Chief Executive Officer, State Rail Authority v Woods [GD)

[2003] NSWADTAP 25

Appeal Panel - Internal

CITATION:	Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25
PARTIES:	Chief Executive Officer, State Rail Authority RESPONDENT Lindsay Woods
FILE NUMBER:	029057
HEARING DATES:	14/02/2003
SUBMISSIONS CLOSED:	02/14/2003
DATE OF DECISION:	07/10/2003
DECISION UNDER APPEAL:	Woods v Chief Executive Officer, State Rail Authority (2002) NSWADT 253
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Member
CATCHWORDS:	finding contrary to evidence - leave to extend to the merits - no evidence - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023048
DATE OF DECISION UNDER APPEAL:	12/03/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Commomwealth) Freedom of Information Act 1989 Protected Disclosures Act 1994
CASES CITED:	Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253 Young v Wicks (1986) 13 FCR 85 Department of Social Security v Dyrenfurth (1988) 80 ALR 533 Wiseman v Commonwealth of Australia (unreported, Federal Court, 24 October 1989 Re Williams (1985) 8 ALD 219 Re Griffith and the Queensland Police Service (unreported decision No 97013, 15 August 1997) Hutchinson and Department of Human Services (1997) 12 VAR 422 Re Stewart and Department of Transport (1993) 1 QAR 227 Re Perton and Attorney General's Department (1992) 5 VAR 302 Re Hocknell and Australian Telecommunications Corp (1991) 23 ALD 446 Bleicher v ACT Health Authority (1990) 96 ALR 732 Colakovski v Australian Telecommunications Commission (1991) 29 FCR 429 Commissioner of Police v District Court of New South Wales (Perrin's case ) (1993) 31 NSWLR 606)
REPRESENTATION:	APPELLANT M Leeming, barrister RESPONDENT K Woods, agent
ORDERS:	1. Decision under appeal set aside.; 2. The appellant’s application for leave to extend the appeal to the merits is granted.; 3. Appeal to be listed for further directions in relation to the conduct of the merits hearing.

1 The State Rail Authority appeals against a decision of the Tribunal setting aside its determination under the Freedom of Information Act 1989 (FOIA) to refuse access to a document: see Woods v Chief Executive Officer, State Rail Authority [2002] NSWADT 253. The Tribunal’s decision has been stayed pending the determination of this appeal.

2 The document in issue is seen by the SRA as particularly sensitive. It was compiled by a group of employees in the Revenue Protection Unit at Wyong and contained a list of grievances about the conduct of two of their colleagues (Mr Woods, the access applicant and respondent to the appeal, and Mr Brew). There had been at the time a history of discontent at the Wyong RPU. Mr Woods and Mr Brew had themselves previously lodged formal complaints against a superior officer in the RPU. Their action had given rise to an investigation leading to the officer complained against and another superior officer being the subject of disciplinary action by the SRA which included removal from their positions. The majority of the workers at the Wyong RPU were, according to the SRA’s evidence at hearing, well disposed to the two superior officers and discontented over the workplace conduct of Messrs Woods and Brew. Their ‘petition’ (as the document in dispute has been called during the proceedings) followed. The ‘petition’ comprises a long covering memorandum compiled by one of their number, which has attached to it individual statements signed by seven of their number.

3 The SRA declined to release the document on three bases: one, that it contained the private opinions of the authors and would be an unreasonable disclosure of their personal affairs (exemption, cl 6 of Schedule 1 to FOIA); two, that it contained information provided in confidence, the release of which would prejudice future supply of such information and be contrary to the public interest (exemption, cl 13(b)); and three, that release would have a ‘substantial adverse effect’ on the agency’s performance of certain functions, and be contrary to the public interest (exemption, cl 16(1)(a)(iii), (iv); and (2)).

4 The Tribunal held that the document did not contain information relating to the personal affairs of the authors (therefore cl 6 was inapplicable), that while the document contained confidential information its release would not prejudice the future supply of similar information (therefore cl 13(b) was inapplicable) and that release of the document would not have a substantial adverse effect on management of agency personnel (cl 16(1)(a)(iii)) and the effective performance by it of its functions (cl 16(1)(a)(iv)). As a result of these findings it was not required of the Tribunal to go on to consider whether disclosure in the circumstances would be unreasonable (cl 6), or contrary to the public interest (cl 13(b)(iii); and cl 16(2)).

5 The SRA’s evidence in support of its reliance on these exemptions is mainly to be found in affidavits sworn by Mr Platt, the General Manager, Revenue Protection and Security, and Ms Donaldson, Manager, Stations and Operations Improvement. They also gave oral evidence and were cross-examined.

6 The evidence of Ms Donaldson is that after receiving the document the SRA decided, without any consultation with Mr Woods or Mr Brew, that they should be temporarily transferred from Wyong to CBD Sydney. Mr Woods was so advised by letter dated 12 September 2001, with the relocation to commence the next day. Ms Davidson stated that the relocation did not constitute any form of disciplinary action, that no view had been formed on the truth or otherwise of the allegations made in the document, that those allegations were not the basis for the action, but that the action was taken, having regard to the unrest and division at Wyong and out of concern for the health and safety of the two employees. She stated that it was always the intention of the SRA to return Mr Woods to Wyong. Mr Platt and Ms Donaldson have continued to treat the document as a confidential expression of grievances from officers, and have not made its contents available to Mr Woods. They are concerned, as we read the evidence given at hearing, with the possibility basically that no more fuel should be added to what was at the time a difficult situation, and has remained so.

7 On the other hand, Mr Woods and Mr Brew saw this action as a detrimental action taken in response to their conduct at Wyong. Mr Woods depicted his conduct as being in the public interest in that it brought to the notice of the SRA conduct on the part of superior officers that was wrong (‘whistleblowing’).

8 Five weeks after being relocated Mr Woods lodged his request for access to the document with the SRA.

9 The present appeal by the SRA against the Tribunal’s decision is brought pursuant to s 113 of the Administrative Decisions Tribunal Act 1997. A party may appeal against a decision in relation to a ‘question of law’ and with the leave of the Appeal Panel the appeal may extend to the merits. The SRA alleged two errors of law and sought leave to extend the appeal to the merits and made nine contentions in relation to the merits.

10 The alleged errors of law were expressed as follows in the notice of appeal:

(1) failing to find that clause 6 of Schedule 1 to FOIA (personal affairs exemption) was made out, by reason of the Tribunal’s erroneous construction of the clause;

(2) finding that the SRA’s Grievance Resolution Policy (‘GRP’) entitled the applicant to see document in issue (‘the Petition’) which finding is:

(a) inconsistent with the GRP on its true construction;

(b) was contrary to the evidence of Ms Davidson,

(c) was inconsistent with the stance adopted by the SRA in the dispute with the applicant;

(d) was a finding in respect of which there was no evidence on which it could be based; and

(e) was a finding made in breach of the Tribunal’s obligations to afford procedural fairness to parties.

11 In reaching its decision to grant Mr Woods access to the contents of the Petition, the Tribunal proceeded as follows: it referred to the evidence before it, in particular the tendering of confidential affidavits from eight people (they were made available to Mr Woods in expurgated form); affidavit evidence from senior officers of the agency as to the significance of disclosure of a document of this kind for the future conduct of personnel management and discipline issues in the agency.
(1) Scope of Personal Affairs Exemption
12 Clause 6 provides:
6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.

13 It will be seen that it is necessary to show that the information in issue concerns ‘the personal affairs of any person’ and that the disclosure is ‘unreasonable’. In this case the Tribunal rejected the SRA’s submission that expressions of grievance made by co-workers against their colleagues could concern ‘the personal affairs’ of the co-workers expressing the grievance. The SRA’s position is that confidential statements to management made by fellow employees about the work performance of colleagues may be treated as concerning the ‘personal affairs’ of those employees. The Tribunal’s conclusion was that those concerns did not fall within the scope of the expression ‘personal affairs’, and therefore the relevant exemption was not applicable.

14 The first Australian FOI Act, the Commonwealth Freedom of Information Act 1982, until 1991 had an exemption in similar terms to the present NSW exemption in which the expression ‘personal affairs’ was used. (In 1991 those words were replaced with the words ‘personal information’). The Tribunal reviewed the Commonwealth case-law relating to that expression belonging to that period, as well as the case-law relating to the same expression (where it has remain unchanged) arising under the Victorian and Queensland Freedom of Information Acts. As noted earlier, the Tribunal concluded that information of the kind presently in issue, comments and observations by fellow workers relating to the work performance of their colleagues, did not concern the ‘personal affairs’ of the fellow workers making the report.

15 The Tribunal’s reasons follow:

‘42 There is one line of authority which has held that information about a person's work performance or vocational competence does not ordinarily constitute their personal affairs. (See Young v Wicks (1986) 13 FCR 85 at 89 per Beaumont J; Department of Social Security v Dyrenfurth (1988) 80 ALR 533 and Wiseman v Commonwealth of Australia (unreported, Federal Court, 24 October 1989.) In Re Williams (1985) 8 ALD 219 at 222, Beaumont J stated that if the term personal affairs refers to matters of private concern to an individual then:
. . . ordinarily information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and commonly discussed by those involved in that work. Ordinarily, information as to a person's vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her personal affairs.
43 In Re Griffith and the Queensland Police Service (unreported decision No 97013, 15 August 1997) the Queensland Information Commissioner commented, at paragraph 51, that:
I consider that conduct of a public sector employee which occurs in the course of performing his or her employment duties is properly to be characterised as part of the employee's employment affairs rather than his or her personal affairs, even in respect of conduct alleged or proven to involve misconduct or a breach of discipline.
44 I am unable to disclose the precise content of the petition, however it is common ground that as well as being a general complaint against Mr Woods and Mr Brew, it reports four alleged incidents where Mr Woods and/or Mr Brew behaved inappropriately in the course of performing, or purportedly performing, their duties. It is clear that some of the people concerned witnessed the incidents referred to in the petition.

45 As mentioned above, there is a line of authority, with which I agree, that information about a person's work performance or vocational competence does not ordinarily constitute their personal affairs. Given this conclusion, it is not logical that a third party's view of a person's work performance or vocational competence should be characterised as constituting that person's personal affairs.

46 A contrary view was taken in a similar legislative context by the Victorian Administrative Appeals Tribunal in Hutchinson and Department of Human Services (1997) 12 VAR 422. Deputy President Megay decided that handwritten notes and statements taken from interviewees by an officer investigating the conduct of a public servant, related to the interviewees' personal experiences with the applicant and their reactions to those experiences, their versions of particular events and their reactions to those events.

47 While the circumstances are similar in the present case, I do not consider that "personal affairs" should be so broadly defined. When a person's opinion about the work performance of another arises as a result of the position, office or public activity which the person occupies, it primarily concerns their business or professional relationship, rather than any private or personal relationship between them. Similarly, while the opinion may arise from incidents they have witnessed at work, that does not mean that the information concerns their personal affairs.

48 On the basis of the authorities quoted above and an examination of the contents of the petition and all the evidence, neither the names of any person, nor any of the other information in the petition concern anyone's personal affairs. The subject matter of the petition is complaints about Mr Woods and Mr Brew which arose during the course of the signatories employment with the agency. While there may be situations where an employee's views about another employee constitutes that person's personal affairs, that is not the situation in this case.’

16 Almost all of the relevant case law on the interpretation to be given to the expression ‘personal affairs’ belongs to the period up to 1993.

17 An authoritative examination of the case law is provided by a Queensland case not referred to in the above reasons, Re Stewart and Department of Transport (1993) 1 QAR 227. In our view it is clear from that exposition and from our review of the case law that no exact line is drawn as to what information relating to performance in the work place can be characterised as falling within or outside the meaning of ‘personal affairs’. While it is beyond doubt that quintessentially private information (domestic relationships, personal finances, health) is covered by the term ‘personal affairs’ there is an area, which the Queensland Commissioner describes as the ‘grey area’, where decisions either way may be made depending on the context.

18 The Commissioner referred to the following categories of information as ones where much depends on the context as to whether it will be categorised as involving a matter of ‘personal affairs’ or be seen as non-personal and falling outside the protection of the exemption: names, addresses and telephone numbers; employment related matters; ‘one-off’ commercial transactions; information with a mixture of personal and less personal information (a workplace appraisal might include for example references to aspects of home life bearing on performance at work).

19 The Commissioner listed the following ‘employment related matters’ that could be said to form part of an individual’s ‘personal affairs’: information relating to sick leave, annual leave, level of personal superannuation contributions. The Commissioner also endorsed the following instance as correct in treating the information as falling on the ‘personal affairs’ side of the line: the contents of complaints or allegations made to an external complaints agency, the Commissioner for Equal Opportunity, of sex and racial discrimination relating to incidents that arose in the workplace (Re Perton and Attorney General’s Department (1992) 5 VAR 302 at 319). This endorsement is notable in that it relates to a Victorian case. The Commissioner had generally been critical of Victorian case-law for taking an unduly expansive view of the meaning of ‘personal affairs’; a view endorsed in this case by the Tribunal below. The Queensland Commissioner also referred without criticism to a Commonwealth case treating as forming part of an employee’s ‘personal affairs’ a letter containing reasons for seeking a transfer that included negative statements as to the ability of the employee to continue to work effectively with colleagues and referring to discomfort felt (Re Hocknell and Australian Telecommunications Corp (1991) 23 ALD 446). That case, in particular, comes close to the circumstances presented by the present case.

20 The paragraph in the Tribunal’s reasons that received the most attention at the appeal hearing was paragraph [45]. The Tribunal first stated that ‘there is a line of authority, with which we agree, that information about a person's work performance or vocational competence does not ordinarily constitute their personal affairs’. This statement is consistent with the Commonwealth position (see for example Bleicher v ACT Health Authority (1990) 96 ALR 732 at 737 per Wilcox J) and Colakovski v Australian Telecommunications Commission (1991) 29 FCR 429, the Queensland position (see Re Stewart) and the NSW position (see Commissioner of Police v District Court of New South Wales (Perrin's case) (1993) 31 NSWLR 606).

21 It is the next step in the reasoning that the SRA contests. The Tribunal continued that therefore: ‘it is not logical that a third party's view of a person's work performance or vocational competence should be characterised as constituting that person's personal affairs.’

22 We agree with the essential point of the SRA’s criticism.

23 The second proposition does not follow inevitably from the first proposition, and it does not take account of the desirability of differentiating between those cases where statements relating to workplace conduct are made by workers who have no responsibility for undertaking assessments and those where the workers do have such a responsibility.

24 In its submissions the SRA accepted that in cases where it is part of the duties of the employee to make and render appraisals of the work performance of others in the workplace the contents of the report could not be said to form part of the ‘personal affairs’ of the authors of the appraisal. They are performing a work function in undertaking the appraisal. (It may well be, as previously noted, that nevertheless some parts of the appraisal could still involve the ‘personal affairs’ of the subject of the report (for example references to the effects of domestic pressures on work performance)). Accordingly, there was no contest with the Tribunal’s observations at para [47]: ‘When a person's opinion about the work performance of another arises as a result of the position, office or public activity which the person occupies, it primarily concerns their business or professional relationship, rather than any private or personal relationship between them.’

25 The issue raised by this case can not, as we see it, be resolved simply by looking at the contents of the document (workplace conduct and performance issues, referring to four incidents) and then saying that information of that kind can not form part of the personal affairs of the persons rendering those comments. It is necessary, as we see it, to take account of the context in which the report is made and the status of the authors of the document.

26 Where a document deals with conduct that is being appraised or evaluated as part of the exercise of management responsibilities, it would not be open to claim that the author of the report is engaged in an activity involving their ‘personal affairs’. This is the approach reflected in Perrin’s case. But the situation is different if the employee is not reporting as part of the exercise of management responsibilities about the conduct of another employee. In those circumstances, it may well be that the report forms part of the first employee’s personal affairs. This possibility is recognised in the case examples cited by the Queensland Commissioner in Re Stewart - the employee against employee discrimination complaint relating to conduct in the workplace (the Victorian case), and the request for a transfer referring to interpersonal difficulties with another worker (the Commonwealth case). A private citizen’s complaint of alleged rudeness by a public servant would we consider, clearly involve an aspect of the no doubt ‘personal’ life or affairs of the citizen.

27 There is not, as we see it, a fundamental difference to be found in the situation of a work colleague who experiences the same type of conduct and makes a complaint to management. The conduct remains of concern to them in a private capacity.

28 The contents of the ‘petition’ are, as we see it, reasonably open to be characterised as matters of personal or private concern to the fellow employees. The document does not purport to be a neutral evaluation of performance or competence of another employee by persons trained or tasked to do that. The present case is not one involving a tasked activity (cf. Perrin’s case). The sources of the report are co-workers. None of them were at the relevant times in a supervisory relationship to Woods and Brew. They had a discretion whether to file any report. They were not directed to do so. They were seeking to draw to the attention of management, issues that were of personal concern to them and which they also saw as relevant to the effective management of the organisation and requiring action.

29 The case most like the present one in the published case law, as the SRA noted, is the Victorian case, Re Hutchinson and Department of Human Services. There Hutchinson was in a somewhat analogous position to Woods in this case. Hutchinson sought access to statements and related material compiled as part of a public service investigation into his conduct. Ultimately Hutchinson was counselled but never asked to defend formal charges. Here Woods was moved (it is said for reasons unconnected with the ‘petition’) but was never the subject of disciplinary proceedings.

30 In Hutchinson the Tribunal said at 426 on the ‘personal affairs’ question:

‘I do not think there can be any doubt that [the documents in issue, handwritten notes of interviews and follow-up typed drafts compiled by a named investigator from unnamed staff members relating to Hutchinson’s conduct in the workplace] are to be characterised as containing matters of private concern to the individuals interviewed by Mr Fennessy. The documents contain information relating to the interviewee’s personal experiences with the applicant and their various reactions to those experiences, their versions of particular events and their reactions to those events.’
31 While we accept that ultimately the question of whether the contents of a document involve a matter of ‘personal affairs’ is one of fact (see the Tribunal’s reasons at [37]), in this instance we are satisfied that the Tribunal erred in the approach that it took the question of the construction of what type of information could possibly fall within the scope of those words. It did not, we consider, adequately differentiate between reports that are in the nature of the expression of privately-held concerns about workplace performance; and those that are made in the course of the exercise of official responsibilities.

32 As noted earlier, the Tribunal did not go on to consider the question of whether the disclosure of such information would be unreasonable. That is an issue going to the merits. We indicated to the parties at hearing that we would first form a view as to the legal issues, before giving any consideration of extension of the appeal to the merits. This matter is returned to later in the reasons.

(2) The Evidence relating to SRA Practice in relation to Confidentiality of Statements of Grievances

33 The SRA’s objection here concerns the way in which the Tribunal construed the evidence going to the practices of the SRA in relation to how it handled statements of grievances received from employees, and more particularly how its Grievance Resolution Policy was to be interpreted. In effect what the Tribunal did in dealing with the claims for exemption under cl 13 and cl 16 was to give critical significance to its finding that the Grievance Resolution Policy itself allowed the employee complained against (in this instance Mr Woods) a right to see the grievance. This is reflected in its analysis of the cl 13 exemption at para [57] of its reasons, and in its analysis of the cl 16 exemption at para [70] of its reasons.

34 By way of background we set out the two exemptions and the relevant reasoning of the Tribunal next.

Clause 13 (confidential material)

35 Clause 13, as relevant, provides:

‘13 Documents containing confidential material

A document is an exempt document:

…

(b) if it contains matter the disclosure of which:

(i) would otherwise disclose information obtained in confidence, and

(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and

(iii) would, on balance, be contrary to the public interest.’

36 As noted earlier, the Tribunal found requirement (i) above satisfied, but not (ii), and did not therefore proceed to consider (iii).

37 The ‘Prejudice’ Question: The question of prejudice to the future supply of information is one of fact, and would not ordinarily be susceptible to appeal. The SRA says that an error occurred in the fact-finding process in that the Tribunal misconstrued in a significant way the evidence as to its practices.

38 The Tribunal’s reasoning, as relevant, was as follows:

‘57 …[E]vidence that those who signed the petition would be reluctant to provide similar information in future if the petition was disclosed to Mr Woods, is not determinative. In December 2001, the agency introduced a new Grievance Resolution Policy which sets out the expectations and obligations in relation to confidentiality. As a general rule, the information is not to be communicated more broadly than is essential, but there is an assumption that the respondent will be fully informed of the content of any grievance prior to any action being taken. Under the heading "Documentation" the GRP states that:
All parties associated with the grievance should have the opportunity to review all material relevant to the grievance. [Emphasis added]
58 The future supply of such information will be governed by the Protected Disclosures Act 1994 and the new GRP, to the extent that that policy is consistent with the agency's obligations under the FOI Act. A grievant will be aware that if any action is to be taken in relation to a grievance, the respondent must be given full details of the grievance. In those circumstances, disclosure of the petition could not reasonably be expected to prejudice the future supply of such information to the agency.’
Clause 16 (Operations of Agencies)

39 Clause 16, as relevant, provides:
‘16 Documents concerning operations of agencies

A document is an exempt document if it contains matter the disclosure of which:

(a) could reasonably be expected: …

(iii) to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel, or

(iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, …; and

(b) would, on balance, be contrary to the public interest.’

40 The SRA contended that the same misunderstanding of its practice and policy also affected the Tribunal’s reasoning in relation to the applicability of cl 16. Both of the governmental interests addressed by (iii) and (iv) may only be invoked as a basis for refusing to disclose a document if the Tribunal is satisfied that there would be a ‘substantial adverse effect’ on the nominated interest of the agency.

41 The Tribunal dealt with the SRA’s submissions as follows:

‘66 The three major concerns of management are that release of the petition would:
· lead to industrial action;

· increase the level of harassment and intimidation and thus exacerbate the existing conflict; and

· make employees less likely to complain or co-operate with an investigation because of concerns about confidentiality.

67 The agency did not submit that disclosure of the petition would have a substantial adverse effect on the conduct of industrial relations (Clause 16(a)(v)). I am satisfied that there is very little risk that the release of the petition, pursuant to an order of this Tribunal, will lead to industrial action. Even if it does, such action is likely to be relatively minor given the previous history of industrial action in relation to this dispute. Minor industrial action would not have a substantial adverse effect on the management or assessment of personnel or on the effective performance by the agency of its functions.

68 The agency is concerned that release of the document will exacerbate the existing conflict among employees and lead to intimidation and harassment. That concern is supported to some extent, by the confidential evidence. However, there was also evidence from Mr Platt that Mr Woods had been co-operative and responsible. Mr Woods has given a verbal undertaking that he would do his best to work harmoniously with staff members. He has also denied having ever threatened to sue staff and provided an undertaking that he would not sue any staff member if the first petition is released.

69 The agency has gone to significant lengths to address the conflict that has arisen in the workplace. Even if release of the petition does exacerbate the existing conflict in the short term, it is likely, given the steps already taken by management, that the underlying concerns fuelling the conflict can be addressed and resolved. In my view any short term exacerbation of the conflict can be effectively addressed and will not have a substantial adverse effect on the management or assessment of personnel or on the effective performance of the agency's functions.

70 The agency's concern that employees will be less likely to complain or co-operate with an investigation because of concerns about confidentiality, has been addressed above. Since December 2001, the agency has had a Grievance Resolution Policy which sets out the relevant principles of confidentiality in relation to grievances. That policy provides that confidentiality is essential, but also envisages that a respondent to a grievance will be provided with full details of any grievance prior to any action being taken. [Emphasis added] Given this policy and the provisions of the FOI Act, in particular the exemptions afforded to "protected disclosures" under Clause 20(d) of Schedule 1, release of the petition would not have a substantial adverse effect on the management or assessment by an agency of the agency's personnel or on the effective performance of the agency's functions.’

42 The SRA’s submissions focussed principally on the sentence which has been italicised in the above extract. This was, it was said, a fundamental misunderstanding of the Policy.

43 The affidavit of Mr Platt did not refer to the Grievance Resolution Policy. The affidavit and further evidence of Ms Davidson did. The conclusion reached by the Tribunal can not, we consider, be sustained by their evidence.

44 The opening paragraph of the Grievance Resolution Policy states:

‘State Rail is committed to the prompt resolution of any type of real or perceived work related problem, concern or issue raised by an employee. The resolution of a grievance must be fair and acceptable for all parties concerned to ensure a cooperative work environment is maintained.’
45 The policy’s key elements are numbered 3.6 and 3.7. Part 3.6 is headed ‘Guidelines’ and 3.7 ‘Procedures’.

46 Part 3.6.1 sets out the ‘types of grievances’ to which the Policy is directed. As reflected in the evidence given by Ms Davidson, and as noted above, it is apparent that the Policy divides problems about conduct in the workplace into two categories, one of which is less serious than the other.

47 The category seen as less serious and for which the ‘final outcome’ should be some type of ‘management intervention’ is that which involves no breach of ‘workplace standards’.

48 The category seen as more serious is that which involves a breach of the ‘workplace standards’. ‘Workplace standards’ are ascertained by reference to the Code of Workplace Standards issued by the SRA.

49 Without itemising all the examples given in the Guidelines, less serious matters not involving breach of workplace standards are: problems with allocation of work, concerns about safety, interpersonal conflict and disagreement with a work practice. More serious matters involving breach of workplace standards include: theft, assault in the course of employment, refusal to carry out an instruction, discrimination and harassment. The latter type of problem is to be resolved using the procedures set out in the Discipline Policy which can give rise to formal outcomes ranging from warning through to suspension and dismissal.

50 As noted above, the dispute in this case was seen as a matter that fell into the less serious category, and therefore under the policy the outcomes that could be implemented took the form of ‘management interventions’. Such interventions, according to the guidelines, could range from ones of a more systemic character (for example, ‘setting up better information systems’ and ‘training’) to ones with a more direct impact on individuals (‘job rotation’).

51 The Policy acknowledges that it will not always be easy for managers to decide into which category a concern falls.

52 The Policy then deals with the issues of who is to be involved in the process for resolution of the grievance (Part 3.6.2) and the Process itself (Part 3.6.3). The general features of the process are set out under the headings ‘aims’, ‘principles’, ‘documentation’ and ‘training’. Under the heading ‘principles’ the following headings appear: ‘open and fair access’, ‘consistency in approach’, ‘confidentiality’, ‘impartiality’, ‘protection from victimisation’ and ‘prompt attention’.

53 The SRA drew attention to the following statements:

‘Confidentiality in a grievance resolution setting is essential.

Confidentiality means that information related to the grievant, respondents and the actual grievance itself will not be communicated any more broadly than is essential for the achievement of the aims set out above. Generally, the grievant and respondents should be aware of, and agree on, how far information is being communicated in relation to the grievance.

State Rail cannot maintain strict confidentiality in circumstances where:

- the grievance relates to a breach of the law, or

- it can be liable for breach of its duty of care.’

‘Impartiality requires that all parties to a grievance are permitted and given the opportunity to express their views in relation to the grievance without assumptions of guilt or innocence being cast. No action should be taken, nor assumptions made of either guilt or innocence until all relevant information is collected and the inquiry is complete.’

‘Employees are entitled to raise grievances without fear of reprisal or victimisation. This can be achieved in part by:

- dealing with the grievance as close to the source as possible

- applying confidentiality.’

‘The resolution of grievances should be handled as simply as possible. Any notes should be kept brief but factual, and should remain impartial. All parties associated with the grievance should be given the opportunity to review all material relevant to the grievance.’

54 In Part 3.7 under the heading ‘Procedures’ the various steps that a grievant (the maker of a complaint) should follow are set out. In ‘Step 2’ provision is made for the grievant to talk confidentially with someone about the problem. Part 3.7.2 deals with ‘managing a reported grievance’. These procedures are directed to managers or supervisors to whom grievances are reported. The method of investigating the grievance is set out in Step 4. This includes advice to the person the subject of the grievance as to the presumption of innocence, the matter is being treated confidentially and other rights. This aspect of the policy states that the subject of the grievance is to be provided with ‘full details of the grievance’.

55 It is not at all clear that in this case the document (which we have described as a list of grievances) was ever raised to the status of a ‘grievance’ such as to trigger the procedures set out in this policy. None of the procedures, as far as the evidence reveals, contemplated by the policy was ever embarked upon. The SRA took administrative action to relocate Mr Walls and Mr Brew out of consideration it said for their ‘health and safety’, without it would appear any contact with them.

56 The SRA says that the Tribunal misconstrued the way the policy applied to this case in reaching the conclusion that the policy ‘envisages that a respondent to a grievance will be provided with full details of any grievance prior to any action being taken’. The SRA submits that the policy properly construed only provides for the grievance to be disclosed to the subject of the grievance in so far as it is necessary to resolve the grievance and to afford the subject natural justice. This would only become necessary, the SRA claims, where it determines to investigate or take action in relation to the substance of the complaint (i.e. move down the track that may give rise to disciplinary charges).

57 It is clear we consider, especially from the evidence of Ms Davidson, that there is a two stage approach adopted by the SRA in relation to the handling of grievances and a graduated approach taken to the question of whether the confidentiality of the communication as between the author and the SRA will be varied. At the first stage the grievance is treated as confidential as between the maker (or author) of the grievance and the recipient(s) in management of the grievance. There is a point at which a decision is taken to treat the grievance as involving either, one, a relatively minor issue that can be addressed (by what is described in the Grievance Resolution Policy as) ‘management intervention’ or, two, a more serious type of misconduct that should be the subject of disciplinary action. It is clear that this case was treated as falling into the first category and what was seen as ‘management intervention’ was taken. Disciplinary action was not taken. This clearly has implications as to the degree to which the contents of the grievance are made known to the subject of the grievance (here Mr Woods and Mr Brew).

58 We are satisfied that the SRA’s submission is established. Moreover, it is doubtful on the evidence that the document in issue was ever treated as constituting a ‘grievance’ of a kind that would trigger the procedures under the policy.

59 We are satisfied that this misconstruction of the policy affected significantly the Tribunal’s reasoning both in relation to the cl 13(b) question, prejudice, and the cl 16 question, ‘substantial adverse effect’. This misconstruction went to a critical matter which in the circumstances gives rise to an error of law.

60 This conclusion should not be seen as endorsing the SRA’s submission that the term in the policy on which the Tribunal focused does not ‘override the essential principle of confidentiality of the grievant’. We are not satisfied that the evidence placed before the Tribunal identified any such ‘essential principle’. In a staged approach to the handling of workplace complaints, we accept that there will be an early stage during which the complaint is treated with complete confidentiality. It may be necessary to further investigate it, check its substance with other employees, conduct a series of interviews (as occurred in the Victorian case, Hutchinson). At some point a decision will need to be taken as to whether to proceed to disclose the substance of the complaint to the employee and get his or her reaction. There may be choices made at that point, as to what is disclosed (and thereby relied upon), and what is not. There may come a point where fairness demands that all the material collected in the course of the examination of the complaint is made known. We accept that the Grievance Resolution Policy does not conflict with these conventions in relation to the conduct of investigations into complaints.

61 Nor should our finding of error be taken as indicating any view as to whether the so-called ‘essential principle’ should have been applied in this case so as to prevent Mr Woods seeing what was said about him. Mr Woods has, as we see it, an understandable sense of injustice. It looks to him as if he was shifted away from Wyong at the behest of those who wrote the confidential memorandum to management. Management says that was not the reason. Mr Woods sees the management action as detrimental action in the way in which that term is used in whistleblower laws. Management appears to have seen relocation as an available way of seeking to temper a difficult workplace situation where a split had occurred between workers who need to work as a team; and so as to protect the ‘health and safety’ of those complained against. The sense of injustice felt by Mr Woods is compounded by the fact that management took the decision to relocate Mr Woods (and Mr Brew) executively and without consulting them. These are issues that can be further explored when the case resumes.

62 Conclusion. We are satisfied that the alleged errors of law are established, and the decision of the Tribunal should be set aside. As noted earlier, there is an application by the SRA for the Appeal Panel to extend the hearing to the merits. We are of the view that this would be the most expeditious way to bring these proceedings to a conclusion.

63 At the resumed hearing, it will be necessary to address the question of whether disclosure in the circumstances would be ‘unreasonable’. As to the cl 13 and cl 16 grounds, it will be necessary to hear further submissions as to ‘prejudice’ and ‘substantial adverse effect’ based on the construction of the practice and policy of the SRA that we have adopted in these reasons. It may also be necessary to hear further submissions on the public interest question as it arises under both cl 13 and cl 16. It may be that much of this can be achieved by reference to the evidence and submissions before the Tribunal below. A directions hearing will be arranged to consider the further carriage of the case.

ORDER

1. Decision under appeal set aside.

2. The appellant’s application for leave to extend the appeal to the merits is granted.

3. Appeal to be listed for further directions in relation to the conduct of the merits hearing.