Corones v State of Queensland (Department of Regional Development, Manufacturing and Water) [2023] QIRC 299

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION PARTIES: Corones v State of Queensland (Department of Regional Development, Manufacturing and Water) [2023] QIRC 299 Corones, Nick (Appellant) v State of Queensland (Department of Regional Development, Manufacturing and Water) (Respondent) CASE NO: PSA/2023/152 PROCEEDING: Public Sector Appeal – Appeal against a fair treatment decision DELIVERED ON: 18 October 2023 HEARD AT: MEMBER: On the papers Pidgeon IC ORDERS: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a disciplinary finding decision – where the Appellant is employed by the Respondent as a Regulatory Officer – where disciplinary findings made against the Appellant for allegations involving downloading confidential government documents and records and Cabinet in Confidence documents from a departmental computer to a personal portable device without authority and saving Cabinet in Confidence documents to a departmental computer desktop without authority – allegations substantiated – disciplinary finding of misconduct – whether the decision was fair and reasonable – disciplinary finding decision confirmed LEGISLATION: Crime and Corruption Act 2001 (Qld) ss 15 -- 1 of 29 -- 2 Discipline (Directive 05/23) cls 9, 11 Human Rights Act 2019 (Qld) ss 27, 31 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) ss 91, 129, 131, 133 Public Service Act 2008 (Qld) ss 187, 187A Reasons for Decision Introduction [1] Mr Nick Corones (‘the Appellant’) is employed by the State of Queensland (Department of Regional Development, Manufacturing and Water) (‘the Respondent’) as a Regulatory Officer (AO5), Water Supply Regulation. [2] Prior to commencing employment with the Respondent, Mr Corones was employed as a Senior Program Officer, Department of Seniors, Disability Services and Aboriginal and Torres Strait Island Partnerships (‘DSDSATSIP’). [3] On 18 June 2021, Mr Corones left DSDSATIP to commence a six-month secondment to the Department of Justice and Attorney-General. [4] Mr Corones appeals the decision of Mr Jarrod Cowley-Grimmond, Acting Deputy Director-General, Water Resource Management, Department of Regional Development, Manufacturing and Water (‘the decision-maker’) dated 4 July 2023 (provided to Mr Corones on 13 July 2023) to make disciplinary findings against Mr Corones under the Public Sector Act 2022 (Qld) ch 3 (‘the PS Act’) in relation to the following allegations: 1. Between 2 June 2021 and 18 June 2021, you downloaded from a departmental computer to a personal portable device without authority: a. confidential government documents and/or records; and b. Cabinet in Confidence documents. 2. Between 2 and 18 June 2021, you saved a copy of Cabinet in Confidence documents onto your departmental computer’s desktop without authority. [5] On 21 June 2021, information was provided to Ethical Standards, DSDSATSIP, alleging that Mr Corones had copied confidential information, including Cabinet-in-Confidence -- 2 of 29 -- 3 documents, from a departmental laptop connected to the department network, to a non- departmental USB.1 [6] On 23 June 2021, Ethical Standards, DSDSATSIP, reviewed an audit of Mr Corones’ downloading activities. The audit indicated that Mr Corones had downloaded a significant number of documents, confirming the information provided described at [4]. [7] The allegations were assessed by Ethical Standards as meeting the threshold of corrupt conduct in accordance with s 15(1) of the Crime and Corruption Act 2001 (Qld). The allegations were referred to the Crime and Corruption Commission (‘CCC’) and on 6 July 2021, the allegations were assessed as corrupt conduct if proven and the CCC referred the matter back to DSDSATSIP to manage. [8] On 21 June 2022, an Ethical Standards Unit (‘ESU’) investigation found the allegations capable of being substantiated and on 9 November 2022, the former Director-General for DSDSATSIP referred the matter to the Department.2 On 13 January 2023, the decision- maker issued Mr Corones with the first show cause notice dated 10 January 2023. The investigation and show cause process will be discussed further below. Appeal principles [9] Section 562B(3) of the Industrial Relations 2016 (Qld) (‘the IR Act’) provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'. [10] Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal. [11] A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. [12] In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may: (a) confirm the decision appealed against; or … (c) For another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. 1 Respondent’s submissions filed 11 September 2023, [8]. 2 In accordance with s 187A(5) of the now repealed Public Service Act 2008 (Qld). -- 3 of 29 -- 4 Legislative framework and other instruments [13] Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision. [14] Section 129 of the PS Act relevantly states: 129 Definitions for part … fair treatment decision means a decision a public sector employee believes is unfair and unreasonable. [15] Section 133 of the PS Act explains who may appeal a fair treatment decision: 133 Who may appeal … (d) for a fair treatment decision—a public sector employee aggrieved by the decision… [16] Discipline (Directive 05/23) (‘the Discipline Directive’) cl 9.3 provides: 9.3 Show cause process for disciplinary finding 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) b. written details of each allegation in clause 9.3(a) must include: i. the allegation ii. the particulars of the facts considered by the chief executive for the allegation iii. the disciplinary ground under section 91 of the Act that applies to the allegation 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 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 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 -- 4 of 29 -- 5 time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension 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. Mr Corones’ appeal notice and submissions Appeal notice [17] Mr Corones submits that he provided a response to the show cause notice on 13 July 2023 and that the decision-maker did not consider this response in making the decision to substantiate the allegations and propose disciplinary action. [18] Mr Corones says that he lodges the appeal on the grounds of: a. Lack of particulars, including but not limited to missing and excluded evidence b. Quality of the evidence c. Reasonableness of the process, including but not limited to the provision of relevant information relied upon. d. Reasonableness of the situation as a consequence of the global pandemic Covid-19 and Public Health Orders, including but not limited to maintaining work imperatives under restricted work arrangements and other hindrances. e. The degree of residual risk and consequence identified for the actions allegedly taken. f. Extenuating and mitigating circumstances. [19] Mr Corones seeks the following orders: a. each finding that an allegation is substantiated be overturned; b. each finding that the Appellant is liable for disciplinary action be overturned; and c. the matter be concluded on the basis that the Appellant is not liable to disciplinary action and no penalty will be imposed. [20] Mr Corones attaches his ‘Response to show cause notice – liability’ dated 11 July 2023 (which I understand was emailed to the decision-maker on 13 July 2023). -- 5 of 29 -- 6 Mr Corones’ submissions in support of his appeal Mr Corones says that his response to the first show cause notice was not considered [21] Mr Corones says that when the decision regarding the disciplinary findings was issued requesting him to show cause regarding disciplinary action (the second notice to show cause), he was on sick leave from 3 July 2023 to 12 July 2023 inclusive. Mr Corones says that he provided medical certificates in support of this leave. [22] Mr Corones says that on 6 July 2023 at 9.19 am while he was on sick leave, he received an SMS from the decision-maker seeking that he contact them as soon as possible regarding a meeting scheduled for 9.00 am that morning and that no further details regarding the meeting were provided. [23] Mr Corones says that despite being on sick leave, he complied with the direction and replied via SMS informing the decision-maker that he was ill, that his elderly mother had been admitted to hospital with influenza and that he hoped that he and his daughter had not also contracted influenza. Mr Corones says that while he was himself ill, he was managing the care and affairs of his mother and caring for his daughter, to whom he is a single parent. [24] Mr Corones says that on 11 July 2023, while he was still sick, he received another SMS from the decision-maker advising a meeting had been scheduled for 13 July 2023 and that his attendance was required. [25] On 13 July 2023, Mr Corones returned to work. He advised his supervisor that he was still recovering and was wearing a mask and working from a meeting room throughout the day to enable distancing from other staff. [26] Mr Corones says that prior to the meeting scheduled for 4.00 pm on the afternoon of 13 July 2023, he sent an email attaching his response to the first show cause notice to the decision-maker and a human resources (‘HR’) representative. At the meeting, the decision-maker verbally acknowledged receipt of the email and response. [27] Mr Corones says that at the meeting, the representatives of the Department of Regional Development, Manufacturing and Water (‘DRDMW’) dismissed the opportunity to properly consider his response or to adjourn and reschedule the meeting to consider his response to the first show cause notice. The meeting continued and Mr Corones was issued with the second show cause notice. [28] Mr Corones acknowledges that there were significant delays and that he was afforded numerous extensions to respond to the first show cause notice. However, Mr Corones -- 6 of 29 -- 7 says that there were ‘reasonable, appropriate and valid responses and reasons provided’ for the delays.3 [29] Mr Corones says that he had followed directions and was willing to participate in both the investigation and the disciplinary process. [30] Mr Corones says that his response was not fairly heard and considered, his situation was not considered, and that in refusing to accept his response to the show cause notice, DRDMW treated him unfairly. [31] Mr Corones attaches his response to the second show cause notice which he says has relevance to this appeal. Lack of particulars to the allegations [32] Mr Corones says that the decision to substantiate the allegations was based on a lack of information and a lack of clear, specific and relevant evidence. [33] Mr Corones says that he was at a disadvantage in analysing and responding to the allegations as he no longer works for DSDSATSIP and is no longer able to refer to information, emails, file records, relevant correspondence, and associated materials relevant to the allegations. [34] Mr Corones says that he made a request for ‘specific and relevant’ information to be provide to him by the Ethical Standards Unit of DSDSATIP on 25 October 2021 and that this request was denied. [35] Mr Corones acknowledges that he was offered an opportunity to return to his former workplace to analyse information but that he chose not to do so on safety and welfare grounds. [36] Mr Corones says that the evidence and findings in the first show cause notice and the investigation were ‘pernicious and lacked information on particulars’. In summary, Mr Corones takes issue with the following:4 • The Employment Separation Checklist and an explanation of it were not included and considered as evidence. • There was no evidence provided of records showing what electronic files and other information was deleted from Information Technology (‘IT’) assets in his 3 To protect Mr Corones’ privacy I will not set those reasons out here, but they are listed in his submissions filed on 30 August 2023 at [19]. 4 The detailed list of Mr Corones concerns is set out from pages 4-6 of his submissions filed on 30 August 2023 at [28](a)-(l). -- 7 of 29 -- 8 possession at that time. Transferring files and deleting them demonstrated that Mr Corones had met Information Security requirements. • That there was no explanation that electronic government documents, including confidential and sensitive information is routinely downloaded, accessed and stored by employees as part of the Microsoft Office environment. • The absence of local protocols and processes regarding authorisations for access, use and management of electronic files. • Admissions that DSDSATSIP lacked a document management system at the time and did not have a local protocol or process (known as a Cabinet Process manual) capturing expectations on document security and guidelines for managing Cabinet and related documents. • It is uncertain if the report met its scope and purpose as stipulated in the DSDSATSIP Memorandum dated 30 August 2021 and the Terms of Reference. • Unique challenges were experienced during COVID-19 including work from home arrangements where public sector employees and all government departments faced logistical and business continuity issues. This included relying upon desktops/USBs to save and access work, particularly when not possessing a work issued mobile computing device. • Significant and sustained network outages occurred at home. • There is a reality that public sector employees utilise documents and resources subject of the allegations on their desktops or USBs. • Mr Corones undertook appropriate and reasonable measures and safeguards which were not activated by DSDSATIP at the time he worked there. • There was no explanation about the Information Security safeguards that were in place. • The IT audit and information records and DSDSATSIP created tabular lists, contained missing information and did not accurately identify or establish the evidentiary relationship with the evidence provided nor include all data motion records. [37] Mr Corones says that the absence of sufficient evidence and explanation, evidence that was suppressed, and the lack of cogent information, including from the investigation report, did not allow the decision-maker to properly consider matters. -- 8 of 29 -- 9 The quality of the evidence [38] Mr Corones says there were ‘inexact proofs, indefinite testimony, indirect references and inferences’ contained in the statements made against him, in the information referred to in the notice to show cause and in various attachments to the notice to show cause, including the report and attachments. [39] In summary, Mr Corones refers to the following matters, which he says are examples of deficiencies in the quality of evidence, its reliability and credibility:5 • Anecdotal evidence which is subjective and includes errors in perception or memory. • Significant and fatal flaws in the information. • The nature of the allegations and their triviality gives the apprehension that this was a vendetta against Mr Corones as there was no attempt at resolving the matter other than through a disciplinary process. Metadata is a very flexible and powerful tool which can be outputted and manipulated for perverse means. • Indirect discrimination against him when he was directed to attend the workplace while others were not. • The identification of workplace practices which were custom and practice amongst public sector employees and senior officers across government. • An imbalance in the information which does not have regard for local authority protocols regarding information. • Matters detrimental and inimical against Mr Corones contained in statements or made in attachments forming part of the evidence received by DRDMW. • Matters of process including the provision of all information required to respond. • The historical nature of file management systems and processes with DSDSATSIP. [40] Mr Corones says that the matters he has outlined above are substantial and operative factors to justify deficiencies in the quality of evidence. Mr Corones submits this evidence was not sufficient for the substantiation of the allegations on the balance of probabilities. Mr Corones says that the decision-maker could not properly make the decision and therefore the decision is not fair and reasonable. 5 The full list of concerns is set out on pages 7-8 of the Appellant’s submissions filed on 30 August 2023 at [32](a)- (i). -- 9 of 29 -- 10 Reference to the Code of Conduct [41] Mr Corones says that the decision was not fair and reasonable as it did not provide proper explanation of how the alleged conduct could amount to a breach of the Code of Conduct. Mr Corones contends that the decision-maker ‘implied’ that inappropriate conduct occurred in an official capacity within the definition of misconduct under the PS Act. Mr Corones submits that there has been no reference made to the principles contained in the Code of Conduct as it relates to the provisions of the PS Act. [42] Mr Corones says that in any event, there was no evidence or finding to suggest that the acts, as alleged, were criminal, deliberate, malicious or self-serving. Mr Corones says that the findings also did not determine that he obtained a benefit or that the conduct was ‘of a seriously inappropriate nature and wilful disregard for and significant departure from expectations’ of him. Mr Corones notes that a finding of misconduct gives rise to a harsher penalty proposed. [43] Mr Corones says that there is no evidence of damage, risks or impacts caused by the acts as alleged. He also notes that any perceived risk had been mitigated by his use of recognised and appropriate information security measures and safeguards. [44] Mr Corones says that he has been denied an accurate explanation to help him understand and have the opportunity to respond to allegations that he was liable to discipline for on the basis of misconduct. Proper consideration of matters including natural justice and human rights principles [45] Mr Corones says that he was denied the opportunity for proper consideration of the relevant human rights and respective principles when DRDMW considered the findings and made the discipline decision. In summary, Mr Corones says the ‘proper consideration’ by the decision-maker did not have regard to: • Adopting a common sense and practical approach in light of the reality of the situation at the time, both broadly in terms of the pandemic work arrangements and also with regard to his health and wellbeing. • Identifying and explaining what specific human rights may be affected by findings and the decision, i.e. his right to a fair hearing under s 31 of the Human Rights Act 2019 (Qld) (‘the HR Act’) and his cultural rights per s 27 of the HR Act whereby his diverse background, religion and standing in the Greek community were not properly considered in terms of the impact of the findings and decision. • There was no serious consideration of the impact of the decision on his human rights in that there was no consideration of how the serious discipline finding -- 10 of 29 -- 11 amounts to injuring his integrity, causing a deterioration of his standing in the workplace, and a prejudicial alteration in his position due to the imposition of penalty of suspension from duty. • That there was no identification of countervailing interests or obligations where it was identified that there was a limited impact on his human rights without an explanation of this when such a discipline finding and proposed penalty has significant impacts and public sector career-ending consequences. [46] Mr Corones says that he was denied natural justice when he provided a response and it was not considered, particularly in circumstances where the decision may adversely affect him. Mr Corones says that the failure to consider his response means that the disciplinary findings are unfair and unreasonable. [47] Mr Corones say that the findings and the discipline decisions are ‘an extreme response to the situation’. Respondent’s submissions The ethical standards investigation [48] A brief chronology of the events which instigated the investigations is set out at paragraphs [5] to [8] of these reasons for decision. On 30 August 2021, Ethical Standards, DSDSATSIP was appointed to undertake an investigation into Mr Corones’ alleged conduct. On 12 October 2021, by way of correspondence from Ms Ashleigh Pyke, Mr Corones was afforded an opportunity to provide a written response to the allegations under investigation and was asked to provide those submissions by 27 October 2021.6 [49] I note that the letter to Mr Corones requesting a written submission in response to the allegations provided Mr Corones with the allegations and a list of specific information being sought by the investigator.7 The letter was accompanied by an ‘Ethical Standards Investigation Fact Sheet’ and information regarding Public Interest Disclosures. [50] On 25 October 2021, Mr Corones wrote an email to the investigator seeking an extension of three weeks to provide his response. This email also sought a range of information and documents. On 27 October 2021, Mr Aladsair Chisholm wrote a letter to Mr Corones approving an extension allowing for Mr Corones to provide his response by 17 November 2021. Mr Chisholm informed Mr Corones that some of the information he requested was attached to the letter but stated that some information would not be provided, relevantly: 6 Respondent’s submissions filed 11 September 2023, attachment 1. 7 Ibid 1-3. -- 11 of 29 -- 12 • further details of the data allegedly accessed, downloaded and/or saved and/or deleted as referred to in the request for written response • copies of witness statements • copies of documentary evidence relating to the matter, including memoranda, reports, file notes and correspondence [51] Mr Chisholm provided a statement of reasons for his decision to not provide certain information or documents sought by Mr Corones. Attached to the letter were the Department’s: Information Services Policy; Information, Innovation and Recovery Policy; Information Services Procedure; Information, Innovation and Recovery Procedure. [52] The Department notes that Mr Corones elected not to participate in the investigation, despite being granted several extensions of time to provide a response as follows: a. on 25 October 2021, Mr Corones requested an extension of three weeks which Ethical Standards, DSDSATSIP granted until 17 November 2021; b. on 18 November 2021, Mr Corones requested a further extension of time which Ethical Standards, DSDSATSIP granted until 24 November 2021; c. on 30 November 2021, Mr Corones requested a further extension of time which Ethical Standards, DSDSATSIP granted until 8 December 2021; d. on 16 December 2021, Ethical Standards, DSDSATSIP advised Mr Corones that they had not received his response and the investigation would proceed. Mr Corones was advised that he could contact Ethical Standards, DSDSATSIP at any stage before the investigation report was complete if he wished to provide information relevant to the allegations.8 [53] The investigation report was finalised on 21 June 2022 in the absence of any response being provided by Mr Corones. The investigator found on the available evidence that the allegations were capable of being substantiated on the balance of probabilities. The Show Cause Process [54] On 13 January 2023, Mr Corones was issued with the first show cause notice.9 That notice outlined the allegations and provided comprehensive particulars of the allegations, the disciplinary grounds that may apply to the allegations, and the relevant evidence being considered by the decision-maker. Mr Corones was also provided with the Investigation Report dated 21 June 2022. 8 Ibid [14]. 9 Ibid attachment 3. -- 12 of 29 -- 13 [55] Mr Corones was provided with 14 days to respond as to why disciplinary findings should not be made against him. Relevantly, the letter specifically stated, ‘if you do not respond within 14 days, I will make a decision based on the material before me’. [56] Mr Corones requested five separate extensions of time within which to provide his response. The Department says that the decision-maker approved each of the requested extensions as follows: a. on 20 January 2023, Mr Corones requested an initial extension of 21 business days to provide his response, which was granted; b. on 13 February 2023, Mr Corones requested a further extension of time until 27 February 2023 to provide his response due to illness and the need to attend to his personal wellbeing, which was granted; c. on 24 February 2023, Mr Corones requested a further extension of time until 6 March 2023 to provide his response due to urgent family law matters, which was granted; and d. on 30 March 2023, Mr Corones requested a further extension of time until 6 April 2023 to provide his response due to his involvement in a legal matter. [57] The Department says that in an email dated 31 March 2023, the decision-maker outlined the chronology of extensions provided to Mr Corones and noted that he had already been provided with two months and 18 days to provide a response to the first show cause notice and that this was reasonable in the circumstances. Relevantly, the decision-maker advised Mr Corones that he has an obligation to manage a disciplinary matter in a timely manner and provided him with ‘one final extension’ to provide a response by 11 April 2023. The Department says that Mr Corones was ‘clearly advised that no further extensions to this timeframe would be granted and if no response was received, a decision on disciplinary findings would be made based on the information available’.10 [58] The Department says that Mr Corones did not provide a response by the 11 April 2023 deadline. [59] On 30 June 2023, Mr Corones was invited to attend a meeting with the decision-maker and a representative from Workplace Relations on 4 July 2023 at 2.00 pm and was told that the meeting was about the disciplinary process which commenced on 13 January 2023. The meeting was rescheduled for 9.00 am on 6 July 2023 at Mr Corones’ request as he had preapproved leave booked from 3 to 5 July 2023. [60] On 4 July 2023, the decision-maker determined to substantiate the allegations and make a disciplinary finding of misconduct pursuant to s 91(1)(b) of the PS Act. The second show cause notice was signed on 4 July 2023 and was to be provided to Mr Corones at the meeting scheduled for 6 July 2023. 10 Ibid [21]. -- 13 of 29 -- 14 [61] The Respondent says that on 6 July 2023, Mr Corones did not attend the meeting scheduled at 9.00 am and at 9.08 am, the decision-maker contacted Mr Corones on his personal mobile seeking confirmation that Mr Corones would be attending the meeting. The decision-maker followed the phone call with a text message also seeking that Mr Corones confirm he would be attending. When Mr Corones did not respond to either the phone message or the text message by 9.15 am and could not be contacted, the meeting was abandoned. [62] At 9.18 am, Mr Corones’ supervisor forwarded the decision-maker a text message received from Mr Corones at 9.02am which advised that he was unwell and would not be attending the workplace. At 9.59 am, Mr Corones sent a text message to the decision- maker stating that he was not well. That message further stated that he was unaware of the scheduled meeting. [63] On 10 July 2023, Mr Corones provided a medical certificate citing that he would be unfit for duty from 6 July to 10 July 2023 inclusive. On 11 July 2023, Mr Corones provided a further medical certificate for the period of 10 July to 12 July 2023 inclusive. [64] On 11 July 2023, the decision-maker rescheduled the meeting for 4.00 pm on 13 July 2023. The decision-maker submits that the following events occurred on 13 July 2023: a. The decision-maker texted Mr Corones seeking his confirmation that he would be attending the scheduled meeting at 4.00pm that afternoon. Mr Corones confirmed via text message at 12.36pm that he was at work and would be attending the scheduled meeting. b. At 4.00pm, the decision-maker and a representative from Workplace Relations waiting for Mr Corones to attend the designated meeting room. Mr Corones was late and had not communicated to the attendees that he was running late. c. At 4.17pm, Mr Corones emailed his response to the FSCN11 to the decision-maker. At the time the response was sent, the decision-maker was awaiting the arrival of Mr Corones to the scheduled meeting and trying to ascertain the whereabouts of Mr Corones as he was 15 minutes late. Accordingly, the decision-maker had not opened or review the email from Mr Corones attaching the response at that time. d. Shortly after 4.17pm, Mr Corones arrived at the meeting. Upon his late arrival to this meeting, Mr Corones indicated that he had just sent the email to the decision-maker, who advised he had not read or reviewed the email. No further discussion took place between the decision-maker and Mr Corones with respect to the content of that email at that meeting and Mr Corones did not request that the email be considered during that meeting. e. The SSCN12 was issued to Mr Corones by the decision-maker during the meeting. The SSCN outlined that the Allegations against Mr Corones had been substantiated, advised that the disciplinary finding of misconduct had been established in relation to each allegation (including explaining his findings and the evidence relied on to reach the findings). f. Within the SSCN the decision-maker also advised Mr Corones that he was giving consideration to the disciplinary action of termination of his employment and afforded him 11 ‘FSCN’ is a reference to the ‘first show cause notice’. 12 ‘SSCN’ is a reference to the ‘second show cause notice’. -- 14 of 29 -- 15 seven days to provide a response. Mr Corones was also suspended from duty on normal remuneration. g. At approximately 4.30pm the meeting concluded. The Respondent says that decision appealed against is fair and reasonable [65] The Respondent sets out its submissions under the same headings as those used by Mr Corones. Provision of a response [66] The Respondent says Mr Corones’ submission that he was on sick leave from 3 to 5 July 2023 contradicts his advice to the decision-maker that he was taking pre- approved leave to attend to a personal family matter. However, the Respondent notes that the meeting was adjourned at Mr Corones’ request. [67] The Respondent says it made contact with Mr Corones on 6 July 2023 due to his non- attendance at the meeting. The Respondent says that Mr Corones’ submission that he was not provided with details about the meeting is inaccurate and that on 11 July 2023, Mr Corones was informed that the 13 July 2023 meeting was for the purpose of providing him an update in relation to the disciplinary process commenced on 13 January 2023 and inviting him to bring along a support person. [68] The Respondent reiterates the information provided regarding the several extensions granted to Mr Corones to provide a response to the first show cause notice. The Respondent says that each time Mr Corones requested an extension, the decision-maker gave genuine consideration to Mr Corones’ personal circumstances and the seriousness of the allegations. Despite extensions and a final warning on 31 March 2023 that the matter would be considered in the absence of a response, Mr Corones did not provide a response prior to 13 July 2023 and provided no indication that a response was forthcoming. [69] The Respondent says that it has an obligation to deal with disciplinary processes in a timely way and that it was not unreasonable for the decision-maker to have proceeded to make the decision on 4 July 2023 on the information available to him, noting it had been more than 13 weeks since the expiration of the final date he had been afforded to provide a response. [70] The Respondent says Mr Corones’ submission that he was willing to participate in the investigation and disciplinary process is misguided in circumstances where he did not provide a response during the investigation and then did not provide a response to the first show cause notice within the timeframe he had been provided by the decision-maker. In circumstances where Mr Corones had not provided a response nor sought a further extension, the decision-maker made a decision in relation to the disciplinary findings -- 15 of 29 -- 16 based on the information available to him per cl 9.3(d) of the Public Sector Commission’s Discipline (Directive 05/23). [71] With regard to the responses dated 13 July 2023 and 2 August 2023 which Mr Corones has provided with his submissions in this appeal, the Respondent says that these responses post-date the decision of 4 July 2023 and that a public sector appeal is not an opportunity for a fresh hearing and that the appeal should be considered on the basis of the information the decision-maker had available to him at the time the decision was made. Lack of particulars to the allegations [72] The Respondent denies Mr Corones’ submission with respect to an alleged procedurally unfair investigation. The Respondent notes that Mr Corones was afforded the opportunity to participate in the investigation and that despite being granted several extensions of time to provide a response, he did not do so. [73] The Respondent says that Mr Corones did not raise issues regarding his access to information during the investigation when he had the opportunity. The Respondent says that Mr Corones was asked for a written response to the investigation and an opportunity to attend the Ethical Standards office to view the files allegedly accessed, downloaded, and/or saved and/or deleted. Mr Corones did not provide a response or view the files. [74] The Respondent says that all evidence relevant to the facts to be considered and available to the decision-maker were taken into account. The Respondent says that Mr Corones was afforded procedural fairness including a sufficient opportunity to put forward his own version of events including mitigating factors and he elected not to do so until after the disciplinary findings were made. The quality of the evidence [75] The Respondent rejects Mr Corones’ argument that there were deficiencies in the quality of the evidence. The Respondent says that in making the decision, the decision-maker relied on the evidence in the Investigation Report completed by Ethical Standards, DSDSATSIP. The Respondent says that evidence included the results of IT audits undertaken of all files downloaded by Mr Corones to removable devices in the relevant period and the files on the departmental laptop desktop. [76] The Respondent says that, as detailed in the second show cause notice, the decision- maker also considered: a. Mr Corones’ training records provided by DSDSATSIP which demonstrated that he was aware, or ought to be aware, of his obligations including the appropriate use of official resources and the appropriate use and disclosure of official information. -- 16 of 29 -- 17 b. That Mr Corones is an experienced policy officer, having previously been engaged in roles where he worked with Cabinet-in-Confidence documents on a regular, if not daily, basis. c. The timing of the saving of the documents noting Mr Corones was due to commence a secondment to the Department of Justice and Attorney-General on 18 June 2021. d. The witness evidence of Ms Debra Maguire and Ms Letitia Smith as well as the statutory declaration Mr Corones signed on 24 June 2021. [77] The Respondent says that as required, the decision-maker carefully explained each finding in the second show cause notice, including the evidence relied on to reach the finding. The Respondent says that if Mr Corones had identified any specific concerns about the quality of the evidence, the decision-maker would have addressed this in the second show cause notice, however, at the time of making the findings, Mr Corones had not participated in the investigation or disciplinary process and had not raised any issues with the evidence. [78] The Respondent rejects Mr Corones’ submission that the allegations are trivial and/or that the decision to commence a discipline process creates an apprehension that there was a vendetta against Mr Corones. Reference to the Code of Conduct [79] The Respondent says that the decision-maker determined that a finding that Mr Corones’ conduct was a breach of the Code of Conduct would not sufficiently reflect the seriously inappropriate nature of the conduct. The Respondent says that based on the evidence available to the decision-maker at the time and in the absence of any response from Mr Corones, it was reasonably open to the decision-maker to determine that Mr Corones had demonstrated a wilful disregard for the expectations of him as a public sector employee. On that basis, it was reasonable for the decision-maker to conclude that the conduct met the definition of misconduct. [80] The Respondent says that two alternate possible disciplinary findings were put to Mr Corones in the first show cause notice, one with respect to misconduct and one with respect to contravention of the Code of Conduct. The decision-maker ultimately decided that Mr Corones was guilty of misconduct and clearly explained the reasons for that in the second show cause notice. Proper consideration of matters including natural justice and human rights principles [81] The Respondent reiterates that the decision was reasonably open to the decision-maker based on the evidence before him at the time the decision was made. The Respondent says that the decision-maker complied with his obligation to give proper consideration to Mr Corones’ human rights in making the decision on disciplinary grounds and explained -- 17 of 29 -- 18 his reasoning for any limitation being demonstrably justified in the second show cause notice. [82] The Respondent reiterates its earlier submissions that Mr Corones was afforded natural justice and again notes that the decision was made prior to the receipt of Mr Corones response to the first show cause notice. Appellant’s submissions in reply [83] Mr Corones filed submissions in reply on 29 September 2023. Allegations [84] Mr Corones submits that there has been an absence of consideration that his actions and circumstances, which he says are not dissimilar from many public sector employees, have complied with the Queensland Government Enterprise Architecture’s (‘QGEA’) mandatory and minimum-security standards. Mr Corones also reiterates that he complied with Employment Separation requirements when commencing his secondment. Mr Corones says that these processes and the ‘critical evidentiary document’ were not referenced throughout the investigation report by the ESU and were not referenced in any of the show cause notices. The Ethical Standards Unit investigation [85] Mr Corones disputes the Respondent’s submission that he elected not to participate in the investigation. Mr Corones says that he advised the ESU on numerous occasions regarding his personal circumstances and his intention to provide a response. Mr Corones says that the ‘sheer nature, size, impacts and unavoidable challenges’ experienced by him and his family were simply overwhelming and urgent and impacted on his capacity to respond at the time. [86] Mr Corones notes that he sent correspondence to the ESU on 25 October 2021 requesting further information and that he requested further time as a result of personal family- related matters which he did not disclose and kept confidential at that time. Mr Corones also refers to recreation leave which he returned from on 25 October 2021, work commitments requiring onsite attendance in Mount Isa and Cloncurry until 28 October 2021, and his support person not being available until 4 November 2021. [87] Mr Corones says that information he requested and was denied would have assisted him to respond. Mr Corones also reiterates that he did not take up the opportunity to return to his former workplace to analyse other information ‘on safety and welfare grounds’. -- 18 of 29 -- 19 The Show Cause Process [88] With reference to cl 11 of the Discipline Directive, Mr Corones says that no periodic review of his discipline matter was conducted as required and that if a review was conducted, the findings of the review were not communicated to him. Mr Corones says that this supports a finding that the decision was unfair and unreasonable. [89] Mr Corones says the Respondent’s submission that the decision-maker took into account relevant information is ‘fatally flawed’. Mr Corones says that there was available evidence which was not considered and provides examples of the Employment Separation Checklist and data motion records detailing how Mr Corones dealt with files. [90] With reference to the events surrounding the meeting request email of 30 June 2023 and the events that occurred thereafter, Mr Corones says that he was on pre-approved leave, became ill while on that leave and was also caring for his mother, who suffers with a chronic illness. Mr Corones says that his mother fell very ill with Influenza A and needed to be hospitalised and that he also became very unwell and was on sick leave up to and including 12 July 2023. [91] Mr Corones denies any suggestion that he is ‘somehow applying a pattern of behaviour to ignoring requests’. Mr Corones says that on 13 July 2023, he returned to work, still recovering from illness and wearing a mask. Mr Corones says that he had numerous work-related activities to perform that day. Mr Corones says that he advised the decision- maker by text message that he would be late to the meeting. [92] Mr Corones reiterates that he emailed a response to the first show cause notice on 13 July 2023 prior to attending the meeting with the decision-maker and Workplace Relations and says that both parties had opened the email prior to the meeting. Mr Corones says that when he arrived at the meeting on 13 July 2023, he made reference to the email and response to the show cause notice and that the decision-maker verbally acknowledged receipt of the email with the response attached. [93] Despite being aware that he had provided a response, Mr Corones says the HR Representative said that the process would continue and he was issued with the second show cause notice. Mr Corones says that the Respondent, without explanation, dismissed the opportunity to properly consider his response to the first show cause notice. [94] Mr Corones submits that the decision to issue the second show cause notice without considering his response was not within the spirit of fairness including the opportunity to speak and respond. Mr Corones says the standard of reasonableness is affected by the adverse impact of the allegations, the decision and the impact of the decision, the reality of his situation and the mitigating and extenuating circumstances he had brought to the attention of DRDMW. -- 19 of 29 -- 20 Provision of response [95] Mr Corones rejects the Respondent’s submission that his show cause response should not be considered as it was not available to the decision-maker at the time the decision was made. Mr Corones says that he has an industrial entitlement to submit an appeal. Lack of particulars to the allegations and the quality of the evidence [96] Mr Corones submits that the there was a lack of reference to logistical and business continuity issues and arrangements during the COVID-19 global pandemic and to what he describes as ‘clear, specific and relevant exonerative evidence’. Mr Corones refers to systemic deficiencies and management issues which he says give rise to an impression of a procedurally unfair investigation. [97] Mr Corones says ‘in the absence of relevant exonerative evidence made available as part of the investigation and to inform the decision-maker, he made a Right to Information (RTI) application seeking access to certain particulars, subject to this Appeal’.13 Mr Corones says that the information he is seeking forms requirements and responsibilities for Queensland Government agencies to report and monitor as per QGEA policy requirements, roles and responsibilities. [98] Mr Corones reports receiving advice on 20 September 2023 from a Right to Information request (‘RTI’) for the Department of Child Safety, Seniors and Disability Services that indicates that information is being compiled and further searches continue. [99] Mr Corones says that in not considering the evidence he provided, including ‘critical issues, information and material (including the absence of real risk consequence) that had not formed part of the decision-making process’, the decision on the findings should be considered unfair and unreasonable. Consideration [100] I will address each of Mr Corones’ appeal grounds as set out in his submissions and those of the Respondent. Mr Corones’ response to the first show cause notice was not before the decision-maker on 4 July 2023 [101] Central to Mr Corones’ appeal is that he provided a response to the first show cause notice by email on the day that he received the second show cause notice. At the meeting held for the purpose of communicating the outcome of the first stage of the disciplinary process to Mr Corones, he drew the decision-maker’s attention to the email he had sent 13 Appellant’s further submissions filed 29 September 2023, [23]. -- 20 of 29 -- 21 attaching his response. The decision-maker acknowledged receipt of the email but said that the disciplinary process was to continue regardless. [102] I note that Mr Corones had sought and received several extensions of time to provide his response to the first show cause notice. Eventually, the decision-maker informed Mr Corones that he was receiving a final extension of time until 11 April 2023. Mr Corones did not provide a response by that date, nor apparently did he inform the decision-maker of an intention to provide a response at a future date. [103] Mr Corones was offered procedural fairness in that the decision-maker provided him with extensions until April 2023 to respond to a show cause notice dated 10 January 2023. I find that despite Mr Corones experiencing some complex personal and health issues throughout that time that appear to have formed the basis of his extension requests, it was fair and reasonable for the decision-maker to go about considering the material available and make a decision in the absence of any response from Mr Corones. Mr Corones had clearly been provided with a final extension deadline and he did not comply with it. While Mr Corones submits that he was willing to participate in the disciplinary process, his failure to contact the decision-maker when it became clear to him that he could not provide a response before the final deadline suggests otherwise. It was reasonable for the decision-maker to determine that Mr Corones was not going to provide a response. [104] It appears that upon realising that a meeting was being scheduled for the purpose of provision of the outcome of the first stage of the disciplinary process, Mr Corones hastily prepared a response and sent it to the decision-maker. The meeting was due to commence at 4.00 pm on 13 July 2023. Mr Corones emailed his response at 4.17 pm on 13 July 2023, and arrived at the meeting soon after sending the email. However, as the Respondent notes, the decision-maker had already made the decision, in a letter dated 4 July 2023. That decision was originally to have been provided to Mr Corones at a meeting on 6 July 2023. [105] The decision-maker is required to consider all relevant information available at the time of making the decision. That material did not contain Mr Corones’ response. I am satisfied that Mr Corones was afforded ample time to provide a response and did not do so. I understand he is frustrated that the response he provided after the commencement of the rescheduled meeting held to provide him with the outcome was not considered, however the question before me is whether the decision of 4 July 2023 was fair and reasonable. Mr Cowley-Grimmond could not have considered Mr Corones response at the time of making the decision because the response did not exist at that time. [106] Despite lodging this appeal, Mr Corones appears to have already replied to the second show cause notice. That correspondence, which has been provided to me as part of material supporting Mr Corones’ appeal, largely contains the content set out in his late response to the first show cause notice dated 13 July 2023. In determining disciplinary -- 21 of 29 -- 22 action to be taken, the decision-maker will be able to give consideration to Mr Corones’ submissions. [107] The Discipline Directive contemplates a situation where the decision-maker may act in the absence of a response from the employee.14 At all times, Mr Corones was informed that if he did not respond within the required timeframe, the decision would be based on the material Mr Cowley-Grimmond had available to him. I do not accept that it was not fair or reasonable for Mr Cowley-Grimmond to make the decision in the absence of a response from Mr Corones. On 4 July 2023 when the decision was made, 13 weeks had elapsed since the final date Mr Corones had been directed to provide his response. The allegations contained sufficient particulars [108] I have reviewed the first show cause notice dated 10 January 2023. The 15-page letter extensively sets out for Mr Corones the allegations and particulars regarding each of allegations 1(a), 1(b) and (2). [109] Attached to the first show cause notice was the Investigation Report dated 21 June 2022 and attachments: Chapter 6 of the now repealed Public Service Act 2008 (Qld), Code of Conduct for the Queensland Public Service, the Queensland Cabinet Handbook (2021) and the Public Service Commission Discipline Directive 14/20. [110] I am satisfied that the first show cause notice combined with the provision of the Investigation Report and attachments described above at [113] provide Mr Corones with detailed information about the allegations. Mr Corones had sufficient information to understand the matter and upon which to prepare a response. [111] I note Mr Corones submission that he requested further information be provided to him and that the request was denied. I also note that Mr Corones was provided with some material and an explanation as to why other material would not be provided. I am satisfied that Mr Corones either had sufficient information to support him in providing a response or that he did not seek to take further action with regard to the response to his request for information. [112] I understand that it can be challenging to prepare a response when one is no longer working in the position or place the allegations relate to. However, Mr Corones was offered an opportunity to attend the worksite to analyse information. That Mr Corones chose not to take up this opportunity is a matter for him. However, I note that if he held personal wellbeing concerns regarding returning, it was open to him to seek an alternative way of analysing the information, by way of either a representative doing so on his behalf or seeking a solution via the Respondent. 14 Discipline (Directive 05/23) cl 9.3(d). -- 22 of 29 -- 23 [113] Mr Corones raises concerns about the information available to the decision-maker in the Investigation Report and other evidence he says is relevant. Mr Corones did not participate in the investigation, despite being invited to do so and given a proper opportunity to provide information to the investigator. Further to this, if Mr Corones held concerns about the Investigation Report, it was open to him to address this during the first stage of the disciplinary process. As noted above, Mr Corones did not provide a response prior to the decision being made. [114] I do not agree with Mr Corones submissions that consideration was not given to the work environment and the realities of the workplace as they relate to downloading of working documents or working from home. The concluding part of the Investigation Report, contains the following:15 … As Mr Corones did not provide a response to the allegations it is unclear for what purpose Mr Corones retained and copied the records. However, there is no evidence available to suggest his actions were influenced by a desire to harm or discredit the department by using the information in a public forum or for other nefarious reasons. It is plausible that Mr Corones took the information to use as a reference point and example of work he had previously undertaken. However, that in no way excuses or justifies Mr Corones storing and removing department records and information without authority… The quality of the evidence [115] Mr Corones complains that the evidence before the decision-maker was not sufficient to substantiate the allegations on the balance of probabilities. Mr Corones also sets out what he says are deficiencies in the evidence and what he calls a vendetta against him. I have listed those submissions above and will not set them out again here. [116] The crux of the allegations was that Mr Corones had failed to comply with the department’s Information Services requirements by downloading confidential government documents to a personal portable device without authority and that he had inappropriately accessed confidential information by keeping a copy of the information on his desktop without authority. [117] The investigation extensively addresses the expectations of employees with regard to processes regarding confidential government documents. The investigator had regard to two Information Services ICT searches:16 Information Services – ICT search a) 3.1 DLP Removable Media Incidents by ncorones results (Attachment 7) The above named document was reviewed and indicated: 15 Investigation Report page 30 of 33. 16 Investigation Report page 25 of 33. -- 23 of 29 -- 24 Information Services (IS) conducted a search (an audit) of all files downloaded by Mr Corones to removable devices in the 7 days preceding 22 June 2021. IS provided the results of a string match search of, and file pathways for files downloaded to removable devices. Information Services identified 1,137 downloaded files, including 61 matching search terms for ‘Cabinet-in-Confidence’. These 61 results were matched to files on Mr Corones’ desktop, which were identified as Cabinet or cabinet related documents. Information Services – ICT search b) 4.1 DLP Data In-use motion Incidents by ncorones results (Attachment 11) The above named documents was reviewed and indicated: Information Services (IS) conducted a search (an audit) of all files downloaded by Mr Corones to removable devices between 2 June 2021 and 18 June 2021. IS provided the results of a string match search of, and file pathways for files Mr Corones downloaded to removable devices. Information Services identified 2, 209 downloaded files, including 83 matching search terms for ‘Cabinet-in-Confidence’. These 83 results (Attachment 12) were matched by Ethical Standards to files on Mr Corones’ desktop which were identified as Cabinet or cabinet related documents. [118] The investigation report notes that Mr Corones did not provide an explanation for his actions or reasons for downloading the files, despite multiple requests by him for extensions being agreed to by Ethical Standards. The investigation report goes on to say: It is noted that the [sic] Ms Smith reported that when Mr Corones returned the USB, Mr Corones claimed to her that ‘he had read the policy and in no way was there any wrong intent in what he was doing, that he is now very sorry and hyper-vigilant and he has disposed of any documents or material that he has had on him, even from many years ago.’ [119] Ultimately, the Investigation Report found that the allegations were capable of substantiation. [120] Show cause notice one relies on the findings of the Investigation Report in setting out the allegations and particulars. While Mr Corones did not participate in the investigation, it seems to me that the investigation findings were founded on a proper consideration of the data and the relevant policies and other evidence. I find it was reasonable for the decision-maker to rely on the Investigation Report for the purposes of the show cause notice. [121] If Mr Corones had other evidence or information that would serve to undermine the findings of the Investigation Report, it was a matter for him to either participate in the investigation process and provide that information or to address those matters in a response to the show cause notice. Mr Corones did neither of these things and so the decision-maker was confined to considering the matter on the information available to him. -- 24 of 29 -- 25 References to the Code of Conduct and the impacts of the alleged acts [122] Mr Corones appears to submit that it was not clear to him in the first show cause notice on what basis the decision-maker considered that he may be guilty of misconduct in an official capacity within the meaning of section 187(4)(a) of the now repealed Public Service Act 2008 (Qld). I am of the view that the allegations and particulars provide comprehensive information and that it is clear to the reader of the notice that the allegations may give rise to either of the two grounds for discipline set out for each allegation. [123] Mr Corones’ submissions regarding the seriousness of the alleged acts are matters which he had the opportunity to raise in a response to the show cause notice. I need to determine whether the decision of 4 July 2023 was fair and reasonable and in doing so I am having regard to the information available to the decision-maker when the decision was made. As stated above, a public sector appeal is not an opportunity for a rehearing of the matter. [124] Further, to the extent that Mr Corones suggests that the second show cause notice does not properly provide reasons for the conclusion that the substantiated allegations gave rise to a finding of misconduct, I disagree. The decision-maker provides extensive consideration and findings for each allegation. Having substantiated allegation 1(a), the decision-maker says: 16. Significantly you do not deny that you engaged in the conduct. Further, there is also no evidence before me you were provided with written approval to transfer departmental information onto a privately owned USB. 17. I am therefore satisfied that you were not authorised to download over 2000 departmental documents (which contained confidential and sensitive information) to a privately owned USB. Further, you were observed downloading the documents to USB the day prior to commencing a secondment with another Department. 18. Your conduct in downloading departmental documents to a privately owned USB was [sic] without authority was highly inappropriate and seriously improper. [125] With regard to Allegation 1(b), the decision-maker said: 25. I also consider it significant that at the time of downloading the ‘Cabinet in Confidence’ files to your personal USB you were an experienced policy officer and had previously been engaged in roles (such as Senior Policy Officer and A/Principal Policy Officer, Strategic Policy and Intergovernmental Relations) in which you worked with Cabinet in Confidence documents on a regular if not daily basis. Further, you had also added and/or included in your own emails to others the requirements relating to the ‘Cabinet in Confidence’ information. I am therefore satisfied that you were aware of the very strict requirements that related to the handling of Cabinet in Confidence documents to protect the confidentiality and security of the information and the interests of current and previous governments and Ministers involved in Cabinet decision-making. -- 25 of 29 -- 26 26. In circumstances where you have not participated in the investigation process or provided a response in the disciplinary process to date, I do not have the benefit of any explanations from you. 27. Significantly, you do not deny that you engaged in the conduct. There is also no evidence before me that you had authorisation and/or were permitted to download the Cabinet in Confidence documents to any removable device (including a privately owned USB). 28. Your conduct in downloading Cabinet in Confidence documents to your personal USB was highly inappropriate and seriously improper. [126] Ultimately, the decision-maker finds the allegation to be substantiated and then goes on to provide the following reasons for determining that the conduct amounts to misconduct: 30. I acknowledge there is a high threshold to be met before I can find conduct amounts to misconduct. Misconduct compared to other inappropriate or improper conduct requires a deliberate departure from accepted standards, serious negligence to the point of indifference or an abuse of the privilege and confidence enjoyed by a public service employee. 31. DSDSATSIP was the custodian of highly confidential and sensitive information and documents and was accountable for the safe storage of this information. In my view, your conduct (which included downloading in excess of 2000 government documents/record [sic], including 83 Cabinet in Confidence documents to a personal USB) was a significant breach of the trust placed in you as an employee of DSDSATSIP with access to confidential departmental documents and/or Cabinet in Confidence documents. 32. In the circumstances, I do not consider finding your conduct to amount to a breach of the Code of Conduct sufficiently reflects the seriously inappropriate nature of your conduct. On the evidence available to me, and in circumstances where you have not provided me with any explanation or justification for your conduct, I am satisfied your conduct was a wilful disregard for and significant departure from the expectations expected of you as a public service employee. In the circumstances I find that your inappropriate conduct meets the definition of misconduct. [127] With regard to Allegation 2, which the decision-maker also found was substantiated, the decision-maker turns to the grounds for discipline arising from the conduct and says the following: 12. In circumstances where you have not provided any response, there is no evidence before me that you had the required authorisation and/or were permitted to save a copy of the Cabinet in Confidence documents to your desktop. I further consider that given your last day at DSDSATSIP was 18 June 2021, at the time of saving the Cabinet in Confidence documents to your desktop, you did not have a legitimate business need to do so (nor have you made any submissions that this was the case). 13. I acknowledge there is a high threshold to be met before I can find conduct amounts to misconduct. Misconduct compared to other inappropriate or improper conduct requires a deliberate departure from accepted standards, serious negligence to the point of indifference or an abuse of the privilege and confidence enjoyed by a public service employee. -- 26 of 29 -- 27 14. In my view your conduct in saving copies of Cabinet in Confidence documents to your desktop was clearly incompatible with the security measures governing the filing and storage of Cabinet documents. Further, it was a significant breach of the trust placed in your as an employee of DSDSATSIP with access to Cabinet in Confidence documents. 15. In the circumstances, I do not consider finding your conduct to amount to a breach of the Code of Conduct sufficiently reflects the seriously inappropriate nature of your conduct. On the evidence available to me, and in circumstances where you have not provided me with any explanation or justification for your conduct, I am satisfied your conduct was a wilful disregard for and serious departure from the expectations expected of you as a public service employee. In the circumstances I find that your inappropriate conduct meets the definition of misconduct. [128] I am satisfied that the decision explains to Mr Corones why the decision-maker determined that the conduct met the threshold of misconduct. Mr Corones has enough information to understand the decision and to respond to the proposed disciplinary action. [129] I accept that Mr Corones says that there is no evidence that the alleged conduct was criminal, deliberate, malicious or self-serving or that he obtained any benefit. I also accept that Mr Corones says that there is no evidence of damage or impact caused by the alleged acts. I am of the view that these are matters Mr Corones should bring before the decision-maker during the second stage of the show cause process regarding penalty. [130] I note Mr Corones’ submissions about the nature of the work that was being undertaken, particularly during the COVID-19 pandemic, however, these submissions were not before the decision-maker at the time. I also note the finding of the decision-maker that the timing of the download of material on 18 June 2021 raises questions about any such legitimate business purpose for downloading the material. [131] I find it was open to the decision-maker to characterise the conduct as misconduct for the reasons set out in the decision. Natural justice and human rights principles [132] Mr Corones puts forward a number of matters such as pandemic working arrangements and his health and well-being which he says should have been taken into account by the decision-maker, however as noted above, Mr Corones did not provide a response for consideration by the decision-maker. [133] Mr Corones says that the decision-maker has not properly addressed his human rights in the decision. Mr Corones identifies that his right to a fair hearing and his cultural rights were not properly considered. Mr Corones also says that the decision-maker has not considered how the serious discipline finding injures his standing in the workplace, an injury to his integrity and a prejudicial alteration to his position. -- 27 of 29 -- 28 [134] I have considered the decision letter and note that it addresses human rights on page 12. The decision-maker identifies that the decision may impact on Mr Corones’ human rights but goes on to say that any impact is demonstrably justified because the public interest is in ensuring that employees carry out their duties to the standards expected of them during the course of their professional duties. There is no indication in the material before me that Mr Corones has been denied the right to a fair hearing. Further, in the absence of any response to the show cause notice from Mr Corones identifying particular cultural circumstances he wished to have considered, I do not think it was incumbent upon the decision-maker to consider Mr Corones standing in the Greek community when making the decision. [135] I understand that Mr Corones disagrees with the decision-maker’s statement that there is a limited impact on his human rights. Mr Corones believes the discipline finding and the proposed penalty have significant impacts on him. It is true that the findings are serious and that the proposed penalty will result in a dire outcome for Mr Corones in the event it is implemented. However, considerations about the impact of a discipline penalty on Mr Corones’ human rights is a matter for the decision on discipline penalty arising from the second stage of the show cause notice. [136] Mr Corones cannot maintain a ground of appeal that he has been denied natural justice. Mr Corones was offered multiple extensions and opportunities to participate in the investigation and to respond to the first show cause notice. The decision-maker was under no obligation to consider Mr Corones show cause notice provided some 13 weeks after the final deadline he had been issued along with the granting of his request for an extension. Had the decision not been made on 4 July 2023 and had the meeting on 13 July 2023 been for the purpose of providing an update on the disciplinary matter, the circumstances may have been different and it might have been appropriate for his late response to be considered. However, I am satisfied in the circumstances that it was open to the decision-maker to make the 4 July 2023 decision based on the material available. The decision was fair and reasonable [137] I have reviewed all material available to me and I find it was open to the decision-maker to find that allegations 1(a), 1(b) and 2 were substantiated. I further find that it was open to the decision-maker to determine that the conduct was misconduct for the purposes of the Act. [138] There is no information before me to suggest that the findings of the investigation were not valid or that Mr Corones was not treated fairly throughout the investigation. If Mr Corones felt there was material which he was not privy to which would have helped him to respond, it was open to him to provide a show cause response and make reference to that material and any alleged unfairness. -- 28 of 29 -- 29 [139] Mr Corones makes submissions regarding there being no ‘periodic review’ of his discipline matter. It is not clear to me whether this submission was ever made to the Respondent or whether Mr Corones had brought this matter to the decision-maker’s attention. However, I note that the first show cause notice was issued in January 2023 and that over a period of months there were a range of interactions between Mr Corones and the Respondent. I do not find that the lack of a periodic review of the matter serves to make the decision not fair or reasonable. [140] I have reviewed the decision letter and I find that it contains comprehensive reasons for the decision to substantiate the allegations and for the finding that a discipline ground exists in that Mr Corones is guilty of misconduct with regard to each allegation. [141] Mr Corones was afforded natural justice and the decision and process undertaken complies with the Discipline Directive. The decision addresses Mr Corones’ human rights and explains his appeal rights. [142] Many of Mr Corones’ arguments and submissions in this appeal, including information he has provided pertaining to a current RTI request he is undertaking, were not matters that were before the decision-maker at the time the decision was made. I have determined the appeal based on the material that was before the decision-maker on 4 July 2023. For the reasons given above, I find that the decision was fair and reasonable. The Discipline Directive enabled the decision-maker to make the decision in the absence of a written response from Mr Corones in circumstances where he had been given a clear deadline for providing such a response and was on notice that the decision would be made in the absence of a response. It was open to the decision-maker to determine that the allegations were substantiated and that the conduct gave rise to a disciplinary finding of misconduct. [143] The decision of 13 July 2023 was fair and reasonable and the appeal is therefore dismissed. Order 1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 29 of 29 --