previously being taken.
  1. [51]
    I consider that the Department had regard to all relevant considerations with respect to the disciplinary action and that the approach it took with respect to weighing those considerations when imposing the disciplinary action was open to be made on the material before the decision maker. I am satisfied that the decision imposed strikes a balance between the mitigating factors relied on by Ms Barrett and the findings made within the context of Ms Barrett's previous training with respect to the Code of Conduct. Having regard to these matters, I do not consider that the financial penalty proposed is disproportionate or unwarranted. I do not consider that the decision with respect to the proposed disciplinary action was not fair and reasonable.

Orders

  1. [52]
    For the foregoing reasons, I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decisions appealed against are confirmed.
  2. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decisions appealed against made on 12 May 2022 be revoked.

Footnotes

[1] Section 194(1)(b)(i) of the Public Service Act 2008 (Qld) is in the same terms as s 131(1)(c) of the Public Sector Act 2022 (Qld).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[4] Decision dated 30 November 2021.

[5] [2019] ICQ 16.

[6] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344.

[7] See s 92 of the Public Sector Act 2022 (Qld).

[8] Decision dated 30 November 2021.

[9] Having formed a view that allegation 2(a), 2(b) and 2(d) could not be substantiated.

[10] The tone of the emails were in the very least disrespectful but could also be viewed as mocking and/or sarcastic.

[11] Decision dated 30 November 2021.

Close

Editorial Notes

  • Published Case Name:

    Barrett v State of Queensland (Department of Agriculture and Fisheries)

  • Shortened Case Name:

    Barrett v State of Queensland (Department of Agriculture and Fisheries)

  • MNC:

    [2023] QIRC 127

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    09 May 2023

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
A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16
2 citations
Jump To
Cite 1 - [2019] ICQ 16
Cite 2 - [2019] ICQ 16
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
1 citation
Jump To
Cite 1 - (1984) 3 FCR 344
Hunter Valley Developments Pty Ltd v Cohen (1984) FCA 176
2 citations
Jump To
Cite 1 - (1984) FCA 176
Cite 2 - (1984) FCA 176

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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