Cook v State of Queensland (Queensland Health) [2021] QIRC 271

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Cook v State of Queensland (Queensland Health) [2021] QIRC 271 Cook, Jennifer Margaret (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2021/185 PROCEEDING: Public Service Appeal – Disciplinary Decision DELIVERED ON: 5 August 2021 MEMBER: HEARD AT: ORDERS: McLennan IC On the papers Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision: 1. A reprimand. 2. Transfer to another permanent, full- time administrative position within MNHHS, outside of Patient Services, Clinical Support Services. That position shall be at Ms Cook's current AO 4.4 classification level. 3. Direction to complete a training module in relation to the Code of Conduct through the Metro North Learning Management System (LMS). The training is to be successfully completed within 14 days of its provision to Ms Cook. At the conclusion of the training module, Ms Cook is required to provide the certificate of completion to Mr -- 1 of 34 -- 2 Scott. CATCHWORDS: LEGISLATION & OTHER INSTRUMENTS: CASES: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – where conduct allegation substantiated – whether disciplinary penalty decision was fair and reasonable – whether appellant was afforded natural justice – where disciplinary penalty decision differed to the disciplinary penalty proposed – whether penalty was appropriate and proportionate Code of Conduct for the Queensland Public Service Crime and Corruption Act 2001 (Qld) s 15 Directive 14/20 Discipline cl 4, cl 6, cl 7, cl 8, cl 14 Directive 15/20 Positive Performance Management cl 1, cl 4, cl 5, cl 6, cl 7 Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 567 Public Service Act 2008 (Qld) s 3, s 25, s 25A, s 26, s 186C, s 187, s 188, s 194 Queensland Health, Human Resources Policy: Discipline E10 (QH-POL-124) (June 2020) cl 2, cl 3, cl 7 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Reasons for Decision [1] Ms Jennifer Cook (the Appellant) is currently employed as a Senior Administration Support Officer (SASO) with Metro North Hospital and Health Service (MNHHS). [2] In her substantive position, Ms Cook provides administrative support to Mr Peter King, Director, Patient Services located at the Royal Brisbane and Women's Hospital -- 2 of 34 -- 3 (RBWH), Herston. She is employed on a permanent, full time basis at AO 4.4 classification. [3] Ms Cook has held that position at MNHHS within Queensland Health (the Respondent) since November 2016. [4] An allegation regarding Ms Cook's workplace conduct was put to her in a meeting with Mr Adam Scott, Acting Executive Director, Clinical Support Services, RBWH and Ms Shahra McDonnell, Principal Advisor, Workforce Advisory Service, MNHHS on 20 August 2020. [5] At that time, Ms Cook was also provided with correspondence from Mr Scott dated 19 August 2020 (the Allegation Letter).1 Specifically, the allegation was that: Allegation 1 It is alleged that between 31 March 2020 and 23 June 2020 you inappropriately accessed a restricted computer and the emails of Mr Peter King, Director Patient Services without his consent.2 [6] A disciplinary process ensued. Ms Cook was invited to provide a written response to the allegation, including her "views on the events and the allegation."3 [7] Extensions of time for Ms Cook to provide her written response were sought and granted, with respect to extended sick leave absences resultant from non work-related shoulder surgery. Following representation by Ms Cook's union - Together Union - a final extension of time was permitted until 27 November 2020. [8] Ms Cook emailed her written response to Mr Scott on 3 December 2020 (the Allegation Response Letter).4 [9] Subsequently, the allegation against Ms Cook was found to be substantiated on the balance of probabilities. [10] Mr Scott considered there were grounds for Ms Cook to be disciplined under s 187(1)(b) of the Public Service Act 2008 (Qld) (PS Act). In particular, that Ms Cook was found to have "been guilty of misconduct"5 in a way considered to be sufficiently serious as to warrant disciplinary action. [11] She was formally advised of this outcome in a meeting with Mr Scott and Ms McDonnell on 13 January 2021. Ms Cook was also provided with correspondence to 1 Correspondence from Mr Scott to Ms Cook dated 19 August 2020 (the Allegation Letter). 2 Ibid page 4. 3 Ibid page 1. 4 Correspondence from Ms Cook to Mr Scott dated 27 November 2020 (the Allegation Response Letter). 5 Correspondence from Mr Scott to Ms Cook dated 13 January 2021, page 2 (the Proposed Disciplinary Letter). -- 3 of 34 -- 4 that effect (the Proposed Disciplinary Letter)6 and advised that she would be placed in alternative duties until the matter was resolved. [12] The Proposed Disciplinary Letter proposed a disciplinary penalty in the following terms: I am currently considering giving you the following disciplinary action:  transfer or redeployment to another role7 [13] Ms Cook was required to respond to the proposed disciplinary penalty by 20 January 2021. [14] On 14 January 2021, Ms Cook advised Mr Scott that she did not consider the alternative duties allocated to be suitable and instead requested that she be placed on 'rostered not required' until 1 February 2021. Mr Scott rejected that proposition, however worked to accommodate Ms Cook's request by identifying different alternative duties for her to perform in the interim period. [15] Ms Cook then sought a further extension of time in which to provide her written response to the Proposed Disciplinary Letter. Mr Scott granted some extension, with her written response now required by 25 January 2021. [16] Ms Cook provided her written response as required (the Proposed Disciplinary Response Letter).8 Ms Cook's response contained the new claim that she had indicated to Mr King that her access to his emails had not been removed. That additional information was put to Mr King, who denied the conversation and reiterated his intent to have all folder access removed. [17] In correspondence dated 29 April 2021 (the Disciplinary Decision Letter),9 Mr Scott advised that the disciplinary action that would apply to Ms Cook is: - redeployment to another role at classification level AO 3.4.10 Further, that: Effective 21 May 2021, you will be appointed to the role of Administration Officer, Administration and Compliance Services, Patient Services at AO 3.4 level reporting to Mr Glenn McDonald, Manager Administration and Compliance Services.11 6 Ibid. 7 Correspondence from Mr Scott to Ms Cook dated 13 January 2021, page 2 (the Proposed Disciplinary Letter). 8 Correspondence from Ms Cook to Mr Scott dated 25 January 2021 (the Proposed Disciplinary Response Letter). 9 Correspondence from Mr Scott to Ms Cook dated 29 April 2021 (the Disciplinary Decision Letter). 10 Ibid page 1. 11 Ibid page 1-2. -- 4 of 34 -- 5 [18] On 20 May 2021, Ms Cook appealed against that disciplinary penalty decision. [19] Ms McDonnell confirmed that Ms Cook's pay level will remain at the AO 4.4 level until the appeal can be heard and decided.12 Appeal Grounds [20] Ms Cook's appeal is brought on the following grounds: 1. Natural justice has not been afforded throughout the disciplinary process.13 2. Timelines have not been observed for the timely resolution of the disciplinary process.14 3. The disciplinary penalty decision was in direct retaliation for various complaints made by Ms Cook.15 4. The disciplinary penalty decision to redeploy Ms Cook to another role at classification level AO 3.4 is disproportionately harsh.16 [21] Ms Cook confirmed that she does not appeal against the finding to substantiate the allegation. [22] My determinations regarding those appeal grounds may be summarised as follows: 1. Natural justice was not afforded to Ms Cook in every respect throughout the disciplinary process. Specifically, a disciplinary action different to the disciplinary action proposed was determined in the Disciplinary Decision Letter provided to Ms Cook on 29 April 2021. That revised disciplinary decision was not "objectively less onerous"17 than that proposed in the Disciplinary Proposal Letter. The prescribed conditions by which that could otherwise occur were not first complied with, pursuant to cl 8.6(c) of Directive 14/20 Discipline (Discipline Directive). Non-compliance with that aspect of the Discipline Directive renders the disciplinary decision unfair and unreasonable. 12 Email from Ms Shahra McDonnell to the Industrial Registry dated 25 May 2021; and in accordance with Directive 14/20 Discipline cl 8.6 (d). 13 Appeal Notice filed 20 May 2021, page 4. 14 Ibid. 15 Ibid. 16 Ibid. 17 Directive 14/20 Discipline cl 8.6(c)(i). -- 5 of 34 -- 6 2. The disciplinary process timeline complained of was fair and reasonable. 3. I am satisfied that the disciplinary penalty decision was made on the basis of a substantiated allegation. Ms Cook has not appealed the finding to substantiate that allegation. The various counter claims made by Ms Cook are outside the scope of this appeal. 4. In my view, the disciplinary penalty decision to reduce Ms Cook's classification level to AO 3.4 is not "appropriate and proportionate" in the particular circumstances, with respect to the consideration of factors contained in cl 8.5(d) of the Discipline Directive. 5. The disciplinary decision appealed against is set aside and a different decision is substituted. Jurisdiction [23] Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(b)(i) of the PS Act provides that an appeal may be made "against a decision under a disciplinary law to discipline – a person (other than by termination of employment), including the action taken in disciplining the person." [24] Ms Cook has been an employee of the Respondent at all times relevant to this appeal. [25] I am satisfied that the decision made by MNHHS pertaining to Ms Cook, contained in the Disciplinary Decision Letter dated 29 April 2021, can be appealed. Timeframe to Appeal [26] Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. [27] The decision was given to Ms Cook on 29 April 2021. [28] The Appeal Notice was filed with the Industrial Registry on 20 May 2021. [29] I am satisfied that the Appeal was filed by Ms Cook within the required timeframe. Appeal principles -- 6 of 34 -- 7 [30] 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."18 This is the key issue for my determination. Subsection (4) provides that for an appeal against a decision about disciplinary action, the commission: (a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but (b) may allow other evidence to be taken into account if the commission considers it appropriate. [31] A public service appeal under the IR Act is not by way of rehearing,19 but involves a review of the decision arrived at and the decision–making process associated therewith. [32] Findings made by MNHHS, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Queensland Industrial Relations Commission member may allow other evidence to be taken into account.20 [33] Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing. What decisions can the Industrial Commissioner make? [34] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) 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. Disciplinary Decision Letter [35] Mr Scott had determined the allegation was substantiated on the balance of probabilities. On the basis of that finding, he had determined there were grounds for Ms Cook to be disciplined pursuant to s 187(1)(b) of the PS Act in that she had "been guilty of misconduct".21 18 Industrial Relations Act 2016 (Qld) s 562B(3). 19 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). 20 Industrial Relations Act 2016 (Qld) s 567(2). 21 Correspondence from Mr Scott to Ms Cook dated 13 January 2021, page 2 (the Proposed Disciplinary Letter). -- 7 of 34 -- 8 [36] Ms Cook was advised that the disciplinary penalty of "redeployment to another role at classification level AO 3.4" at a different work location would be imposed as a result. [37] The Disciplinary Decision Letter also contained a direction that Ms Cook attend training. Specifically, Mr Scott required that she was: …directed to complete a training module in relation to the Code of Conduct through the Metro North Learning Management System (LMS), to ensure you are fully aware of your obligations. I expect you to successfully complete this training within 14 days upon your return to duty. At the conclusion of the training module, you are required to provide the certificate of completion to me.22 On the material before me, it does not appear that Ms Cook appeals that particular direction. [38] The Disciplinary Decision Letter contained an attachment titled "Rationale for Penalty" that summarised Ms Cook's response to the substantiated allegation in some detail. It also provided Mr Scott's analysis of Ms Cook's claim that she had advised Mr King of her access to his sent and deleted emails. Mr Scott explained that this had been put to Mr King, who stated he was unaware that Ms Cook had access to his emails following his instructions dated 31 March 2020 and that it was his absolute intent to restrict access to his email account in its entirety. Further, Mr King had reported that there had been no such discussion between he and Ms Cook, in the terms she had described. Mr Scott explained how he arrived at his finding to substantiate the allegation, in consideration of the new information provided by Ms Cook. [39] Mr Scott also provided his reasoning for the determination of the disciplinary penalty. That is considered in detail below at paragraph [110] of this Decision. Submissions [40] In accordance with the Directions Order issued on 26 May 2021, the parties filed written submissions. [41] The Respondent's Submissions were filed on 3 June 2021. That submission contained the following attachments: Attachment 1 Email from Mr King to Ms Cook and Ms Lisa Andrew dated 31 March 2020. Attachment 2 Email from Ms Cook to Ms Lisa Todd, Director, Metro North Integrity Unit dated 23 June 2020. A further draft email was also provided to demonstrate Ms Cook's concerns. 22 Correspondence from Mr Scott to Ms Cook dated 29 April 2021, page 2 (the Disciplinary Decision Letter). -- 8 of 34 -- 9 Attachment 3 Mr King's emails accessed by Ms Cook after 31 March 2020. Attachment 4 Correspondence from Mr Scott to Ms Cook dated 19 August 2020, Attachment 1: Allegation (the Allegation Letter). Attachment 5 Email exchange between Ms Cook and Mr Scott regarding extensions of time to provide her written response. Attachment 6 Email exchange between Ms Cook and Mr Scott regarding extensions of time to provide her written response - and also containing Ms Cook's denial of the allegation. Attachment 7 Email exchange between Ms Cook and Mr Scott regarding extensions of time to provide her written response - and also providing Ms Cook's Role Description and Authorisation Form if she considered her recovery is impacting her ability to provide the response as required. Attachment 8 Email exchange between Together Union and Mr Scott regarding extensions of time for Ms Cook to provide her written response. Attachment 9 Correspondence from Mr Scott to Ms Cook dated 13 January 2021, page 2 (the Proposed Disciplinary Letter). Attachment 10 Correspondence from Ms Cook to Mr Scott dated 25 January 2021 (the Proposed Disciplinary Response Letter). Attachment 11 Correspondence from Ms Cook to Mr Scott dated 27 November 2020 (the Allegation Response Letter). Attachment 12 Email exchange between Ms Cook, Mr Scott, Ms McDonnell and Together Union on 14 and 15 January 2021 regarding the alternative duties placement. Attachment 13 Email from Ms Cook to Mr Scott dated 19 January 2021 regarding an extension of time for Ms Cook to provide her written response. [42] The Appellant's Submissions were filed on 9 June 2021. That submission contained the following attachments: Attachment A Chronology of actions leading to the decision -- 9 of 34 -- 10 Attachment B Senior Administration Support Officer Role Description and Organisational Structure Flow Chart [43] I note that correspondence from Mr Scott to Ms Cook dated 29 April 2021 (the Disciplinary Decision Letter) was attached to the Appeal Notice filed 20 May 2021. [44] The Appellant's Submissions filed 9 June 2021 refer to the Discipline Directive, Code of Conduct for the Queensland Public Service and positive performance management principles. Therefore, those documents, together with the Public Service Commission Directive 15/20 Positive Performance Management and the Queensland Health, Human Resources Policy: Discipline E10 (QH-POL-124) (June 2020) have also been reviewed. [45] 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 [46] The purposes of the PS Act are found at s 3 (emphasis added): 3 Main purposes of Act and their achievement (1) The main purposes of this Act are to— (a) establish a high performing apolitical public service that is— (i) responsive to Government priorities; and (ii) focused on the delivery of services in a professional and non–partisan way; and (b) promote the effectiveness and efficiency of government entities; and (c) provide for the administration of the public service and the employment and management of public service employees; and (d) provide for the rights and obligations of public service employees; and (e) promote equality of employment opportunity in the public service and in other particular agencies in the public sector. (2) To help achieve the main purposes, this Act— (a) fixes principles to guide public service management, public service employment and the work performance and personal conduct of public service employees; and … [47] Section 25(2) of the PS Act relevantly provides as follows (emphasis added): Public service employment is to be directed towards promoting – (a) best practice human resource management, ; -- 10 of 34 -- 11 … [48] Section 25A of the PS Act relevantly provides as follows (emphasis added): (1) For best practice human resource management and in recognition that public service employees are selected on merit under the merit principle, the management of public service employees must be directed towards the following – … (e) providing opportunities and support to employees for improving performance; (f) continuously improving performance through the provision of training and development; (g) identifying at the earliest possible stage performance that does not meet expectations; (h) integrating the matters mentioned in paragraphs (a) to (g) into management practices and policies. (2) The principles mentioned in subsection (1) are the positive performance management principles. … [49] Section 26(3) of the PS Act relevantly provides as follows (emphasis added): Further, a public service manager must – (a) pro-actively manage the work performance and personal conduct of public service employees under the manager's management; and (b) if a case of unacceptable work performance or personal conduct arises, take prompt and appropriate action to address the matter. [50] Section 186C of the PS Act relevantly provides as follows (emphasis added): Requirement to apply positive performance management principles before taking disciplinary action for performance A public service employee's chief executive must not take disciplinary action against a public service employee for a matter relating to the employee's performance until the chief executive has complied with a directive under section 25A(3) about applying the positive performance management principles in relation to the matter. [51] Section 187 of the PS Act relevantly provides as follows (emphasis added): (1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— … (b) been guilty of misconduct; or … (4) In this section— misconduct means— (a) inappropriate or improper conduct in an official capacity; or -- 11 of 34 -- 12 [52] Section 188 of the PS Act relevantly provides as follows: 188 Disciplinary action that may be taken against a public service employee (1) In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances. Examples of disciplinary action— •termination of employment •reduction of classification level and a consequential change of duties •transfer or redeployment to other public service employment •forfeiture or deferment of a remuneration increment or increase •reduction of remuneration level •imposition of a monetary penalty •if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments •a reprimand [53] Section 194 of the PS Act relevantly provides as follows: (1) An appeal may be made against the following decisions— … (b) a decision under a disciplinary law to discipline— (i) a person (other than by termination of employment), including the action taken in disciplining the person; or … Relevant provisions of the Directives [54] The Discipline Directive relevantly provides: 7. Discipline for conduct 7.1 Section 187 of the PS Act provides a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. 7.2 The circumstances in which a contravention of a relevant standard of conduct under section 187(1)(g) of the PS Act is likely to be considered sufficiently serious to warrant disciplinary action are where the chief executive forms a view that management action is not likely to address and/or resolve the work performance matter. 7.3 In forming a view under clause 7.2, the chief executive must consider whether there are more proactive strategies than disciplinary action to manage the personal and professional development of employees, including through training and development. Additionally, the chief executive must consider: -- 12 of 34 -- 13 (a) whether the matter has been assessed as meeting the definition of corrupt conduct and has been referred to the Crime and Corruption Commission, or has been referred to the Queensland Police Service as a potential criminal offence (b) whether management action is an appropriate response based on the nature of the alleged conduct (for example, management action is not appropriate for matters involving theft, fraud, sexual harassment, negligence, or maladministration) (c) whether implementing management action would eliminate or effectively control the risk to the health and safety of employees, or other people, posed by the alleged conduct (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 (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 (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. 8. Discipline process 8.1 Section 190 of the PS Act provides that in disciplining a public service employee or former public service employee, a chief executive must comply with the PS Act, this directive, and the principles of natural justice. 8.2 The chief executive must demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process. 8.3 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 8.3(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 187 of the PS Act that applies to the allegation. (c) A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where -- 13 of 34 -- 14 relevant, specific reference to page or paragraph numbers that comprise the relevant evidence. (d) 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. (e) If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) 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. 8.4 Decision on grounds (disciplinary finding) (a) A 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. (b) The 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. (c) For each finding in clause 8.4(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. (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. (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 8.5) and/or management action implemented, or to take no further action. 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. 8.5 Show cause process for proposed disciplinary action (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). (b) The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented. (c) The disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 188 of the PS Act. -- 14 of 34 -- 15 (d) In proposing appropriate and proportionate disciplinary action, the chief executive should consider: (i) the seriousness of the disciplinary finding (ii) the employee's classification level and/or expected level of awareness about their performance or conduct obligations (iii) whether extenuating or mitigating circumstances applied to the employee's actions (iv) the employee's overall work record including previous management interventions and/or disciplinary proceedings (v) the employee's explanation (if any) (vi) the degree of risk to the health and safety of employees, customers and members of the public (vii) the impact on the employee's ability to perform the duties of their position (viii) the employee's potential for modified behaviour in the work unit or elsewhere (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 (xi) the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding. (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. (f) The chief executive must provide the employee with a minimum of 7 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. (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 8.5(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. 8.6 Decision on disciplinary action (a) A chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken. (b) The chief executive must inform the employee of the decision in writing, including: (i) the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice (ii) excluding a termination decision, information that the employee may appeal the decision on disciplinary action -- 15 of 34 -- 16 (iii) for a termination decision, information that the employee may lodge an application for reinstatement under the Industrial Relations Act 2016. (c) A chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that: (i) the revised disciplinary action is objectively less onerous23 than the original action proposed, or (ii) the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or (iii) the employee has suggested the disciplinary action as an appropriate alternative penalty. (d) Disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public service employee has expired or any appeal lodged is finalised. [55] The PPM Directive provides (emphasis added): 4 Principles 4.3 Management of all employees must be directed towards the positive performance principles in section 25A of the PS Act. … 4.5 Section 26 of the PS Act requires managers to proactively manage employees' work performance and to take prompt and appropriate action if unacceptable work performance arises. 4.6 Section 186C of the PS Act requires a chief executive to apply positive performance management principles before taking disciplinary action for work performance. … 5 Positive performance management 5.1 Section 25A of the PS Act provides that the management of public service employees must be directed towards the positive performance management principles: … 5.2 Chief executives are required to integrate the positive performance management principles into their agency's management practices and policies. 5.3 Managers are required to incorporate the positive performance management principles into their management practices. 23 Directive 14/20 Discipline explains that to be "For example, where the proposed disciplinary action was for a reduction in classification level (demotion) but after considering the employee's response, the chief executive determines to reduce the employee's increment/pay-point within the employee's existing classification level", page 6. -- 16 of 34 -- 17 6 Processes for managing employee work performance Positive performance management 6.1 Agencies must incorporate the positive performance management principles and the processes detailed in clauses 5.1 – 5.3 into their policies and processes about managing employee work performance to ensure: (a) managers set clear expected outcomes linked to organisational performance objectives and plans, including through the use of performance development agreements in lined with agency policies (b) managers provide regular and constructive feedback on an employee's work performance, including recognising work performance that meets and exceeds expectations, and feedback on areas of work performance that need improvement, as is appropriate in the circumstances (c) managers promptly communicate and document any gaps between actual and expected work performance of an employee and allow reasonable time for the employee to self-correct (d) constructive engagement with an employee to identify development and training opportunities, to improve work performance, and to build expertise in the public sector. 7 Decision to commence a structured process to manager unacceptable work performance in a supportive way 7.1 The process for managing unacceptable work performance must be supportive, directed to the positive performance management principles, and take into account factors (work related and non-work related) that may be affecting the employee: … 7.3 Prior to determining whether it is fair and reasonable to initiate a PIP, the chief executive must ensure the following conditions have been met: (a) the expected level of work performance for the role was documented and provided to the employee and the employee had a reasonable opportunity to demonstrate the expected level of work performance (b) the expected level of work performance was relevant and appropriate to the role (c) the unacceptable work performance or the gap between actual and expected work performance was previously raised, documented and discussed with the employee (d) the employee was offered appropriate support and allowed a reasonable period of time to self-correct. … 9 Definitions Management action is a course of local action that is reasonably open to a manager to support and correct situations of employee conflict, poor work performance or unacceptable behaviours at the earliest possible opportunity. Consideration of the grounds of appeal -- 17 of 34 -- 18 [56] Ms Cook does not appeal against the finding to substantiate the conduct allegation against her. That is not now in dispute. [57] Ms Cook's complaint is that "MNHHS's conduct of this matter has not afforded me either condition of natural justice."24 The inference I have drawn from that broad statement is that Ms Cook believed herself to have been denied both the "hearing rule" and the "bias rule", with respect to the "two key elements of natural justice", as defined in the Discipline Directive.25 Each of these elements are addressed within my consideration of her grounds of appeal below. Natural justice has not been afforded throughout the disciplinary process26 [58] Ms Cook's contention is that: I do not believe that due process has been followed or guidelines observed. MNHHS has not provided me with appropriate managerial stewardship or an opportunity to resolve issues prior to initiating a disciplinary process. There was no indication, no discussion, no face to face meetings in relation to MNHHS's concerns around my behaviour with my line manager, Peter King, Director Patient Services, even at my PDP on 8 July 2020. No-one has talked to me.27 [59] Ms Cook later elaborated her position that positive performance management principles should have been first enacted in this case. She noted that: With no prior disciplinary history or adverse work performance findings throughout my time in the Senior Administrative Support Officer role, the taking of managerial action in accordance with the positive performance management principles is what I believe would have been a timely way to address concerns and to mitigate risk.28 [60] Further, she suggested that the early intervention and resolution of any management concerns would have been a more appropriate pathway to resolve the matter than the immediate escalation through a disciplinary process.29 Ms Cook made reference to cl 4.1 of the Discipline Directive with respect to those contentions. [61] MNHHS's position is that: It is the Respondent's view that the all allowances were provided to the Appellant during the process. … The respondent disputes the Applicant's view that she was not afforded natural justice. 24 Appeal Notice filed 20 May 2021, page 4. 25 Directive 14/20 Discipline cl 14 Definitions "Natural justice is a right recognised and defined by law that involves two key elements – the hearing rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator), and the bias rule (the parties shall be given adequate notice of the case against them, and a right to respond)." While there appears to be an error in the construction of that sentence as it appears in the Directive, the two components are nonetheless contained therein. 26 Appeal Notice filed 20 May 2021, page 4. 27 Ibid. 28 Appellant's submissions, filed 9 June 2021, page 1, [9]. 29 Ibid [7]. -- 18 of 34 -- 19 The principles of natural justice have been observed throughout all stages of the show cause process, providing the employee with the allegation including evidence relied upon, giving the Applicant the opportunity to be heard and ensuring the decision maker was unbiased without an actual, perceived or possible conflict of interest.30 [62] With respect to Ms Cook's submission regarding positive performance management, I do not consider that addressing the allegation in accordance with the PPM Directive is the appropriate approach in this case, as that specifically pertains to the management of 'work performance' rather than 'conduct' concerns.31 [63] Ms Cook's submission also appears to rely on the following provision in the Discipline Directive (emphasis added):32 …a chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until the chief executive has complied with the directive about positive performance management. [64] However, I note that the wording of s 186C of the PS Act is consistent with the interpretation I have applied - referring only to disciplinary action for "performance". That is not the case here. The relevant allegation pertains to a 'conduct' matter. [65] In light of that, I believe MNHHS's determination to address the conduct concerns under the Disciplinary Directive is the correct pathway. [66] With respect to Ms Cook's suggestion that early intervention strategies would have been more appropriate than the immediate escalation through a disciplinary process, I would provide the following explanation. [67] As Ms Cook's submissions had referenced, the Discipline Directive contains the principles that (emphasis added): 4.1 Disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best hope for:  the cessation of unacceptable conduct  early resolution  preserving working relationships, and  avoiding an unnecessary and disproportionately protracted dispute. 4.2 Discipline is not appropriate for matters that may be dealt with: (a) through management action, which may include use of alternative dispute 30 Respondent's submissions filed 3 June 2021, page 5, [48], [50]–[51]. 31 Directive 15/20 Positive Performance Management cl 1.2. 32 Directive 14/20 Discipline cl 6. -- 19 of 34 -- 20 resolution (ADR), use of warnings, or other management action that is reasonable in the circumstances (b) under the directive on positive performance management. [68] Further, Queensland Health's Discipline Policy states: 2 Requirement to consider management action Before commencing the disciplinary process, the delegate must consider whether management action could more appropriately address the concern. A disciplinary process is not suitable for management action and managers need to undertake early intervention to address unacceptable conduct.33 [69] As explained above, as the allegation has been characterised as pertaining to Ms Cook's conduct, consideration must be given to "whether there are more proactive strategies than disciplinary action to manage the personal and professional development of employees, including through training and development."34 [70] With respect to that consideration, I recognise that the Allegations Letter does not contain any particular reasoning for MNHHS's determination that the substantiated allegation be addressed through a disciplinary process - rather than by local management action exclusively. However I do note that the Allegations Letter stated that: Given the serious nature of the allegation, the matter was assessed by the Integrity Unit, MNHHS to determine whether the allegation amounts to a suspicion of corrupt conduct, in accordance with the definition outlined in Section 15 of the Crime and Corruption Act 2001. I have received advice that the allegation does meet the threshold of suspicion of corrupt conduct. The matter has now been referred to me to address.35 [71] It is recognised that the disciplinary penalty decision ultimately contained in the Disciplinary Decision Letter was expressed as a combination of both 'disciplinary action' and a 'direction to attend training.' Clearly, MNHHS has considered the utility of employing both mechanisms of 'disciplinary action' and 'management action' to addressing the particular conduct concern. [72] In considering whether the ultimate determination to pursue both a 'disciplinary action' and 'management action' pathway was legitimate in the circumstances, I have relied on the decision criteria contained in the Disciplinary Directive. On the basis of the material before me, I find that addressing the substantiated conduct allegation through a 33 Queensland Health, Human Resources Policy, Discipline, E10 (QH-POL-124), June 2020, cl 2. 34 Ibid cl 7.3. 35 Correspondence from Mr Scott to Ms Cook dated 19 August 2020, page 4, Attachment 1 (the Allegation Letter). -- 20 of 34 -- 21 'disciplinary action' mechanism was the appropriate course. In summary, my reasons are that: a) Ms Cook was advised as early as the Allegations Letter that the allegation against her met the threshold of suspicion of corrupt conduct. b) There was only one conduct allegation, the act of accessing Mr King's emails without authorisation. In that sense, it can be said to be an "isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours)." However, in circumstances where Ms Cook resisted the opportunity to make sensible concessions with respect to the substance of the allegation throughout the process, MNHHS may well have had "…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."36 Given the Disciplinary Decision Letter eventually determined a combination of disciplinary action and management action, it appears that MNHHS believed both were necessary to correct future conduct. [73] Ms Cook also submitted that various provisions of the Discipline Directive had not been correctly applied in addressing the allegation against her. I do not believe her particular complaints to be borne out on the evidence before me. My reasons follow. [74] Queensland Health's Discipline Policy states that "The employee is to be provided a reasonable opportunity to be heard, i.e. to make a full and detailed response regarding the information (the hearing rule)."37 However, a reasonable opportunity is not an unfettered opportunity. MNHHS followed the requirements for the show cause process with respect to a disciplinary finding.38 Written details of the allegation were provided to Ms Cook for her response and included the allegation, particulars, the disciplinary ground applicable to the allegation and a copy of all evidence / documentation considered relevant to the facts. That disciplinary finding is not now disputed by Ms Cook. [75] I further note that while the required time periods under the Discipline Directive were initially provided for Ms Cook's response, several extensions of time were sought and granted at various points throughout the disciplinary process. [76] The procedural fairness afforded to Ms Cook in the course of the disciplinary process undertaken also included attention to the provision of written notification that she may wish to seek union assistance in preparing her response and the identification of her appeal rights should she wish to exercise them. 36 Directive 14/20 Discipline cl 7.3(f). 37 Queensland Health, Human Resources Policy, Discipline, E10 (QH-POL-124), June 2020, cl 3. 38 Directive 14/20 Discipline cl 8.3 -- 21 of 34 -- 22 [77] Despite all that, Ms Cook's complaint under this limb nonetheless succeeds – but on a different basis. [78] I consider there to have been one fatal flaw in MNHHS's application of natural justice in this disciplinary process. Specifically, that was Mr Scott's failure to first put the revised disciplinary penalty as a proposal to Ms Cook - and provide her with an opportunity to comment on it - before advising that to be his final determination of that disciplinary penalty outcome. My reasons follow. [79] The disciplinary action determined in the Disciplinary Decision Letter provided to Ms Cook on 29 April 2021 was different to the disciplinary action proposed. [80] The Proposed Disciplinary Letter suggested a disciplinary penalty in the following terms: I am currently considering giving you the following disciplinary action:  transfer or redeployment to another role39 [81] In the Disciplinary Decision Letter,40 Mr Scott advised that the disciplinary action that had been determined to apply to Ms Cook was rather: - redeployment to another role at classification level AO 3.4. Effective 21 May 2021, you will be appointed to the role of Administration Officer, Administration and Compliance Services, Patient Services at AO 3.4 level reporting to Mr Glenn McDonald, Manager Administration and Compliance Services.41 And further that: 4. Direction to attend training You are directed to complete a training module in relation to the Code of Conduct through the Metro North Learning Management System (LMS), to ensure you are fully aware of your obligations. I expect you to successfully complete this training within 14 days upon your return to duty. At the conclusion of the training module, you are required to provide the certificate of completion to me.42 [82] Clause 8.6(c) of the Discipline Directive relevantly provides that (emphasis added): 8.6 Decision on disciplinary action … 39 Correspondence from Mr Scott to Ms Cook dated 13 January 2021, page 2 (the Proposed Disciplinary Letter). 40 Correspondence from Mr Scott to Ms Cook dated 29 April 2021 (the Disciplinary Decision Letter). 41 Ibid page 1-2. 42 Ibid page 2. -- 22 of 34 -- 23 (c) A chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that: (i) the revised disciplinary action is objectively less onerous43 than the original action proposed, or (ii) the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or (iii) the employee has suggested the disciplinary action as an appropriate alternative penalty. [83] The revised disciplinary decision was not "objectively less onerous"44 than the one proposed in the Disciplinary Proposal Letter. The disciplinary penalty determined went further than that originally proposed to be 'transfer or redeployment to another role'. Not only was that proposal realised in the disciplinary penalty outcome determined – but further the extent of the remuneration reduction specified and the direction to attend training was also applied at the actual disciplinary penalty decision point. [84] Further, the prescribed conditions by which that could otherwise occur were not first complied with, as contained in cl 8.6(c) of the Discipline Directive. [85] The proposed disciplinary penalty was put to Ms Cook in correspondence dated 13 January 2021. She was invited to provide a written response and did so in correspondence dated 25 January 2021. Ms Cook did not accept the proposed disciplinary penalty at that time, in fact she explicitly stated that:  I do not believe that I am guilty of misconduct in any capacity and I do not consider the proposed transfer / redeployment out of my substantive role for any period of time to be warranted or reasonable.  I would, however, welcome the opportunity to consider a voluntary transfer into another at-level, permanent, full-time administrative position within Metro North, outside of Patient Services, Clinical Support Services and RBWH, without the taint of having had a disciplinary finding made against me.45 Ms Cook was next advised of the actual disciplinary penalty determined in correspondence dated 29 April 2021. That penalty was objectively more onerous than the proposal she had already objected to. In addition, Ms Cook was not given a further opportunity to comment on the appropriateness of the new proposed action before a 43 Directive 14/20 Discipline explains that to be "For example, where the proposed disciplinary action was for a reduction in classification level (demotion) but after considering the employee's response, the chief executive determines to reduce the employee's increment/pay-point within the employee's existing classification level", page 6. 44 Directive 14/20 Discipline cl 8.6(c)(i). 45 Correspondence from Ms Cook to Mr Scott dated 25 January 2021 (the Proposed Disciplinary Response Letter), page 5. -- 23 of 34 -- 24 final decision on the disciplinary action was made nor could it be said that she had suggested the disciplinary action as an appropriate alternative penalty herself. [86] In light of that, I find that non-compliance with that aspect of the Discipline Directive has rendered the disciplinary decision made to be unfair and unreasonable. Timelines have not been observed for the timely resolution of the disciplinary process46 [87] Ms Cook stated that: Timelines have not been observed. It took Mr Scott five weeks and six days to provide a decision following submission of my response to Show Cause (SC) 1 correspondence 1. It took thirteen weeks and three days for Mr Scott to provide me with an outcome to my SC2 response.47 [88] MNHHS submitted that: …we say it is evident from the documentation provided that the process was on multiple times extended at the request of the Appellant. Following the Appellant's response to the first show cause, the Respondent was subject to the Queensland Governments compulsory closure over the Christmas and New Year period. This, as well as time required to carefully consider the response and appropriate actions, did not in our view exceed an acceptable period of time. Following the Applicant's second show cause, there was a need to assess additional information provided and again decide if the proposed penalty was sufficient. Mr Scott made extensive efforts to identify a suitable role. Due to the lack of suitable vacancies available, a new role needed to be established and funding approval obtained so as to allow the Appellant continue in her employment with Queensland Health. Whilst this process took some time, it is the Respondents view that it was proportionate with the work required prior to providing the Appellant with an outcome.48 [89] Frankly, I believe the position articulated by MNHHS and reproduced above is not only entirely reasonable but is in fact laudable. [90] It is a matter of fact that the disciplinary process commenced on 19 August 2020 and was finalised with the provision of the disciplinary penalty decision to Ms Cook on 29 April 2021 – a period of approximately 8 months. [91] I appreciate the Discipline Directive requirement that: Discipline under Chapter 6 of the PS Act must: (a) be timely, fair, appropriate and proportionate to the seriousness of the work performance matter; and 46 Appeal Notice filed 20 May 2021, page 4. 47 Appeal Notice filed 20 May 2021, page 4. 48 Respondent's submissions filed 3 June 2021, page 4, [40]–[42]. -- 24 of 34 -- 25 (b) comply with the requirements of the PS Act, the provision of this directive and the principles of natural justice.49 [92] However, I recognise that once underway the disciplinary process was interspersed with the compulsory Christmas closure period and various other delays resultant from either Ms Cook's protracted recovery from non work-related shoulder surgery, her various extensions of time requests and her provision of new additional information rather late in the process that then necessitated further inquiries to be made of Mr King. No fair-minded person could reasonably consider any of that to be the fault of MNHHS. [93] Indeed, in the event that Mr Scott had adopted a different approach - and had instead rigidly determined to press on with his planned timeframes regardless, or if he had failed to reasonably consider requests made by Ms Cook for extensions of time, or if he had failed to properly investigate the new claims made - then he would undoubtedly have been subject of complaint in that regard. Clearly, Ms Cook cannot have it both ways. [94] I find that the disciplinary process timeframe was fair and reasonable in the circumstances. The disciplinary penalty decision was in direct retaliation for various complaints made by Ms Cook50 [95] Ms Cook stated that: I believe that this disciplinary action to be in direct retaliation to two email statements made to Lisa Todd, Director Integrity Unit, Metro North Hospital and Health Service (MNHHS) on 23 June 2020 and 7 July 2020 and statements made to Deanne Lynagh, Manager HR, Corporate and Clinical Support Services on 28 February 2020, 25 March 2020, 16 June 2020 and 27 June 2020...51 [96] Allegations of bias should not be made lightly, as they are not taken lightly. [97] MNHHS denied that is the case. In response, it has instead submitted that: In response to the applicant's belief that the disciplinary action is to be in direct retaliation to two email statements made to Lisa Todd, Director Metro North Integrity Unit and Deanne Lynagh, Manager HR, the respondent strongly opposes this statement.52 [98] MNHHS has also explicitly denied the inference of bias and the relevant extract from its submission is provided at paragraph [61] above. 49 Directive 14/20 Discipline cl 4.4. 50 Appeal Notice filed 20 May 2021, page 4. 51 Ibid. 52 Respondent's submissions filed 3 June 2021, page 4, [49]. -- 25 of 34 -- 26 [99] To be clear, it was the fact of a substantiated conduct allegation that gave rise to the determination of a disciplinary penalty. Put another way, if the allegation was not substantiated, no disciplinary penalty would have been contemplated or could have been applied. [100] Ms Cook has not appealed Mr Scott's finding to substantiate that allegation. That evinces in my mind an acceptance of that finding. [101] Indeed, Ms Cook has herself conceded that point during the course of this appeal when she confirmed that: I did not seek to appeal against the disciplinary finding made by Mr Scott on 13 January 2021 as I accept that Mr King had the discretion to take the actions he did.53 [102] Ms Cook's acceptance "that Mr King had the discretion to take the action he did" appears to be at odds with her contention that the disciplinary penalty was in direct retaliation for her own complaints. [103] With respect to the timing of the initiation of the disciplinary process and Ms Cook's own actions, she has voiced her suspicions that it cannot be mere coincide. She submitted that: I am concerned that the allegation and commencement of the disciplinary process relate to a period of time where I escalated concerns about a suspected unlawful or inappropriate use of email addresses.54 [104] In my view, the extent of the connectedness appears to be that Ms Cook has provided evidence of her own wrongdoing in accessing Mr King's emails after his explicit instruction not to do so in the initiation of her own complaint. That has seemingly resulted in the discovery of her continued access and its extent, precipitating the disciplinary process. [105] While that may perhaps now be a matter of regret for Ms Cook, no evidence has been presented in the course of this appeal that persuades me to find anything underhanded in that subsequent course of events. [106] I acknowledge that Ms Cook had made various counter claims alleging lack of adherence to Human Resources policies and processes, discrimination, bullying and harassment, favouritism and the onset of an illness she suggests may be compensable since the commencement of this process. For the sake of completeness, I determine those matters to be outside the scope of this appeal. The disciplinary penalty decision to redeploy Ms Cook to another role at classification level AO 3.4 is disproportionately harsh55 53 Appellant's submissions, filed 9 June 2021, page 2, [12]. 54 Appellant's submissions filed 9 June 2021, page 3, [15]. 55 Appeal Notice filed 20 May 2021, page 4. -- 26 of 34 -- 27 [107] Ms Cook's submission is that: As a result of my report, I have been called a liar, have lost significant career progression and made to feel that my word counts for very little which is so disappointing and hurtful to me. I do not disagree that the working relationship with Mr King specifically is likely beyond repair, perhaps that is evidenced by the fact that he, as Director, prevented his support officer from accessing his emails which is an unprecedented move in my experience. What I strongly disagree with is that there is a breakdown in trust in the wider employment relationship between myself and Queensland Health as this is not my feelings on the matter. I have continued to work successfully prior to Mr King stepping into the Director role and continued to do so in the other duties I've been assigned whilst suspended. This matter, whilst serious, is an isolated one and perhaps more indicative of interpersonal issues between myself and Mr King more than anything else. As submitted in my show cause notice, I am agreeable to a transfer at level if Mr King feels our close working relationship is untenable but I would ask that consideration be given to that action occurring external to a disciplinary process. Not only is the redeployment to a lower classification level a significant financial detriment at this stage of my working life, it is a penalty for life. The only way I'd be able to progress back to an AO4 role is to apply for an win such role on open merit as progression from AO3 to AO4 is not available. … I am significantly concerned that this isolated incident, though serious, does not equate in proportionality in what is really a penalty for life.56 [108] MNHHS's position is that: The Respondent disagrees with the Appellant's suggestion that the penalty was disproportionate. When considering the Appellant's response to the allegations, considerable thought was put into the appropriate penalty. Consideration was given to a number of penalties that would be acceptable for this level of misconduct, which included but was not limited to financial penalties, redeployment and termination of employment. Consideration was given to the Appellant's individual circumstances including her response to the allegation, her age, employment history and employability, as well as the affect each penalty would have on her personally. It is the view of the Respondent, and based on all the information available including the responses provided by the Appellant, that she should not be placed in a role that requires access to any other employees email account, or that requires the Appellant to manage or have access to sensitive information. As such, the Respondent submits the decision to redeploy the Applicant to the role of Administration Officer, Administration and Compliance Services, Patient Services at classification level AO 3.4 is fair and reasonable. … The Respondent also disputes the Applicant's view that the penalty imposed is disproportionately harsh. It is the view if the Respondent that not only was the penalty fair, a more severe penalty could have been considered appropriate for the conduct displayed.57 56 Appellant's submissions, filed 9 June 2021, page 5 [24]–[26]. 57 Respondent's submissions, filed 3 June 2020, page 5, [43]–[47], [52]. -- 27 of 34 -- 28 [109] Further, MNHHS has submitted that the practical impact of that disciplinary penalty decision on Ms Cook would be a drop in her annual remuneration from $84,281 to $72,343.58 [110] With respect to the rationale for that disciplinary penalty, Mr Scott's provided reasoning was rather concise. He stated that (emphasis added): I cannot see any justification or reason contained within your response that would provide a need for you to access Mr King's sent emails. This lack of justification or reason, partnered with your view that your conduct was appropriate, identifies a risk that this behaviour may be repeated if you were to be placed in a similar role. I have considered all the information provided to me and I have decided that your actions have severely damaged MNHHS's trust and confidence in your ability to maintain the high level of trust and confidence that is required of a Senior Administration Support Officer. Having regard to these considerations, I consider that there is no alternative disciplinary action that is appropriate. I have therefore decided that the appropriate penalty to apply to you is: - Redeployment to another role at the classification level AO 3.459 [111] In the Proposed Disciplinary Letter, Mr Scott stated that: In choosing a disciplinary action, I am required to consider:  the seriousness of events  any extenuating circumstances  your ability to continue performing your position  your work history (including any previous disciplinary actions)  your explanation  any risk to employees, clients, patients and consumers  your human rights  the confidence the public can have in our service. [112] I note that some factors later relied on in MNHHS's submissions were not explained in the 'Rationale for penalty' attached to the Disciplinary Decision Letter that was provided to Ms Cook. [113] Other than MNHHS's submission, its consideration of the relevant factors contained in the Discipline Directive has not been evidenced in Mr Scott's determination of the appropriate disciplinary penalty to apply. 58 Ibid page 1, [2]. 59 Correspondence from Mr Scott to Ms Cook dated 29 April 2021, Attachment 1: Rationale for Penalty, page 5 (the Disciplinary Decision Letter). -- 28 of 34 -- 29 [114] Likewise, Ms Cook's comprehensive submission as to why the disciplinary penalty decision was considered to be "disproportionately harsh" was only made in the course of this appeal. I appreciate that Mr Scott did not have that material at the time of making his decision. [115] Ms Cook has correctly observed that cl 8.5(d) of the Discipline Directive contains the factors to be considered in "proposing appropriate and proportionate disciplinary action."60 Those factors are as follows: (i) the seriousness of the disciplinary finding (ii) the employee's classification level and/or expected level of awareness about their performance or conduct obligations (iii) whether extenuating or mitigating circumstances applied to the employee's actions (iv) the employee's overall work record including previous management interventions and/or disciplinary proceedings (v) the employee's explanation (if any) (vi) the degree of risk to the health and safety of employees, customers and members of the public (vii) the impact on the employee's ability to perform the duties of their position (viii) the employee's potential for modified behaviour in the work unit or elsewhere (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 (xi) the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding. [116] In my view, the disciplinary penalty decision was not "appropriate and proportionate" in this case. My reasons follow. [117] The substantiated allegation was refined over the course of the disciplinary process. The Allegation Letter originally detailed that to be: Allegation 1 It is alleged that between 31 March 2020 and 23 June 2020 you inappropriately accessed a restricted computer and the emails of Mr Peter King, Director Patient Services without his consent.61 In that correspondence, Mr Scott had also stated that: I have received advice that the allegation does meet the threshold of suspicion of corrupt conduct.62 60 Directive 14/20 Discipline cl 8.5(d). 61 Correspondence from Mr Scott to Ms Cook dated 19 August 2020, page 4, Attachment 1 (the Allegation Letter). -- 29 of 34 -- 30 However, the Allegation Decision Letter later advised that the substantiated allegation was instead: you inappropriately accessed the emails of Mr Peter King, Director Patient Services without his consent.63 No further reference was made to the status of the matter as "suspicion of corrupt conduct" in subsequent correspondence. [118] I accept that Ms Cook held a genuine belief that she required access to Mr King's emails in order to perform her role and that she had made alternative suggestions to him. The appropriate course was to raise this with Mr King and in the event that he does not choose to adopt those alternative suggestions, the lawful work direction was to be complied with. That should have been the end of the matter. While the substantiated allegation is serious, I rather suspect it is Ms Cook's insistence that the role be performed on her own terms that has inflamed the situation. [119] Mr King gave a clear instruction that he did not want any employee having access to his emails. Despite that, Ms Cook accessed Mr King's emails, demonstrating a flagrant disregard for her manager's direction. There is no doubt that the substantiated conduct is 'serious'. The question then becomes 'how serious', with due consideration to the weight to be placed on the remaining factors. [120] I recognise that Ms Cook's last submission stated that: …it is imperative that I note from the outset that I acknowledge and understand that my conduct fell below the required standards expected of me and that I do see the areas for improvement in how I handled the situation.64 It is clear that the gravity of the situation is now clearly understood. [121] Ms Cook's classification level is AO 4.4. She is an experienced public service employee, neither an entry-level worker nor in the early years of her career. A high level of awareness about performance and conduct obligations may be reasonably expected. Ms Cook submitted that: Not only do I have access to sensitive information on a daily basis which I treat with the upmost confidentiality and respect, I've been in my substantive role with Directors and Executive Directors and have performed those duties without issue, prior to this one. It's not fair to categorise my years of service in such a way…65 62 Ibid. 63 Disciplinary Decision Letter dated 29 April 2021, page 1. 64 Appellant's submissions filed 9 June 2021, page 2, [10]. 65 Ibid page 4, [23]. -- 30 of 34 -- 31 [122] I accept that Ms Cook's conduct was borne of her genuinely held belief that she required certain functions and systems to perform her substantive duties - and that her perception of Mr King's email access restriction was that he had placed unreasonable constraints on her ability to do her job.66 Ms Cook could not be said to have benefited from the 'misconduct'. [123] I recognise also that Ms Cook has spent some time dislocated from her workplace network, in a somewhat protracted recovery from non work-related shoulder surgery. She has also identified the onset of further personal health concerns, since the commencement of the disciplinary process. I appreciate that neither of these circumstances could be said to have caused or contributed to the substantiated conduct of Ms Cook, it may have influenced the manner in which she has engaged with the disciplinary process once on foot. [124] With respect to her overall work record and disciplinary history, Ms Cook has submitted that: …these matters have given rise to the commencement of the first disciplinary process I have had cause to participate in over 40 plus years of employment. With no prior disciplinary history or adverse work performance findings throughout my time in the Senior Administration Support Officer role…67 Her claim has not been contradicted by MNHHS and so I accept that is the case. [125] MNHHS has not submitted that the particular conduct poses a risk to the health and safety of employees, customers and members of the public – and I do not find that to be the case. [126] With respect to my consideration of the impact on Ms Cook's ability to perform the duties of her position, MNHHS has stated that: It is the view of the Respondent, and based on all of the information available including the responses by the Appellant, that she should not be placed in a role that requires access to any other employees email account, or that requires the Appellant to manage or have access to sensitive information.68 [127] That sentiment was also expressed by Mr Scott in the Disciplinary Decision Letter: …your actions have severely damaged MNHHS's trust and confidence in your ability to maintain the high level of trust and confidence that is required of a Senior Administration Support Officer. [128] However, Ms Cook makes a persuasive argument. She stated that: 66 Ibid [19]. 67 Appellant's submissions filed 9 June 2021, page 1, [9]. 68 Respondent's submissions filed 3 June 2021, page 5, [46]. -- 31 of 34 -- 32 In fact, when my employer determined to suspend me from my substantive role on 13 January, they did not direct me to remain at home and not enter my workplace – they arranged for several host placements whilst the matter was being determined. I performed successfully in these roles, without issue or complaint and received positive feedback. Had my employer had such concerns about risk and there being no trust in the employment relationship, I submit that such a view is inconsistent with the subsequent actions to have me remain in the workplace and temporarily transfer me to another role…69 [129] In a similar vein, whilst Mr Scott stated in the Disciplinary Decision Letter that: …your view that your conduct was appropriate, identifies a risk that this behaviour may be repeated if you were to be placed in a similar role. I accept that Ms Cook has now acknowledged that: …I acknowledge and understand that my conduct fell below the required standards expected of me and that I do see the areas for improvement in how I handled the situation.70 … I do take responsibility for my part in these matters and I agree that I should have handled matters differently from the outset but my participation in this process is the deterrent – it has certainly taught me a number of lessons and perspective on how I should handle this differently in future, should the same issue arise again.71 [130] I consider that the combination of Ms Cook's recognition of the inappropriateness of her conduct, the fact of her placement in another work unit from 13 January 2021, her apparent positive performance in that placement and her undertaking with respect to future conduct are persuasive of her potential for modified behaviour. [131] Ms Cook has detailed the impact of a financial penalty, including the cumulative impact that a reduction in classification and/or pay-point as: Not only is the redeployment to a lower classification level a significant financial detriment at this stage of my working life, it is a penalty for life. The only way I'd be able to progress back to an AO4 role is to apply for and win such role on open merit as progression from AO3 to AO4 is not available. … I am significantly concerned that this isolated incident, though serious, does not equate in proportionality in what is really a penalty for life.72 [132] MNHHS has quantified the practical impact of that disciplinary penalty decision on Ms Cook to be a drop in her annual remuneration from $84,281 to $72,343. I note also that Ms Cook was 62 years old, as at 23 June 2020.73 69 Appellant's submissions filed 9 June 2021, page 4, [22]. 70 Appellant's submissions filed 9 June 2021, page 2, [10]. 71 Ibid page 4, [19]. 72 Ibid page 5 [24] – [26]. 73 Email to Ms Lisa Todd from Ms Cook dated 23 June 2020. -- 32 of 34 -- 33 [133] The disciplinary action is unlikely to have any impact on public and customer confidence, given the nature of the conduct matter. [134] Finally, as I have earlier observed, there was only one conduct allegation - the act of accessing Mr King's emails without authorisation. In that sense, it can be said to be an "isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours)." Ms Cook has stated that: This was a single and isolated incident that occurred in response to changes made to systems of work… … This is not indicative of a pattern of behaviour and certainly does not demonstrate the integrity I believe I bring to my work.74 [135] While MNHHS submitted that it considered the suite of factors in determining an appropriate disciplinary penalty, that was not in evidence in the rationale for penalty provided by Mr Scott as an attachment to the Disciplinary Decision Letter. [136] I find that the disciplinary penalty decision to reduce Ms Cook's classification level to AO 3.4 is not "appropriate and proportionate" in the particular circumstances. I do not believe that to be fair and reasonable, with respect to my consideration of the factors contained in cl 8.5(d) of the Discipline Directive in paragraphs [115] – [134] above and the rationale for penalty provided by Mr Scott. Remedy [137] As a result of a disciplinary process, a conduct allegation has been substantiated. That finding has not been subject of appeal by Ms Cook. [138] In the course of this Appeal process, Ms Cook has provided further information to challenge the reasonableness of MNHHS's disciplinary penalty decision. [139] I have also earlier noted that the revised disciplinary penalty decision that was ultimately applied by Mr Scott was not first put to Ms Cook for her comment, as required under the Discipline Directive. [140] The question then is what is the appropriate remedy? [141] I have earlier found that MNHHS's failure to abide by the express provisions of the Discipline Directive in that critical element renders the disciplinary penalty decision to be unfair and unreasonable. 74 Appellant's submissions, filed 9 June 2021, page 4 [20]. -- 33 of 34 -- 34 [142] I have also found that the disciplinary penalty decision to reduce Ms Cook's classification level to AO 3.4 is not "appropriate and proportionate" in the particular circumstances. [143] It is recognised that Ms Cook has not objected to the direction to complete a training module in relation to the Code of Conduct through the Metro North Learning Management System (LMS). [144] Further, it is recognised that Ms Cook has also accepted "the opportunity to consider a voluntary transfer into another at-level, permanent, full-time administrative position within Metro North, outside of Patient Services, Clinical Support Services and RBWH, without the taint of having had a disciplinary finding made against me."75 [145] In my view, the appropriate disciplinary penalty decision to apply to Ms Cook is:  A reprimand.  Transfer to another permanent, full-time administrative position within MNHHS, outside of Patient Services, Clinical Support Services. That position shall be at Ms Cook's current AO 4.4 classification level.  The 'Direction to attend training' as contained in the Disciplinary Decision Letter will continue to apply, in the terms directed by Mr Scott in that correspondence. [146] I order accordingly. Orders: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision: 1. A reprimand. 2. Transfer to another permanent, full-time administrative position within MNHHS, outside of Patient Services, Clinical Support Services. That position shall be at Ms Cook's current AO 4.4 classification level. 3. Direction to complete a training module in relation to the Code of Conduct through the Metro North Learning Management System (LMS). The training is to be successfully completed within 14 days of its provision to Ms Cook. At the conclusion of the training module, Ms Cook is required to provide the certificate of completion to Mr Scott. 75 Disciplinary Proposal Response Letter dated 25 January 2021, page 5. -- 34 of 34 --