State of Queensland (Queensland Health) v Nield [2025] ICQ 21

Industrial Relations Act 2016 (Qld), s 557, s 565

A Solicitor v Council of the Law Society New South Wales (2004) 216 CLR 253; [2004] HCA 1, cited

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233, cited

Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Services [2020] QIRC 067, followed

Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116, cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, followed

In Re Davis (1947) 75 CLR 409; [1947] HCA 53, cited

Lam v Gold Coast Hospital and Health Services [2021] ICQ 010, cited

Mathieu v Higgins [2008] QSC 209, considered

Minister for Aboriginal Affairs v Peko-Wallsand Ltd (1986) 162 CLR 24; [1986] HCA 40, followed

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, cited

Nield v State of Queensland (Queensland Health) [2023] QIRC 294, related

Pillai v Messiter [No 2] (1989) 16 NSWLR 197, considered

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

R v A2 (2019) 269 CLR 507; [2019] HCA 35, followed

R v Byrnes (1995) 183 CLR 501; [1995] HCA 1, cited

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; [1981] FCA 174, cited

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, followed

Queensland Nurses and Midwives Union directly instructing Mr Reidy for the respondent

• [1] The State appeals against a decision made by the Queensland Industrial Relations Commission which set aside a finding against the respondent Shirley Nield that she was guilty of misconduct in the course of her employment.[1]

• [2] Ms Nield is a clinical nurse employed in the neuroscience rehabilitation unit at the Gold Coast University Hospital which is under the auspices of the Gold Coast Hospital and Health Service (the Service).
• [3] Ms Nield is an active member of the Queensland Nurses and Midwives Union. She has served as a union representative since 2020 and a delegate since 2022.
• [4] Ms Nield's nurse unit manager was Susan Jones. The Assistant Director of Nursing at the hospital was Sue Samuels. The relevant Union representative who aided Ms Nield was Ms Maddi Heathfield.
• [5] Prior to March 2020, Ms Nield held concerns over the conduct of Ms Jones.
• [6] Over a period from early March 2020 to mid-October 2021, and with the assistance of Ms Heathfield, Ms Nield collected evidence against Ms Jones which would ultimately form the basis of a complaint which she made to Ms Samuels in October 2021.
• [7] In the course of collecting the evidence to substantiate her compliant against Ms Jones, Ms Nield accessed databases under the control of the Service. She then emailed some documents to her own private email address, and sometimes third parties, although that was very limited.
• [8] In October 2021, Ms Nield lodged her complaint against Ms Jones with Ms Samuels. By her letter to Ms Nield dated 17 January 2022, Ms Samuels dismissed Ms Nield's complaint and also observed that some of the material which had been provided to support the complaint contained "health information". Health information is information over which confidentiality obligations arise.
• [9] On 24 October 2022, a show cause notice was issued to Ms Nield by Mr Grant Brown, Executor Director People and Operations for the Service. The notice particularised 11 allegations against Ms Nield.
• [10] By allegation 1, it was asserted that Ms Nield accessed a file note of a meeting on 5 March 2020 concerning a particular patient at the hospital.
• [11] Allegations 2 to 11 are all similar in that they allege that Ms Nield emailed documents to herself at her private email address, and in some cases to third parties. An example is allegation 2, which reads:

On 5 March 2020 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you emailed yourself a file note completed by Susan Jones without approval or delegated authority."

• [12] The show cause notice refers to "the Act", which is a reference to the Public Service Act 2008, which has since been repealed and replaced by the Public Sector Act 2022.
• [13] Mr Brown's letter went on to explain why the alleged conduct may give grounds for discipline:

Having considered the information currently available to me in respect of Allegations one to eleven, I consider that you may be liable to disciplinary findings on the following basis:

a) Pursuant to section 187(1)(b) of the Act, in that you may be guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PSA.

b) Pursuant to section 187(1)(g) of the Act, in that you may have contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, with the relevant standard applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, being the Code of Conduct for the Queensland Public Service (the Code), specifically:

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.

• Comply with the laws of State, Australian and local governments
• Comply with all relevant awards, certified agreements, subsidiary agreements, directives, whole-of-government policies and standards, and
• Adhere to the policies, organisational values and organisational documents of our employing agency.

We have an obligation to seek to achieve high standards of public administration and perform our duties to the best of our abilities.

• Exercise our lawful powers and authority with care and for the purpose for which these were granted, and
• Comply with all reasonable and lawful instructions, whether or not we personally agree with a given policy direction.

4.4. Ensure appropriate use and disclosure of official information.

Information privacy legislation protects against the misuse of personal information and we have an obligation to ensure the lawful collection and handling of personal information.

• Treat official information with care and use it only for the purpose for which it was collected or authorised
• Store official information securely, and limit access to those persons requiring it for legitimate purposes."

• [14] The show cause notice called for a response from Ms Nield within 14 days. Ms Nield responded by her letter to Mr Brown dated 5 December 2022.
• [15] The response outlined some of the history regarding Ms Nield's complaint about Ms Jones and explained that the information had been gathered for the purpose of making the complaint. Ms Nield acknowledged that the information ought not to have been sent to her private email address, but she outlined the security measures which she used to ensure that her computer was not accessed by third parties.
• [16] After making submissions about the security measures she implemented with her computer, Ms Nield stated:

"I do however accept that these measure do not wholly mitigate the risk that health information could be compromised and the fact they are in place does not excuse me from the consequences of my actions."

• [17] In relation to allegation 1, Ms Nield said this:

I deny that I failed to take reasonable steps to protect information stored by the Gold Coast Hospital and Health Service (GCHHS). The file note was a copy given to me by NUM Sue Jones. After our discussion pertaining to the incident, she photocopied the file note and gave me a copy. I did not access it from a source without permission.

I will in the future liaise with Human Resources before accessing documents I wish to use in a complaint so that approvals/authority can be obtained."

• [18] Ms Nield made responses to each of the allegations 2 to 11. Those responses were all very similar.
• [19] The response to allegation 2 is an example:

(1) I acknowledge that I should have not sent health information to my private email address especially those with personal names & URN. I am remorseful and this will not happen again.

(2) I partially admit I failed to take reasonable steps to protect information stored by the GCHHS. I refer to the security measures outlined about in mitigating the seriousness of my actions.

(3) Regarding the issue of delegated authority, I will in the future liaise with Human Resources before accessing documents I wish to use in a complaint so that necessary approvals/authority can be obtained."

• [20] In answer to some allegations, Ms Nield observed that the emails were only sent to employees of the Service.[2] In relation to others, she observed that the only person other than Service employees who received the email was a Union organizer.[3] In other responses, she pointed out that the information transmitted was unlikely to lead to the identification of the patient.[4]
• [21] On 30 December 2022, Mr Nigel Hoy, then acting Executive Director People and Operations of the Service, responded to Ms Nield.
• [22] Mr Hoy found that allegation 1 was not established but found that each of allegations 2 to 11 were.
• [23] After referring to the allegations and Ms Nield's response, Mr Hoy decided:

"With regards to your explanation in relation to preparing your complaint I note the emails you refer to contain sensitive patient information, including in some instances details about patients' names and URN details (which is subject to statutory protections). Whilst I recognise you have a protected workplace right to make a complaint, your protections do not extend to accessing confidential patient information. Access to and use of confidential records and documents must comply with the authorised purposes detailed in the National Privacy Principles and Hospital and Health Boards Act 2011. For your information, forwarding emails to your Hotmail account has allowed confidential, sensitive and/or personal information to be stored on an external server without the protections afforded by Queensland Health's secure network. Further, I note the greater the number of emails you send to your Hotmail account which contains confidential information, the higher the likelihood confidential patient information will be accessed by an authorised third party via your Hotmail account. Queensland Health does not own or control Microsoft's email server.

I am not persuaded you have taken all reasonable steps to protect the information you have forwarded. I have reached this conclusion for two reasons. Firstly, you do not have authorisation to access confidential clinical, patient and staff information to prepare a complaint alleging inappropriate conduct towards you. It is my understanding access to confidential and sensitive information stored by GCHHS to prepare a complaint would require you to submit a Right to Information application. This is because making a complaint to your employer is not a reason for which GCHHS would collect or store patients' personal information. Secondly, having regard to the level of confidentiality and sensitivity of the information you deal with and taking into consideration your seniority and tenure with GCHHS it is concerning to me at no stage prior to forwarding emails to your Hotmail account did you consider the potential privacy and security risks associated with sending statutory protected and highly sensitive patient identifying information to an unsecure, external email server. Therefore, I do not consider your assertion you were stressed or subjected or subjected to workload issues to be a sufficient or reasonable excuse for failing to take reasonable steps to protect sensitive and confidential information."

"On the basis of my finding in relation to allegations 2 - 11, I have determined that pursuant to section 187(1)(b) of the Act, you may be guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PSA."

• [25] Mr Hoy's letter went on to explain the disciplinary action that was open to him on the findings and called on Ms Nield to respond:

Given the serious nature of the substantiated allegations, I am giving serious consideration to the disciplinary action of:

• a reprimand; and
• a reduction of classification level from Clinical Nurse, Level 6, pay point 4 (NRG6.04) to Registered Nurse Level 5, pay point 7 (NRG5.07).

In accordance with the principles of natural justice, no final determination of the disciplinary action to be taken has been made, or will be made, until you have the opportunity to respond."

• [26] Ms Nield appealed Mr Hoy's determination to the Commission.[5] That course was open to her.[6]
• [27] That appeal was successful, with the Commission ordering:[7]

"Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:

1. The decision maker's determination to substantiate Allegations 2 - 11 was fair and reasonable.

2. Ms Nield's actions do not amount to 'misconduct'.

3. The disciplinary finding was not fair and reasonable.

1. 'Management action' is the appropriate course to address GCHHS's concerns about Ms Nield's use of her personal email."

• [28] It is not necessary to analyse the entirety of the judgment. The relevant reasons become apparent during the analysis of the grounds of the appeal which the State now prosecute.
• [29] The State's appeal to this Court seeks the following Orders:

1. Orders 2 to 4 of the Commission given in [2023] QIRC 294[8] are set aside.
2. The Court determines that Ms Nield's actions do amount to 'misconduct'.
3. The Court determines that the disciplinary finding was fair and reasonable."

"1. The Commission erred in finding that Ms Nield did not engage in 'misconduct' by taking into account the following irrelevant considerations:

(a) That the State, in different circumstances, might itself disclose confidential patient information ([2023] QIRC 294 at [84]);

(b) Ms Nield's subsequent apology ([2023] QIRC 294 at [91]; and

(c) The proposed disciplinary action ([2023] QIRC 294 at [93]-[94]).

1. The Commissioner erred by drawing the inference that the training of "most relevance" was done in 2013, and that more recent training was less relevant, when the inference was unsupportable by the facts ([2023] QIRC 294 at [92]-[93]).
2. The Commissioner erred in finding that Ms Nield did not engage in 'misconduct' by applying the wrong test and:

(a) Requiring that Ms Nield's conduct reflect seriously and adversely on the public sector, when the words of the applicable part of the definition of 'misconduct' did not require it ([2023] QIRC 294 at [80]-[83]);

(b) Requiring that Ms Nield either "... 'deliberately depart' from accepted standards, engage in 'serious negligence to the point of indifference', or 'abuse the privilege and confidence enjoyed by a public sector employee'", elevating those examples to the status of a test ([2023] QIRC 294 at [89]-[90]);

(c) Requiring that the State assert and demonstrate that Ms Nield had actual knowledge of the obligations she breached before it could be found that she engaged in 'misconduct', when that was not required ([2023] QIRC 294 at [91]).

1. The Commission erred by unreasonably finding that Ms Nield did not engage in 'misconduct' and that the State's 'disciplinary finding' was not 'fair and reasonable' ([2023] QIRC 294 at [94]).
2. The Commission acted in excess of its jurisdiction by purporting to substitute the decision that "'[m]anagement action' is the appropriate course" ([2023] QIRC 294 at [96]-[106])."

• [30] Both the Public Service Act 2008 and its successor, the Public Sector Act 2022, provide regimes for the discipline of employees of the State. The Public Sector Act came into force on 1 March 2023, that is, after Mr Hoy's decision but before the appeal to the Commission was heard and decided.
• [31] Section 313 of the Public Sector Act is a transitional provision apt to the present circumstances:

(a) before the commencement, a chief executive made a disciplinary finding against a public service employee under the repealed Act; and

(b) immediately before the commencement, any disciplinary action in relation to the disciplinary finding had not been completed.

(2) From the commencement, the disciplinary finding is taken to be a disciplinary finding under this Act."

• [32] The parties have assumed that the Public Sector Act applies to the Commission's assessment of the correctness or otherwise of the decision of Mr Hoy. Therefore, the Commission considered the grounds of discipline prescribed by s 91 of the Public Sector Act not s 187 of the Public Service Act. The effect of that is to judge Ms Nield's conduct by provisions not in force at the time of her conduct. I am not convinced that is the intention of s 313.[9] Having considered the relevant provisions in both Acts, nothing turns on the point so I shall accept the parties' assumption.
• [33] By s 557 of the Industrial Relations Act 2016, any appeal to the Court from the Commission is limited to an error of law or excess or want of jurisdiction, except by leave,[10] which was not sought.
• [34] Central to grounds 1, 3 and 4 is the scope and meaning of the term "misconduct" as it appears in s 187(4)(a) of the Public Service Act. Ground 3 most directly raises that question so it is convenient to deal with ground 3 first.

Ground 3: The Commissioner erred in finding that Ms Nield did not engage in "misconduct" by applying the wrong test

• [35] Ms Nield accepted in her response to the show cause notice that the information which she sent to her private email address should not have been sent. That concession was both correct, and no doubt, honestly made.
• [36] The first complaint made by the State is that the Commission applied the wrong test by ruling that Ms Nield's conduct was only "misconduct" if the conduct reflected "seriously and adversely on the public service".
• [37] Section 91 of the Public Sector Act provides as follows:

(1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -

(a) engaged in repeated unsatisfactory performance to serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or

(b) been guilty of misconduct; or

(c) been absent from duty without approved leave and without reasonable excuse; or

(d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or

(e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or

(f) contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's appointment, secondment by, in response to the requirement -

(i) failing to disclose a serious disciplinary action; or

(ii) giving false or misleading information; or

(g) contravened, without reasonable excuse, a provision of -

(i) this Act, other than section 39 or 40; or

(ii) another Act that applies to the employee in relation to the employee's employment; or

(h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.

(3) Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95.

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

(a) inappropriate or improper conduct in an official capacity; or

(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

victimising another public sector employee in the course of the other employee's employment in the public sector

Public Sector Ethics Act 1994; or

(ii) a standard of conduct, if any, applying to the

under the Public Sector Ethics Act 1994; and

(b) for a public sector employee who is an ambulance

officer under the Ambulance Service Act 1991,

section 13(1) - includes a code of practice under

section 41 of that Act; and

(c) for a public sector employee who is a fire service officer

under the Fire Services Act 1990 - includes a code of

practice under section 7B of that Act.

responsible person, for a direction, means a person with

authority to give the direction, whether the authority derives

• [38] Section 91(5) defines "misconduct" and draws a distinction, commonly made, between conduct committed in the course of a calling and conduct committed outside the calling.
• [39] An example of such a distinction being drawn is Ziems v Prothonotary of the Supreme Court of New South Wales.[11] There, a barrister was convicted of manslaughter arising from a motor vehicle accident. The question was whether that personal conduct ought lead to his exclusion from the legal profession.
• [40] Fullagar J, following In Re Davis,[12] said:

"Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister... But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former."[13]

• [41] Misconduct in a person's personal life only becomes "professional misconduct" where the misconduct reflects on the person's fitness to be a member of the profession.
• [42] In a similar vein, s 91 of the Public Sector Act draws a distinction between conduct in, and conduct outside the scope of employment and makes private conduct "misconduct" only where the conduct "reflects seriously or adversely on the public service". Unlike the common law, the conduct is not linked to unfitness, but there is a requirement that the conduct have a particular impact upon the public sector. That is the element which the legislature has determined converts personal misconduct of a public sector employee into occupational misconduct.
• [43] However, as recorded by the Commission,[14] it was submitted on Ms Nield's behalf, in reliance upon the explanatory note of the Public Service Bill 2008, that conduct committed in either an official capacity or a private capacity is only "misconduct" if the conduct "reflects seriously and adversely on the public service".
• [44] In the Explanatory Memorandum to what became s 187 of the Public Service Act, "misconduct" is said to be defined as "inappropriate or improper conduct in an official capacity or in a private capacity reflecting seriously and adversely on the public sector".
• [45] As already observed, s 187 is the predecessor to s 91 of the Public Sector Act. The Explanatory Memorandum to the Public Sector Bill makes no comment directly on the notation of misconduct. It refers back to s 187 of the Public Service Act and explores differences between that section what became and s 91 of the Public Sector Act.
• [46] The comments made as to "misconduct" in the Explanatory Memorandum to the Public Service Bill remain relevant. If the task was to construe the Explanatory Memorandum to s 187 it may be open to apply the words "reflecting seriously and adversely on the public service" to both conduct committed "in an official capacity" and conduct committed "in a private capacity".
• [47] However, the task is not to construe the Explanatory Memorandum but to ascertain the meaning of the words actually used by the legislature in the statutory provision by considering those words against relevant context and purpose.[15]
• [48] While the Explanatory Memorandum is part of the context against which the Public Sector Act ought to be construed, the definition of "misconduct" in s 187(4) is very clear. The legislature has adopted a definition encompassing two paragraphs: paragraph (a) which defines misconduct in an official capacity, and paragraph (b) which defines misconduct in a private capacity. It is only the conduct identified in paragraph (b), namely conduct committed in a private capacity which must "[reflect] seriously and adversely on the public sector entity in which the employee is employed" in order to constitute "misconduct".
• [49] The Union's submission on the construction of s 187 (relevant to s 91) was recorded in the judgment:

"[80] The QNMU submitted that Ms Nield has not engaged in 'misconduct' within the meaning of the PS Act. In doing so, the union referenced the Explanatory Note at s 187 of the Public Service Act 2008 that expands on the definitions of misconduct that relevantly explains it to be 'inappropriate or improper conduct in an official capacity or in a private capacity reflecting seriously and adversely on the public sector.' The union submitted that GCHHS 'has not alleged or substantiated any finding that (Ms Nield's) actions or conduct may reflect 'seriously and adversely' on the public service'."

• [50] As submitted by Mr Reidy, counsel for Ms Nield, there is no express acceptance or rejection of the Union's submission in the judgment under appeal.
• [51] After referring to the Union's submission, the Commission referred to the State's submission on that point:

"[81] The Respondent countered the QNMU's argument, submitting that:

... misuse of information through inappropriate dissemination to uncontrolled external email providers creates a significant risk to GCHHS as it is not authorised and uncontrolled without the safeguards of information security employed by Queensland Health. Risk relates to further potential uncontrolled dissemination as well as data breaches within third-party provider systems. Further, National Privacy Principles relate to the appropriate collection, storage and dissemination of personal information. The Respondent considers reputational risks to the organisation, legal risks, and impacts on involved persons the medical information relates to, warrant the view the actions would 'seriously and adversely' impact the public service." [16] (emphasis added)

• [52] There is no express rejection or acceptance of the State's submission.
• [53] The Commission's judgment then goes on in paragraphs [82] and [83] to consider matters not related to the question of construction raised by the Union's submission recorded in paragraph [80] of the judgment:

"[82] While the decision maker stated that Ms Nield does 'not have authorisation to access confidential clinical, patient, and staff information to prepare a complaint of inappropriate conduct towards you', the QNMU submitted:

... this misrepresents the objectively verifiable facts of the matter which include,

1. the Appellant did have legitimate access to records

she accessed in the course of her duties as a CN for the Respondent, and

1. she redacted identifying details from confidential information she sent, and
2. in relation to allegations 1, 2 and 6, the Respondent

provided the Applicant a copy of the file note for her own records, and

1. in relation to all other allegations the Appellant took steps to redact, remove or obscure any confidential information.

[83] The Respondent later clarified it meant that Ms Nield 'has the authorisation when directly relating to the performance of her duties and that the access to the records on the occasions listed in the allegations were not for an approved or authorised purpose' and acknowledged the actions taken by her to redact the material reduced the risk of patient identification."

"[84] Also relevant is the QNMU's assertion that 'the level of detail was similar to or less than that which the employer transmits to third parties, including the QNMU, on a regular basis as show in Attachment 1.' It does appear to me that a different standard has been applied to Ms Nield in this matter."

• [55] It was submitted by Mr Shorten of counsel for the State that the statement "Also relevant is the QNMU's assertion ..." Paragraph [84] shows an acceptance of the earlier submission that conduct committed in an official capacity is only "misconduct" if it "[reflects] seriously and adversely on the [service]". For reasons which follow, that submission should be rejected as it is inconsistent with how the judgment then progresses.
• [56] After making the observation at paragraph [84] of the judgment, the Commissioner then considered the meaning of the term "misconduct" as defined by s 91(5), relying on two statements of principle from Ball v State of Queensland (Queensland Corrective Services)[17] and Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Services.[18]
• [57] Those statements of principle appear in the decision under appeal as:

"[87] In Ball, O'Connor VP went on to cite with approval Merrell DP's considerations of 'misconduct' in Coleman v State of Queensland (Department of Education) in these terms (emphasis added): In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.

[88] Merrell DP adopted the same approach in The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service, in which he also held that (emphasis added):

In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies."

• [58] From those statements the Commissioner reasoned that Ms Nield did not "deliberately depart" from accepted standards etcetera and, therefore, was not guilty of misconduct. However, neither the Public Sector Act, nor the authorities referred to by the Commissioner establish the proposition that knowledge of wrongdoing is a necessary element of misconduct under the Act.
• [59] In the Australian Workers' Union case, Deputy President Merrell was faced with an unfair dismissal claim arising from a finding of misconduct constituted by the use of inappropriate force to a patient. The Deputy President was called upon to resolve the proper construction of the term "misconduct". In undertaking that task, the Deputy President referred to two authorities: Pillai v Messiter [No 2],[19] a decision of Kirby P (as his Honour then was), and Mathieu v Higgins.[20]
• [60] In Pillai, the NSW Court of Appeal was concerned with the phrase "misconduct in a professional respect". After an examination of the historical development of the notion of professional misconduct, Kirby P observed:

"These remarks, read in their context, do not justify a conclusion that mere negligence or incompetence amounts to "misconduct". To so hold would be to reverse many years of authority upon the phrase here under consideration and its predecessor which was held to be equivalent in effect. All that Hutley JA was stating was that indifference to basic rules and inattention to rudimentary obligations of professional practice would not provide a safe haven for a professional personal charged with misconduct. Moral turpitude is not now required: see Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 291. But it is still necessary, in every case, to prove misconduct that goes beyond mere carelessness." [21]

• [61] Pillai was followed in Mathieu. There, Daubney J construed a provision of the Queensland Ambulance Service Disciplinary Policy issued pursuant to the Ambulance Service Act 1991.
• [62] The policy defined "unacceptable workplace behaviour" as:

"behaviour of an officer that adversely affects the effectiveness of the QAS and/or reflects adversely on the position held by the officer. Examples of unacceptable workplace behaviour include:

1. breach of QAS policy of procedure;
2. breach of QAS Code of Conduct;
3. misconduct;
4. official misconduct;
5. criminal activity;
6. refusal to obey a lawful and reasonable direction;
7. carelessness, incompetence or inefficiency; and/or
8. exposing the QAS to claims arising out of the foregoing."

• [63] It can be seen that "misconduct" is one of the categories of "unacceptable workplace behaviour" specified in the policy. The term "misconduct" was defined in the policy as "Disgraceful or improper conduct in an official capacity".
• [64] It was submitted to Daubney J that his Honour should attribute to the word "improper" a meaning consistently with that determined by Brennan, Deane, Toohey and Gaudron JJ in R v Byrnes,[22] a case involving breach of fiduciary obligations by company directors, where their Honours observed:

"Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances." [23]

• [65] Daubney J rejected that argument. His Honour held that the term "misconduct" had to be viewed in its context as one of various categories of defined "inappropriate workplace behaviour".
• [66] His Honour observed that another species of defined "unacceptable workplace behaviour" was "carelessness, incompetence or inefficiency". His Honour then held:

"[25] Despite the respondent's submissions, I am not persuaded that the term 'misconduct' in the policy should be given such a broad construction. This is so for two reasons:

(a) It is not appropriate to rigidly separate the definition into its component parts; the words 'disgraceful' and 'improper' are included in the definition as alternative, but nonetheless should not be regarded as wholly independent. Rather, each term should be read as giving colour to the other.

(b) The definition must be read in context. 'Misconduct' is, in s 9 of the policy, listed as one form of 'unacceptable workplace behaviour'. It is, in this provision, expressly separated from other forms of sub-optimal workplace behaviour such as 'careless, incompetence, or inefficiency'.

[26] These two considerations compel the conclusion that 'misconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers."

• [67] In the Australian Workers' Union case, Deputy President Merrell analysed Pillai and Mathieu and observed that the meaning of "misconduct" and, relevantly, "improper", (that being the term used to define "misconduct") was coloured by the other grounds of discipline which involved "careless, incompetent or inefficient conduct". The Deputy President then reasoned:

"[35] Because a public service employee's careless, incompetent or inefficient conduct is a separate disciplinary ground under s 187 of the PS Act, then the meaning of 'misconduct', as analysed by Daubney J in Mathieu, is of assistance in construing s 187(4) of the PS Act.

[36] In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies."

• [68] The Deputy President's approach to the construction of s 187(1)(b) was, in my view, completely conventional and solid. He has sought to put meaning to the words used by Parliament by considering the text in context with surrounding provisions.[24]
• [69] Importantly, the Deputy President has not purported to recast the provision in different language. After distinguishing "misconduct in an official capacity" from lesser conduct such as an "error of judgement or innocent mistake" he identified conduct which would be caught by the definition of "misconduct", being conduct which is "inappropriate" or "improper".[25] He, very correctly in my respectful view, did not purport to give an exhaustive list of conduct that would be caught by the definition. To do so would be just reframing the provision in different words.
• [70] Rather, the Deputy President identified conduct which would be included within the definition namely "a deliberate departure from accepted standards, serious negligence to the point of indifference or an abuse of the privilege and confidence enjoyed by an employee to whom section 187 ... applies."[26]
• [71] In the present appeal, after considering the authorities, the Commissioner then stated:

"[89] With the above criterion firmly in mind, I do not believe that Ms Nield's actions amounted to 'misconduct'.

[90] That is because Ms Nield did not 'deliberately depart' from accepted standards, engage in 'serious negligence to the point of indifference', or 'abuse the privilege and confidence enjoyed by a public sector employee'.

[91] In arriving at this decision, I consider the following QNMU submissions to be particularly helpful:

In the letter and attachments inviting the Appellant to show cause, the Respondent asserted a clear position asserting the Appellant required approval or delegated authority to email records. This

information was not within the prior knowledge of the Appellant.

The Appellant determined to acknowledge the Respondent's direction, and apologise for her action, in the context of the newly available information.

The Respondent provided a list of information they intended to rely on in making a decision, including material unlikely to be within the knowledge of a clinical nurse,

1. Gold Coast Hospital and Health Service Privacy Plan, and
2. Parts 6 to 7 of the Explanatory Notes, Health and Hospitals Network Bill 2011, and
3. Queensland Health Fact Sheet: How to email secure information, and
4. Public Service Commission Private Email Use Policy.

The Respondent failed to assert or demonstrate the Appellant held prior knowledge of these documents or their content. She did not.

... the Appellant had a reasonable excuse at all times for her actions, in that she was,

1. refuting performance concerns (the grievance), and / or

h. exercising herself as a union delegate, and / or

1. raising concerns in her workplace including, but not limited to,

[92] Of further assistance was the Respondent's submissions in response to the Appellant's position that there was 'a lack of training or direction relevant to transmitting information or redacting records'. The Respondent advised that the Appellant's Online Learning records showed the following relevant training had been completed by Ms Nield:

(i) Information Privacy Training, completed on 26 November 2013

(iii) ieMR - General, completed on 17 February 2020

(iv) Ethics, Integrity and Accountability, completed on 10 September 2021

[93] The training of most relevance to the conduct subject of the allegations against Ms Nield appears to be 'Information Privacy Training', which I note was completed almost ten years ago. Given GCHHS has proposed disciplinary action as severe as both a reprimand and a reduction in classification level, the Respondent would be better placed to level such criticism of an employee in circumstances where it could demonstrate that such directly relevant training had been currently and comprehensively conducted.

[94] For all those reasons above, I find that Ms Nield had not engaged in 'misconduct' within the meaning of s 91 of the PS Act. The disciplinary finding was not fair and reasonable."

• [72] It can be seen that the Commissioner does not base her decision upon any consideration of the conduct "[reflecting] seriously and adversely on the public sector". Accordingly, ground 3(a) fails.
• [73] However, in my respectful view, there are two flaws in the Commissioner's logic.
• [74] The first is that the Commissioner has applied the Deputy President's statements in the Australian Workers' Union case as if the list of examples used is an exhaustive list of requirements for misconduct to be established. It is one thing to say that "inappropriate or improper conduct ... includes a departure from accepted standards ..." but it is quite another to say that a mistaken departure cannot constitute "inappropriate or improper" conduct.
• [75] Secondly the Deputy President goes on to include in his list of examples "abuse of the privilege and confidence enjoyed by an employee ...". That is important for at least two reasons. Firstly, that example recognises that subjective knowledge of wrongdoing is not a necessary element of inappropriate or improper conduct. Secondly, a breach of privilege and confidence is precisely what the State alleges against Ms Nield.
• [76] Having formed the view that deliberateness is a necessary element of "inappropriate or improper" conduct, the Commissioner then found that Ms Nield did not deliberately depart from the accepted standard,[27] and referred to the Union's submissions[28] and to the alleged shortcomings in the training offered to Ms Nield.[29]
• [77] The concentration on Ms Nield's knowledge lead to that factor being determinative without consideration of the seriousness of the admitted breaches of confidence.
• [78] In my view, the conclusion reached by the Commissioner, that the finding by the decision maker that Ms Nield is guilty of misconduct is not fair and reasonable, is affected by error of law.

• [79] Ground 4 alleges Wednesbury unreasonableness.[30] As ground 3 has been established and specific legal error found, ground 4 need not be considered.
• [80] It is unnecessary to consider ground 5 in any detail.
• [81] Ground 5 attacks order 4 made by the Commission ordering "management action" as the appropriate response to Ms Nield's conduct. The State submits the Commission had no jurisdiction to make such an order.
• [82] There is no suggestion that order 4 could be made if the Services' decision that Ms Nield is guilty of misconduct stands.[31] For reasons which follow the Services' finding of misconduct should stand so it is unnecessary to determine ground 5 of the appeal.
• [83] Ground 1 alleges that the Commissioner took into account irrelevant considerations which favoured Ms Nield.
• [84] It is a function of decision making for the decision maker to consider and determine what factors are relevant to the making of the decision, and it is for the decision maker to determine the weight attributed to each of those considerations.[32] The decision maker is subject, though, to the terms of the statute giving the power which ought, on its proper construction, have compelled a consideration of some factors and prohibited the consideration of others.[33]
• [85] By ground 1(a), the State submits that the Commissioner's consideration of the circumstances where the State discloses information is not a relevant consideration. The relevant passage of the judgment appears at paragraph [54] of these reasons.[34] That submission should be rejected.
• [86] "Misconduct" is defined as conduct which is inappropriate or improper. That must be looked at in the context of the workplace where Ms Nield is working. The way in which the employer deals with confidential information may be one factor which is relevant to appropriateness and properness of an employee's dealing with confidential information. The extent to which these considerations bear on the decision is a matter for the decision maker.
• [87] The State complains in ground 1(b) that the Commissioner took into account Ms Nield's apology when determining whether her conduct was misconduct and her apology is an irrelevant consideration.
• [88] The apology is contained in the Union's submissions which are recorded in paragraph [91] of the judgment. Paragraphs [88], [89], [90], [92] and [93][35] all concern Ms Nield's knowledge of her wrongdoing at the time of her conduct.
• [89] At paragraph [91] of the judgment,[36] the Commissioner acknowledges the assistance which she gained from the Union's submissions. The Union's submissions largely dealt with Ms Nield's knowledge, or lack of knowledge, of her wrongdoing. The apology is referred to in the context of Ms Nield gaining the relevant knowledge of her wrongdoing, then she apologised. That fact is relied upon by the Union as suggestive that, before the information was recorded, Ms Nield was not aware of the wrongness of her actions. Ground 1(b) fails.
• [90] The State complains by ground 1(c) that the Commissioner wrongly took into account the severity of the proposed penalty in determining whether the conduct was "misconduct". That submission should also be rejected.
• [91] The criticism is based in paragraph [93] of the judgment.[37] The Commissioner has by this point in the judgment concluded that Ms Nield's knowledge is relevant to the determination of whether her conduct is "inappropriate" or "improper". At paragraph [93], the Commissioner observes that, given how seriously the Service is regarding the alleged misconduct, better training should have be given. In proper context that is not objectionable.
• [92] Ground 2 is also grounded in paragraph [93] of the judgment. There, the Commissioner is said to have drawn an inference that was not open to her, namely that the most relevant training was that described as "information privacy training, completed on 26 November 2013". The complaint is that there is no basis upon which to draw that inference.
• [93] The Service chose not to put before the Commission details of the later training, namely that completed by Ms Nield in 2019, 2020 and 2021. The Commissioner, at paragraph [93], says "the training of most relevance to the conduct subject of the allegations against Ms Nield appears to be information privacy training ..." The Commissioner has drawn that conclusion based on the headings of the training modules in circumstances where she was given nothing else. In my view, the finding is not objectionable and ground 2 fails.

• [94] I have found that Ground 3 is established and that an error of law has affected the finding of the Commissioner that Ms Nield did not commit misconduct.
• [95] The Commissioner did not take evidence from witnesses on the determination of the appeal which was dealt with "on the papers" without oral hearing. There is, therefore, no advantage enjoyed by the Commission over me were I to consider the issue of misconduct based on the materials before the Commission.[38] No parties suggested that I should not determine the matter if error was found.
• [96] There is no dispute that the acts which the Service alleged constituted "misconduct" were done by Ms Nield. As observed, Ms Nield in her response to the show cause notice admitted that she had emailed the material as alleged.[39] For the reasons I have already explained the question is whether that admitted conduct amounts to "misconduct" which, given the statutory definition of "misconduct", raises consideration of whether the conduct was:

(a) committed "in an official capacity"; and

(b) was "inappropriate"; or

(c) "improper".

• [97] The conduct was committed in an official capacity. Ms Nield had access to the databases in her capacity as a clinical nurse employed by the Service and she accessed the material in that capacity. For for the reasons earlier explained,[40] it is not an element of misconduct in an official capacity for the conduct to "[reflect] seriously and adversely on the public sector".
• [98] By s 3.5(d) of the Code of Conduct for Nurses, published by the Nursing and Midwifery Board of Australia, nurses are "to protect privacy and confidentiality, nurses must...access records only when professionally involved in the care of the person authorised to do so".
• [99] Clause 4.4 of the Code of Conduct for the Queensland Public Service, issued under the Public Service Ethics Act 1994, provided, at relevant times:

"The public has a right to know the information that is created and used by the government on their behalf. This right is balanced by necessary protections for certain information, including personal information.

Information privacy legislation protects against the misuse of personal information and we have an obligation to ensure the lawful collection and handling of personal information.

1. treat official information with care and use it only for the purpose for which it was collected or authorised
2. store official information securely, and limit access to those persons requiring it for legitimate purposes, and
3. not use confidential or privileged information to further personal interests.

We will continue to respect the confidentiality of official information when we leave public service employment."

• [100] As previously observed, I accept and endorse the approach taken, and the conclusions reached by Deputy President Merrell in Australian Workers' Union of Employees Queensland v Gold Coast Hospital and Health Services,[41] where it was held that on a proper construction of s 187 of the Public Service Act[42] more than a mere breach of some duty or obligation must be found before misconduct is established.
• [101] However, the nature of the obligation and the nature of the breach may bespeak misconduct without more. For example, if a public sector employee who was entrusted with the personal property of a patient at a hospital converted some of that property as their own, misconduct without more would surely be established.
• [102] That is a more extreme example than the current of course. There could be no doubt that stealing is both morally wrong and a crime.
• [103] Here, Ms Nield was employed as a nurse working in a hospital where information of a personal and sensitive nature is collected from patients in order to give them the care they need. In that respect, the patients are vulnerable and the information is, as I have observed, sensitive.
• [104] Ms Nield had a personal grievance with Ms Jones. Her complaint about Ms Jones was that she was acting unreasonably towards Ms Nield. The material accessed was then used for Ms Nield's personal purposes in formulating the complaint against Ms Jones.
• [105] While some of the material does not identify patients, some does.
• [106] I take into account the limited dissemination of the material. I accept the security measures which Ms Nield had in place to protect her computer being accessed by third parties. I accept that Ms Nield believed that the conduct was acceptable and that, given her Union's involvement, and her position within the Union, she considered she was advancing interests beyond just her own.
• [107] However, the sending of the material to a private computer to which the Service had no access and over which the Service had no control was a serious breach of confidentiality.
• [108] Ms Nield's admitted conduct was both inappropriate and improper in an official capacity and constituted misconduct.
• [109] The question before the Commission was whether the finding of misconduct was "fair and reasonable".[43] I have found, contrary to the Commission, that it was.
• [110] The decision maker should note that I have not disturbed the findings by the Commissioner that:

(a) the nature of the conduct could be subject of management action; and

(b) Ms Nield did not knowingly breach any requirement of confidentiality in the sense of doing something she knew she ought not do.

• [111] I assume those findings will be taken into account when the decision maker revisits the penalty proposed.
• [112] The appeal must be allowed and Ms Nield's appeal to the Commission dismissed. I will make directions in relation to costs.

• [113] The orders are:
  1. Appeal allowed.
  2. The orders made by the Queensland Industrial Relations Commission are set aside.
  3. Ms Nield's appeal to the Queensland Industrial Relations Commission is dismissed.
  4. By 4.00 pm on 14 October 2025 the parties file and serve written submissions on costs.
  5. By 4.00 pm on 21 October 2025 either party may file and serve a notice of intention to make oral submissions on costs.
  6. In the absence of any notice being filed by 4.00 pm on 28 October 2025, the question of costs will be decided on the written submissions without further oral hearing.

[1] Nield v State of Queensland (Queensland Health) [2023] QIRC 294.

[3] Allegation 8, allegation 9, allegation 11.

[4] Allegation 3, allegation 4, allegation 8, allegation 9, and allegation 11.

[5] Queensland Industrial Relations Commission file PSA/2023/29.

[6] Public Service Act 2008, ss 193 and 194(1)(eb).

[7] Nield v State of Queensland (Queensland Health) [2023] QIRC 294.

[8] A reference to the Commission's decision; Nield v State of Queensland (Queensland Health) [2023] QIRC 294.

[10] Industrial Relations Act 2016, ss 557(1), 557(2), 565.

[11] [1957] HCA 46; (1957) 97 CLR 279.

[12] [1947] HCA 53; (1947) 75 CLR 409.

[13] At 290. See also Kitto J at 298 and Taylor J at 302-303; followed in A Solicitor v Council of the Law Society New South Wales [2004] HCA 1; (2004) 216 CLR 253.

[14] Nield v State of Queensland (Queensland Health) [2023] QIRC 294 at [80].

[15] R v A2 [2019] HCA 35; (2019) 269 CLR 507 at [31]- [37].

[17] [2021] QIRC 116.

[18] [2020] QIRC 067.

[19] (1989) 16 NSWLR 197.

[20] [2008] QSC 209.

[22] [1995] HCA 1; (1995) 183 CLR 501 at 514-515.

[24] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[25] Public Sector Act 2022, s 91(5).

[26] Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Services [2020] QIRC 067 was affirmed on appeal in Lam v Gold Coast Hospital and Health Services [2021] ICQ 10. On appeal, the Deputy President's construction of s 187 was not in contest.

[30] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 233; and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611.

[31] Nield v State of Queensland (Queensland Health) [2023] QIRC 294 at [98]- [100].

[32] Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375; and Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [178], Heydon J dissenting on other issues.

[33] Minister for Aboriginal Affairs v Peko-Wallsand Ltd (1986) 162 CLR 24 at 39-40.

[34] The passage is paragraph [84] of Nield v State of Queensland (Queensland Health) [2023] QIRC 294.

[35] These paragraphs of Nield v State of Queensland (Queensland Health) [2023] QIRC 294 appear in paragraphs [57] and [71] of these reasons.

[36] Which appears in paragraph [71] of these reasons.

[37] Which appears in paragraph [71] of these reasons.

[38] Warren v Combes [1979] HCA 9; (1979) 142 CLR 531 at 551; followed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25].

[39] Nield v State of Queensland (Queensland Health) [2023] QIRC 294 at [70].

[40] Paragraphs [36] - [48] of these reasons.

[41] [2020] QIRC 67.

[42] Now s 91 of the Public Sector Act.

[43] Industrial Relations Act 2016 , s 562B(3).