Beer and Secretary, Department of Family and Community Services
[2004] AATA 598
•27 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 598
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/447
GENERAL ADMINISTRATIVE DIVISION )
REANTHONY BEER
Applicant
ANDSECRETARY,
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
| Tribunal | Mr G A Mowbray |
Date27 May 2004
PlaceCanberra
DecisionFor reasons given orally at the conclusion of the hearing the Tribunal affirms the decision of Centrelink as affirmed by the Social Security Appeals Tribunal on 4 November 2003.
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Member
CATCHWORDS
SOCIAL SECURITY – termination – misconduct – Newstart Allowance – activity test breach rate reduction period – decision affirmed
Social Security Act 1991 sections 629, 644AA, 644AC, 644AE
Social Security (Administration) Act 1999 section 204
Public Service Act 1999 sections 13(4) and (8)
REASONS FOR DECISION
| 11 June 2004 | Mr G A Mowbray |
Background
Mr Anthony Beer started work for the Department of Social Security in 1986, having originally been employed in other areas of the Commonwealth Public Service going back at least to 1978. On 17 June 2003 his employment at Centrelink was terminated on the basis that he had breached the Australian Public Service Code of Conduct (the Code of Conduct) in accessing the files of relatives and other customers otherwise than in the course of his duties.
Three allegations were made against him
he used another staff member's password to log on to access Centrelink's computer records, but the investigation did not prove any wrong doing on his part
he had accessed the files of certain people receiving parenting payments and found out their birth date, gender and payment type – for this he was reprimanded
he had accessed records of a number of relatives and other customers other than in the course of his duties – it is this last that caused his termination of employment.
The history of Mr Beer’s claim for Newstart Allowance is as follows
on 1 July 2003 Mr Beer claimed Newstart Allowance
on 10 July 2003 Centrelink determined that he could not be paid the Allowance until 28 November 2003 due to his termination payment – that part of the decision by Centrelink was not contested at the hearing
Centrelink also decided to impose an activity test breach on Mr Beer's allowance as his employment had been terminated due to misconduct
on 28 July 2003 he was advised of these decisions
on 11 August 2003 Mr Beer sought a review of this decision. That is, he sought a review of the application of the activity test breach reduction
the decision on the activity breach reduction was affirmed by the original decision-maker on 18 August 2003
on 8 September 2003 an Authorised Review Officer varied the decision.
The Authorised Review Officer varied the decision so as to make the starting date for the imposition of the 18 per cent reduction 18 June 2003 rather than 17 June 2003. This was to make the starting date conform to the day after Mr Beer's employment ended. The fact that Mr Beer did not receive Newstart Allowance until the end of November (his termination payment ending on 28 November 2003) meant that he was only affected by the reduction rate in his allowance for about two to three weeks from when his termination payment ended to 16 December 2003 when the reduction rate period ended.
Mr Beer appealed to the Social Security Appeals Tribunal (the SSAT) on 24 September 2003. The SSAT handed down its decision on 4 November 2003, affirming the decision to apply the activity test breach reduction to Mr Beer's allowance.
On 1 December 2003 Mr Beer lodged an application in this Tribunal. The application was heard on the 27 May 2004. Mr Beer represented himself and the Secretary of the Department of Family and Community Services was represented by Ms Elizabeth King of the Centrelink Service Recovery Team. Oral reasons were given on 27 May 2004 affirming the decision under review.
On 4 June 2004 the Tribunal received a request for written reasons for the decision from Mr Beer pursuant to section 43 (2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these reasons have been prepared based on the oral reasons with appropriate minor editing.
Issues
There are three issues before the Tribunal
whether Mr Beer engaged in misconduct in the course of his employment
whether Mr Beer's unemployment arose as a result of misconduct in the course of his employment
whether Mr Beer's Newstart Allowance should be subject to an 18 per cent rate reduction for a period of 26 weeks from 18 June 2003 because of the termination of his employment for misconduct.
These issues arise due to the application of section 629 of the Social Security Act 1991. That section operates with sections 644AA, 644AC and 644AE to impose an activity breach reduction rate on a person who has become unemployed due to misconduct and subsequently applies for Newstart Allowance.
Did Mr Beer Engage in Misconduct as a Worker
The Department alleges that the relevant misconduct related to accessing records of a number of other relatives and customers, including some employees, other than in the course of Mr Beer's duties. It also alleges that Mr Beer divulged details of his father's record to his father. This claimed misconduct relates to the third allegation referred to in paragraph two above.
In a report dated 10 March 2003 Mr John Cleary from the Privacy Compliance Unit in the National Support Office of Centrelink said
Using Customer Record Access Monitor (CRAM) reports, revealed that the staff member [Mr Beer] has been accessing the records of the following relatives and other customers:
·Mother, Father, Sister, Brother and Nephew
·Brother's estranged wife
·Mother and Father in-law of his brother
·His brother's ex-wife and new partner
·A deceased persons record at the same address as his parents
·Customer who resides with the staff members sister and that customers ex-husband.
Many of these accesses had been over a number of years.
A check of the staff member accessing the records of staff working in the same team revealed that he may have tried to access records relating to his supervisor Bernadette Iping or her relatives. CRAM report of 5/4/02 shows him placing the name B Iping in the Search criteria. Just prior to this search being conducted Mr Beer was accessing the record of his father Edward Beer.
The CRAM report of 8/7/02 again shows Mr Beer searching for the surname Iping by placing the name Iping in the Search criteria, then after viewing same enhanced the search by using the initial B. He must have selected Beau Iping as Beau's mother Christine's record was accessed as she was the main customer. Just prior to this search being conducted Mr Beer was accessing the record of his father Edward Beer.
On 22/10/02, [when] Mr Beer accessed the record of his estranged sister-in-law Sharyn Beer, the following access shows he was again searching for B Iping.
A General Inquiry Matching Service (GEMS) report was conducted to assess if the staff member had accessed the records of any customers in his suburb. This revealed that he accessed the record of M/s Kathryn G Hughes a staff member who works for Knowledge and Enabling Services in the same block as Mr Beer at TOP. CRAM report was conducted on this information and showed Mr Beer searching for a Kathryn G Hughes, he then selected the customer at the Kambah address. He was in the record a total of 38 seconds.
In his report of 16 June 2003, Martin Witchard referred to the evidence that he had before him including the report of Mr Cleary.
The number of accesses and length of time over which they were made (1995-2003) I regard of serious concern. This material is of particular relevance, providing evidence of the alleged accesses.
Mr Witchard found
This activity was documented in the Preliminary Privacy Investigation conducted by Mr John Cleary. As proved by the CRAM reports for the period 1995 to 2003, Mr Beer has accessed the records of relatives, colleagues and other customers on 255 occasions. Mr Beer also divulged information to his father regarding his customer information.
Mr Witchard attested to his findings in his oral evidence. Indeed, Mr Beer also confirmed these findings, but he asserted that many of the accesses were in the course of his normal daily activities. His job included preparation of test customer reference numbers and to see if particular clients were of interest for test cases – what he described as “system testing exercises”. He said they were part of a quality release and checking the processing had been correctly applied.
However, significantly he agreed a very large number of these accesses were not part of his normal duties. He described some as “fishing expeditions”, “pro-actively anticipating further test exercises”, “speculative”, and “being a sticky-beak”. He accessed the records because he knew the people very well. He knew their situations and therefore could have picked up problems. But he acknowledged that on no more than one occasion had he picked up a problem that he had passed on to other officers to rectify.
He agreed also that he had divulged information from his father's record to his father. He emphasised that he had not accessed the records for personal profit or gain or for ulterior purposes. He was not aware of Centrelink's privacy policy as he had not taken any notice of policy circulars or screen savers on this issue. He did recall one occasion when one of his former supervisors, Mr Wynants, had told him he needed special permission to access his father's record. He had not followed this up believing that it was Mr Wynants' responsibility. He had signed a secrecy declaration in 1986 but not since.
The Macquarie Concise Dictionary defines misconduct as
1. improper conduct; wrong behaviour;
2. unlawful conduct by an official in regard to his or her office …
On any view there can be no doubt that Mr Beer engaged in misconduct by accessing and divulging information from these records even to his father.
In my view Mr Beer’s behaviour breached the Code of Conduct in sections 13(4) and (8) of the Public Service Act 1999. It in all likelihood breached the Social Security legislation and certainly breached Centrelink's privacy principles and policies which contain prohibitions against browsing
It is an offence under the Social Security [Administration] Act 1999 and/or the Crimes Act 1914 to access any person’s computer records or paper files that are not part of your duties. The majority of breaches of the APS Code of Conduct in Centrelink involve browsing offences.
Some examples of browsing are:
…
·looking up a friend's or relative's claim to see how it is progressing or to see if it has been corrected assessed;
…
·looking up a friend's birth date, address or phone number.
The records of family members and friends cannot be accessed even if they have given their permission.
Mr Beer's assertion that despite 17 years in the Department of Social Security and Centrelink as an IT officer he was unaware that it was a breach is incredible, perhaps unbelievable. At the very least it displays a reckless and cavalier disregard for proper behaviour. This cavalier attitude was displayed in his oral evidence which at times I found somewhat difficult to believe.
I therefore find that Mr Beer's behaviour as described above amounts to misconduct for the purposes of section 629 of the Social Security Act 1991.
Was Mr Beer’s Unemployment Due to his Misconduct as a Worker
The clear answer to the question of whether Mr Beer’s unemployment was related to his misconduct is that it was. The notice of termination under section 29(1) of the Public Service Act 1999 states
The reason for termination of employment is breach of the Code of Conduct, which is a ground for termination of employment in accordance with subsection 29(3)(g) of the Act.
Is Mr Beer’s Newstart Allowance subject to an 18 percent Rate Reduction for a Period of 26 Weeks
It follows from the above that Mr Beer is subject to an activity test breach rate reduction period under section 629 (a) of the Social Security Act 1991. The period is for 26 weeks pursuant to section 644AA of that Act. The 26 weeks period starts from 18 June 2003 under section 644AC(1) and the rate reduction is 18 per cent under section 644AE.
Conclusion
In summary I find that
Mr Beer engaged in misconduct when working at Centrelink by accessing the files of relatives, neighbours and colleagues for purposes outside the course of his normal duties
he engaged in further misconduct when disclosing some of that information to his father
his unemployment is due to his misconduct
the activity test breach rate reduction was correctly applied so that Mr Beer is subject to a reduction of 26 weeks from 18 June 2003 until 16 December 2003 at the rate of 18%
as a result of Mr Beer’s termination payments the Newstart Allowance was first paid on 28 November 2003 and therefore the reduction rate only applied from 28 November 2003 to 16 December 2003.
Decision
The Tribunal affirms the reviewable decision of Centrelink as affirmed by the SSAT on 4 November 2003.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray.
Signed:........................................................................
Associate
Date of hearing 27 May 2004
Date of decision 27 May 2004
Date of Written Reasons 11 June 2004
Representative of the Applicant Self-represented
Advocate for the Respondent Elizabeth King
Centrelink Service Recovery Team
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