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Spring v State of Queensland (The Public Trustee of Queensland)[2024] QIRC 238

Spring v State of Queensland (The Public Trustee of Queensland)[2024] QIRC 238

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Spring v State of Queensland (The Public Trustee of Queensland) [2024] QIRC 238

PARTIES:

Spring, Benjamin

(Appellant)

v

State of Queensland (The Public Trustee of Queensland)

(Respondent)

CASE NO:

PSA/2024/42

PROCEEDING:

Public Sector Appeal – Fair Treatment Decision

DELIVERED ON:

3 October 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against disciplinary findings – appellant accused of accessing the respondent's customer information management system to review customer information where his employment did not require him to do so – appellant accused of failing to keep details of disciplinary process confidential – appellant accused of accessing employment history and personal details of other employees where his employment did not require him to do so – where the delegate found the appellant contravened a relevant standard of conduct in a way sufficiently serious to warrant disciplinary action – where the delegate found that the appellant contravened a reasonable and lawful direction given to him – where the appellant argues the delegate commenced the disciplinary process without first undertaking an investigation – where the appellant claims he was asked to respond to allegations without sufficient particulars – where the appellant alleges the process was infected with apprehended bias – whether the disciplinary finding decision was fair and reasonable – whether the appellant was afforded procedural fairness – decision fair and reasonable

LEGISLATION AND INSTRUMENTS:

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

Public Sector Act 2022 (Qld) s 3, s 4, s 90, s 91, s 92 s 129, s 131

Directive 05/23: Discipline cl 4, cl 5, cl 7, cl 9, cl 13

Directive 17/20: Workplace investigations cl 6

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

Fair Work Ombudsman v Finetune Holdings Pty Ltd (No 2) [2012] FMCA 349

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

Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170

State of Queensland (Queensland Health) v Hume [2024] ICQ 3

Taikato v R (1996) 139 ALR 386

Reasons for Decision

Background

  1. [1]
    Mr Benjamin Spring (the Appellant) has been employed by The Public Trustee of Queensland (PTQ), State of Queensland (the Respondent) for approximately 14 years.[1]
  2. [2]
    A disciplinary process was commenced against Mr Spring on 23 June 2023, when the first allegation was put to him for response.  A further two allegations were subsequently raised with Mr Spring in correspondence dated 28 August 2023.
  3. [3]
    The Delegate issued the Disciplinary Finding Decision on 4 March 2024.[2] 
  4. [4]
    Mr Spring appeals that decision.
  5. [5]
    Shortly after the appeal was filed, I issued a Directions Order that stayed the Disciplinary Finding Decision until the determination of this appeal or further order of the Commission.[3]
  6. [6]
    Prior to the current disciplinary process, Mr Spring submitted he had "no previous history of discipline action."[4]

Jurisdiction

  1. [7]
    Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act provides that an appeal may be made against "a fair treatment decision".  Where a fair treatment decision is defined to be:
  1. … a decision a public sector employee believes is unfair and unreasonable.[5]
  1. [8]
    The Appellant has been an employee of the Respondent at all times relevant to this appeal.
  2. [9]
    I am satisfied that the fair treatment decision can be appealed.

Timeframe to Appeal

  1. [10]
    Section 564(3)(d) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  2. [11]
    The Delegate's decision letter was dated 4 March 2024, and received by the Appellant that day.  This appeal was filed on 14 March 2024.
  3. [12]
    I am satisfied that the Appeal Notice was filed within the required timeframe of 21 days.

Appeal principles

  1. [13]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[6] 
  2. [14]
    A public service appeal under the IR Act is not by way of rehearing,[7] but involves a review of the decision arrived at and the decision-making process associated therewith. 
  3. [15]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. 
  4. [16]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

  1. [17]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  • confirm the decision appealed against; or
  • set the decision aside and substitute another decision; or
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Submissions

  1. [18]
    The parties filed written submissions in accordance with the Directions Order issued.[8]
  2. [19]
    I have carefully considered all submissions and materials.  I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.

Relevant provisions of the PS Act

  1. [20]
    Section 3 of the PS Act provides:
  1. 3
    Main purposes of Act
  1. The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.
  1. [21]
    Section 4 of the PS Act provides:
  1. 4
    How main purpose is primarily achieved
  1. The main purpose of this Act is to be achieved primarily by —
  1. …
  1. (c)
    creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by -
  1. (i)
    providing for the key rights, obligations and employment arrangements of public sector employees; and
  1. (ii)
    maximising employment security and permanency of employment; and
  1. (iii)
    taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and
  1. (iv)
    ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and
  1. (v)
    ensuring fair and accountable decision-making, including be providing public sector employees with access to fair and independent reviews and appeals; and
  1. (vi)
    setting a positive performance management framework for public sector employees; and
  1. (vii)
    fixing principles to guide public sector managers, and the work performance and personal conduct of public sector employees; and
  1. …
  1. [22]
    Section 90 of the PS Act defines the following terms:
  1. disciplinary finding means a finding that a disciplinary ground exists.
  1. disciplinary ground means a ground for disciplining a public sector employee under section 91.
  1. [23]
    Section 91 of the PS Act relevantly provides as follows (emphasis added):
  1. (1)
    A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. …
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
  1. …
  1. (h)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

Relevant provisions of the Directive

  1. [24]
    Directive 05/23: Discipline (the Discipline Directive) relevantly provides (emphasis added):
  1. 7.1
    Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
  1. 7.2
    Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:
  1. a.
    the seriousness of the employee's personal conduct and/or work performance, and
  1. b.
    whether the matter should be resolved through management action instead, and
  1. c.
    whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and
  1. d.
    whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and
  1. e.
    whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and
  1. f.
    if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and
  1. g.
    whether further information is required to make a decision to commence a disciplinary process, and h. for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.
  1. …
  1. 9.3
    Show cause process for disciplinary finding
  1. a.
    the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
  1. b.
    written details of each allegation in clause 9.3(a) must include:
  1. i.
    the allegation
  1. ii.
    the particulars of the facts considered by the chief executive for the allegation
  1. iii.
    the disciplinary ground under section 91 of the Act that applies to the allegation
  1. c.
    when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation
  1. d.
    a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence
  1. e.
    the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension
  1. f.
    if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
  1. 9.4
    Decision on grounds (disciplinary finding)
  1. a.
    the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities
  1. b.
    he chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding
  1. c.
    for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established
  1. d.
    the employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals
  1. e.
    if the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation f. if the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
  1. 9.5
    Show cause process for proposed disciplinary action
  1. a.
    the chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)
  1. b.
    the chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented
  1. c.
    the disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act
  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 may have on the employee 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/entity and its proportionality to the gravity of the disciplinary finding
  1. e.
    a show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated
  1. f.
    the chief executive must provide the employee with a minimum of seven days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
  1. g.
    if the employee does not respond to a show cause notice on disciplinary action or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.
  1. …
  1. 13.
    Appeals
  1. 13.1
    A subject employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 131 of the Act.
  1. [25]
    The Discipline Directive defines relevant terms as follows:

Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: relevance of the evidence to the allegations seriousness of the allegations inherent likelihood or improbability of a particular thing or event occurring gravity of the consequences flowing from a particular finding.

…

Disciplinary ground has the meaning provided for under section 91 of the Act.

…

Management action is independent of the disciplinary process and should be considered as the first response and/or alternative to the disciplinary process in managing unacceptable conduct or performance.  Following a disciplinary finding (refer to section 90), management action can accompany or substitute for disciplinary action.  If appropriate, management action can replace an ongoing disciplinary process at any stage.  While not limited, management action is predominantly focused on corrective action.

…

Procedural fairness is a concept used interchangeably with natural justice and is a right recognised and defined by law that involves two key elements - the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond) and the bias rule (everyone is entitled to a decision by a disinterested and impartial adjudicator).

Allegations

  1. [26]
    The Delegate found the following allegations to be substantiated:

First Allegation:  Re Customer Information Management System (CIMS) Access - PTQ customer

In September 2022, you accessed CIMS to review information about a PT customer, in circumstances where your employment responsibilities did not require you to do so.[9]

Second Allegation: Re Failure to follow a lawful and reasonable direction

On 25 July 2023, you did not follow a reasonable and lawful direction when you failed to keep the details of the 23 June 2023 Letter confidential, and disclosed information from the 23 June 2023 Letter and details of the matter to Ms Lucy Salerno (Managing Lawyer, Customer Legal Services, QPT) in circumstances where the disclosure was not permitted.[10]

Third Allegation: Re CIMS Access - PTQ staff

It is alleged you have accessed the employment history and/or personal details and/or customer file management information of QPT employees in CIMS, in circumstances where your employment responsibilities and work duties did not require you to do so.[11]

Specifically:

  • Allegations C14 to C17 - these allegations relate to access occurring specifically on 10 February 2023 between 10.07 am and 10.18 am, in relation to employees in QPT's Brisbane Financial Management team; and
  • Allegation C19 - this allegation relates to access to Mr Euan Miles' details on 18 April 2023 at 9.24 am - who also works in the Brisbane Financial Management team.[12]

Grounds for Discipline

  1. [27]
    With respect to Allegations 1 and 3, the Delegate found the Appellant had "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action."[13]  On that basis, the Delegate decided that grounds for discipline arose pursuant to s 91(1)(h) of the PS Act.
  2. [28]
    With respect to Allegation 2, the Delegate found the Appellant had "contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person."  On that basis, the Delegate decided that grounds for discipline arose pursuant to s 91(1)(d) of the PS Act.

Appeal Grounds

  1. [29]
    The Appellant submitted the following as 'Reasons for Appeal':[14]
  1. The decision to find the appellant liable for discipline is unfair and unreasonable for the following non-exhaustive reasons:
  1. a.
    In relation to the findings of the First Allegation, the delegate has failed to consider the established custom and practice of Trust Officers authorising CIMS access to administrative and paralegal support staff for client files in the Trust Officer's names in order that support staff can fulfill their requirements to provide required support,
  1. b.
    Or, in the alternative, in relation to the findings of the First Allegation, the delegate has failed to give appropriate weight to the mitigating factors the appellant has detailed which provide an acceptable reason for accessing customer records and which provide a reasonable excuse for contravening a relevant standard of conduct in a way sufficiently serious to warrant disciplinary action, and
  1. c.
    In relation to the findings of the Third Allegation, the delegate has accepted the appellant's response for sub-allegations C1 to C13, C18 and C20 and decided to take no further action, but determined this response does not provide a plausible explanation for sub-allegations C14 to C17 and C19, despite there being no material difference between the sub- allegations.
  1. [30]
    The Respondent submitted that "The Notice of Appeal challenges the disciplinary findings in relation to Allegation 1 and Allegation 3.  The Notice of Appeal does not challenge Allegation 2."[15]  That point was not addressed in the Appellant's reply submissions.[16] 
  2. [31]
    I note also that the Appeal Notice does not contain any procedural fairness complaints, though the Appellant later submitted he was denied it because:
  1. a)
    The Delegate commenced a disciplinary process without first undertaking an investigation.
  1. The Appellant submitted that:
  1. The failure to undertake an independent investigation meant that those who have provided information to the employer were not questioned by an independent investigator to draw out details, test their evidence or put to them competing versions of events.  Witnesses or potential witnesses were not approached, and the information contained in the material that is before the decision maker was not tested against other accounts.  Records of system access was not undertaken or provided for response as part of an investigation interview.  The decision maker has put inappropriate weight on the untested information provided to him, when it was in his power to properly test them through an investigation.[17]
  1. b)
    With respect to Allegation One, Mr Spring was "asked to respond to allegations without sufficient particulars and without having all the information being relied upon to respond to."
  1. The Appellant submitted that:
  1. Rather than these errors being corrected by later correspondence, what is revealed is that the decision maker relied upon this request for more particulars to infer the Appellant's guilt…This is a significant procedural flaw from which the ensuing process cannot recover.[18]
  1. c)
    The Delegate "cannot be considered a fair and independent decision maker and the process is infected with apprehended bias".
  1. The Appellant submitted that:
  1. For example, in the 2SCN, this bias is evident when the Appellant's recall of an emotional phone call is conflated as evidence of his dishonest account of passing comments allegedly made in meetings and his recall of accessing a client record:
  1. "I find your position that you cannot recall what you said in meetings and about accessing CIMS, despite the evidence, to be untruthful, particularly given your own detailed recollection of the conversation with Ms Fairchild that happened on and around the same dates as those meetings."[19]
  1. [32]
    The Appellant's submissions make numerous references to Mr Spring's status as a union delegate for Together Union members. 
  1. a)
    In the response to the Allegation One on 7 July 2023 to the Delegate, the union stated that (my emphasis) "… Together are further concerned that the commencement of a discipline process against Mr Spring is a disproportionate response being taken without any required due diligence first occurring because of Mr Spring's role as a union delegate."  It appears to me that statement relates to the fact of a disciplinary process occurring, without a workplace investigation first being undertaken.
  1. b)
    In response to Allegation Three on 10 October 2023 to the Delegate, the union stated that the log report from CIMS for the period June 2022 to June 2023 (my emphasis) "was conducted in direct response to Mr Spring's representation by Together and as a deliberate attempt by the Public Trustee to look for allegations of misuse of CIMS by Mr Spring."
  1. c)
    Further in the 10 October 2023 correspondence to the Delegate, the union referred to the general protections provisions set out in s 278 of the IR Act, Specifically, the protection for people to be represented by a union.  The union stated (my emphasis) "… it was my representation of Mr Spring asserting that the Public Trustee were not meeting their obligations under the Directive, which led to the enquiries the Public Trustee made and then resulted in a log report from CIMS."
  1. [33]
    The Respondent denied the disciplinary finding decision was in any way impacted by Mr Spring's role as a union delegate.
  2. [34]
    The Appeal Notice contains a section titled 'Reasons for appeal', that requires Appellants to "Briefly state the basis of your appeal".  The Respondent has observed that the entirety of the Appellant's appeal grounds were not listed in the notice filed.  However, as I directed the Appellant's submissions to be filed first, and the various procedural complaints and matters regarding Allegation Two were contained therein, I am satisfied the Respondent has had fair opportunity to understand the Appellant's case before responding to it.

Outcome sought

Appellant

  1. [35]
    The Appellant asked that the Delegate's decision on the disciplinary finding:
  1. a.
    Be set aside, and
  1. b.
    Be returned to a new decision maker to make an alternative decision.[20]
  1. [36]
    The decisions an Industrial Commissioner can make is set out in s 562C of the IR Act and identified at [17] above. 

Respondent

  1. [37]
    The Respondent asked that the disciplinary finding decision be confirmed, and the appeal be dismissed.[21]

Questions to be Decided

  1. [38]
    The questions to be decided are:
  • Was the Delegate's Disciplinary Finding Decision fair and reasonable?
  • Did the process afford Mr Spring procedural fairness?

Summary of Findings

  1. [39]
    With respect to Allegation 1:
  1. a)
    I find that it was fair and reasonable for the Delegate to determine that the allegation is 'substantiated'. 
  1. b)
    I find that the Delegate was "reasonably satisfied" that Mr Spring had contravened a relevant standard of conduct "in a way that is sufficiently serious to warrant disciplinary action", "without reasonable excuse". 
  1. That means that the required threshold has been met to impose disciplinary action against Mr Spring, under s 91(1)(h) of the PS Act.
  1. [40]
    With respect to Allegation 2:
  1. a)
    I find that it was fair and reasonable for the Delegate to determine that the allegation is 'substantiated'. 
  1. b)
    I find that the Delegate was reasonably satisfied that Mr Spring had contravened a direction "without reasonable excuse". 
  1. That means that the required threshold has been met to impose disciplinary action against Mr Spring, under s 91(1)(d) of the PS Act.
  1. [41]
    With respect to Allegation 3:
  1. a)
    I find that it was fair and reasonable for the Delegate to determine that the allegation is 'substantiated'. 
  1. b)
    I find that the Delegate was "reasonably satisfied" that Mr Spring had contravened a relevant standard of conduct "in a way that is sufficiently serious to warrant disciplinary action", "without reasonable excuse". 
  1. That means that the required threshold has been met to impose disciplinary action against Mr Spring, under s 91(1)(h) of the PS Act.
  1. [42]
    I have detailed my consideration of each of these elements below.

Balance of probabilities

  1. [43]
    Disciplinary finding decisions are to be made on the 'balance of probabilities'.  The wording of Briginshaw v Briginshaw ('Briginshaw')[22] is incorporated into the Discipline Directive, and there is no contention that said principle does not apply in this instance. 
  2. [44]
    The Discipline Directive prescribes that:

… For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

  • relevance of the evidence to the allegations
  • seriousness of the allegations
  • inherent likelihood or improbability of a particular thing or event occurring
  • gravity of the consequences flowing from a particular finding.[23]
  1. [45]
    In civil matters, the standard of proof is the balance of probabilities.[24]  The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed.  As explained by Dixon J in Briginshaw:

… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…

(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[25]

  1. [46]
    It may also be relevant to consider the evidence that would reasonably be expected to exist if the events alleged did indeed occur.  It should be noted that circumstantial evidence is not excluded by Briginshaw or the concept of an 'exactness of proof'.  Indeed, it is not unusual even for matters considered on the more onerous criminal standard of proof to be proved entirely with circumstantial evidence.  In Chamberlain v The Queen (No 2) [26] Gibbs CJ and Mason J provided:

When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged …[27]

  1. [47]
    The question is then whether it was open for the Delegate to be reasonably satisfied of each of the disciplinary findings.  That question informs whether the decision was fair and reasonable.  It is not a hearing de novo.

'Fair and reasonable'

  1. [48]
    In his recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume ('Hume'),[28] Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals. 
  2. [49]
    In Hume, Deputy President Merrell explained (citations omitted):
  1. [41]
    Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '… fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons.
  1. [42]
    First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '… fair and reasonable', are used in other than their ordinary meaning.
  1. [43]
    The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness.
  1. [44]
    Similar arguments made to the Commission have been rejected by the Commission.
  1. [45]
    Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning.
  1. …
  1. [48]
    Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely:
  • that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and
  • that the legislative intention is that those words, that make up the phrase '… fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning.
  1. [49]
    The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '… free from bias, dishonesty, or injustice'46 and the word 'reasonable' means '… agreeable to reason or sound judgment'.47 Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact.
  1. [50]
    Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '… including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act.
  1. [51]
    By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole.
  1. …
  1. [53]
    The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department.

'Without reasonable excuse'

  1. [50]
    The phrase "without reasonable excuse" is not defined in the PS Act. 
  2. [51]
    Though in Taikato v R ('Taikato')[29] a majority of the High Court of Australia said as follows (citations omitted):

The term "reasonable excuse" has been used in many statutes and is the subject of many reported decisions.  But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of "reasonable excuse" is an exception.[30]

  1. [52]
    In Fair Work Ombudsman v Finetune Holdings Pty Ltd (No 2)[31] Lucev FM (as his Honour then was) after referring to Taikato said as follows (emphasis added): "Ultimately, an excuse acceptable to a reasonable person, bearing in mind the purpose of the legislation, is a reasonable excuse."[32]

Consideration - Disciplinary Finding Decision

  1. [53]
    Mr Spring appeals the disciplinary finding made by the Respondent that a 'disciplinary ground' exists.[33]  The disciplinary grounds are set out in s 91(1)(a)-(h) of the PS Act. 
  2. [54]
    Mr Spring does not deny that the conduct occurred,[34] rather he broadly relied on having good reasons for acting as he did. 
  3. [55]
    Essentially, Mr Spring appeared to accept that he "contravened … a direction" (with respect to Allegation 2) and that he "contravened … a relevant standard of conduct" (with respect to Allegations 1 and 3), though argued he had a "reasonable excuse" for doing so.  The contest between the parties is whether that means that 'grounds for discipline' had been established or not. 
  4. [56]
    That necessitates particular consideration of each of the requisite components of the grounds for discipline under s 91(1) of the PS Act as well as what "fair and reasonable"[35] means in the context of a public sector appeal.  That includes the ordinary meanings of the phrases "reasonably satisfied" and "sufficiently serious to warrant disciplinary action" - along with reference to what is meant by "without reasonable excuse".[36] 
  5. [57]
    The Appellant submitted that "when this evidence, and preliminary procedural matters, are given appropriate weight that substantiation of the allegations is not fair and reasonable and/or that no disciplinary grounds exist."[37]  I do not accept that submission entirely.  In circumstances where Mr Spring has admitted to the conduct that is subject of the allegations, I cannot see how the Delegate's finding of 'substantiation' can be reasonably disturbed by this Commission.  In my view, the Appellant's position is better served by the second limb - whether grounds for discipline have been established because of the substantiated allegations.  While that is often the case, it does not always follow.
  6. [58]
    The Respondent submitted that "a disciplinary finding does not require any particular degree of seriousness, provided the disciplinary ground exists."[38]  However, three things arise from that submission:
  7. [59]
    Firstly, the Discipline Directive provides that "Discipline is not appropriate for matters that may be dealt with through management action",[39] that is early intervention to address unacceptable conduct[40] that is "predominantly focused on corrective action".[41]  The seriousness of the employee's conduct is a factor in determining whether or not to commence a disciplinary process in the first place.[42]  The correct course is for minor matters to be addressed with the employee through management action.[43]
  8. [60]
    The Discipline Directive defines 'management action' as:

… independent of the disciplinary process and should be considered as the first response and/or alternative to the disciplinary process in managing unacceptable conduct or performance.  Following a disciplinary finding (refer to section 90), management action can accompany or substitute for disciplinary action.  If appropriate, management action can replace an ongoing disciplinary process at any stage.  While not limited, management action is predominantly focused on corrective action.

  1. [61]
    Secondly, even if a discipline process is commenced and the Delegate determined there are grounds for discipline, it does not automatically follow that disciplinary action is imposed.  The Discipline Directive states that the Delegate "may consider whether disciplinary action should be proposed … and/or management action implemented, or to take no further action."[44]
  2. [62]
    Thirdly, where allegations are admitted (as is the case here) it must still be established that grounds for discipline arise because of the substantiated conduct.  The tests of "reasonably satisfied", "reasonable excuse" and "sufficiently serious to warrant disciplinary action" are all critical to a determination of whether the Delegate's disciplinary finding decision ("finding that a disciplinary ground exists")[45] is fair and reasonable.  As s 91(4) of the PS Act makes clear that (my emphasis):

To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.

  1. [63]
    That is further supported by the provisions of the Discipline Directive, cl 7.1 states (my emphasis):

… An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.

  1. Allegation 2
  1. [64]
    With respect to Allegation 2, Mr Spring argued the Delegate could not be "reasonably satisfied" that he had (my emphasis) "contravened, without reasonable excuse, a direction given" to him by the Delegate.  Mr Spring has relied on mitigating circumstances and has asserted that the "minor nature of the breach of the direction are not sufficiently serious for disciplinary grounds to exist."[46]
  2. [65]
    In summary, Mr Spring had been directed by the Delegate in writing to keep the details contained in the 23 June 2023 correspondence "strictly confidential".  He did not follow that direction.  Instead, Mr Spring discussed the matter with Ms Lucy Salerno on 25 July 2023.  That is not disputed.
  1. [66]
    However, Mr Spring said the breach of confidentiality was a "minor" and "inadvertent contravention of the direction given by Mr Zhouand".  Further, that Mr Spring had a "reasonable excuse" for speaking about the matter with Ms Salerno.
  1. [67]
    The Delegate did not accept that Mr Spring's assertion that he had "inadvertently" contravened the written direction to keep the matters subject of the disciplinary process confidential.  That is because Ms Salerno's 'Supplementary File Note' stated that Mr Spring was alone at his desk when he 'mouthed' words to her, including 'sacked'.  Ms Salerno says Mr Spring "ushered me into a quiet room" and "openly and without prompting talked about the show cause notice, what was being alleged against him and the CCC."  The Delegate has provided sound and cogent reasons why he accepted Ms Salerno's account of the conversation, rather than Mr Springs, to the extent that they differ.[47]  By the same reasoning, I also cannot accept Mr Spring's position that he had a "reasonable excuse" for discussing the matter with Ms Salerno.  Mr Spring was not completely prevented from speaking to anyone about the matter, in the course of an understandably stressful period of a show cause process.  The Delegate's letter clearly stated that Mr Spring could discuss it with "your union, legal representative or support person" but not "with work colleagues or any person likely to have information relevant to the allegation(s) against you".  The Delegate explained this was to "safeguard the integrity of the process".  By that time, it appears that Mr Spring was extensively discussing the matter with his union - so was not without support in the process.  The Delegate's direction to Mr Spring to keep the matter confidential was abundantly clear, entirely reasonable, and no way unusual in this type of matter.  For those reasons, it appears to me more likely that Mr Spring sought the opportunity as Ms Salerno was passing to have a sympathetic chat, then being "overcome with emotion" "in a moment of relief". 
  1. [68]
    However, there remains the question of whether the breach was 'minor', as submitted by the Appellant.  The Respondent's response was that "The fact that there appears to have been no serious adverse consequences is not to the point.  Because of Mr Spring's breach, the other party to that conversation was drawn into the process.  Mr Spring's version then sought to undermine and attack that employee's credibility, despite her having no stake in the issue."  The Respondent stated that Mr Spring had conflated "whether the subject matter of the direction is serious, with whether a breach of a direction is inherently serious.  The obligation on an employee to comply with the lawful and reasonable directions of their employer is fundamental."[48]  I think the Appellant's approach here, with respect to the stated 'minor' nature of Mr Spring's conduct subject of this allegation, may have been based on the precise wording of the 'grounds for discipline' contained in s 91(1)(h) of the PS Act.  (That is the basis upon which the Delegate determined that grounds for discipline arose with respect to Allegations 1 and 3).  Section 91(1)(h) of the PS Act provides that grounds for discipline arise when the conduct is "sufficiently serious to warrant disciplinary action" - it follows then that if the conduct is 'minor', grounds for discipline may not arise.  However, this allegation does not relate to s 91(1)(h).  It relates to s 91(1)(d), that does not include any such caveat about the seriousness of the conduct.  Clearly then, whether or not Mr Spring's conduct was 'minor' does not have the same potential to disrupt the Delegate's finding that grounds for discipline have been established.
  1. [69]
    For the sake of completion, the Appellant's submission about the 'minor' nature of Mr Spring's conduct subject of Allegation 2 is very relevant to the Delegate's future determination of disciplinary action to be imposed.  The Delegate's correspondence dated 4 March 2024 invited Mr Spring's response to the proposed disciplinary action of 'Termination of employment' and set out the factors that inform "appropriate and proportionate" disciplinary action under the Discipline Directive - including the "seriousness of your conduct".[49]  I have earlier noted that the Discipline Directive provides that "Discipline is not appropriate for matters that may be dealt with through management action"[50] - and the correct course is for minor matters to be addressed with the employee through management action[51] which "can replace an ongoing disciplinary process at any stage."  Just because a disciplinary process was already 'in progress' with respect to Mr Spring does not mean that the precise terms of the Directive cease to apply, and a different decision cannot be made. 
  1. [70]
    I find that the Delegate could be "reasonably satisfied" that Mr Spring had "contravened, without reasonable excuse, a direction given" to him.  It was therefore fair and reasonable for the Delegate to determine that grounds for discipline arise under s 91(1)(d) of the PS Act.  What action (disciplinary, management or not at all) the Delegate determines to impose on Mr Spring as a result though, is outside the parameters of my Decision.  The Delegate is yet to decide it.
  1. Allegations 1 and 3
  1. [71]
    Mr Spring argued the Delegate could not be "reasonably satisfied" that he had contravened (my emphasis) "a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action" "without reasonable excuse" with respect to the conduct subject of the First and Third Allegations.  That was because either: there were mitigating factors that excused the contravention (both allegations) and / or there was "an established custom and practice of Public Trust Officers authorising CIMS access to administrative and paralegal support staff" to enable them to provide such support (First Allegation only).[52] 

Allegation 3

  1. [72]
    Allegation 3 comprised of two parts (my emphasis):
  • … CIMS Allegations C1 to C23: CIMS access related to the employment history, personal details and/or customer file management of PT employees; and
  • … CIMS Allegations C24 to C37: CIMS access related to your own personal information/details in CIMS.[53]
  1. [73]
    With respect to Allegation 3, sub-parts C24 to C37, Mr Spring explained to the Delegate that he had a high level of knowledge of the CIMS system, obtained through his length of service at QPT.  As a result, colleagues sometimes asked for his assistance with the system.  When demonstrating to colleagues how to use CIMS to do a particular task, Mr Spring said he accessed his own CIMS or USER ID "to ensure that I am only disclosing my own personal information and not accessing records I have no need to access."[54]  The Delegate did not agree that was an appropriate use of CIMS, and stated employees who sought assistance from Mr Spring should instead access approved training on the system from the relevant department and raise this with their supervisor.[55]  However, the Delegate decided not to take any further action with respect to Allegation 3, sub-parts C24 to C37 because (my emphasis):

In accessing your own personal customer-related information and records in CIMS, you were accessing information already known to you, and this access is distinctly different to that expected by the public, and other employees, regarding their confidential and personal information recorded in CIMS.  In consideration of the public interest and/or harm factor on this occasion, there is no substantial impact on the expected trust and confidence placed on the QPT as a public sector agency, or the administration or the performance of the functions of the QPT.[56]

  1. [74]
    With respect to Allegation 3, sub-parts C1 to C23, Mr Spring explained to the Delegate he had a reasonable excuse to access the CIMS system because:
  1. a.
    … Customer Experience and Delivery staff regularly use the SEEMP [Employee (User) Details] screen to determine whether other staff are online, or last active; and
  1. b.
    … pre-population of the screen data in CLDTL [Customer Details] occurs when moving between certain screens in CIMS.[57]
  1. [75]
    The Delegate considered Mr Spring's response and accepted it was a plausible explanation for his access to the CIMS system, with respect to Allegation 3, sub-parts C1 - C13, C18 and C20 - C23 only.  The Delegate's acceptance of Mr Spring's explanation was limited to those particular sub-parts because Mr Spring's access activity with respect to each sub-parts C1 - C23 was "carefully analysed in the context of the two general explanations" provided in his show cause response, "including the CIMS records and screens you moved through immediately before, during and after each of the employee CIMS records" contained in each sub-part C1 - C23.  The Delegate reasoned that where a customer file was emailed to Mr Spring in order to perform a work task (my emphasis) "and a nexus can be established between that file and the Public Trust Officer dealing with that customer file and your access to the SEEP screen for that Public Trust Officer, I accept your response, given there is a logical and rational explanation for looking up that employee in CIMS …"  The Delegate added that (my emphasis) "where there is an immediate team or work colleague connection that can be established, and it was reasonable that you might have accessed that colleagues' CIMS SEEP screen to see when they were last active, I have also accepted your response and decided to not take any further action."[58]  However, the Delegate did not accept that Mr Spring's two "general responses" held with respect to sub-parts C14 - C17 and C19 because there was no legitimate basis for the access to the CIMS records for those QPT employees.
  2. [76]
    Mr Spring submitted that "At the relevant time, all employees whose records relate to sub allegations C1 to C23 were members of the DST2 workgroup and contacting other employees among that workgroup when individual points of contact are unavailable is established practice".[59]  Further, Mr Spring said that those QPT employees (central to the remaining sub-parts) have "carriage of conveyancing and property files".[60]  He contended that was a reasonable excuse for accessing those employees' information on CIMS.  That particular argument was not contained in Mr Spring's show cause response, dated 2 October 2023.
  3. [77]
    The Respondent submitted that "not all employees whose records were accessed by Mr Spring were members of the DST2 work group" and "the Financial Management employees that are the subject of the findings (C14 to C17 and C19), did not have carriage of 'conveyancing and property' files."[61]
  4. [78]
    In finding that Mr Spring had no legitimate basis for accessing those particular employees in CIMS, the Delegate had regard to data showing Mr Spring had accessed each employee record sequentially (C14 to C17) on 10 February 2023 and that had been done by specifically inputting each employee record in CIMS and not by any 'pre-population' of data.  The Delegate also had regard to Mr Spring's access to the employee record (C19) on 18 April 2023, and noted that he "did not access any client files in CIMS on this day", that the employee record "is the last record you accessed on this day" and that Mr Spring had not advanced any reason for doing so.
  5. [79]
    While Mr Spring has submitted that the Delegate ought not have found the Allegation to be substantiated because there is "no material difference between the sub allegation which were considered by the decisionmaker to be adequately explained to the extent that no further action would be taken and those which were not", the Delegate has (fairly, in my view) reasoned that the difference in his determination was because:

There are no customer files, team or colleague connections between you accessing these CIMS records for these employees and your employment responsibilities; and you have not provided any plausible explanation for me to consider, other than the general responses outlined…which do not explain your access in relation to Allegations C14 to C17 and C19.  Therefore, I cannot discern any basis on which your employment responsibilities would require you to access these employees in CIMS.[62]

  1. [80]
    In my view, the Delegate provided clear and cogent reasons for substantiating Allegation 3, sub-parts C14 to C17 and C19. 
  2. [81]
    The Delegate determined then that Mr Spring did not have a "reasonable excuse" for accessing CIMS to look up those particular colleagues; nor was it done in the course of his work responsibilities.
  3. [82]
    The Delegate could be "reasonably satisfied" that Mr Spring's contravention was "sufficiently serious to warrant disciplinary action" because the computer log records show Mr Spring viewed several QPT employees' records and his stated reason for doing so was not made out.  On that basis, the Delegate could be reasonably satisfied that Mr Spring did not have a reasonable excuse for accessing CIMS to look up those particular employees. 
  4. [83]
    The final limb of s 91(1)(h) of the PS Act is that the particular contravention is "sufficiently serious to warrant disciplinary action".  If so, grounds for discipline are established.
  5. [84]
    Mr Spring has further asserted that the Delegate has penalised him for being represented by a union.  That was because it was his union representative's call for the computer log records (in order to prepare a defence to Allegation 1) that caused the computer records of the later CIMS access by Mr Spring to be found (that then became subject of Allegation 3). In my view, that claim does not hold.
  6. [85]
    It was entirely reasonable for the union (on behalf of Mr Spring) to call for further and better particulars with respect to Allegation 1 - and for the Respondent to conduct the search requested and produce the records to enable Mr Spring to properly respond.  Provision of such details to Mr Spring are an important aspect of procedural fairness, with respect to Allegation 1.  The Respondent did not know the precise date of the incident (subject of Allegation 1) and so conducted the search in the proximate time period.  That is all entirely reasonable.  I do not accept the Appellant's assertion that the Delegate went looking for further allegations against Mr Spring in a 'fishing expedition'. 
  7. [86]
    Instead, what happened was that - in the process of complying with the union's very reasonable inquiry, to enable it to best represent Mr Spring - the Respondent stumbled upon evidence of a second (and similar) instance of Mr Spring accessing information about people through CIMS that he ought not to.  If it had known what would be found as a result of the inquiry, I have no doubt the union would not have pressed the Respondent to supply such further details, in order to answer Allegation 1 - and would instead have relied on Mr Spring's recollections of the incident, with the caveat that account was the best that he was able.  That is not what occurred though.  In my view it is insupportable for the Appellant to now argue that Mr Spring is being adversely treated because he is represented by a union.  It is clear that the union deployed a very reasonable approach to defending an allegation, but that it has rather backfired because there was another example of the conduct identified in the course of the Respondent's further inquiries.
  8. [87]
    The Respondent has a duty to employees and clients.  The standard of expected conduct is communicated to employees.  The Delegate decided to substantiate the allegation, find grounds for discipline exist and propose some disciplinary action be taken, with reference to the factors at cl 9.5(d) of the Discipline Directive.   I note Mr Spring submitted he is an experienced public sector employee and has worked with the QPT for over a decade.[63]  It follows that Mr Spring has a level of awareness about such conduct obligations, particularly given he has knowledge of CIMS beyond that of many of his colleagues who often go to him for advice about tasks.[64]
  9. [88]
    I find that the Delegate could be reasonably satisfied that Mr Spring had "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action."  It was fair and reasonable for the Delegate to determine that grounds for discipline arise under s 91(1)(h) of the PS Act, with respect to Allegation 3. 

Allegation 1

In September 2022, you accessed CIMS[65] to review information about a PT customer, in circumstances where your employment responsibilities did not require you to do so.[66]

  1. [89]
    This allegation was first put to Mr Spring for his response in the Delegate's 23 June 2023 correspondence.  The Delegate explained that the information provided by an internal witness under a PID and that the particulars of the allegation were that:
  • During September and October 2022, in meetings with other PT employees, you disclosed that, following a concern being raised with you by an employee based in Bundaberg, you accessed a particular client's file and read certain notes in that file; and
  • The access was not connected to the duties of your role at that time (Senior Administration and Paralegal Officer), rather it was in the course of discussing an issue arising in your capacity as a union delegate.
  1. [90]
    In other words, the first allegation only came about because Mr Spring reportedly relayed what he had done to 'meetings' of colleagues - and someone passed that on to management. 
  2. [91]
    Notwithstanding that, correspondence from his union dated 7 July 2023 challenged the provision of the allegation to Mr Spring because "no evidence was referred to or provided which supports Mr Spring's access to CIMS as alleged, or which outlines the basis of the allegation that Mr Spring's alleged access to CIMS was not connected to the duties of his role and instead was accessed in his role as a Together Delegate."  The union said the Delegate had not complied with cl 9.3(d) of the Discipline Directive because written details of "the particulars of the facts" were not provided to Mr Spring, together with the allegation.
  3. [92]
    Correspondence from the Delegate dated 13 July 2023 provided further information to assist Mr Spring to respond to the allegation.  Specifically, that:
  • The notifier of a PID is entitled to protection, as far as reasonably practicable, and the allegation was framed accordingly.
  • The employee who Mr Spring was raising the concern on behalf of was Ms Fairchild, Public Trust Officer, Bundaberg.
  • Mr Spring was alleged to have disclosed that he accessed a customer file in meetings on 19 September and 21 October 2022.
  • Five people were named as being present at one or both of those meetings, in addition to Mr Spring.
  1. [93]
    Further, the Delegate responded to the union's request for the provision of evidence as follows:[67]

Your letter refers to the provision of evidence.  The allegation is based on what has been reported, specifically what Mr Spring is alleged to have said he did.  Therefore, it is difficult to understand what evidence you are requesting.

  1. [94]
    On 20 July 2023, the union emailed the Delegate "requesting copies of the evidence which form the basis of the allegations put to Mr Spring …"  The Delegate responded later the same day, asserting that his obligations under the Discipline Directive and PID Act had been met in the conduct of this matter, and further confirming to the union:

… that the allegation is based on what Mr Spring is alleged to have said he did.  Mr Spring has been provided with the particulars of the allegation i.e. the dates of the two occasions when he is alleged to have said that he accessed a customer record, the issue to which it related (by reference to the employee), and the names of the participants who were present on one or more of the occasions.

…

… notwithstanding that view, I attach:

  • redacted public interest disclosure (PID) notification of 20 September 2022 in relation to the 19 September 2022; and
  • a copy of the meeting invitation and the redacted file note taken by a participant at the meeting of 21 October 2022.
  1. [95]
    I have viewed the attachments referred to above, as contained at pages 15 - 20 of the Respondent's submissions dated 2 April 2024.  Those contemporaneous written accounts of the two meetings were made both on the day of the 21 October 2022 meeting, and also the day after the 19 September 2022 meeting.  They present corroborative accounts of what was said by Mr Spring at the meetings.  For those reasons, the documentary evidence ought to be appropriately weighed in the finding of fact as to what Mr Spring (at least, said he) did and why.  The written accounts corroborated that Mr Spring said he had accessed the notes made about the client in CIMS, in order to assess whether the client's conduct was in fact escalating, though it remained unclear why Mr Spring needed to do so in order to raise the regional employee's concerns.  (That is a relevant to the consideration of whether there was a 'reasonable excuse' for the conduct). 
  2. [96]
    The union responded on behalf of Mr Spring by email correspondence on 25 July 2023.  The thrust of that correspondence was that the allegation put to Mr Spring was not framed correctly.  The union noted that the allegation appeared to be that Mr Spring "said he accessed CIMS in circumstances where his employment responsibilities did not require him to do so" (in the meetings with colleagues, as particularised above).  The union asserted that was "materially different" to the allegation provided to Mr Spring - and went on to suggest that the act of actually accessing CIMS (as opposed to simply saying he had done so) in circumstances where Mr Spring's employment responsibilities did not require him to do so (emphasis added):

… which would be evidenced through an audit report of CIMS or some other record that Mr Spring accessed CIMS in circumstances where his employment responsibilities did not require him to do so, may constitute misconduct or contravention, without reasonable excuse, of a relevant standard of conduct in accordance with section 91 of the…[PS Act] and as detailed in your 23 June 2023 correspondence.

  1. [97]
    At their urging, the Delegate made further inquiries about the CIMS functionality and so discovered that he could in fact obtain that information from CIMS. 
  2. [98]
    Following the Appellant's request for further and better particulars, the Delegate issued further correspondence on 28 August 2023 that set out "information from CIMS detailing the date, time and confidential record type of the customer … [that Mr Spring] accessed in CIMS on 19 September 2022."[68]  The Delegate explained:

The QPT had made enquiries of that nature and had been previously advised that CIMS functionality did not allow for such searches to be performed to report on CIMS records accessed by an employee.  On further enquiry, the QPT has established there is a means of obtaining this data and the production of records which log CIMS access.

  1. [99]
    The additional particulars requested by the union to assist Mr Spring's response to Allegation 1 were provided in that 28 August 2023 correspondence from the Delegate.  The extract of the log report from CIMS showed Mr Spring accessed information about the particular client 7 times on 19 September 2022, between 11:19 am and 4:21 pm, including 'Customer name enquiry', 'Customer details', 'Customer file notes' and 'Financial management details' screens. 
  2. [100]
    That is rather conclusive that the conduct subject of Allegation 1 did occur.  What remains is whether or not Mr Spring had a "reasonable excuse" for doing so.
  3. [101]
    Mr Spring said he spoke to Ms Fairchild on the telephone for about an hour and a half, as she was "very traumatised and upset" because a client was verbally abusive and engaged in threatening behaviours.  Mr Spring submitted that he did not recall accessing the records - but would only have done so if expressly authorised by Ms Fairchild - however, have not of his own volition, accessed customer records where there was not an inherent need and requirement to do so, submitting that his actions were consistent with the Code of Conduct and WHS Act.  Mr Spring explained that any access was to ensure that Ms Fairchild was not further upset or disturbed by explaining the detailed accounts of the ongoing situation.[69]
  4. [102]
    As earlier noted, there is corroborative, contemporaneous evidence that Mr Spring said he had accessed the customer's file notes in CIMS, to assess whether the client's conduct was in fact escalating.
  5. [103]
    However, relevant to the consideration of "reasonable excuse" are the following matters:
  1. a.
    Mr Spring's access to the client's information in CIMS was beyond the said 'one and a half hour telephone call' timeframe between Mr Spring and Ms Fairchild.  Significant too are the screens accessed by Mr Spring, according to the log report.  Even if one were to accept that Mr Spring accessed the client details on CIMS to ensure Ms Fairchild was not further upset or disturbed by explaining the detailed accounts of the ongoing situation, he was not still on the phone to her at 4:21 pm that day (the final access to the client's details on CIMS). 
  1. b.
    Further, even if one were to accept that Mr Spring accessed the CIMS records to ascertain whether or not the client's conduct was in fact escalating, that does not explain why he had cause to access the client's 'financial management details' at 12:28 pm. 
  1. c.
    Finally, Mr Spring's representation of Ms Fairchild - or advice he may have provided to her - did not require him to access, assess or otherwise verify anything about the client's personal records.  In circumstances where Ms Fairchild reported to Mr Spring that a client was verbally abusing her and others, had made threats, had been stalking her behind the QPT building, and (the customer) was seen looking in and under staff members' cars that was abundant information with which to elevate her concerns (via an Incident Report) for management for action and professional support (if required), to union officers for central advocacy or dispute resolution / notification, as a WHS concern or indeed with the local police. 
  1. [104]
    In all of the circumstances, it was fair and reasonable for the Delegate to conclude that the conduct occurred and there was no "reasonable excuse".
  2. [105]
    There is an undercurrent of frustration in the Delegate's chronicle of Mr Spring's response to Allegation 1, whereby he recounts Mr Spring first had no recollection of the matter to then providing a fulsome response.  Little changed between accounts other than the emergence of the CIMS log report, even though by that time many more months had elapsed since the telephone call of 19 September 2022 that precipitated the allegation. 
  3. [106]
    The Delegate has concluded that Mr Spring's "position that you cannot recall what you said in meetings and about accessing CIMS, despite the evidence, to be untruthful, particularly given your own detailed recollection of the conversation with Ms Fairchild that happened on and around the same dates as those meetings and the contextual background that you were able to contribute to your response of 2 October 2023.  The CIMS log (provided to you on 6 September 2023) sets out the access details, and records that you did access the customer file on 19 September 2022.  I accept that you did access the confidential customer CIMS file, because the CIMS access logs show that you did."[70]
  4. [107]
    I concur it was open to the Delegate to arrive at that conclusion, and he has provided clear and cogent reasons for determining the allegation as he did.
  5. [108]
    I find that the Delegate could be reasonably satisfied that Mr Spring had "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action."  It was fair and reasonable for the Delegate to determine that grounds for discipline arise under s 91(1)(h) of the PS Act, with respect to Allegation 1. 

Various process complaints

  1. [109]
    The Appellant has raised a number of concerns, alleging Mr Spring was not afforded procedural fairness because:
  1. a.
    an investigation did not occur before the allegations were framed and put to him for response;
  1. b.
    the Respondent embarked on a fishing expedition, with respect to the search of CIMS logs;
  1. c.
    the Respondent engaged in adverse action against Mr Spring because he was being represented by his union;
  1. d.
    the Delegate took a biased view in determining Allegation 1 because Mr Spring could only recall the matter after the CIMS log record was produced;
  1. e.
    Mr Spring's status as a union delegate coloured the Delegate's assessment and findings.
  1. [110]
    I do not accept the arguments that Mr Spring was not afforded procedural fairness. 

Workplace investigation

  1. [111]
    With respect to the Appellant's submission that a workplace investigation ought to have been first conducted before allegations were put to him for response, the Directive 17/20: Workplace investigations cl 6.7 provides that "There is no obligation for the decision-maker to agree with the investigator's findings …"[71]  So even if a workplace investigation was held, nothing would have prevented the Delegate from putting matters to Mr Spring for his response. 
  2. [112]
    The Respondent submitted (correctly, in my view) that "Allegation 1 was attributed to what Mr Spring had said himself; the Respondent was entitled to put the matter to him, and he was entitled to respond."[72]  In circumstances where a PID had been made, and contemporaneous file notes and record of Mr Spring's statement at the meetings provided, a workplace investigation would have brought limited added value (if at all).
  3. [113]
    Allegation 2 arose because Mr Spring did not maintain "strict confidentiality" about the disciplinary process, as directed - but instead spoke to Ms Salerno about it.  In circumstances where Ms Salerno provided two statements about the conversation with Mr Spring - and he was given fair opportunity to respond to the allegation - a workplace investigation would not have taken the matter any further.
  4. [114]
    Allegation 3 arose as an unintended consequence of the insistence that the CIMS log records be found and produced.  While that is no doubt now a matter of regret, it is difficult to see how a workplace investigation could augment the evidence of the CIMS log record.  It is simply a matter to be put to Mr Spring to ascertain whether there was any "reasonable excuse" for the access.  The Delegate has adopted that course.
  5. [115]
    For those reasons, Mr Spring has not suffered a lack of procedural unfairness, with respect to the Delegate's decision not to first initiate a workplace investigation into the matters.

Fishing expedition claim; and Adverse action claim

  1. [116]
    I have rejected the Appellant's complaints about those matters, at [83] - [85] above.

Claim of bias

  1. [117]
    The Appellant submitted the Delegate held a biased view in determining Allegation 1 because Mr Spring could not recall the matter initially, then could after the evidence of the CIMS log record was produced.
  2. [118]
    Allegations of bias should not be made lightly.
  3. [119]
    Bias involves a decision maker displaying some improper inclination for or against a person.
  4. [120]
    The Appellant does not particularise, either in his Appeal Notice nor his submissions, why he believes the disciplinary finding decision, or the Delegate, was infected with bias - other than Mr Spring desired a different outcome to the finding on Allegation 1.  That is not sufficient.
  5. [121]
    An allegation adverse to an individual is certainly not tantamount to bias, in and of itself. It would require significant evidence that the Delegate made his decision while labouring under some bias.  There is no convincing evidence in that regard on the material before me.
  6. [122]
    I cannot accept the Delegate held a biased view, in arriving at the finding that Allegation 1 was substantiated, and grounds for discipline established.  The Delegate provided clear and cogent reasons for his decision, that included assessment that Mr Spring's initial response had not been truthful.  I have not disturbed the Delegate's decision, as it was fair and reasonable.

Union delegate

  1. [123]
    The Respondent submitted that "Mr Spring's status as a union delegate had no part to play in the disciplinary findings, and there is no evidence to suggest that it did."[73]
  2. [124]
    I accept the Respondent's submission because:
  1. a.
    The conduct subject of Allegation 1 only came to light because Mr Spring talked about it with colleagues in two separate meetings - and a PID was subsequently made about it.  In his second response to Allegation 1, after the CIMS record log had been obtained, Mr Spring himself raised his status as a union delegate to argue that he had a "reasonable excuse" for the conduct subject of Allegation 1.  The Delegate's response was essentially that the Code of Conduct requirements to "comply with appropriate laws of privacy, confidentiality and information management" apply to all QPT employees equally.  The Delegate had clear and cogent reasons for finding Allegation 1 to be substantiated and that grounds for discipline arise with respect to it.  I have not disturbed that finding.
  1. b.
    Allegation 2 arose because Mr Spring spoke to Ms Salerno about the disciplinary process and associated matters, despite being clearly instructed not to.  That allegation cannot be said to have arisen because Mr Spring is a union delegate.
  1. c.
    Allegation 3 arose because Mr Spring sought evidence of his access to the CIMS log record with respect to Allegation 1.  In the course of that search, the Respondent encountered evidence of further similar breaches and determined to put that to Mr Spring for his response.  I note that his response to some sub-parts of Allegation 3 were accepted, and his responses to others were not.  In circumstances where Mr Spring has failed to provide any accurate and "reasonable excuse" for looking at the personal information of colleagues, grounds for discipline arise.  The log records detail the access made - there is no evidence that the Delegate's decision was infected with bias.
  1. [125]
    I find that the disciplinary process utilised by the Delegate, that resulted in the disciplinary finding decision against Mr Spring, was procedurally fair.

Proposed disciplinary action

  1. [126]
    Although this public service appeal does not pertain to the proposed disciplinary action, I will make some final remarks.
  2. [127]
    It is indisputable that the Delegate's combined disciplinary findings against Mr Spring have potential consequences that are extremely serious.  That is underscored here, where the disciplinary action of 'termination of employment' is proposed. 
  3. [128]
    I have observed throughout this Decision that the Delegate's proposed disciplinary action decision is not a decision that has yet been made, nor will it be made until Mr Spring has an opportunity to respond to it in writing.  Mr Spring will no doubt have such opportunity upon the release of this Decision confirming the Delegate's disciplinary findings.  The Delegate has appropriately noted the matters that inform his determination of any disciplinary action decision are located at cl 9.5 of the Discipline Directive and have been reproduced in the Delegate's correspondence dated 4 March 2024.  For the reasons earlier explained, a matter only proposed is not a 'decision' and is therefore outside the scope of this appeal.
  4. [129]
    I encourage the parties to collaboratively engage as to how the need for disciplinary action may be appropriately and proportionately addressed, in circumstances where Mr Spring has worked for the QPT for over a decade and has submitted he has an unblemished disciplinary record until now.
  1. [130]
    The devastating impact of termination mandates that such a penalty is not undertaken lightly. Certainly, a range of less extreme disciplinary measures are available under s 92(1) of the PS Act:
  1. …
  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. [131]
    In my view, those alternatives should be subject of measured and ongoing consideration.

Conclusion

  1. [132]
    The Delegate's disciplinary finding decision was fair and reasonable, with respect to the three Allegations against Mr Spring.
  2. [133]
    I order accordingly.

Orders

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

Footnotes

[1] Appellant's submissions filed 26 March 2024, [36].

[2] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024.

[3] Directions Order issued 19 March 2024, 1.

[4] Appellant's submissions filed 26 March 2024, [36].

[5] Public Sector Act 2022 (Qld) s 129.

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

[7] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[8] Issued 19 March 2024.

[9] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, 2.

[10] Ibid 7.

[11] Ibid 13.

[12] Ibid 15.

[13] Specifically, the Code of Conduct ss 1.1 and 1.4.

[14] Appeal notice filed 14 March 2024, 4.

[15] Respondent's submissions filed 2 April 2024, [3].

[16] Appellant's reply submissions filed 10 April 2024.

[17] Appellant's submissions filed 26 March 2024, [15]-[16].

[18] Ibid [17]-[18]

[19] Ibid[19]-[20].

[20] Appeal notice filed 14 March 2024, 4.

[21] Respondent's submissions filed 2 April 2024, [34].

[22] (1938) 60 CLR 336. 

[23] Directive 05/23: Discipline, 'Definitions'.

[24] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.

[25] Briginshaw v Briginshaw (1938) 60 CLR 336, 363.

[26] (1984) 153 CLR 521.

[27] Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536.

[28] [2024] ICQ 3.

[29] (1996) 139 ALR 386.

[30] Ibid 393.

[31] [2012] FMCA 349.

[32] Ibid [26].

[33] Public Sector Act 2022 (Qld) s 90.

[34] Respondent's submissions filed 2 April 2024, [5], [16], [23]; Correspondence from Mr Spring to Mr Zhouand dated 2 October 2023; Appellant's submissions filed 26 March 2024, [28], [33]-[34], [39].

[35] See [48]-[49] of this Decision.

[36] See [50] of this Decision.

[37] Appellant's submissions filed 26 March 2024, [8].

[38] Respondent's submissions filed 2 April 2024, [21].

[39] Directive 05/23: Discipline cl 4.8.

[40] Ibid cl 4.7.

[41] ‘Management action' definition.

[42] Directive 05/23: Discipline cl 7.2 (a).

[43] Ibid cl 4.7-4.9.

[44] Ibid cl 9.4 (e).

[45] Public Sector Act 2022 (Qld) s 90.

[46] Appellant's submissions filed 26 March 2024, [6].

[47] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, 9.

[48] Respondent's submissions filed 30 January 2023 [17].

[49] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, 19.

[50] Directive 05/23: Discipline cl 4.8.

[51] Ibid cl 4.7-4.9.

[52] Appellant's submissions filed 26 March 2024, [5]-[7].

[53] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, 11.

[54] Correspondence from Mr Benjamin Spring to Mr Samay Zhouand, Public Trustee of Queensland and CEO dated 2 October 2023, 10.

[55] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, page 12

[56] Ibid 13.

[57] Ibid; Correspondence from Mr Benjamin Spring to Mr Samay Zhouand, Public Trustee of Queensland and CEO dated 2 October 2023, 8-9.

[58] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, 14.

[59] Appellant's submissions filed 26 Mach 2024, [41].

[60] Appellant's reply submissions filed 10 April 2024, [16]

[61] Respondent's submissions filed 2 April 2024, [25].

[62] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, 15.

[63] Correspondence from Mr Benjamin Spring to Mr Samay Zhouand, dated 2 October 2023, 10.

[64] Ibid.

[65] Customer Information Management System (CIMS).

[66] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, 2.

[67] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 13 July 2023, 1-2.

[68] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, 3.

[69] Correspondence from Mr Benjamin Spring to Mr Samay Zhouand dated 2 October 2023, 1-5; Respondent's submissions filed 2 April 2024, 88-92.

[70] Correspondence from Mr Samay Zhouand, Public Trustee of Queensland and CEO to Mr Benjamin Spring (c/- Ms Hannah Limberger-Forte, Industrial Officer, Together Queensland) dated 4 March 2024, 6-7.

[71] Respondent's submissions filed 30 January 2023 [24].

[72] Respondent's submissions filed 30 January 2023 [28].

[73] Ibid [33].

Close

Editorial Notes

  • Published Case Name:

    Spring v State of Queensland (The Public Trustee of Queensland)

  • Shortened Case Name:

    Spring v State of Queensland (The Public Trustee of Queensland)

  • MNC:

    [2024] QIRC 238

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    03 Oct 2024

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Fair Work Ombudsman v Finetune Holdings Pty Ltd (No 2) [2012] FMCA 349
2 citations
Jump To
Cite 1 - [2012] FMCA 349
Cite 2 - [2012] FMCA 349
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
2 citations
Jump To
Cite 1 - (1992) 67 ALJR 170
Cite 2 - (1992) 67 ALJR 170
R v Chamberlain (1984) 153 C.L.R 521
3 citations
Jump To
Cite 1 - (1984) 153 C.L.R 521
Cite 2 - (1984) 153 C.L.R 521
Cite 3 - (1984) 153 C.L.R 521
State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3
2 citations
Jump To
Cite 1 - [2024] ICQ 3
Cite 2 - [2024] ICQ 3
Taikato v R (1996) 139 ALR 386
2 citations
Jump To
Cite 1 - (1996) 139 ALR 386
Cite 2 - (1996) 139 ALR 386

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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