Johnson v State of Queensland (Department of Justice and Attorney-General)

[2015] ICQ 34

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Johnson v State of Queensland (Department of Justice and Attorney-General) [2015] ICQ 034
PARTIES:	BELINDA JOHNSON (applicant) v STATE OF QUEENSLAND (DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL) (respondent)
CASE NO/S:	C/2015/35
PROCEEDING:	Appeal
DELIVERED ON:	16 November 2015
HEARING DATE:	16 November 2015
MEMBER:	Martin J, President
ORDER/S:	Appeal dismissed.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant appeals from a decision refusing her application for reinstatement – where it was alleged that the appellant made inappropriate and excessive use of departmental information and communication technology resources – where the appellant’s conduct was investigated – where the delegate of the employer concluded that certain allegations were capable of being substantiated – where the Commission held that, relevant to this appeal, one of the allegations warranted the penalty of dismissal – whether the Commission erred by failing to have regard to a relevant consideration – whether the Commission erred by making a finding that was so unreasonable that no reasonable person could have made it – whether the Commission erred by failing to apply the test in Briginshaw v Briginshaw
APPEARANCES:	DW Honchin instructed by Harrington Legal Pty Ltd JW Merrell directly instructed by the respondent

1. The appellant, Belinda Johnson, commenced employment with Queensland Corrective Services in October 1998 as a Custodial Correctional Officer.  In April 2014 her employment was terminated and she sought  reinstatement.  She now appeals from the decision refusing her application for reinstatement. 

1. In November 2013 the appellant was the subject of an investigation.  It was alleged that she had made inappropriate and excessive use of departmental information and communication technology resources.  In December of that year a report was compiled in which the investigator, Mr White, concluded that certain of the allegations against her were capable of substantiation. That report was provided to Ms McDermott, the delegate of the employer who determined that four of the five allegations were capable of being substantiated and issued the appellant with a show cause notice in January 2014.  In the meantime, Ms McDermott suspended the appellant from employment. 

1. There were four allegations which the delegate concluded had been proved, but at the reinstatement hearing the Commissioner held that three of them did not warrant the penalty of dismissal.  For that reason they have not been the subject of consideration on this appeal. 

1. The remaining allegation was in two parts.  They were referred to in the Commission, and I will refer to them now, as Allegation 1(a) and Allegation 1(b).

1. Allegation 1(a) was that the appellant sent an email on 11 November 2012 to Mr Rob Katter entitled “Code Yellow S1” which attached a report regarding an incident at the Townsville correctional facility that occurred that day.  The report contained allegations and personal details concerning a particular offender. 

1. Allegation 1(b) was that the appellant sent a further email on that day to Mr Rob Katter entitled, “Try this on for size,” which attached a report prepared by another Custodial Correctional Officer regarding an incident at the Townsville correctional facility that had occurred that day.  The report divulges the identity of the Custodial Correctional Officer informant, together with allegations and personal details concerning a particular offender.

1. In 2011 the appellant had become the president of the Townsville branch of Together Queensland, Industrial Union of Employees.  The Commissioner noted that there was a culture at the Townsville Correctional Centre which appeared to allow employees during quiet periods to utilise the QCS email for personal use.  The appellant also used the email system for purposes other than QCS business.

1. From June 2012 the appellant was an active member of Katter’s Australian Party.  There was no dispute that Mr Katter and Mr Knuth, who are members of the Legislative Assembly and members of that party, were frequent recipients of emails sent from the appellant’s departmental email account, and that documents which had been stored on her departmental computer were attached to those emails. The appellant admitted that from June 2012 she had forwarded a significant number of emails from her work computer which were not concerned with her duties as an employee or with the office she held in Together Queensland.  It was not disputed that most of those emails concerned the activities of Katter’s Australian Party.

1. The report which was attached to the email referred to in Allegation 1(a) was a report which had been written by Mr Pike, the general manager of the Townsville Correctional Centre.  That report gave the name, identification number and details of an incident concerning the appellant and a prisoner on that day, and included the information that the appellant was on duty in Secure Unit 1 at that time.

1. The email in Allegation 1(b) was sent two minutes after the email referred to in Allegation 1(a).  Earlier that day another Custodial Correctional Officer had sent an email to the appellant with the subject line, “Try this on for size.”  It contained his recollection of the same incident involving the prisoner that was the subject of the report by Mr Pike. 

1. The Commissioner decided that the investigation was thorough and allowed for the conclusions reached with respect to those two allegations.  He also decided that it was open to Ms McDermott to conclude that the two allegations had been substantiated. It is also the case that on his examination of the evidence and the submissions, he arrived at the same conclusion about those allegations.

Grounds of appeal

1. The appellant relies on seven grounds of appeal.  Before proceeding to deal with those grounds, I note that the appellant’s case in the Commission was that other people used her email account and that someone else had sent the offending emails, not her. 

1. The first ground is that the Commissioner erred by failing to have regard to a relevant consideration, that is, an email sent by the appellant on 8 October 2012. 

1. The Commissioner did not fail to have regard to that email.  That email was from the appellant to an unidentified recipient.  It said in part:

“Once again I would like to apologise for the dysfunctional people that I work with as they think that it is funny to send my emails all over the world.  So please accept my apologies but I cannot promise that this will never happen again.”

1. It was submitted for the appellant that this was a “precursor explanation” and demonstrated that she had not sent the offending emails.  The Commissioner did not overlook that email.  He referred to it on no fewer than five occasions in his reasons.  Having considered it, the Commissioner said:

“[210] The email of 8 October 2012 whilst highlighting in a generic sense the possible misuse of Johnson’s QCS email (by someone else), it was not supported by any evidence in these proceedings of being relevant in respect of Allegations 1(a) and 1(b) and it may be more aptly described for the purposes of these proceedings as a ‘red herring’.”

1. Contrary to the ground of appeal, the Commissioner did have regard to this email but found that it did not support the appellant’s case.  The complaint in this ground of appeal does not amount to jurisdictional error, rather it is nothing more than a complaint about a finding of fact. 

1. The second ground is that the Commissioner’s finding that an email of 11 November 2012 (sent at 6.59 pm) was a “belated attempt to address what was a significant disregard of QCS policy,” was so unreasonable that no reasonable person could have made such a finding. 

1. Once again this is not a matter which goes to either an error of law or a jurisdictional error.  This was an email sent by the appellant to Mr Katter.  In it she said:

“Good evening.  I don’t know why but for some reason some of my emails have gone to you and some others.  As they are confidential reports, could you please just delete them.”

1. The Commissioner expressed himself in this way with respect to that email.  He said that it was “likely to have been a belated attempt to address what was significant disregard of QCS policy with the release of confidential information about an inmate to an unauthorised person”. Both that comment and the earlier comment about the email of 8 October being a “red herring” are nothing more than passing comments in the fact finding process.  In any event, the Commissioner did not rely upon either comment to reach the conclusions which he reached about the appeal. 

1. The appellant also argues that there was a denial of natural justice because the Commissioner did not put the substance of his remarks with respect to this email to the appellant.  It is important to place this email in the perspective of the hearing before the Commissioner.  This email was not referred to by the appellant during the hearing.  In fact, it did not form part of the material relied upon by the appellant at all during the hearing. It was included in material annexed to Ms McDermott’s affidavit.  The first time it was raised by the appellant was in her written submissions following the conclusion of the evidence.  It was submitted by Mr Honchin that the Commissioner should have recalled the parties in order that it could be put to the appellant that the email was a “belated attempt, etc”.  It should be noted that the Commissioner did not make a finding that the email was, in fact, a “belated attempt.”  He expressed his view in a much less conclusive way, that is, he said that it was “likely” to have that character.  I can find no support for the proposition that this view expressed by the Commissioner formed any part of the reasoning process undertaken to arrive at his conclusions.

1. It was suggested by the appellant that this might have gone to the findings on credit. But, the findings on credit at [220] and [221] make no mention of that email and are concerned with the evidence which was advanced by the appellant in the hearing.  As I have already noted, this email was not advanced by the appellant during the hearing.  In summary then, the appellant has not established that the Commissioner’s view that the email was, “likely to have been a belated attempt, etc” played any part in the decision of the Commissioner or in his findings with respect to the appellant’s credit. 

1. Even if there had been a departure from the rules of natural justice, it is well accepted that not every departure will justify a new trial. This piece of evidence does not go to the issue of whether the evidence of the appellant should have been accepted.  There was no finding of fact made with respect to this email.  The Commissioner did not advert to it in any way which would suggest that he relied upon it in reaching his conclusions.

1. The third ground relies upon being successful, at least in part, on the first two grounds of appeal.  This ground criticises the finding that the investigation was undertaken in a thorough and professional way and that the material considered was both relevant and appropriate.  Once again these are issues of fact.  It is not suggested that there was no evidence to support the Commissioner’s findings. This is another complaint about a finding of fact.  It is not a matter which may be taken on appeal.  The issue was ventilated in full before the Commission and the Commissioner made his own findings on the questions concerning the two emails the subject of the allegation. 

1. The fourth ground is that the Commissioner failed to apply the test in Briginshaw v Briginshaw with respect to the consideration of the appellant’s arguments and evidence supporting her contention that she did not send the emails the subject of Allegation 1(a) and (b). 

1. Although the ground of appeal refers to the consideration by the Commissioner of the appellant’s arguments, the submissions made in support of this ground confuse the role of the Commissioner with the role of the investigator and the role of the delegate. Once again reference was made to the email of 8 October and the email of 6.58 pm on 11 November.  Once again there was a conflation of principles with the assertion that a failure to investigate a particular issue must affect any finding that the standard of proof required had been met.  The appellant’s submissions also, again, disregard the evidence which supported a finding that the two emails were sent by the appellant.  Briginshaw is authority for the proposition that in a proceeding such as an application for reinstatement, the standard of proof is reasonable satisfaction, bearing in mind the gravity of the charge, the inherent probability or improbability of the accusation. and the likely consequences if it is established.

1. It must be accepted that any application for reinstatement is a serious matter.  It does not follow, though, that because an employee has been found to have breached a code of conduct that a higher standard must necessarily be imposed on the level of satisfaction required.  In any event, the Commissioner held at [193] that there was clear evidence that the appellant engaged in the conduct. 

1. The fifth ground is that the Commissioner failed to identify the correct question to ask when dealing with the emails of 8 November 2012 and 6.58 pm, 11 November 2012. 

1. Once again, this is an attempt to appeal a finding of fact by clothing it in terms which suggest an error of law.  The appellant continues to question the work done by the investigator and the delegate.  This, though, is an appeal from the Industrial Commission and not from either of those two persons. The issue before the Commission was correctly identified as being whether or not it could conclude that the appellant sent the emails the subject of the allegations.  That was the question dealt with.  To submit that the question was whether a proper investigation may have led to a different outcome simply displays a misunderstanding of the role of the Commission and the appellate process.

1. The sixth ground is little more than a repetition of earlier grounds.  It asserts that the Commissioner failed to have regard to the email of 6.58 pm, 11 November as evidence of the appellant asserting she did not send the two emails the subject of the allegation, and that the Commissioner erred in failing to give the appellant natural justice with respect to the remark referred to in ground two above. As is obvious from the reasons I have already given, the Commissioner did have regard to both of those matters.  The complaint by the appellant is that he did not come to the conclusion that she desires with respect to those matters.  This is nothing more than an allegation of an error of fact and is not appealable. 

1. The final ground is that the effect of the accumulated errors identified led the Commissioner to erroneously find that the termination was not harsh, unjust or unfair.  There is nothing in this ground.  I have held that none of the so-called errors have been substantiated or could be grounds of appeal, and, further, this ground in itself does not relate to an error of law or a mistake in the exercise of jurisdiction. 

Order

1. The appeal is dismissed.