Cronin v Department of Agriculture, Fisheries and Forestry [2015] QIRC 178

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cronin v Department of Agriculture, Fisheries and Forestry [2015] QIRC 178 PARTIES: Cronin, John (Applicant) v Department of Agriculture, Fisheries and Forestry (Respondent) CASE NO: TD/2013/34 PROCEEDING: Application for Reinstatement DELIVERED ON: 15 October 2015 HEARD AT: Brisbane HEARING DATE: 28-31 July 2014 (Hearing) 1 August 2014 (Hearing) 18 November 2014 (First Interim Decision) 12 January 2015 (Hearing) 27 January 2015 (Second Interim Decision) 5-6 March 2015 (Hearing) 23 March 2015 (Hearing) 1 May 2015 (Respondent Submissions) 9 June 2015 (Applicant Submissions) 16 June 2015 (Submissions in Reply) MEMBER: Deputy President Swan ORDERS: 1. Application is dismissed. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR - REINSTATEMENT - applicant's termination of employment dismissed - allegations that Applicant acted contrary to the Public Service Act 2008 are substantiated - provisions of s 77 adhered to by Respondent. CASES: Industrial Relations Act 1999 Public Service Act 2008 Jones v Dunkel [1959] HCA 8 -- 1 of 34 -- 2 Manly Council and Byrne & Anor [2004] NSWCA 123 Brandi v Mingot [1976] 12 AIR 551 Hall Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union:(2004_ 143 IR 354 at 47- 50 APPEARANCES: Mr L. Reidy, Counsel instructed by Creevey Russell Lawyers. Mr J. Merrell, Counsel instructed by Crown Law. Decision [1] This application is made by Dr John Cronin (the Applicant). Dr Cronin seeks reinstatement to his former position as a Veterinary Officer, classification PO3, at the Toowoomba office of the (then) Department of Agriculture, Fisheries and Forestry (now the Department of Agriculture and Fisheries) (the Department) arising out of his dismissal which was effective on 5 April 2013. [2] Dr Cronin submits that his termination of employment was harsh, unjust or unfair pursuant to s 77 of the Industrial Relations Act 1999. Relevant Legislation [3] Section 73 of the Act provides as follows: "73 When is a dismissal unfair (1) A dismissal is unfair if it is - (a) harsh, unjust or unreasonable; or (b) for an invalid reason." [4] Section 77 of the Act provides as follows: "77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider - (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to - (i) the operational requirements of the employer's undertaking, establishment or service; or (ii) the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance - (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and -- 2 of 34 -- 3 (d) any other matters the commission considers relevant." [5] Section 79(1) of the Act provides as follows: "79 Remedies - compensation (1) If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission." Why this matter has taken so long to finalise [6] This matter has been on foot for a long period of time. For the purpose of understanding why it has taken this long to finalise, the following needs to be mentioned.  An application for reinstatement was lodged in the Registry on 24 April 2013.  Two conferences were held on 17 May 2013 and 5 July 2013 before another Member of the Commission but the matter was not resolved.  A mention of the matter to allocate dates for a hearing was held on 11 June 2014.  The substantive hearing was scheduled to be heard on 28, 29, 30 and 31 July 2014, and 1 August 2014. However, the matter extended beyond those dates as, in the intervening period, two interim applications and decisions were required to be determined by the Commission.  The parties required a first interim decision from the Commission concerning further discovery.  Concerning the First Interim Decision submissions were received from the Respondent on 24 September 2014, the Applicant on 1 October 2014 and Submissions in Reply were received on 3 October 2014.  On 18 November 2014, the first interim decision was released.  A hearing was held on 12 January 2015.  The second interim decision related to an application to call a new witness due to the late receival of exhibits from the Applicant.  The second interim decision was released on 27 January 2015.  Further hearing dates of 5, 6 and 23 March 2015 were allocated.  Submissions were then received from the Respondent on 1 May 2015, from the Applicant on 9 June 2015 and Submissions in Reply on 16 June 2015. Dr Cronin's work background [7] Dr Cronin commenced his employment with the Department's predecessor in 1981 as a Veterinary Officer. From April 1989 he had been employed in the Departmental office in Tor Street, Toowoomba as part of Biosecurity Queensland within the Animal Biosecurity and Welfare Group. [8] Dr Cronin's employment was bound by the Public Service Act (2008) and the Code of Conduct. -- 3 of 34 -- 4 The closure of the Animal Disease Surveillance Laboratory (ADSL) Facility in Toowoomba [9] The State Government, in its 2012 Budget determined to close the ADSL facilities in Toowoomba and Townsville. The ADSL work from those towns would be transferred to the Department's Biosecurity Facility (BSL) at Coopers Plains in Brisbane. The Toowoomba facility was to close in early 2013. [10] Dr Cronin, together with others, was a very strong opponent of the Government's decision to close the Toowoomba facility in early 2000. [11] A prior matter concerning the Helidon Tick Facility (which is not the subject of this application) requires reference as the Applicant believes it has ramifications which ultimately was a reason for Dr Cronin's dismissal. The Helidon Tick Control Facility matter (Helidon Facility/Matter) [12] A pivotal part of this application relates, from the Applicant's perspective, to the identification of Dr Cronin as the public interest discloser in the Helidon facility matter in 2012, as a consequence of an officer from the Crime and Misconduct Commission (CMC) mistakenly sending an email to the Department identifying Dr Cronin. Dr Cronin had identified a biosecurity failure at the Helidon facility. [Note-the CMC has subsequently changed its name and is now known as the Crime and Corruption Commission (CCC). However, for the purposes of this decision it will continue to be referred to as the CMC for ease of reference.] [13] The failure at the Helidon facility, as identified by Dr Cronin, involved some senior officers of the Department including the Chief Inspector of Stock and the Biosecurity Queensland Manager. The complaint was that a user of the Facility was not delousing his animals and, after it became known to these officers, the practice was allowed to continue for another two and a half months. [14] The Department's response from its investigations was that the discloser was a private individual and as such that person could not be guilty of official misconduct pursuant to the Public Service Act 2008. It appeared that because of that distinction, no named Departmental officers could be found guilty. The Applicant says that none of the named officers were interviewed. Amongst those named by Dr Cronin was Mr Lambourne, Manager Operations of ABSW in Toowoomba. [15] The Applicant says it is relevant that Ms Smith (the Departmental CMC Liaison Officer and Governance & Ethics Officer) told the CMC that there was no case against Mr Lambourne and others only days before launching an investigation into Dr Cronin concerning the ADSL allegations (which were the allegations the Department relied on to terminate Dr Cronin's employment). The relevance of this was that it was Mr Lambourne who undertook the duty of notifying Dr Cronin that he was to be suspended on full pay, in this application, under direction from Mr McKay (Chief Executive Officer of the Department). -- 4 of 34 -- 5 [16] The Applicant claims that Ms Smith had completed her Report into the Helidon matter without interviewing any of the persons contrary to the recommendations of the CMC [Exhibit 28]. [17] It should also be noted that while Dr Cronin had named certain persons in that matter, the Commission holds no view with regard to those persons. However, the significance of the disclosure by the CMC of Dr Cronin's name regarding this matter is highly relevant to the Applicant's claim. [18] What was of concern to the Applicant was that Dr Cronin's disclosure to the CMC regarding the Helidon matter occurred on 2 August 2012 and the process against him in this application was activated on 6 December 2012, on the day two newspaper articles were circulated within the Department. Ms Smith notified the CMC concerning these newspaper articles and allocated an internal investigation to a Departmental Officer, Ms Tania Jones (Senior Consultant, Human Resources, Corporate Services, of the Department) on that day. Allegations made by the Respondent concerning Dr Cronin: [19] On 5 April 2013, Dr Cronin was dismissed on the following grounds: "First Disciplinary Finding - Dr Cronin released departmental information and/or made comment on Government policy to external parties including media organisations without authorization, and in doing so, without a reasonable excuse, contravened Sections 26(a), (c), (g), (j) and (k) of the Public Service Act 2008 (the PS Act) and, as such was liable for discipline under section 187(1)(b) of the PS Act in that the Applicant had been guilty of misconduct by way of inappropriate or improper conduct in an official capacity." "Second Disciplinary Finding - Dr Cronin used a departmental mobile phone and email account to engage in the conduct referred to in the first disciplinary finding and by those actions failed to ensure the effective, efficient and appropriate use of resources, and in doing so, without a reasonable excuse contravened Sections 26(a), (b), (c), (g), (j) and (k) of the PS Act and, as such, was liable for disciplinary action under Section 187(1)(b) of the PS Act in that the Applicant had engaged in misconduct by way of inappropriate or improper conduct in an official capacity." "Third Disciplinary Finding - Dr Cronin contravened without a reasonable excuse a direction given to him on 12 February 2013 by an authorized delegate of the Chief Executive of the Department to surrender a departmental mobile phone and maintain confidentiality of matters relating to his suspension, and in doing so the Applicant, without reasonable excuse, contravened Section 26(j) of the PS Act, and, as such was liable for discipline under Section 187(1)(d) of the PS Act and in that the Applicant contravened, without reasonable excuse, a direction given to him as a Queensland public service employee by a responsible person." "Fourth Disciplinary Finding - Dr Cronin deliberately deleted information from the departmental mobile phone in his control that was pertinent to a misconduct investigation and in doing so, without a reasonable excuse contravened Sections 26(b), (c) and (j) of -- 5 of 34 -- 6 the PS Act in that the Applicant was guilty of misconduct by way of inappropriate or improper conduct in an official capacity." Legislation [20] The Public Service Act (2008) relevantly provides: 26 Work performance and personal conduct principles (1) In recognition that public service employment involves a public trust, a public service employee's work performance and personal conduct must be directed towards – (a) achieving excellence in service delivery; and (b) ensuring the effective, efficient and appropriate use of public resources; and (c) giving effect to Government policies and priorities; and … (g) carrying out duties impartially and with integrity; and … (j) observing all laws relevant to the employment; and (k) ensuring the employee's personal conduct does not reflect adversely on the reputation of the public service; … 187 Grounds for discipline (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 … (d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person:' … Applicant's Initial Claim [21] The Applicant says that the real reason for his dismissal was because of an earlier public interest disclosure in 2012 concerning what he believed to be a biosecurity failure at the Department's Helidon facility, for reasons referred to in paragraphs 11 – 17 of this decision. He said that his public interest disclosure in that matter had satisfied the requirements of the meaning and expression in Section 72(2)(f)(i) of the Industrial Relations Act 1999. [22] The Applicant says that the "lie" in this case was that he was a 'serial and deliberate leaker' of Government matters. In effect, the first allegation made by the Department -- 6 of 34 -- 7 (the First Disciplinary Finding) was the primary allegation under which the other allegations hung. [23] The Industrial Relations Act 1999 states: 73 When is a dismissal unfair (1) A dismissal is unfair if it is - (a) harsh, unjust or unreasonable; or (b) for an invalid reason. (2) Each of the following is an invalid reason- … (f) the making by anyone, or a belief that anyone has made or may make - (i) a public interest disclosure under the Public Interest Disclosure Act 2010; or … [24] In his public interest disclosure concerning the Helidon facility, Dr Cronin had mentioned specifically 4 people from that facility - Ms Arthy, Ms Crook, Mr Brown and Mr Lambourne. Respondent's claim [25] The Respondent rejects the claim that Dr Cronin was dismissed because of his public interest disclosure made to the CMC concerning the Helidon facility. Rather it says that the four cited Disciplinary Findings constituted the reasons for his dismissal. It claims the issues to be considered were: a) The four Disciplinary Findings; b) A CMC email to the Department identifying Dr Cronin as the person who had made a public interest disclosure concerning the Helidon facility to the CMC and its implications, or otherwise, to the ultimate termination of Dr Cronin's employment. [26] Dr Cronin, as a Veterinary Officer, would be required by the Department to communicate with the media on matters concerning animal biosecurity. That is not in dispute. [27] The Department had a strict Protocol/Policy concerning media contact and pre-approval for commentary was required. This is also not disputed. [28] The Respondent says that it was not the case that Dr Cronin would have been unaware of his responsibilities, as previously he had complied with the Protocols during the outbreak of Bovine Respiratory Disease in 2009. That matter was significant for the Department at that time. -- 7 of 34 -- 8 [29] In 2008, Dr Cronin had undertaken Code of Conduct training in relation to unproved allegations by the Department concerning unauthorised disclosures to the media and third parties. The Departments Allegations in its 'show cause' notice to Dr Cronin First Disciplinary Finding [30] The Department, in its 'show cause' letter of 5 March 2013 to Dr Cronin stated: "The correlation between your contacts with media representatives and their subsequent articles relating to Government policy and departmental matters is concerning. That you contacted media representatives at all is a concern, considering that you are not authorised to make official comment on Government Policy. The comments in your emails to Max Wilson and Robin Hart (particularly f - h) indicate that you are aware that releasing information and comment on departmental matters was inappropriate and unauthorised" [Exhibit 35]. Exhibit 35 'f-h' are as follows: f) On 17 September 2012 you sent an email to Max Wilson of Equivet stating - "The journalist to contact for the Toowoomba Chronicle is Adam Davis - mention my name to him but tell him the same deal - "don't publish my name please". Adam would be aware of this request - the same goes for MPs - no name." g) On 17 September 2012, you prepared an email to Robin Hart of ALFA stating: "As this subject is a bit touchy with the LNP, please keep my name out of the media and with any politician feedback on the lab closure." h) On 20 September 2012 you sent a further email to Robin Hart stating: "please keep my name confidential still." [31] The Applicant says that this is the 'highest' the Department has been able to take the matter of 'leaking' unauthorised information by Dr Cronin. [32] The Applicant states that the trigger for the complaint about 'leaking' were two articles in the 6 December 2012 issue of the Queensland Country Life. [33] The headlines to the articles were "McVeigh's axe puts lab staff under stress" and "Qld sees red over BJD crisis." [34] At the time of these articles being written, the Government, in its 2012 Budget, had determined to close the ADSL facilities in Toowoomba and Townsville with the Toowoomba facility due to close in early 2013. -- 8 of 34 -- 9 [35] The Government's announcement concerning the ADSL/Toowoomba closure occurred on 11 September 2012. The first media article was written on 14 September 2012 with the heading "Lab closure puts State at grave risk". The journalist was Mr Adam Davies. The Applicant said there was no 'correlating' phone call made at that time by him to the journalist. The article referred to a "senior biosecurity officer with three decades of experience" who was also described as an 'insider'. [36] Dr Cronin said he was not in a senior position with the Department and denied that he was the person to whom reference had been made. He mentioned in evidence that there was, at that time, a more senior person who may have fitted that description because, with the closure of the facility, that person had to leave Toowoomba and find work elsewhere. There was no claim made by Dr Cronin that this person was the source of the articles, but it seemed incongruous to him that he was the only person suspected of the leak. [37] Significantly, the Department, in the course of conducting an investigation headed by Ms Jones into Dr Cronin's alleged activities, did not contact the journalist about the source of his story. Also, in the Departmental investigation, Dr Cronin says that he was not interviewed. Ms Jones, in evidence said she had not contemplated interviewing Dr Cronin concerning the source of these articles. In effect, Dr Cronin had not been given the opportunity to respond to the allegations. [38] Dr Cronin has not denied that he had disagreed, as had others, with the Government's decision to close the Toowoomba facility. However, the Respondent's belief was that Dr Cronin's views led to him contacting media representatives and other third parties and providing them with sensitive information and commentary concerning the decision. [39] Dr Cronin did not deny making contact with the media and third party stakeholders concerning the closure of ADSL, but claimed he had not breached any of the requirements placed upon him as a public servant under the Public Service Act 2008. [40] The Applicant submitted that had the Department conducted a basic three step approach concerning the media commentary, it may have formed a different opinion. That approach was described as follows: "A basic three step approach should be applied to each article. First, the article should be examined for its content and what it could indicate about any contribution from Dr Cronin. If it fails that test, the article should be disregarded. If there is a suggestion or a mere possibility of Dr Cronin being a source, the second step is to establish that Dr Cronin was in fact the source. It is at this step that each and every allegation fails because there is no evidence, even evidence from which a reasonable and rational inference should be drawn. The third step is to then assess any matter proved under the second step that was reported and attributable to Dr Cronin to determine if it went beyond logistical and industry information." -- 9 of 34 -- 10 [41] Dr Cronin's evidence of what he had discussed concerning the closure of the ADSL/Toowoomba is as follows: "I concede that I sent the email to the stakeholders as stated in the first "show cause" letter. I acknowledge that I created this document titled "Closing ADSL 12-09-2013" Document (the Attachment). However, I do not have a copy of the Attachment and although it is referenced extensively in the report by Tania Jones and the covering emails were attached, a copy of the actual document was not provided within the report. I made comment about the logistical effect that the closure of the Toowoomba lab would have on veterinary practice and that it would it [sic] affect feedlots like the one that Robin Hart and Jim Cudmore were associated with at Kerwee, and would affect each of the vets individually as people who regularly submit samples for testing in animals for autopsy at the lab. I wanted to speak to them about the serious affect on them of getting their biosecurity samples tested locally and with not getting some expeditious result sent back to them. The Attachment was merely about my concern for the logistical biosecurity and disease issues dealing with the closure of the Toowoomba vet lab. The emails with the Attachment were only sent to affected vets and feed lotters. It was not a media comment nor was it ever intended to be." [42] The email referenced in paragraph 41 states as follows: "Animal Disease Surveillance Laboratory (ADSL), Toowoomba With the LNP government announcing on 12-9-2012 that it was closing the ADSL, some critical comparisons with the Biosecurity Science Laboratory (BSL) at Kessels Rd, Coopers Plains in the heart of Brisbane and some other relevant comments are in order.  ADSL is situated in a region which has a big concentration of intensive and extensive livestock industries on its doorstep. Many intensive cattle feedlots, dairies, piggeries and layer poultry farms are concentrated within an hour's drive from ADSL.  The number of livestock autopsies done at ADSL compared to BSL bear out the critical nature of having a vet laboratory within a regional centre in a farming area, compared to one in a capital city location such as BSL. In the first 7 months of 2012, ADSL did 105 autopsies of farm livestock (cattle, goats, horses, pigs and sheep) compared to 2 at BSL (1 cattle, 1 horse foetus). The location of BSL in a state government medical precinct at Coopers Plains is not ideal for a frontline veterinary laboratory, rather for a specialist back-up -- 10 of 34 -- 11 veterinary laboratory which is what BSL is, or has become because of its location in a capital city.  ADSL has a Commonwealth funded TSE (Made Cow and Scrapie) laboratory attached to it, the only one at any Australian veterinary laboratory. It tests nervous tissue samples from downer cattle across the nation as part of the national TSE surveillance program administered by Animal Health Australia.  In recent times, ADSL has diagnosed serious zoonotic and exotic diseases such as Avian Influenza (2012), Swine Influenza (2012, 2008- 09), Anthrax (2002) and Equine Influenza (2007-08). Large scale outbreaks of dairy and feedlot botulism (1990) have all been diagnosed and controlled with the expertise and testing provided ADSL.  A critical part of animal disease diagnosis is close liaison and cooperation between veterinary pathologists, and the regional private plus company veterinarians, This is the big advantage of having a veterinary laboratory in a regional centre such as Toowoomba, where local livestock and equine veterinarians can and do discuss their cases with the vet pathologist on duty at the laboratory. The resultant personal service and interactions cement good case follow-ups and ensure high levels of client satisfaction.  A final comment on the laboratory buildings and equipment at ADSL- ADSL was built in the mid-1980s it is well maintained and staffed with expert, well-trained officers. It is NATA Accredited, and for a minimal investment, it could have one of its component sub-laboratory sections upgraded to PC3 capacity to handle samples such as Hendra virus samples.  A decision to vacate such as asset to the Qld livestock industries as ADSL, and to relocate its services to just one DAFF laboratory like BSL would mean the loss of many valuable ADSL staff and their services, and its loss would be the height of folly for an LNP state government (most ADSL staff will not relocate to BSL in Brisbane for personal reasons, and because of the costs associated with such relocation)." [43] Dr Cronin was adamant that he had not provided any confidential information to Journalists, Mr Rowling and Mr Cooper. Whatever information was provided, was within his role. [44] Mr McKay conceded that there was no evidence provided in Ms Jones' Report of what Dr Cronin had said to journalists when he had made contact with them on his mobile phone. When the Department first became aware of Dr Cronin's behaviour [45] The Respondent detailed how it first became aware of this:  Media clips relevant to Department and Departmental officers are made available on a daily basis through the Department computer system. -- 11 of 34 -- 12  On 6 December 2012, Ms Smith was provided by the Director of Human Resources of the Department with two media articles from the newspaper Queensland Country Life.  The first article was under the heading "McVeigh's axe put lab staff under stress".  The second article was under the heading "Qld sees red over BJD crisis".  When she received the two media articles on 6 December 2012, Ms Smith was aware that Dr Cronin had previously made inappropriate comments that reflected adversely on the Department on the BJD (Bovine Johne's Disease) hotline which had been established by the Department to provide information about BJD.  Ms Smith formed the view that a Departmental officer may have released Departmental information to the newspaper without authority. She thought that if this was so, it would constitute official misconduct.  She determined, as the CMC Liaison Officer, to submit a "Mandatory Information Requirements Section 38 Complaint" which was sent to the CMC.  Ms Smith's evidence was: "Based on the subject matter of the articles and my knowledge of the allegations in respect to the Applicant's alleged inappropriate comments in respect to the BJD crisis, I drew the conclusion that the Applicant may be a possible subject officer. I noted that the subject officer was 'unknown' but identified the Applicant as a possible subject."  On 10 December 2012, in a Matters Addressed Report, the CMC returned the matter back to the Department to deal with and considered the allegations if proven would amount to official misconduct. Ms Jones was to conduct preliminary enquiries and collate evidence.  Ms Jones was asked to analyse Dr Cronin's Departmental email account and Departmental mobile phone records.  On 22 and 31 January 2013, the Department obtained Dr Cronin's Departmental phone records and his Departmental log-book for the period 1 July 2012 to 31 December 2012.  On 8 February 2013, Mr McKay was provided with information concerning Dr Cronin's Departmental mobile phone records which he says, on a preliminary basis, suggested that Dr Cronin had been using this phone to contact journalists and members of the Queensland Parliament. -- 12 of 34 -- 13  On 11 February 2012, an investigation into Dr Cronin's email account from 1 July 2012 to 31 December 2012 revealed a number of emails sent and received by Dr Cronin to external parties, including: o Dr Ross Newman - private Veterinarian; o Mr Robin Hart, the Director and owner of Kerwee Feed Lot; o Mr Jim Cudmore, President of the Australian Lot Feeders' Association; o Dr Max Wilson, principal Veterinarian of Equivet Australia Pty Ltd at Cambooya; o Dr David Pascoe, principal Veterinarian at the Oakey Veterinary Hospital; and o Dr Megan Salter, Veterinarian and Financial Controller of the Sandalwood Feed Lot at Dalby.  On 11 February 2013, Ms Jones formed the view that Dr Cronin appeared to have released unauthorised and sensitive Departmental information that "could be viewed as contrary to the Department's media policy" and informed Mr McKay of her views.  On 11 February 2013, Mr McKay determined: o that Dr Cronin be suspended on full pay pending the outcome of a full investigation; o authorised an investigation to ascertain whether there was any evidence to support or deny such allegations; and o took steps to immediately suspend Dr Cronin on full pay on the basis that Mr McKay was unable to locate suitable duties for Dr Cronin in the intervening period of investigation; o Mr McKay determined to retrieve Departmental property from Dr Cronin at the time of advising him of his suspension from work. o This suspension on full pay commenced on 12 February 2013. Ms Jones' Investigation  Between 11 February 2013 and 4 March 2013, Ms Jones undertook her investigation of Dr Cronin as to whether he had engaged in misconduct by releasing confidential or sensitive Departmental information without authorisation to third parties.  Dr Cronin was suspended on 12 February 2013.  When Dr Cronin handed his mobile phone to Mr Lambourne on the afternoon of 12 February 2013, all of the data and information on the phone had been deleted - accidently according to Dr Cronin. It was alleged also that Dr Cronin had discussions and communication with other employees about his suspension after he was suspended contrary to the direction given to him to maintain confidentiality. -- 13 of 34 -- 14  Because of these incidents, Mr McKay determined that Ms Jones was to investigate the circumstances surrounding the failure of Dr Cronin to return his Departmental mobile phone when directed by Mr Lambourne; his discussions with others at the workplace about his suspension and the deletion of all data from his Departmental mobile phone.  On 14 February 2013, Ms Jones conducted a search of Dr Cronin's Departmental email account covering the period 25 November 2012 to 12 February 2013.  Ms Jones then conducted a "Google" "Reverse Australia" enquiry to identify the phone users that Dr Cronin had contacted. On 15 February 2013, Ms Jones obtained and reviewed material provided by Information Technology Partners in relation to the Departmental mobile phone. On the same date, information was received and reviewed from Dr Cronin's timesheets.  On 19 February 2013, searches were conducted of Dr Cronin's Departmental personal N:/Drive; and  On 26 February 2013, a review of Dr Cronin's Departmental telephone records for January 2013 was conducted. Ms Jones' report findings [46] Ms Jones' Report is Exhibit TJ-7. In that Report she came to the following conclusions in respect of the four allegations she investigated: I. There appeared to be sufficient evidence available to conclude that Dr Cronin failed to give effect to Government Policies and priorities and failed to carry out his duties impartially and with integrity between the period of 1 July 2012 and 12 February 2013. II. On the balance of probabilities, there was sufficient information generally to substantiate the Disciplinary Findings one to four. III. On receipt of this Report, Mr McKay asked Dr Cronin to 'show cause' as to why he would not be liable for disciplinary action in light of Ms Jones' Report. IV. On 22 March 2013, Mr McKay issued Dr Cronin with a second 'show cause' notice in respect of the penalty Mr McKay proposed to impose, namely termination of employment. [47] Dr Cronin responded on 2 April 2013 and on 5 April 2013, his employment was terminated and he received five weeks pay in lieu of notice. -- 14 of 34 -- 15 [48] Mr McKay said that in making his decision he had considered Ms Jones' Report and Ms Jones' conclusions, and that he 'had not just accepted Ms Jones' conclusion on their (sic) face." [49] Mr McKay said he was aware that the standard of proof to be applied in respect of the allegations was on the balance of probabilities. In his determination on this point he had considered a range of factors. Matters considered by Mr McKay [50] Examples were given of the type of material Dr Cronin had sent to third parties concerning the closure of the ADSL: "A decision to vacate such an asset to the Qld livestock industries such as ADSL, and to relocate its services to just one DAFF laboratory like BSL, would mean the loss of many valuable ADSL staff and their services, and its loss would be the height of folly for and LNP Governments (most ADSL staff will not relocate to BSL in Brisbane for personal reasons and because of the costs associated with such relocation)." [51] An email mention was made by Dr Cronin of the number of autopsies of farm livestock performed in the first seven months of 2012 at ADSL compared to the BSL. [52] Further comments were made by Dr Cronin about the viability of BSL as a first line veterinarian laboratory due to its location. Similar comparisons were made of the types of diseases diagnosed at ADSL between 1990 and 2012; and Dr Cronin stated in an ADSL document sent to Dr Wilson from him on 14 September 2012: "A critical part of animal disease diagnosis is close liaison and cooperation between veterinary pathologists, and the regional private plus company veterinarians. This is the big advantage of having a veterinary laboratory in a regional centre such as Toowoomba, where local livestock and equine veterinarians can and do discuss their cases with the vet pathologist on duty at the laboratory. The resultant personal service and interaction cement good case follow-ups and ensure high levels of client satisfaction." [53] The Respondent believed that sending this material to Dr Wilson using his Departmental account on 14 September 2012 was so that Dr Wilson could use it by going to the media and to politicians as part of the public campaign that was in place against the closure of ADSL in Toowoomba. [54] The Respondent says this is shown by considering some of the wording of the email - i.e. "Max and Robin - as discussed - please pass this information on to your colleagues. Celia already knows - I believe. I will follow up with you next week." [55] The comments attributed to Dr Dodd in the Queensland Country Life article on 18 October 2012 contain the references Dr Cronin had made concerning the closure of ADSL in Toowoomba. The Respondent says that represents proof of Dr Cronin disclosing material which was of a confidential nature. -- 15 of 34 -- 16 [56] In a return email to Dr Cronin, Dr Wilson said "Let us know what we can do John. I'll try to knock something up for the Chronicle, John McVeigh & Ray Hopper (our local member). Max" [57] Mr McKay's evidence was that the ADSL document was one that was sensitive. [58] In a further email to Dr Wilson, Dr Cronin wrote: "Thanks. Max. Please keep my name out of the media and politician feedback. The journalist to contact for the Toowoomba Chronicle is Adam Davis - mention my name to him but tell him the same deal - "don't publish my name please". Adam would be aware of this request - the same goes for MPs - no name. Best regards, John." [59] An email had been sent by Dr Cronin to Mr Robin Hart, Director and owner of Kerwee Feed Lot dated 20 September 2012. Its opening paragraph was "Robin, Thanks for letting me know this. I have been thinking about the next line of action for this situation…". [60] When cross-examined about this particular email, Dr Cronin said the "situation" to which he had referred was the closure of ADSL. [61] In Ms Jones' Report, she referenced an article written by Mr Cooper published in Queensland Country Life on the day after Dr Cronin had admitted to speaking to Mr Cooper on his Departmental mobile phone for 8.03 minutes, which read: "A source within Biosecurity Queensland has told Queensland Country Life that the Department was 'sitting on' at least 100 properties with a direct trace forward connection to at least one of the animals involved." 'There are at least 100 properties under investigation at the moment connected to one animal alone, the source said. 'Again this is in addition to the 121 properties already under quarantine. We expect many of those properties will go under quarantine in the next two to three weeks.' 'The other big worry is that of those 121 properties which confirmed a movement restriction, unless 70 of those have samples being process, because the system is being swamped and is only going to get worse.' The latest explosive revelations from a trusted, highly placed government insider comes as the State Government moves closer to its March deadline, when the first test results from samples taken soon after the outbreak's confirmation become available. Next month is also D-Day for the Toowoomba Biosecurity Laboratory, which is in the stages of closing and will see all testing procedures transferred and centralised in Brisbane at the Coopers Plains facility." [62] Mr McKay stated that he did not know what Dr Cronin may have said to Mr Cooper or whether Dr Cronin was in possession of that information [T7-56]. However, the fact remained that Dr Cronin had been in contact with Mr Cooper prior to the article appearing -- 16 of 34 -- 17 in Queensland Country Life and had a discussion with Mr Cooper which lasted over 8 minutes. [63] In cross-examination, Dr Cronin had read to him by the Respondent an article under the by-line of Mr Rowling from Queensland Country Life which, inter alia, stated: "A serving biosecurity officer said the closure of the lab was an irresponsible action by the DAFF Minister acting on poor advice from chief veterinary officer, Dr Rick Simmonds. This is despite intense opposition expressed to both Minister McVeigh and LNP Government by groups as diverse as thoroughbred breeders, cattle lot feeders and veterinary practitioners from across Queensland. The ADSL laboratory where BJD culture work is still being done … the rest of the lab being closed down - is struggling with the mountain of BJD tissues and faecal samples for culture, despite the new PCR tests becoming available." [64] The Respondent asked Dr Cronin: "That's in fact almost a word for word repeat of the advice that you gave to Mr Hart; isn't that right? …. I would say that possibly looking at that, the way it's written and the PCR stuff, that it was possibly a pathologist or a worker at the ADSL laboratory." [65] The Respondent viewed this as Dr Cronin engaging in misconduct by participating in the public campaign against the Government's policy decision to close ADSL in Toowoomba and that the Applicant knew what he was doing was wrong by asking Mr Hart to keep his name confidential. [66] Dr Cronin's response to this was that he kept in contact with Dr Wilson, Dr Dodd, Dr Salter, Dr Pascoe, Ms Heather Brown (Ms Pascoe), the Oakey Veterinary Hospital, Mr Hart and Mr Cudmore because they were clients who could be badly affected by bad biosecurity outcomes and put at risk as a result of the closure of ADSL. The Respondent did not accept this evidence. [67] The Respondent also referred to Dr Cronin's contact with journalists –  Mr Brad Cooper - Queensland Country Life;  Mr Troy Rowling - Queensland Country Life;  Ms Cassie Hough - Australian Broadcasting Commission;  Mr James Nason - publisher of an online news publication called "Beef Central." [68] In light of Ms Jones' Report and the availability of Dr Cronin's mobile phone records, the Respondent stated "there is clear and unanswerable correlation between the phone calls made by the Applicant on the departmental mobile phone to the journalists about the closure of the ADSL in Toowoomba and the alleged implications for biosecurity in Queensland". [69] The Respondent claims that, on the balance of probabilities, Dr Cronin was the source of the information referred to in those articles. -- 17 of 34 -- 18 [70] With regard to the Department's direction to surrender his Departmental phone, the Respondent says that it was clear that Dr Cronin had this phone with him on 12 February 2013 when he was directed to surrender it to Mr Lambourne at the Toowoomba facility. [71] The Respondent claims that in contravention of that direction, and without a reasonable excuse, Dr Cronin had refused to surrender the phone when it was in his possession on that day in the Toowoomba office. [72] Dr Cronin had been directed by Mr McKay also to maintain confidentiality about his suspension. This did not occur. Dr Cronin had used his computer to advise of his suspension to Mr Greg Williamson on 12 February 2013 at 11.32am advising "I am suspended on full pay". Dr Cronin also emailed another person, Mr Lawrence Gave advising that "I am currently out of my office suspended on full pay from normal duties." [73] Dr Cronin's affidavit said of this event "The only action I took was to set up the out of office message on my computer for the benefit of "DAFF" clients who accessed my email address for export certificates." [74] A further allegation raised by the Respondent was that Dr Cronin had spoken to two other work colleagues advising them that he had been suspended with pay, which he did not deny. [75] The Respondent submitted that the only conclusions which could be drawn from these events, is that Dr Cronin engaged in misconduct [s 187 (1)(j) and (d) of the Public Service Act 2008]. [76] The Respondent also raised the considerable number and length of the calls made from Dr Cronin's Departmental mobile phone. [77] Also claimed was that Dr Cronin had sent a second ADSL document to Dr Dodd for the purpose of assisting in the campaign against the closure of ADSL. [78] The Respondent said that the onus was on the Applicant to prove that his dismissal was harsh, unjust or unreasonable and he could have called journalists to support his case that he was not the source of the information that had appeared in the two Queensland Country Life articles. [79] The Applicant states that the consequence of Dr Cronin not pursuing this course of action itself is that the Respondent had made, in his view, an "oppressively wide range of allegations involving a myriad of people and documents, none of it substantiated or capable of substantiation". Dr Cronin did not have the 'wherewithal" to track down and get those witnesses to the proceedings. [80] In considering the Respondent's reference to the rule in Jones and Dunkel1, the Applicant referred to Manly Council and Byrne & Anor, where Campbell J stated: 1 Jones v Dunkel [1959] HCA 8 -- 18 of 34 -- 19 "The inferences licensed by [Jones] are ones which are drawn, if at all, once all the evidence in the case is in. This has significance in two ways. The first is that, though [Jones] licences drawing more confidently, an inference available against the party who has failed to call the evidence, before that can happen there must first be available to be drawn, on the evidence which has been admitted, an inference against that party … [The] second matter of significance is that if the evidence which has been admitted is enough to prove the case of the party who has not called the witness, the tribunal of fact could be justified in not counting the failure of that party to call that witness as something that reduces the strength of that case …".2 [81] The Applicant submits that the inference ordinarily drawn is that the uncalled evidence would not have helped the party's case, not an inference that the evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case.3 [82] The Respondent says that "the onus was and is on the Applicant, in these proceedings, to prove that his dismissal was harsh, unjust or unreasonable". [83] Within this context, the Respondent says that Dr Cronin could have called journalists to give evidence and in fact, at one point, he had intended calling journalist Mr Cooper to dispute that he was the source of the information. [84] In Jones v Dunkel, Windeyer J stated that: "Unless a party's failure to give evidence be explained, it may lead to an inference that his evidence would not help his case."4 In these circumstances, The Respondent says that the inference should be drawn against Dr Cronin that Mr Cooper's evidence would not have been helpful to his claim. [85] As part of the Respondent's case it was stated that on 18 October 2012, one month after the "Chronicle" articles had appeared, Mr Troy Rowling of Queensland Country Life wrote an article entitled "Plea to save Toowoomba Lab". Mr Rowling had relied upon commentary from Ms Celia Dodd, an equine specialist Veterinarian concerning the launch of a petition. Dr Cronin had not been mentioned. Ms Dodd, who was the organiser of the petition, made reference to a letter from 30 veterinarians to the Minister and the Premier of the State. [86] The Applicant queried why that particular article had been referenced by the Respondent in its case against Dr Cronin. The Applicant said that the Respondent's reference implied guilt by association. [87] Insofar as the Respondent claims that Dr Cronin "had released departmental information and/or made comment on Government policy to external parties including media organisations without authorisation" and consequently had been in breach of s 26 (a), 2 Manly Council and Byrne & Anor [2004] NSWCA 123 3 Brandi v Mingot [1976] 12 AIR 551 4 Jones and Dunkel [1959] HCA 8; (1959) 109 CLR 298 -- 19 of 34 -- 20 (c), (g), (j) and (k) of the Public Service Act 2008, I acknowledge that Mr McKay's view was that there was no evidence provided in Ms Jones' Report of what Dr Cronin had actually said to journalists when he had made contact with them on his mobile phone. [88] Dr Cronin's emails to third parties show how that he was involved in a course of action designed to ensure his views were provided to the media. Examples of this are summarised hereunder: Dr Cronin: "Thanks. Max. Please keep my name out of the media and politician feedback. The journalist to contact for the Toowoomba Chronicle is Adam Davis - mention my name to him but tell him the same deal - "don't publish my name please". Adam would be aware of this request - the same goes for MPs - no name. Best regards, John." Media Article: "A serving biosecurity officer said the closure of the lab was an irresponsible action by the DAFF Minister acting on poor advice from chief veterinary officer, Dr Rick Simmonds. This is despite intense opposition expressed to both Minister McVeigh and LNP Government by groups as diverse as thoroughbred breeders, cattle lot feeders and veterinary practitioners from across Queensland. The ADSL laboratory where BJD culture work is still being done … the rest of the lab being closed down - is struggling with the mountain of BJD tissues and faecal samples for culture, despite the new PCR tests becoming available." Email "From: Cronin, John Sent Thursday 20 September 2012 10.29AM To Robin Hart Subject RE: Closing ADSL 12-9-2012 Sensitivity Confidential Robin Thanks for letting me know this I have been thinking about the next line of action for this situation. The decision shows a lack of value being attached to basic animal biosecurity infrastructure being provided by ADSL, which was put here in 1987 by a previous coalition government, and ADSL is the top lab in Qld for livestock disease surveillance. This decision reflects some poor advice to the Minister's office by people like CVO Dr Rick Symons, who has a long-term animal welfare background. While the BSL lab at Coopers Plains is more modern and has some upgraded testing capability, such as a PC3 rating for Hendra virus testing, it has very low levels of livestock autopsies, and always will have, because it is in the middle of Brisbane. The -- 20 of 34 -- 21 biosecurity of the cattle and other livestock industries of Qld will be the big losers here-equine influenza cost $400-$500 million over about 8 months-however, a vesicular disease outbreak in cattle would wipe out the cattle exports from Australia overnight. Rather than discuss this more in an email, I will give you a call. Please keep my name confidential still. Thanks again for your interest. Best Regards John” Respondent's Question to Dr Cronin and his response: "That's in fact almost a word for word repeat of the advice that you gave to Mr Hart; isn't that right?... . I would say that possibly looking at that, the way it's written and the PCR stuff, that it was possibly a pathologist or a worker at the ADSL laboratory." Dr Cronin: "please keep my name confidential still." Dr Cronin: "As this subject is a bit touchy with the LNP, please keep my name out of the media and with any politician feedback on the lab closure." [89] In the Respondent Submissions it is stated that at all times during the disciplinary process Mr McKay was unaware that the Applicant had allegedly made the public interest disclosure to the CMC concerning the Helidon facility. Ms Smith claims to have never mentioned that matter to him. [90] The Respondent says that it must be remembered that Mr McKay, in respect of the position he held at the time of the disciplinary action being taken against the Applicant, namely Deputy Director-General of Corporate Services, did not commence in that role in the Department until June 2012. His evidence was that:  He was the delegated decision maker in relation to the suspension and disciplinary process in respect of the Applicant; and  Prior to his involvement in the Applicant's suspension and disciplinary process, he did not know the Applicant in any capacity. [91] Mr McKay's evidence-in-chief included the following: "At all times during the disciplinary process I was unaware that the Applicant had allegedly made a public interest disclosure to the CMC. I first became aware that the Applicant may have made a complaint to the CMC after the Applicant filed his application for reinstatement. At that time, after the first conference at the Queensland Industrial Relations Commission, Julian Howe, Manager informed me -- 21 of 34 -- 22 that the issue of a public interest disclosure had been raised at the conference by the Applicant." [92] However, in my view, there is clear evidence Dr Cronin communicated and disseminated information to third parties and that is evident from the emails produced, the content of which is not denied by Dr Cronin. These allegations have been substantiated by the Department and Dr Cronin has on the balance of probabilities contravened the provisions of the Act as cited in paragraph 19 "First Disciplinary Finding" and for the reasons cited. Second Disciplinary Finding [93] This second finding relates to Dr Cronin's use of his work mobile telephone. The Respondent alleges that he used this phone to engage in the conduct referred to in the first disciplinary finding, and without reasonable excuse had contravened Sections 26 (a), (b), (c), (g), (j), and (k) of the Public Service Act 2008, previously cited and had engaged in misconduct by way of inappropriate or improper conduct in an official capacity. [94] Dr Cronin said that he had made a call to Mr Troy Rowling five days prior to his article appearing in the Queensland Country Life and that the call had lasted 1 minute and 41 seconds. The Applicant said that would hardly be enough time for Dr Cronin to provide the type of information required for such an article. [95] Dr Cronin said that in the course of his ordinary work dealings, he had been in contact with people who were opposed to the Government's decision to close the ADSL facility at Toowoomba. [96] The Applicant says that the Respondent has drawn on assumptions and conjecture in so far as it had viewed Dr Cronin's interaction with others. Nowhere is this more apparent than when considering Mr McKay's evidence and his view that the material pointed to Dr Cronin and the conclusion drawn was that Dr Cronin was conducting a campaign using journalists and industry stakeholders for his own ends [T1-91]. [97] The Applicant claims that what had been forgotten by the Respondent in its analysis of Dr Cronin's alleged activities, is that there was a widespread community throughout the industry from producers to veterinarians to representative bodies such as AgForce to ALFA who voiced their opinions independently. The Applicant's submissions state: "…it rather insultingly assumes that people like Dr Wilson, Dr Dodd, Dr Newman, feed lot business owners, executive members of ALFA past and present, representatives of AgForce and others are incapable of forming their own views and responses. It is clearly absurd to suggest any of this". [98] Dr Cronin said that various politicians had made calls to him before and after the closure of the ADSL facility and "there was no rule forbidding contact with politicians especially where there is a family connection." [99] While the Respondent has added contact with politicians in its Departmental Report, no politician had made a complaint about contacts with Dr Cronin. The Departmental -- 22 of 34 -- 23 Investigator, Ms Jones, did not make any contact with any of the politicians to ask them about the conduct of Dr Cronin. [100] On 15 November 2012, Queensland Country Life (under the by-line of Mr Rowling) commented upon calls by Darling Downs veterinarians for the Minister to release expert advice that he had mentioned in the newspaper. Thirty veterinarians (including Dr Celia Dodd) had released a report where references had been made to the lack of consultation or discussion with veterinary professionals and the effect on the 'agricultural pillar' of the economy. There were no 'correlating' phone calls attributed to Dr Cronin. [101] On 30 November 2012, similar views (under the by-line from Mr Rowling) appeared in an ABC Report. [102] Dr Cronin's telephone records show contact being made by him to journalists which he has not denied, but he says that he had never disclosed confidential material to them. One example cited by the Respondent relates to a call made by Dr Cronin to Journalist, Mr Rowling from the Queensland Country Life which lasted over 8 minutes, with an article in that newspaper following thereafter. [103] That article (with the by-line of Mr Rowling) commenced with the commentary "A senior biosecurity officer said the closure of the lab was an irresponsible action by the DAFF Minister acting on poor advice from chief veterinary officer, Dr Rick Simmonds. This is despite intense opposition expressed to both Minister McVeigh and LNP Government …..". [104] Dr Cronin denied he was the source of this information, but in an e-mail from Dr Cronin to Mr Robin Hart dated 20 September 2012, Dr Cronin states: "Thanks for letting me know this. I have been thinking about the next line of action for this situation. The decision shows a lack of value being attached to basic animal biosecurity infrastructure being provided by ADSL, which was put here in 1987 by a previous coalition government, and ADSL is the top lab in Qld for livestock disease surveillance. This decision reflects some poor advice to the Minister's Office by people like CVO Dr Rick Symons, who has a long-term animal welfare background…". [105] Also later addressed in this decision is an issue concerning the direction from the Department to Dr Cronin for him to surrender his work mobile telephone. When ultimately surrendered, Dr Cronin's phone had all of its data deleted. For reasons later detailed, I have accepted that Dr Cronin had deleted all the data from his work mobile phone on the same day that he had been asked to surrender it. [106] While there is no actual recording made of the content any telephone calls Dr Cronin made to journalists, there is evidence to the effect that he did call journalists after which articles ended up in the newspaper citing a "serving biosecurity officer" or similar description. The information contained in his email to Mr Robin Hart shows a -- 23 of 34 -- 24 repetition of his comments appearing in a newspaper article shortly thereafter on a specific issue - i.e. his views concerning Mr Rick Symons. [107] When considered in conjunction with the deletion of Dr Cronin's telephone records on his work mobile phone, it was reasonable, on the balance of probabilities, for the Department to find that Dr Cronin had used his work mobile phone to make contact with journalists for the purpose of providing them with information which was outside of the ambit of his role and which could be viewed as being detrimental to the Department. These allegations have been substantiated by the Department and Dr Cronin has on the balance of probabilities contravened the provisions of the Act as cited in paragraph 19 "Second Disciplinary Finding" and for the reasons cited. Third & Fourth Disciplinary Findings [108] The third and fourth findings relate to Dr Cronin's alleged failure, without reasonable cause, to follow a direction given to him on 12 February 2013 by an authorised delegate of the Chief Executive of the Department to surrender his departmental phone and maintain confidentiality of matters relating to his suspension. Consequently he contravened, without reasonable excuse, Section 26(j) of the Public Service Act 2008. [109] On the morning of 12 February 2013 when Dr Cronin was officially asked to provide his mobile phone, he claimed to have forgotten to bring it to the workplace, but that he would make arrangements for his wife to bring it to the Toowoomba office around 2.00pm. [110] The Respondent says calls were made from that phone on that day at 8.07am, 8.19am, 8.38am and 9.09am. These calls were shown as having been made at the locations of Wilsonton and Rockville [Respondent submissions paragraph 61]. [111] Dr Cronin's evidence was that he walked most days to work and would normally arrive around 9.00am. [112] In cross-examination, Dr Cronin agreed that if calls had been made from his mobile phone at around 9.09am then it would indicate that he had his phone with him on that day at work. However, Dr Cronin denied that he had his phone on him at work when asked to surrender it to Mr Lambourne. In cross-examination Dr Cronin agreed that there were calls made at the times nominated in the report from his mobile phone and that the calls had been made from the Toowoomba office. [113] The Respondent did not accept Dr Cronin's denial and said it believed that he was buying time so that he could delete messages before handing it over to the Department. [114] The Respondent claims that Dr Cronin deliberately deleted information from the departmental phone in his control that was pertinent to a misconduct investigation and in doing so, without reasonable excuse, contravened Sections 26(b), (c) and (j) of the Public Service Act 2008. [115] This claim has been denied by Dr Cronin. -- 24 of 34 -- 25 [116] In responding to matters concerning the Third and Fourth Disciplinary Findings, the Respondent said Dr Cronin was aware of the Code of Conduct and the conditions under which he could use the mobile phone. [117] The Code of Conduct contained, inter alia, the following: (i) to treat co-workers with courtesy and respect; (ii) to accept that the elected Government had the right to determine policy and priorities; (iii) to comply with all reasonable and lawful instructions, whether or not he personally agreed with the given policy direction; (iv) to use any public resource in accordance with official departmental policies; (v) to treat official information with care and to use it only for the purpose for which it was collected or authorised; and (vi) not to use confidential or privileged information to further his own personal interest. [118] The Respondent said Dr Cronin had agreed, in cross-examination, that the Policy concerning the use of the departmental mobile phone was understood by him. [119] The Respondent detailed the particulars concerning the type of phone Dr Cronin had and the telephone number. Dr Cronin also had a landline phone on his desk with a dedicated number and a work email address. [120] The Respondent claimed that there was no dispute that Dr Cronin made calls from his departmental mobile phone to third parties and journalists. [121] Ms Jones, upon referral by the CMC back to the Department, and under instruction from Ms Keily Smith conducted an investigation as to whether Dr Cronin: (a) may have contravened the Code of Conduct; (b) may have contravened the direction given to him by departmental management concerning his departmental telephone and maintaining confidentiality about the circumstances of his suspension; and (c) may have, on 12 February 2013, deleted all data on the departmental mobile phone. [122] Dr Cronin, in cross-examination, did not dispute that attachment 13 to Ms Jones Report concerning the log of calls from his departmental mobile phone was correct. [123] In respect of the Third Disciplinary Finding, Mr McKay found that Dr Cronin had, without reasonable excuse, contravened a direction given to him on 12 February 2013 by Mr McKay, through Mr Rowan Lambourne, to surrender his departmental mobile telephone phone. [124] Mr Lambourne's evidence was that he had been instructed by Ms Jones to give Dr Cronin a letter suspending him from duty and instructing him to hand over any Departmental property in his possession – i.e. his security card, his identification card and his mobile -- 25 of 34 -- 26 phone. That meeting with Dr Cronin on the morning of 12 February 2013 was held in the presence of Ms Bates (HR Consultant) and Mr Devereux (Departmental Officer and Dr Cronin's support person). [125] When asked for his mobile phone by Mr Lambourne, Dr Cronin said his mobile phone was at his home and he refused Mr Lambourne's offer to drive him to his house to collect it, saying that he would have it at work around 2.00pm that day. [126] Dr Cronin's evidence was that after he had spoken to his Solicitor, he again refused to hand the mobile phone to Mr Lambourne. Dr Cronin said his Solicitor had advised him that it was reasonable for him to go home and return to the Department with his mobile phone. [127] In cross-examination, Dr Cronin said it was 'fairly rare' for him to leave his mobile phone at home, but ultimately his claim was that he had forgotten to bring it to work on that day [T4-66]. [128] It was Dr Cronin's practice to arrive at work around 9.00am each day. When shown, in cross-examination, Ms Jones' record of calls from his mobile phone on that day, Dr Cronin agreed that there were calls made at the times nominated in the report from his mobile phone and that the calls had been made from the Toowoomba office. [129] It is clear that Dr Cronin did have his Departmental phone on him on the morning of 12 February 2013 when asked for it by Mr Lambourne. It is not credible that Dr Cronin simply forgot to bring his phone to the workplace. The telephone records show that Dr Cronin was using his phone while walking to work on that morning and whilst at work. [130] The fact that the Department mobile phone had all data cleared from it when Dr Cronin returned it to the Departmental Officers on the afternoon of 12 February 2013 is sufficient to make a finding that Dr Cronin had sometime during that day deleted all data from the phone. [131] These allegations have been substantiated by the Department and Dr Cronin has on the balance of probabilities contravened the provisions of the Act as cited in paragraph 19 "Third and Fourth Disciplinary Findings" and for the reasons cited. The CMC email [132] Dr Cronin became fearful during this period about being identified as the discloser concerning the Helidon facility from late September 2012. Two co-workers, Mr Iain Purvis and Mr Frazer had told Dr Cronin that they were aware that he was the complainant in the Helidon incident. These co-workers were reluctant witnesses because they were current employees of the Department. Neither worker was called to give evidence. Around this time, Dr Cronin was offered a Voluntary Early Retirement by the Department that was declined. His concerns were such that he contacted Mr Farrah, an officer from the CMC about being identified as the public interest discloser. -- 26 of 34 -- 27 [133] Ms Smith was the recipient of an email dated 6 March 2013 at 1.54 pm [Exhibit 7] which shows that Dr Cronin was the "CP" (i.e. "Concerned Party") in the Helidon Facility matter. The email is as follows: "From: Kylee Fraser Sent: Wednesday 6 March 2013 1.54 PM To: Keily Smith Subject: CLASS IC: DAFF Open Matters as at 6 March 2013 Attachments: DAFF AOA Schedule 6-Mar-2013 Hi Keily, Please find attached the AOA schedule for Department of Fisheries etc. There is only one open review for DAFF: MI-12-2138: Referred on 14-Dec-2012. CP: Cronin; POI: Arthy, Crook, Brown, Lambourne. There are no open matters for the Department of Tourism, Major Events, Small Business and the Commonwealth Games. Please let me know if I can assist further. Regards Kylee." [Commission highlight] [134] The Applicant submits: o The CMC organises its files into Folios. Folio 1 is the file relating to Dr Cronin's complaint concerning the Helidon facility. That file, it is submitted, was sent to the Department on 13 September 2012. That file also contained the email to Ms Smith which had the date of 6 March 2013 on it. o The Applicant asserts that by reason of receiving the Folio 1 document on 13 September 2013, Ms Smith was aware from the beginning that Dr Cronin was the complainant regarding the Helidon facility closure. Ms Smith did not deny receiving Folio 1 on 13 September 2013. Ms Smith said she had no recollection of Dr Cronin's name being on that file. o The Applicant referred to the Respondent's unexplained refusal to provide documents that the Department had on its files which were superintended by Ms Smith. The documents related to the issue of disclosure of the identity of Dr Cronin as the Helidon incident complainant to the CMC. This matter was of primary importance to the Applicant's case as it is Dr Cronin's claim that he was dismissed for an invalid reason - i.e. that he made a public interest disclosure. -- 27 of 34 -- 28 o Further, the Applicant contended that these documents show what information and knowledge Ms Smith had about Dr Cronin's identity in making the disclosure to the CMC. It would explain why Dr Cronin's identity was known within the Department. o It supports the fact that Ms Smith had this information but failed to discover the document. Ms Smith says that she acted on legal advice. The Applicant says that this is implausible because the advice she had sought was from the CMC and it was not its role to give that type of advice. [135] Hall Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union5 has been cited by the Applicant within the following context. "The failure to bring before the tribunal some … document … when either the party himself or his opponent claims that the facts would thereby be elucidated, serve to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the … document … if brought would have exposed facts unfavourable to the party." [136] The Applicant submits that the documents that should have been produced, but were not, were the cognate Department files for each relevant CMC file. The existence of this document did not come to light until files were subpoenaed from the CMC. The Department had refused to produce these files, resisting any attempt to do so, saying they were CMC files. [137] Against this background, the Applicant says that Ms Smith was aware of Dr Cronin's identity but allowed a process to continue when she had that information. The most appropriate course would have been to have told Mr McKay and Dr Cronin. By doing this, Dr Cronin could have made submissions about retaining his job. [138] Ms Smith was cross-examined about Exhibit 7 prior to the Commission permitting Mr Sorensen from the CMC giving his evidence. Mr Sorensen is employed by the CMC as a Records Manager, in the Records Management section, Strategic and Corporate Services Division. [139] The Respondent says that the initial commencement of the disciplinary action taken against Dr Cronin occurred before Ms Smith's receipt of Exhibit 7. [140] The Respondent's chronology of events were as follows: o Ms Smith completed and submitted the form entitled "Mandatory Information Requirement Section 38 Form" to the CMC on 6 December 2012. 5 Hall Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union:(2004_ 143 IR 354 at 47-50 -- 28 of 34 -- 29 o Ms Smith received the "Matters Assessed Report" dated 7 December 2012 from the CMC. She referred the matter to Ms Jones to conduct preliminary enquiries on 10 December 2012, and advised Ms Jones to continue with the preliminary enquiries being undertaken. o The Respondent says that the four disciplinary findings were "all put in train" by Ms Smith prior to her receiving the email from Ms Fraser on 6 March 2013, which was Exhibit 7. [141] Mr McKay's evidence was that he was unaware of Dr Cronin's public interest disclosure until after Dr Cronin had commenced proceedings in the Commission [T7-83]. The Appellant said that Mr McKay conceded that while Dr Cronin, after the show cause on penalty, could have made submissions that may not have resulted in his dismissal, he also stated that given the seriousness of the matters that had been found against him, it would have been extremely difficult for him to make a decision other than to dismiss Dr Cronin [T7-82]. [142] An examination of documents [Exhibits 25 and 26] show that Exhibit 25 was sent by Dr Cronin to Ms Patane (a Complaints Officer with the CMC) where Dr Cronin had recorded his name together with other documents where Dr Cronin's name was not present. [143] The production of Exhibit 26 was objected to by the Respondent. It consisted of a 3 page file note memorandum written by Ms Patane and dated 6 August 2012. Contained within were 14 pages of attachments following an interview by Ms Patane and Mr Farrah (CMC) with Dr Cronin on 2 August 2012. Ms Patane recorded Dr Cronin's name in the 3 pages of the file note [T6-32]. [144] The Respondent submits that both of those files were not held by the Respondent or under the control of Ms Smith. Both Exhibits 25 and 26 were on the CMC produced file. [145] The exhibits were tendered for the purpose of attempting to prove that the Respondent dismissed Dr Cronin because the Respondent, through Ms Smith, knew or believed that Dr Cronin had made the public interest disclosure concerning the Helidon facility. [146] Ms Smith said she had some recollection of seeing the last two pages of Exhibit 25 (which had not identified Dr Cronin) but she denied receiving the facsimile cover sheet completed by Dr Cronin as she did not have the Departmental file in front of her [T6-22]. [147] She recalled seeing Exhibit 26 (Ms Patane's file note) from the CMC but in another form. [148] Certainly, there was an email dated 6 March 2013 which was sent by Ms Fraser to Ms Smith which did disclose Dr Cronin's name [Exhibit 7]. [149] Mr Sorensen's evidence was that with regard to Exhibits 25 and 26, those documents in the form they were sent to Ms Smith did not contain Dr Cronin's name. [150] Mr Sorensen's evidence had corroborated Ms Smith's version of events that she had never seen Dr Cronin's name on any of the earlier documents sent to her from the CMC. By -- 29 of 34 -- 30 6 March 2013, it was clear that Ms Smith was in receipt of a document naming Dr Cronin as the public interest discloser [Exhibit 7]. However, Ms Smith says that it was not 'stark in her memory' that the email mentioned Dr Cronin. [151] The Respondent submitted that factors to be considered in these circumstances were: (a) "Whilst Ms Smith received Exhibit 7, it played no operative part in any role she had in overseeing the investigation of the allegations against the Appellant; (b) There is no evidence at all that Ms Smith communicated to Mr McKay that the Applicant was a public interest discloser in respect of the Helidon Tick Control Facility; (c) For the Commission to accept that the Applicant was dismissed because he was a public interest discloser, that would have to mean that Ms Smith and Mr McKay conspired together to terminate the Applicant's employment because he was a public interest discloser but there is no clear, cogent or strict evidence to suggest any such conspiracy; and (d) The evidence obtained from Ms Jones' investigation and as contained in Ms Jones' report, clearly pointed to the Applicant engaging in misconduct in respect of the first, second, third and fourth disciplinary findings." [152] Primarily, the Respondent states that there is no evidence which links Exhibit 7 to the Applicant's dismissal. [153] The Applicant says that an adverse inference should be draw against the Respondent because of the "extraordinary lengths taken to avoid disclosing information about what Ms Smith knew of Dr Cronin's identity as the person who made the disclosure." [154] Ms Smith says that she was under an obligation "not to disclose the identity of anything leading to the identity of public interest disclosers" and she had not passed that email on to others in the Department. [155] Ms Smith also said that she was the one who disclosed the error [Exhibit 7] to the CMC and she had sought advice from the CMC as to what she should do with the email and the attachment and she had complied with that advice. [156] Ms Smith also claimed that she had not discussed with Crown Law the existence of the email and had only done so recently. [157] Ms Smith also pointed out that she had nothing to do with the investigation of Dr Cronin, other than for superintending the process. [158] When asked by the Applicant as to whether she should have continued her involvement in the machinery of Dr Cronin's termination of employment once she had become aware that he was a discloser, Ms Smith answered: "One has nothing to do with the other, and I wasn't making any decisions in relation to the discipline process or the disciplinary action. There was an investigator and there was a case manager working with the delegate to receive the delegate's instructions and prepare correspondence in accordance with those instructions." -- 30 of 34 -- 31 [159] It is understandable that the Applicant placed great significance upon the existence of Exhibit 7 and the knowledge that Ms Smith had, during the disciplinary process involving Dr Cronin. However, I have not been persuaded that Ms Smith disclosed the content of that email to anyone else in the Department and in any event the disciplinary process against Dr Cronin had commenced well before her receipt of Exhibit 7. [160] I have accepted that Ms Smith was an honest witness who simply got caught in a difficult position. [161] I would, however, question Ms Smith having to perform two particular roles within the Department which might have the potential to cause the difficulty that this situation has caused. They appear to be roles which are incompatible with each other. [162] I do not propose to take the matter of the CMC email any further, save to state that I have accepted Ms Smith's evidence that she did nothing further with the knowledge she had acquired concerning Dr Cronin and that the process commenced against Dr Cronin had commenced prior to the receipt of Exhibit 7 in March 2013. [163] Mr McKay said had he been aware of Dr Cronin's role as a public interest discloser concerning the Helidon facility, then he would not have arranged for Mr Lambourne to hand Dr Cronin his suspension letter. Mr Lambourne had been mentioned by Dr Cronin in the Helidon disclosure. I accept that evidence as truthful. [164] I have accepted that Mr McKay was not told that Ms Smith had received Exhibit 7. [165] Mr McKay however agreed that Dr Cronin should have been told of the disclosure of his name to the Department concerning his public interest disclosure of the Helidon facility. [166] That factor is a judgemental error on the part of the Department. The Applicant should have been told. Having said that, I have accepted that it is still the case that the enquiry into Dr Cronin's activities had commenced well before Ms Smith became aware of that fact. [167] Overall concerning the matter of the CMC e-mail I have formed the view that Mr Cronin's dismissal was not made for an invalid reason for the purposes of the Act. [168] The Applicant's submission that the CMC e-mail was the trigger for Dr Cronin's ultimate dismissal is not accepted. Dr Cronin's conduct and behaviour concerning the Government's decision to close the Department's facility in Toowoomba was the reason for his dismissal. The Disciplinary Process conducted by the Respondent [169] The process which was as followed by the Department was as follows:  On 12 February 2013 Dr Cronin was suspended on full pay. -- 31 of 34 -- 32  On 5 March 2013, Mr McKay issued Dr Cronin with a show cause notice in respect of whether Dr Cronin was liable for disciplinary action in respect of Ms Jones' Report.  Mr McKay gave Dr Cronin 14 days to respond. An extension of time was granted to Dr Cronin's solicitors to provide a response.  There was no response to Mr McKay's letter of 5 March 2013 and on 22 March 2013, Mr McKay issued a show cause letter asking Dr Cronin to respond as to why he should not be disciplined and foreshadowed that the disciplinary action he was considering was termination of his employment.  A response was received from Dr Cronin on 2 April 2013.  On 5 April 2013, Mr McKay, after considering Dr Cronin's response, determined to terminate Dr Cronin's employment.  In making this decision Mr McKay had regard to the nature of the misconduct and Dr Cronin's length of service. Mr McKay formed the view that no warning or training could be given to Dr Cronin sufficient for Mr McKay and the Department to have the confidence that Dr Cronin would not engage in similar conduct in the future. [170] Given that I have accepted that the termination of Dr Cronin's employment was not for an invalid reason. Dr Cronin's employment was terminated on the substantiation of the 4 grounds in paragraph [19] of this decision. [171] Section 77 of the Act identified the matters to be considered by the Commission in deciding an application as: "77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider - (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to - (i) the operational requirements of the employer's undertaking, establishment or service; or (ii) the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance - (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant." -- 32 of 34 -- 33 [172] In terms of the requirements of this section of the Act the process adopted by the Department was fair, reasonable and transparent in the circumstances as identified in paragraph 168 of this decision. Conclusion [173] The Respondent's allegations (1-4) are substantiated. [174] The documentary evidence produced in this matter leaves no doubt that Dr Cronin had engaged in a course of action aimed at providing Departmental information to third parties and arranging for a process, through others on occasions, to inform the media of his opposition to the closure of the Toowoomba facility. This process involved the dissemination of Departmental information which on occasions was sensitive to these parties. This action on Dr Cronin's part was contrary to the requirements under the Public Service Act 2008. [175] While Mr McKay's assertion with regard to media outlets is correct and while there is no direct evidence of what Dr Cronin actually said to the media, it is clear from the documentary evidence (phone records, emails and media releases) that there had been unapproved contact with the media and third parties. [176] Dr Cronin's submission that he was merely providing information to interested third parties concerning the imminent closure of the ADSL facility at Toowoomba is not credible evidence. [177] It would have been extremely difficult for either party to call all the possible witnesses in this matter. It is the case that the Applicant is required to prove that his dismissal was harsh, unjust or unreasonable pursuant to s 73 of the Act. I have, however, not drawn an adverse inference against Dr Cronin for not calling the array of witnesses who might be called and likewise for the Department. [178] Generally it would be abnormal to suggest that discussions were not held at many levels either supporting the proposed changes or opposing them within the workplace and friends generally. Comments to this effect would, I believe have been frequent within the Toowoomba community and those specifically interested in ADSL facilities as well. [179] In all of this however, the email and phone trail shows that Dr Cronin took his involvement to an unacceptable level when it was clear that he knew that his adverse commentary would be used in the media. Dr Cronin failed to act according to the Legislative provisions which govern his employment with the Department [s 26 of Public Service Act 2008]. [180] In this matter, it has been proved, on the balance of probabilities, that the allegations made against Dr Cronin are substantiated. In forming this view, generally, I have considered all of the evidence; the nature of the allegations made and the strength of the evidence sufficient to meet the standard of proof required. I have also considered the consequences for Dr Cronin. There has been some elements of circumstantial evidence in this matter and I have taken a closer look at all of the facts to determine if there were -- 33 of 34 -- 34 other factors which might substantiate the allegations. In each allegation, I have found that to be the case. [181] Dr Cronin's dismissal was not harsh, unjust or unreasonable [s 77]. [182] The application is dismissed. -- 34 of 34 --