Francine McCallum v Telstra Corporation Limited
[2010] FWA 2562
•30 MARCH 2010
[2010] FWA 2562 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
Francine McCallum
v
Telstra Corporation Limited
(U2009/4871)
COMMISSIONER LARKIN | SYDNEY, 30 MARCH 2010 |
Termination of employment – misconduct – application dismissed.
[1] On 29 June 2009 Ms Francine McCallum (the applicant) lodged an application under ss.643(1) of the Workplace Relations Act 1996 (the WR Act) in respect to the termination of her employment by Telstra Corporation Limited (the respondent) on 18 June 2009.
[2] A certificate under ss.650(2) was issued on 11 August 2009 and on 12 August 2009 the applicant elected to proceed to arbitration on the grounds that her termination of employment was harsh, unjust or unreasonable.
[3] The matter was heard in Sydney on 9 and 10 December 2009 and 5 March 2010. Mr Saunders, of Counsel, by leave, appeared on behalf of the applicant, instructed by Mr Hayward of Haywards Solicitors. Mr Wood, of Counsel, by leave, appeared on behalf of the respondent, instructed by Ms Jervis of Norton Rose Australia (previously known as Deacons). The following witnesses gave both oral and affidavit evidence:
On behalf of the applicant | |
Ms Francine McCallum | The applicant |
Ms Fiona McCallum | Sister of the applicant and support person in the interviews on 11 and 18 June 2009 |
On behalf of the respondent | |
Mr Andrew Stewart | Director of Human Resources, Telstra Business and Telstra Media |
Mr Phil Cridland | Senior Human Resources Advisor |
Ms Christina Reid | Human Resources Manager |
Ms Karen Stone | Senior Human Resources Advisor |
Mr Alan Colvin | Director of Human Resources, Corporate Units |
[4] The statement of Mr Colvin was tendered and marked Exhibit R5 in proceedings. Mr Colvin was not required for cross-examination.
BACKGROUND
[5] The applicant commenced employment with the respondent as Senior Human Resources Advisor in the Telstra Business Human Resources Team (the HR Team) on 9 July 2007.
[6] At the relevant time, Mr Stewart was the Director of the HR Team. The team members were the applicant, Mr David Faloon, Mr Phil Cridland and Ms Karen Stone as Senior HR Advisors, Ms Lisa Warfe, Reward and Recognition, Ms Natasha Teychenne, Organisational Development Lead and Ms Denise Roberts, Executive Assistant to Mr Stewart.
[7] In April 2009 Mr Stewart was advised of a proposed restructure of the human resources function of Telstra. Upon instruction he prepared a document representing his thoughts on the impact on his team of the proposed restructure. In early June 2009 Ms Stone approached Mr Stewart and advised him that Ms Warfe had found a document in relation to a possible restructure and that members of the HR Team were aware of this document. On 3 June 2009 Mr Stewart met with the team as a group and then individually. After these meetings Mr Stewart decided to commence the formal process of investigating the matter under the Telstra Performance Improvement and Conduct Management (PICM) process. Approximately one week later, Mr Stewart suspended Ms Warfe and the applicant on full pay. Mr Stewart met with the applicant on 11 and 18 June 2009. The applicant’s sister, Ms Fiona McCallum attended these meetings as the applicant’s support person.
[8] The applicant’s employment was terminated by letter dated 18 June 2009. The termination letter, inter alia, stated:
“Dear Francine
In accordance with Telstra's Performance Improvement & Conduct Management process, I am writing to notify you that, following an investigation of your recent unacceptable conduct I confirm the decision to terminate your employment with Telstra with notice paid in lieu, effective today.
The reasons for Telstra's decision have been discussed with you as part of the investigation process and you have had an opportunity to respond to all allegations. Telstra considers that the following conduct constitutes misconduct.
• Accepting a copy of a confidential document when you knew or ought to have known that the document contained confidential information;
• Being present and acquiescing when copies of the document were made;
• Retaining a copy of the confidential document;
• Pro-actively approaching two colleagues to raise the existence and contents of the confidential document with them, and acquiescing in the offering of copies of the document to those colleagues;
• Discussing the confidential document and its contents with a third colleague;
• Secreting a copy of the document back into my office; and
• Failing to inform me that you had obtained, discussed and were aware of the distribution of the confidential document.
The conduct described above was in breach of the Telstra Values, Code of Conduct and Telstra Business Principles.
Francine, I gave close consideration to the appropriate outcome of this investigation. In deciding that termination of employment was appropriate, I was particularly cognisant of the nature of your role and the amount of confidential information to which you have access, and the fact that it is your job to guide and advise managers and employees on their obligations in respect of confidential information (particularly in the context of organisational restructures). I also took into account your apparent lack of remorse, your unwillingness to acknowledge that the document was confidential and that you were aware of this fact, and your apparent lack of understanding as to the seriousness of your conduct. In summary, I considered that I cannot have trust and confidence in your ability to perform your role in the manner and to the standards expected by Telstra moving forward.
Details of your termination payments, including superannuation details will be forwarded to you shortly. If you have any questions regarding your termination payments, please contact me.
Allan Stewart” 1
THE EVIDENCE
The applicant
[9] On 24 April 2009, the applicant, who was returning from a team lunch, was contacted by Ms Warfe a member of the HR Team. On the applicant’s evidence, Ms Warfe asked her to meet her urgently on the ground floor of the Telstra building. At this meeting Ms Warfe showed the applicant a document (the document) created by Mr Stewart, which showed a restructure of the HR Team. She stated that Ms Warfe told her that she, Ms Warfe, found the document on top of the filing cabinet in the team’s general work area. At that stage, Ms Warfe did not provide a copy of the document to the applicant. The document, which was tendered in proceedings, 2 was a schedule detailing names, positions and salary of the HR Team members and details of a reorganisation. The notations on the document indicated that a number of positions were to be made redundant, which included that applicant’s position and that of Ms Warfe.
[10] The applicant, in her statement, stated that following the meeting with Ms Warfe they returned to their work area and she, the applicant, telephoned an adviser in employee relations to seek advice. She stated that the advice provided to her was to take a photocopy of the document and return it to whoever created it. She stated that she shared this advice with Ms Warfe who then took two copies of the document, one for Ms Warfe and one for the applicant. Ms Warfe placed the original document on Mr Stewart’s desk, while the applicant stood at the door to Mr Stewart’s office.
[11] On Monday 27 April 2009, the applicant had a conversation with Mr Cridland about the document and its content. In her statement, the applicant stated that Mr Cridland was aware of the document from a conversation he had earlier with Ms Warfe. The applicant stated that she did not provide Mr Cridland with a copy of the document.
[12] In her statement, the applicant stated that later in the afternoon of Monday 27 April 2009, Mr Faloon approached her. The applicant considered Mr Faloon to be the second in charge within the HR Team. She stated that Mr Faloon asked her if she was okay as she appeared to be upset. The applicant showed Mr Faloon a copy of the document. In her statement, the applicant stated that Mr Faloon “said that I should not be concerned about it, that there was no allowance in the budget for 2008/2009 for any reorganisation of the HR group and therefore, it could not happen until at least the new financial year commencing 1st July 2009”. 3 The applicant stated that Mr Faloon did not suggest to her that she approach Mr Stewart about the document nor did she provide a copy of the document to Mr Faloon.
[13] On Tuesday 28 April 2009 the applicant arrived at work at approximately 7.45am. She stated that Mr Faloon showed her a copy of a second document pertaining to the restructure of the HR Team and provided to her a copy of that second document. She stated that Mr Faloon told her the document had been left on the printer in the HR area for approximately an hour that morning.
[14] The applicant stated that later in the day she listened to a conversation between Ms Warfe, Ms Stone and Mr Cridland in relation to the content of the document.
[15] In her statement, the applicant stated that on 3 June 2009, “five weeks after Lisa discovered the document,” 4 Mr Stewart called a team meeting in his office with the applicant, Ms Warfe, Mr Faloon, Ms Stone and Mr Cridland. Mr Stewart advised the team that he was aware that they had seen a document concerning redundancies and that he could not believe that no one had come forward to discuss it with him. At the conclusion, Mr Stewart advised that he would meet with each team member individually.
[16] The applicant stated that in her meeting with Mr Stewart she stated to Mr Stewart the following:
“I did not, not come forward to you because of anything to do with Scott (his predecessor). We respect you as our leader. It was an issue to me that you and Natasha are relatives and this made it hard for the rest of the team to be comfortable about open communication. I did not go to you as I did not want the process brought forward and I am concerned about being made redundant. The later, the better for me. I am having a difficult time financially and personally and a redundancy will make it hard for me personally.” 5
[17] The applicant stated that she was suspended on pay on 10 June 2009. She met with Mr Stewart on 11 and 18 June 2009 and her employment was terminated on 18 June 2009.
[18] In her statement the applicant stated that prior to her termination it had not been suggested to her that she “acquiesced in the offering of copies of the document to two colleagues. I did not do so”. 6She stated that she did not make, facilitate or acquiesce in the copying of the document for anyone other than for herself and Ms Warfe. She stated she discussed the document with Mr Faloon, Ms Warfe and Mr Cridland and was present when the document was discussed with Ms Stone. The applicant stated that her reasons for not discussing the document with Mr Stewart were:
“a. David Faloon saw that I was upset and asked me what the problem was. I answered his question by telling him what I had been told by Lisa, what the document showed and why I was so concerned about it;
b. David Faloon was the second in charge in the Team. Given that Allan Stewart had not followed the correct Telstra process in selecting employees for redundancy from the Team and he seemed to be favouring his cousin, Natasha Teychenne, in the selection process, I did not feel able to discuss my concerns with Allan. I felt that it was more appropriate to express my grievance to David.
c. After David told me I had nothing to worry about until at least 1 July 2009, I did not think it was worth taking the matter any further until I had been notified of a definite decision as to my employment with Telstra.
d. I was under personal financial pressure at the time and was concerned about losing my job. I thought that if I raised the issue with Allan Stewart he may have brought the redundancy process forward, with the result that I may have lost my job at an earlier time.” 7
Ms Stone
[19] In her statement, Ms Stone outlined how she became aware of the document in question. She stated that on approximately 28 or 29 April 2009 she was in the HR area with Ms Warfe and the applicant. Ms Stone stated:
“The conversation went more or less as follows:
Lisa: I found a document last week on the filing cabinet at the back of the pod. It had the team’s names and remuneration details listed on it, and what was going to happen to everyone in some kind of restructure.
Francine: It showed that you and I [meaning me, Karen] are going to be retrenched, David and Phil are going to be moved to a helpdesk and Natasha is going to get a promotion to be the HR business partner. We spoke to David and Phil. Do you want to see a copy of it?
Me: No. I don’t want to get involved.
I could tell that Francine was really not happy. She seemed very angry and upset.
I was really uncomfortable with the way this conversation was going. I wanted to communicate to them that I thought what had happened was wrong. The following conversation then took place:
Me: What did you do with it? Have you spoken to Allan about it?
Lisa: No. I put it back in his office.
Me: Why?
Francine: We’re not ready to talk to him about it.
Me: I would advise you to go and talk to Allan. You shouldn’t be talking to anyone else about it.
Francine: I want to get some legal advice.
Me: You should still talk to Allan.
The conversation then ended.” 8
[20] Ms Stone disputed the applicant’s statement that Mr Cridland was present during the above conversation. She further disputed the applicant’s statement that she, the applicant, listened to the conversation. Ms Stone stated that the applicant also discussed the document and participated in the conversation.
[21] On 2 June 2009 Ms Stone approached Mr Stewart. In her statement Ms Stone outlined the rationale for her decision to speak to Mr Stewart, as follows:
“On 1 June 2009, there was a team meeting in Allan's office. During the team meeting, the atmosphere was really bad. Normally the team is very jokey and upbeat, but things just weren't right. Francine was aggressive and was not participating at all in discussions. She wouldn't look at Allan, was rolling her eyes a lot and generally had an aggressive demeanour. I could also tell that Phil just wasn't his normal self. I can't really explain what it was. He just seemed really flat, as did Lisa.
Allan looked a bit confused. He was trying to connect with the team by making conversation and encouraging everyone to talk, but it just wasn't working. I felt really sorry for him. He was pretty approachable as a manager and he was obviously struggling to work out what was wrong.
That night, I thought about the situation some more. I was even more uncomfortable about the way things had ended up. Confidential information about the team's remuneration and a possible restructure was floating around, the team's morale was shot, people were upset and Allan didn't have a clue about what was happening. It wasn't fair on him or on the team. I didn't want to be a "dobber", but I'd given Lisa and Francine advice about approaching Allan and they'd had plenty of time to do that. I didn't think they'd do anything about it now. I decided I would talk to Allan about it the next day.” 9
Mr Cridland
[22] In his statement Mr Cridland outlined a conversation he stated he had with Ms Warfe and the applicant on 28 April 2009. He stated that he was walking back to the office after a meeting he had in Elizabeth Street when he received an SMS on his mobile phone from Ms Warfe. Ms Warfe told him that she had some information and would be interested in his opinion and asked him to meet her downstairs. He stated that he then received a phone call from the applicant, “She said to me words to the effect: ‘I need to talk to you.’ I said words to the effect: ‘Is it about the same thing Lisa has messaged me about?’ She said ‘Yes.’ I think we then arranged to meet up. I recall that a couple of minutes after that I met Francine and Lisa on King Street”. 10
[23] Mr Cridland stated that they went for a walk and, while he could not recall the details of the conversation, both Ms Warfe and the applicant told him about finding a document. He stated that he said that the document may be a planning document for the purpose of costings and “things”. He stated that he could not remember who handed him a copy of the document, which he put into his bag. He stated that “it had information on it about the members of our team, their remuneration, positions, references to HR Direct and positions they would be appoint to”. 11In cross examination, Mr Cridland stated that he believed that Ms Warfe had given him a copy of the document.12
[24] Mr Cridland stated that he did not have a conversation with the applicant in relation to the document on 27 April 2009 and did not have an earlier conversation with Ms Warfe.
Mr Stewart
[25] In his statement Mr Stewart stated that on or around 14 April 2009 he and other Directors of Human Resources were advised of a proposal to restructure parts of the human resources functions. He outlined what that proposal involved and stated that from his understanding the proposal was still in the planning phase and he had been instructed that it was confidential and not to discuss the matter except with colleagues involved in the restructure planning process.
[26] He stated that between 3.00pm and 4.00pm on 23 April 2009 he prepared a document of his preliminary thoughts on the impact of the proposed restructure on his team. He stated that as the proposal was sensitive and highly confidential he prepared the document on his office computer and printed it to the printer in his office. He stated that the document was a working document and after he had printed it he made a number of hand written changes and annotations on it. He stated that he finished working on the document at approximately 4.00pm and placed it in an envelope in a black document folder on his desk. He stated that he left the office at approximately 7.00pm and to the best of his knowledge the document was in an envelope in the black folder on his desk. He stated that when he left the office no one in the team was left in the office. He locked his office. He stated that the key to his office was in a bowl on his personal assistant’s desk. At home he made various changes to the document on his laptop, printed a copy on his home printer and placed it in his bag to take to work the next morning.
[27] At approximately 7.45am Mr Stewart arrived at work. He stated that the applicant and Mr Cridland were already in the office when he arrived. He stated that the key to his office was not in its normal place and he asked the applicant and Mr Cridland if they had seen the key to which they replied no. After some enquiries with building security a locksmith was called. He stated that when he had access to his office at about 10.30am he worked on the electronic version of the document and made some changes to the electronic version of the document and checked it against his hand written comments on the hardcopy. Mr Stewart stated that one change he did make was to replace the word “redundant” with “role at risk” against the names of various team members. He stated that to the best of his knowledge the hardcopy of the document was where he had left it the night before.
[28] He stated that he had a pre-arranged meeting in his office with the applicant prior to midday, which finished at approximately 12.50pm. Mr Stewart stated that he had organised a team lunch for that day, 24 April 2009, which not all team members could attend. He stated that he, Mr Cridland, Ms Warfe and Ms Stone walked to lunch and that the applicant joined them about 10 minutes later. At the conclusion of the lunch he returned to the office. He stated that the applicant and Ms Warfe did not come back after lunch. Mr Stewart stated that he was “certain that I destroyed the handwritten version of the document that afternoon. I did so by ripping it in half and placing it into the blue confidential document destruction bin on our floor. I do not recall exactly what time I destroyed it, but it was late in the day as I was clearing up my desk before going home for the weekend”. 13 He stated that he worked in his office that afternoon and probably left approximately 6.00pm. He stated that he remembered seeing the applicant and Ms Warfe in the office in the afternoon.
[29] Mr Stewart stated that over the next couple of weeks he noticed a change in the team in meetings he held and that something didn’t seem right. He stated that on 2 June 2009 Ms Stone came into his office. In his statement, Mr Stewart outlined the following:
“This was at about 9.30am. She looked really nervous and shut the door. She then said to me words to the effect:
‘Something is bothering me, and I need to let you know about something that’s going on. I feel really uncomfortable about it, but Lisa found a document outlining the teams’ salaries and who’s being made redundant and Francine was very upset about it. They’ve known about it for a while. Whatever happens to me happens and I’ll just keep working until it happens, but I thought you should know because of the way people are acting at the moment.’
I said words to the effect: ‘who is aware of the document’ and she said words to the effect: ‘I don’t think Natasha and Denise know about it,’ Although I didn’t ask and Karen didn’t mention it, I also assumed that Lauren was not aware of it. Lauren is based in another building and so is not as involved with the team.
I then said to Karen words to the effect:
‘Thank you for letting me know. I’m sorry the information got out that way and people know their roles are at risk. I’m really shocked that it got out given how obsessed I was with the information that document contained.’
At this point, Karen said to me words to the effect:
‘I don’t think it said roles at risk, though I haven’t seen it. It said people were redundant. Anyway, the team will kill me if they find out I told you, but I’ve had enough’
The conversation ended with me saying to Karen words to the effect:
‘Thank you for coming to me. I’ll respect your confidentiality. I’m really grateful that you were professional enough to come forward.’
After Karen left my office, I spent some time trying to work out what had happened. I realised that if the document that they’d found had referred to people being redundant, then it must have been a very early planning document. I wasn’t completely sure what document it was at that point. Because I wasn’t sure about exactly what the document was, I spent some time going through my email, trying to work out whether I’d accidentally sent the document to the wrong person or no-forwarded it by accident. At the end of that process, I was fairly sure I hadn’t accidentally emailed the document to anyone. I didn’t know how it had been found, but it didn’t seem to have happened electronically. Attached and marked AS5 is a copy of the second document that I prepared.” 14
[30] On 3 June 2009 at approximately 11.30am Mr Stewart called an impromptu meeting in his office with the applicant, Ms Warfe, Mr Faloon, Mr Cridland and Ms Stone. He outlined his concerns that a confidential document had been discovered and that no one had come to him in relation to what had happened. He stated that he then asked if anyone had any comments and Mr Cridland and Ms Warfe made some comment. He stated that he advised the team that he would have a one-on-one discussion with everyone. Mr Stewart stated that he would then meet with each team member individually. In his statement, Mr Stewart stated:
“In the discussion I had with Francine, she said words to the effect: ‘Lisa found the document and Lisa shared it with everyone,’ and ‘although the changes were obviously still pending, I was hoping that they would not happen yet because of my personal financial circumstances.’ She said words to the effect: ‘I did not think there was any need to tell you about what had happened.’ and ‘I am angry that you have not followed the SWAG process in selecting which members of the team might be retrenched.’ SWAG refers to the selection within a group which is the process that applies if Telstra has decided that a job is redundant and 1 or more employees need to be selected for redundancy from a group of employees performing the same job and the group of employees are employed pursuant to an Australian Workplace Agreement (AWA) or ITEA.
Francine’s demeanour during the meeting was defensive and tough. She showed no understanding at all of why I was concerned about what had happened. She did not indicate that she had been involved in discussing the document or revealing its content to any other members of the team.” 15
[31] Mr Stewart stated that he needed further information prior to making any decision. He decided to hold formal meetings the following week under the Performance Improvement and Conduct Management (PICM) process. He decided that he would place Ms Warfe on suspension with pay and advised her of his decision at approximately 8.30am on 9 June 2009.
[32] After his discussion with Ms Warfe on 9 June 2009, Mr Stewart decided to place the applicant on suspension with pay. He stated that the applicant had phoned in sick on 9 June 2009. He stated that on 10 June 2009, as the applicant had not arrived at work by 9.00am, he called her and left a message that he wanted to speak to her. He stated that the applicant arrived at work at approximately 9.45am and came to see him. He advised the applicant of her suspension and that a PCIM meeting would be held on 11 June 2009.
[33] Mr Stewart stated that on 11 June 2009 he had PCIM meetings with Ms Warfe, Mr Faloon, Ms Stone, Mr Cridland and the applicant.
[34] He stated that he held concerns in relation to his meeting with the applicant. He stated that the applicant’s attitude during the meeting had upset him as she had exhibited no understanding of why her conduct concerned him and showed no remorse for her actions. He stated that his concerns were: the applicant’s refusal to accept that the document was confidential information to which relevant policies applied, the applicant was trained in those policies, the applicant had not disclosed how actively she participated in making other team members aware of the document after it had been discovered, did not disclose that she had given Mr Faloon a copy of the document, had proactively approached Mr Cridland and offered him a copy and had proactively discussed its content with Ms Stone. Mr Stewart stated that the applicant’s explanation to him as to why she had not approached him did not ring true. He stated:
“I felt that she was simply being dishonest, and that the reason she had not come to me was because she knew that she had done the wrong thing and could get into trouble. That was particularly so since Karen had made it clear she had told Francine and Lisa to come clean about what had happened because it was wrong.
All in all, I decided that I would need to speak with Francine again. I wanted to follow up on some of the things that didn’t make sense to me (such as how she knew where to put the document back in my office). I also wanted to reach out to give her the opportunity to take some accountability for her actions. I had real concerns at this stage about my ability to trust her in the future to apply and champion Telstra’s policies, and to maintain confidential information, particularly in circumstances where that was a key aspect of her job and where her job meant she had access to so much sensitive and confidential material.
Accordingly, on 17 June 2009 I telephoned Francine and asked her to attend a further PICM meeting at 10am the following day.” 16
[35] Mr Stewart met with the applicant, with her sister as a support person, on 18 June 2009. Ms Reid, Senior Human Resources Manager was also in attendance as witness and note taker. Mr Stewart stated that the applicant’s attitude had not changed from the earlier meeting and that she either declined to answer the questions or gave short, unhelpful answers. He stated that the applicant did make a minor admission that “perhaps” she should have come to Mr Stewart. Mr Stewart stated that the applicant’s answers to his questions did not give him any comfort that she understood, that she was sorry or that he could trust her and her judgment in the future. He stated that he advised the applicant that he proposed to terminate her employment with notice paid in lieu. Mr Stewart stated that he explained the reasons and asked her if there was anything else she would like him to consider. He stated that the applicant replied “No”. He stated that he and Ms Reid left the room to give some final thought as to whether to proceed with the termination. He stated that when they returned to the meeting room it was empty. Approximately 20 minutes later the applicant forwarded to him an SMS stating that she had nothing further to say and would contact him in relation to the return of property and the collection of her personals.
CONSIDERATIONS
[36] Subsection 652(3) of the WR Act provides:
“In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee – whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.”
[37] It is for the Commission to determine, having regard to paragraphs (a) to (g) of ss.652(3), whether the applicant’s termination of employment by the respondent was harsh, unjust or unreasonable. No one factor in the paragraphs of ss.652(3) is determinative as the Commission is required to have regard to all factors where relevant to the issue for determination. In considering the matter regard must also be had to ss.635(2) which states:
“The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a ‘fair go all round’ is accorded to both the employer and employee concerned.”
[38] Further, as the reason for termination concerns an allegation of misconduct it is for the Commission to determine if the alleged conduct occurred and what that conduct involved having regard to the evidence adduced in proceedings. 17 Further, whether the reason for the termination was ‘sound, defensible or well founded’,18 in other words a valid reason.
[39] The applicant bears the burden of proof in establishing that, on the balance of probabilities, her termination of employment by the respondent was harsh, unjust or unreasonable. I will now turn to consider the issues and material involved in the matter before me to determine if the applicant’s termination of employment by the respondent was harsh, unjust or unreasonable. In arriving at a determination in this matter I will not outline and address all the material presented in the proceedings, however, I have had regard to that material where relevant to the issue before me.
[40] In the matter before me there are a number of facts which are not contested. The applicant did come into possession of a document which contained information in relation to a restructure of the HR Team. The applicant maintained a copy of that document. The applicant did discuss that document with persons other than her manager, Mr Stewart. The applicant did not advise Mr Stewart that she had sighted and had a copy of that document. These are not contested facts. What is contested is the relevance and application of those facts in a consideration of whether the termination of her employment was harsh, unjust or unreasonable.
[41] During the cross examination of the applicant, Mr Wood put a number of questions to her in relation to her disclosure to Mr Stewart, in the interviews held, associated with who she discussed the document with. The applicant stated “I didn’t deliberately conceal anything. I was answering questions that were asked.” 19The applicant acknowledged that she did not disclose to Mr Stewart the conversation with Mr Cridland until the end of the second meeting. Mr Wood put that the only person the applicant identified, in the first meeting, as a person to whom she discussed the document with as Mr Faloon. The applicant replied that she would have to have a look at her notes.
[42] The applicant, in her reply to Ms Stone’s statement, stated that she did not participate actively in the conversation in late April 2009, however, in her oral evidence under cross examination she stated:
“Lisa approached Karen about the document and I was sitting at my desk and I – I said to Karen, ‘Your name, my name, and Lisa’s name are down for redundancy,’ and I confirmed that information. And that Natasha was the only person that would be taken into Alan’s new team. They were the words that I said.” 20
[43] The applicant remembered saying to Ms Stone that she was “not ready to discuss – to go forward to Alan”, 21 and acknowledged that Ms Stone had stated that she should discuss it with Mr Stewart. On this particular discussion the applicant relied to Mr Wood’s questions as follows:
“Now, this conversation that I've asked you about on 28th or 29th involving Ms Stone, is a conversation that you now accept that you participated in?
Yes, not actively, I didn't approach her.
But you spoke in that conversation?
Yes, I did.
So you accepted that what you said in your witness statement at paragraph 15, where you say:
I recall listening to a conversation between Karen Stone and Lisa Warfe in which Lisa detailed the content of the document to Karen.
That's untrue because you participated in that conversation?
I think I clarified that in my second statement, as I said I became a part of that conversation after they had initially been speaking. So I listened to the conversation and then I confirmed those details that I outlined earlier.
But that statement is wrong insofar as it purports to say that you weren't involved in the conversation, you participated in the conversation, didn't you?
The statement is incomplete.
Isn't that the approach that you took during your discussions with Mr Stuart (sic) on 3 June and then on 11 June and 18 June that you refused to give the full story of your involvement in the dissemination of this document and the contents of it?
I answered the questions that were asked of me.
But you deliberately tried to give as little evidence as you could in order to prevent Mr Stuart (sic) from finding out what had gone on?
Absolutely not.
You didn't approach this process as a chance to be open and honest about what you did, rather you approached it as a battle whereby Mr Stuart (sic) was going to have to drag information out of you?
I wouldn’t say it was a battle, what I would say is I was asked the questions - I answered the questions I was answered (sic) and I didn't feel that he should have been running the investigation because he had too much at stake.
That's why you decided that you weren't going to cooperate in the investigation, you were going to try to cover up and obfuscate and make it as a difficult as possible for Mr Stuart (sic) to work out what had gone on?
No, absolutely not.
In fact you have continued in that process in the process before the Commission, haven't you?
No, that's not right.
Today, the first day of hearing, you have amended a statement about a discussion with Ms Stone to say that you weren't merely listening to it, that you were involved in it, yet last Friday when you filed this second witness statement this is what you said about that same conversation, "I deny the words attributed to me in that paragraph. I did not participate actively in the conversation."?
What I said was “actively” and I also said I didn't say those words, so I absolutely stand by what I said.” 22
[44] I am not persuaded that the applicant did not actively participate in the above conversation had with Ms Stone. In considering the applicant’s evidence to that of Ms Stone’s evidence, I prefer the evidence of Ms Stone. Ms Stone provided direct answers to questions put to her and, in my view, was straightforward and honest in her replies. I also accept Ms Stone’s evidence that Ms Warfe did not offer the document to her and that “I remember clearly Francine offering it to me”. 23
[45] In his evidence under cross examination and in re-examination, Mr Cridland stated that on 28 April 2009 he had a discussion with Ms Warfe and the applicant outside the King Street exit of the Telstra building at approximately 1.00pm. He also stated that they walked together while discussing the document for approximately 10 to 15 minutes. The applicant’s statement 24 in relation to this conversation does not reflect the evidence given by Mr Cridland. The applicant’s statement implies that she and Mr Cridland had a conversation and that Mr Cridland was aware of the document “from a conversation he had earlier with Lisa”.In evidence under cross examination, the applicant accepted that the conversation was between the three of them but she denied that they had walked together. That evidence follows:
“Did not walk? So you, and Ms Warfe, and Mr Cridland didn’t walk and talk about the document on 28 April from outside the Telstra store in Pitt Street?
That’s correct, we didn’t. I met them downstairs outside the Telstra shop in the foyer, and they’d been for a walk and they were coming back in when I met them.” 25
[46] The applicant stated that the conversation was not a three way conversation. In her statement she states that Mr Cridland was aware of the document from his earlier conversation with Ms Warfe. However, in cross examination when Mr Wood put to the applicant Mr Cridland’s evidence that either Ms Warfe or the applicant had said words to the effect “I found a document on the filing cabinet near my desk the week before”,the applicant stated that she believed that Ms Warfe had said that and acknowledged that it was said outside the Telstra store. If Ms Warfe had an earlier conversation with Mr Cridland I can only presume that her statement above would be already known to Mr Cridland, therefore, why repeat where the document had been found. The applicant also stated that she “wasn’t there if Lisa gave him (Mr Cridland) a copy – if she did.” 26 The applicant acknowledged that during the conversation Ms Warfe did have a copy of the document. There were further questions in relation to this conversation, which I will not elaborate on.27 I am not persuaded that the events, as outlined by the applicant in her statements and her oral evidence on this point, occurred as she stated. Where there is a conflict in the evidence given by Mr Cridland to that given by the applicant, I prefer Mr Cridland’s evidence.
[47] When Mr Wood put to the applicant that in her meeting with Mr Stewart on 3 June 2009 she did not suggest that she had any involvement in the contents of the document being shown to Mr Faloon, Ms Stone and Mr Cridland, she replied “It was a very short meeting and he didn’t ask me that question”. 28
[48] On the issue of the confidential nature of the document and the applicant’s reply to questions put to her on 11 June 2009, the applicant stated:
“I said I didn’t think it was confidential at the time, it wasn’t treated confidentially at the time. The information in it was obviously sensitive and all I was focussing on at the time was my name and next to my name there was a redundancy”. 29
[49] The applicant agreed with Mr Wood that in that interview she had said that she did not think it was confidential. The applicant acknowledged that, at some stage, she had said that as the document did not have “confidential”or “draft”on it she did not think of it as confidential at the time. Upon further questioning the applicant stated:
“No, what I was saying was obviously it had sensitive information in it but it was personal to me, so because of that reason and because it wasn’t treated as a normal document that we would normally see and the document itself wasn’t treated like it but obviously the information was sensitive. I didn’t share it with anybody outside of the team, I didn’t speak to anybody, so it was not – I did nothing with it.” 30
[50] I can not accept the applicant’s statement in relation to the confidentiality of the document in her possession. First, the document was not only personal to the applicant it contained personal information on a number of employees not all of which, on my understanding, were part of the HR team of which the applicant was a member. Secondly, it is not correct that the applicant “did nothing with it”.The applicant accepted a copy of the document, she took the copy of the document home with her, she discussed the document with her advisor and she discussed and showed the document to others. In my view, the document was highly confidential and on any reasonable view should not have been treated in the manner that it was by the applicant. In cross examination 31 the applicant acknowledged that the document had Mr Stewart’s handwriting on it, that it was confidential and had not been disclosed to the HR team. The applicant chose to disclose the document to certain members of the HR team without the authority and/or permission of Mr Stewart.
[51] Taking into account the fact that the applicant held a position of Senior HR Advisor, I do not accept the applicant’s evidence in relation to whether or not she knew the document was confidential. In her reply statement, 32 the applicant stated that:
- She regarded the information on the document as confidential.
- At the time of sighting the document she could only focus on her name and redundancy.
- In the interview with Mr Stewart, six weeks later, his questions were confusing. Some questions asked were: did she regard the information as confidential and other questions were, whether she regarded the document as confidential.
- She stated that the document was not a confidential document marked and identified as such but rather a document with confidential information within it. She stated that she acknowledged this.
- She kept the document confidential by not discussing the document or its content with anyone at Telstra, other than Mr Faloon, Ms Warfe, Mr Cridland and Ms Stone.
[52] I find it difficult to accept and/or understand the applicant’s position in relation to the confidential nature of the document in question. The applicant holds a Bachelor of Arts, Majoring in English from the University of Sydney, a Diploma of Education from the Australian Catholic University and a Masters of Human Resources and Industrial Relations from the University of Sydney. The applicant is an educated person and she held a senior HR role in the organisation. From the respondent’s material filed, 33 part of her role was to provide support to Telstra Business managers and to provide advice on disciplinary matters related to unsatisfactory performance or conduct. The applicant held a position within the organisation that involved access to confidential information and it would be envisaged that a person at that level could be trusted to understand the nature of a confidential document and apply correct procedure in dealing with such a document.
[53] On the applicant’s evidence, she first became aware of the document through Ms Warfe. Regardless of whether or not the applicant copied the document herself, she at the very least retained a copy of the document after advising Ms Warfe of the advice she had received from her industrial advisor. It was submitted by Mr Saunders that the rationale for the applicant accepting the advice provided to her was that it appeared to her that Mr Stewart, in compiling the document, may have been in breach of the respondent’s policies and codes and, therefore, the document may have assisted her in any future case in relation to a redundancy and her selection for redundancy. I can not accept the argument. Whether or not Mr Stewart was in breach of any relevant policy and codes is not to the point. The applicant was wrong in the actions she took. Two wrongs do not make a right. The applicant should have approached her manager and sought clarification of her employment situation and provided him with the opportunity to respond to her concerns. If it is accepted that the applicant did not obtain the document herself, in all probability Mr Stewart would have been thankful that the issue was brought to his attention earlier rather than later.
[54] The document was not the applicant’s property but the property of her employer. It is unfortunate to say the least that the applicant followed the advice given to her. In my view, the applicant had an obligation to her employer, if not her manager, to declare the fact that a confidential document had been found in an exposed area of the HR department. Further, in late April 2009 the applicant came into possession of another confidential document 34 given to her by Mr Faloon, which in my view had no relevance, or at least very little relevance, to her situation. I accept Mr Stewart’s evidence on this point. The applicant accepted a copy of this other confidential document again without declaring this fact to her manager. In my view the applicant knew, or should have reasonably known, that her actions were unacceptable and wrong.
[55] I am persuaded that the applicant did discuss with Mr Cridland, Mr Faloon and Ms Stone the document’s contents and, on her own evidence, showed Mr Faloon a copy of that document. The document was private and confidential, regardless of whether or not it was marked as such. The applicant did not have the authority to discuss the document and its contents with anyone without permission of her manager and/or her employer. She did not have that permission.
[56] The applicant did not speak to her Manager, Mr Stewart, at any time during the period of April to June 2009, notwithstanding the fact that Ms Stone had advised her to do so. The applicant in cross examination and in her reply statement acknowledged her discussion with Ms Stone in late April 2009 on this issue and that she said “I am not ready to talk to Allan and I want to get some legal advice”. 35
[57] In the circumstances of this case, I am satisfied that there was a valid reason for the termination of the applicant’s employment related to her conduct, which I have outlined and address above.
[58] I am not persuaded that Mr Stewart was not the appropriate person to conduct the investigation of the matter. I am not persuaded that he was not independent. Further, I am not persuaded that the investigation was flawed due to Mr Stewart’s role in the matter. On this point I would agree with Mr Wood’s argument that “[h]er approach during the interviews on 3 June, 11 June and 18 June was to obfuscate, deny and fail to acknowledge what she had done”. 36The applicant had the opportunity to advise Mr Stewart in his meeting with her on 3 June 2009 the circumstances surrounding the document. The applicant chose not to do so.
[59] The applicant was notified of the reasons for the termination of her employment and I am satisfied that the applicant was afforded an opportunity of respond to any reason related to her conduct.
[60] Paragraphs (d), (e) and (f) of ss.652(3) of the WR Act are not relevant to the matter before me and, therefore, I do not consider those factors.
[61] The applicant argued that the decision to terminate her employment on the basis of misconduct, unless the termination was found to be unfair, would have a significant impact on the remainder of her career. I acknowledge that there may be an impact, however, it is possible that there may not be an impact on her career. I have, however, had regard to the submission.
[62] Mr Saunders sought that I draw a Jones v Dunkel 37 inference in respect to the non attendance by Mr Faloon to give evidence in the proceedings. Mr Saunders submitted that in the absence of Mr Faloon the applicant’s evidence must be accepted. Where the applicant refers to her discussions with Mr Faloon, in the absence of his appearance, I accept her evidence on these points. Further, I accept that, in all probability, the applicant saw Mr Faloon as second in charge to Mr Stewart. The applicant’s view of Mr Faloon’s position in the organisation does not remove her responsibility to make her own decisions on how she would deal with the document in question and how she should deal with the second confidential document, which she accepted from Mr Faloon.
[63] Further, I am not persuaded by the argument of disproportionate treatment of the persons involved in the incident. The applicant and Ms Warfe were the significant players in matters associated with the document. Both were terminated for the reason of their conduct.
CONCLUSION
[64] The applicant was terminated for reason of conduct. I have considered the material before me and submissions put by the respective advocates and have found that I am satisfied that there was a valid reason for the termination of the applicant’s employment on the basis of her conduct.
[65] I am satisfied that the applicant was notified of the reason for her termination of employment. I am satisfied that the applicant was provided with an opportunity to respond to that reason. In this case the issue of unsatisfactory performance does not arise. The size of the employer’s organisation and the level of dedicated human resource management specialists are not factors relevant to a consideration of the matter before me. I have also had regard to other matters under paragraph (g) of ss.652(3) of the WR Act.
[66] Having regard to the material before me, ss.635(2) and the paragraphs of ss.652(3) of the WR Act, which I am required to consider, I am not persuaded that the termination of the applicant’s employment by the respondent was harsh, unjust or unreasonable in the circumstances of the case.
[67] The applicant’s application is dismissed. An order will issue separately.
COMMISSIONER
Appearances:
Mr Saunders, of counsel, with Mr P Hayward, Haywards Solicitors, on behalf of the applicant.
Mr Wood, of counsel, with Ms K Jervis, Norton Rose Australia (formerly known as Deacons), on behalf of the respondent.
Hearing details:
Sydney.
2009:
December, 9 and 10.
2010:
March, 5.
1 Exhibit A2 at Annexure 2.
2 Exhibit A2 at Annexure 1.
3 Exhibit A2 at 12.
4 Exhibit A2 at 17.
5 Exhibit A2 at 19.
6 Ibid at 23.
7 Ibid at 25.
8 Exhibit R3 at 14 to 17.
9 Exhibit R3 at 29 to 31.
10 Exhibit R6 at 12.
11 Exhibit R6 at 14.
12 PN2125; PN2135.
13 Exhibit R7 at 26.
14 Exhibit R7 at 32 to 37.
15 Exhibit R7 at 48 and 49.
16 Exhibit R7 at 62 to 64.
17 King v Freshmore (Vic) Pty Ltd [1999] AIRC 1200, Print S4213.
18 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, Northrop J at p373.
19 PN728.
20 PN755.
21 PN809.
22 PN869 to PN880.
23 PN1647.
24 Exhibit A2 at 11.
25 PN658.
26 PN697.
27 For example see: PN702 to PN726.
28 PN738.
29 PN889.
30 PN913.
31 PN927 to PN930.
32 Exhibit A3 at 12.
33 Respondent’s outline of submissions filed 7 October 2009.
34 Exhibit A4, marked in confidence.
35 Exhibit A3 at 19.
36 PN1346.
37 [1959] HCA 8.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR991780>
0