Joan Obuchowski v RNTT Pty Ltd T/A Jobs Statewide Employment Solutions

[2018] FWC 3040

[2018] FWC 3040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joan Obuchowski
v
RNTT Pty Ltd T/A Jobs Statewide Employment Solutions
(U2017/13421)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 28 MAY 2018

Application for an unfair dismissal remedy – removal of documents from employer’s office – deletion of documents from employer’s computer system – breach of policy – valid reason found – applicant was afforded procedural fairness – dismissal not unfair – application dismissed.

[1] On 15 December 2017, Joan Obuchowski (the applicant) applied to the Commission for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of her employment by RNTT Pty Ltd T/A Jobs Statewide Employment Solutions (the respondent) on 24 November 2017.

[2] I directed the parties to file written outlines of submissions and evidence, then heard this application on 23 April, 24 April and 2 May 2018. With permission, Mr C McArdle, solicitor, appeared for the applicant and Mr B Austin, counsel, appeared for the respondent.

The evidence

[3] The following people filed written statements and gave oral evidence in these proceedings:

•  the applicant;

•  Mr Chris Obuchowski, the applicant’s husband, who also worked for RNTT Pty Ltd;

•  Ms Irene Sfakinos, the applicant’s former colleague;

•  Ms Wen-Yuann Kuo, the applicant’s former colleague;

•  Ms Jane Banton, the respondent’s Human Resources Manager;

•  Mr Chris Sharpe, the respondent’s Recruitment Services Manager; and

•  Ms Tanya Pascoe, the respondent’s Employment Services Manager.

[4] The respondent also led oral evidence from Mr Chris Till, its IT Coordinator. All witnesses were cross-examined.

[5] I need to make an observation about the applicant’s credibility. Unfortunately, throughout her oral evidence, the applicant was evasive, defensive and reluctant to concede the most self-evident of facts even to her own solicitor, and several of the answers she gave were palpably disingenuous. 1 This was despite my express warning2 that this would affect how I assessed her overall credibility. The applicant sought to explain her behaviour in the following exchange in re-examination:

‘MR McARDLE: Just think about the two statements that you've been cross-examined on, your evidence in this Commission? [The applicant:] ---Yes.

Who was present when those statements were drafted?---You and me.

Your husband wasn't present when those statements were drafted, was he?---That's right, I know.  When I walked out of this place I thought to myself wait a minute, he - - -

Why did you say to my friend that your husband drafted them with you?---I know.  He was definitely not there.  I'm sorry.

THE SENIOR DEPUTY PRESIDENT:  But why did you say that?---I don't know.  I have no idea.  Because I was, I don't know, nervous at the time.  But definitely he was not there, yes, correct.

MR McARDLE:  Can we have the image back on the screen?  I'm going to have to walk away from the microphone, so I should warn you?---Yes.

Then I'm going to point at something on the screen.  Then I'm going to come back and ask you a question about it.  I just want you to look at what I'm pointing at with the end of my pen.  Do you agree with me that that's the printer?---Yes.  I agree that it doesn't - like I said, I know where the printer is - - -

Hang on, I asked you do you agree with me that that's the printer?---Yes.

Do you agree with me that sometimes it took you up to five minutes to admit that to Mr Austin?---Because there are times when - - -

Do you agree with me that you did that?---Yes.

In your visit to the office at Redfern on the Sunday night, did you do anything you are ashamed of?---Definitely not.

Did you have anything to hide from that visit?---Definitely not.

Did you do anything dishonest in that visit?---Definitely not.

Why then have you made it look like you did?

MR AUSTIN:  I object to that, your Honour.

THE SENIOR DEPUTY PRESIDENT:  No, I'm going to allow it.

MR McARDLE:  Why did you do that to yourself?---Because I was nervous.’ 3 [my emphasis]

[6] While I accept other witnesses’ evidence that they had generally found the applicant to be an honest person in their previous dealings with her, 4 that does not negate the applicant’s conduct in the witness box. She admitted that her answers were less than candid and rarely direct. She said this was because she was nervous. Even accepting that this adequately explains her behaviour, the fact remains that she was not a reliable witness. I can only give very little weight to her evidence as a result.

[7] I also do not give much weight to Mr Obuchowski’s evidence, as he conceded during cross-examination that he had given false information to the respondent during the investigation into his and the applicant’s conduct on 22 October 2017, and in his witness statement in these proceedings. 5

[8] Where there is a conflict between the applicant’s or Mr Obuchowski’s version of events and that of other witnesses, I prefer the latter.

The facts

[9] To the extent that the facts were contested, the following includes my findings on the balance of probabilities.

[10] The applicant had worked for the respondent since 14 January 2013. Immediately before her dismissal, she was working at its office in Redfern, New South Wales as its National Operations Manager (Disability Employment Services).

[11] On 18 October 2017, the applicant attended a meeting with Ms Banton and Ms Pascoe in the respondent’s Adelaide office. They advised her that the respondent was restructuring its Sydney operations, and was no longer able to support her role. The respondent therefore proposed to move her to its office in Burwood, New South Wales and reduce her base annual salary by $20,000.

[12] I do not accept the applicant’s evidence that she was told that these changes were taking place immediately and that she should therefore attend work at the Burwood office the next business day after returning to Sydney (23 October 2017). 6 It is implausible that the respondent would implement such a major change so abruptly, especially without some sort of handover of the applicant’s duties. I prefer Ms Banton’s and Ms Pascoe’s evidence that they told the applicant that they would provide her with more details of the proposed changes in writing later, that she would be given several weeks’ notice of those changes, that there would be a handover at the Redfern office and that the relocation to Burwood would not take place at least until after she returned from annual leave.7 This version of events is more consistent with the fact that between 18 October 2017 and the applicant’s dismissal on 24 November 2017, she continued to receive the same salary – that is, without the proposed $20,000 reduction.8

[13] The applicant requested another meeting with Ms Banton, which occurred on 20 October 2017. Ms Pascoe was also present. I accept Ms Banton’s and Ms Pascoe’s evidence 9 that at this second meeting, the applicant asked about the possibility of receiving redundancy pay (though not necessarily in those words). I also find that Ms Banton told the applicant that the respondent’s preference was for her to remain employed, and repeated that the proposed changes would not occur immediately.

[14] Late in the afternoon of Sunday, 22 October 2017, the applicant and Mr Obuchowski attended the respondent’s Redfern office. There was closed-circuit television (CCTV) footage in evidence covering the period of slightly less than two hours for which they were in the office. We reviewed the most relevant segments of the CCTV footage in great detail during the applicant’s cross-examination. 10

[15] When reviewed together with the list of documents deleted from the applicant’s computer on 22 October 2017, 11 and Mr Till’s evidence12 regarding the keystroke logs and the print logs13 from that date, I find that the CCTV footage shows that the applicant and Mr Obuchowski did the following while in the office that evening:

•  sorted through various notebooks and folders and placed some of them into a box, which they then took out of the office;

•  selected several emails at a time, several times, and deleted them;

•  printed documents from the applicant’s computer and placed them into a plastic sleeve, which they then took out of the office; and

•  deleted all the icons on the applicant’s computer desktop.

[16] The applicant said that she attended the office that day solely to print information about her entitlements upon redundancy, gather personal belongings to prepare for her relocation to Burwood the next business day and clear her computer of personal documents and files etc. that she would not need at Burwood. There are several reasons why I do not accept this.

[17] First, as set out at paragraph 12 above, I do not accept that Ms Banton and Ms Pascoe told the applicant that she would need to move to the Burwood office immediately.

[18] Secondly, the applicant’s own evidence in chief was that ‘my time with Jobs Statewide was over’, that she could not afford the proposed reduction in salary and that she was humiliated by what was effectively a demotion. 14 Out of all the evidence she gave, I found this to be the most candid and genuine reflection of her mindset. This is a very plausible and understandable reaction to the respondent’s proposal, but it is also entirely inconsistent with the applicant’s professed intention to continue working for the respondent. In cross-examination, the applicant made some attempts to deny that this paragraph of her witness statement meant she had made up her mind that she wanted to leave the business,15 but I found this unconvincing. It is clear what she meant. After the meeting on 20 October 2017, I do not think she had any intention of returning to work for the respondent, at Burwood or elsewhere.

[19] Thirdly, matching the timestamps on the CCTV footage with the print logs demonstrates that while the applicant did print documents that could be relevant to redundancy entitlements, such as a copy of the Fair Work Information Statement and the respondent’s employee handbook, she also printed other documents that contained confidential and personal information. In particular, the print logs show that the last document the applicant printed before leaving the office was entitled ‘Bright Hospitality, Thai’. 16 This document contained a job seeker’s personal information and an employer’s details.17 The applicant repeatedly claimed that she did not remember printing this document, but that if she did, it would have been so that she could leave it on a colleague’s desk.18 At one point, she said she might have printed this document accidentally.19 I do not accept either of these as true. At the time that the print logs state that the applicant printed this document, the CCTV footage clearly shows her walking to the printer from her desk, taking a document from the printer, examining it as she walked back to her desk, then placing it into a plastic sleeve with other documents. Based on the correlation of the print logs and the CCTV footage timestamps, I find that the document she is seen to take from the printer at this point in the footage was the ‘Bright Hospitality, Thai’ document, though its title and contents are not visible on the footage. The footage later shows the applicant taking the plastic sleeve of documents with her when she leaves the office. She did not place the document on someone else’s desk.20 These are not inadvertent actions. If, for instance, the applicant had accidentally printed this document, one would expect that she would have realised this when she picked the document up from the printer and looked at it, and that she would have then discarded it. That did not happen.

[20] Finally, if the applicant really had intended to continue working for the respondent at Burwood from 23 October 2017, she could easily have deleted the personal documents and files that she said she did not need when she got to Burwood. 21 She would have been accessing the same computer system from that office. She did not have to travel all the way to the Redfern office to do that on a Sunday afternoon.

[21] On 16 January 2018, Ms Banton attended the applicant’s solicitors’ office to inspect the items that the applicant and Mr Obuchowski had taken from the respondent’s Redfern office. The applicant said that she had produced to her solicitors everything they had taken. However, Ms Banton said that there were several items that the applicant took out of the office (based on reviewing the CCTV footage) that were not available for her to inspect. 22 I accept Ms Banton’s evidence on this point. I am satisfied that the missing items included at least one document that contained a job seeker’s personal information, being the ‘Bright Hospitality, Thai’ document. I am further satisfied that some of the notebooks that the applicant did produce to her solicitors contained confidential information.23

[22] The applicant signed a deed of confidentiality when she started working for the respondent. 24 The deed sets out at length the details of the applicant’s obligation to ‘keep secret and protect and preserve the confidential nature and secrecy’25 of confidential information and personal information to which she has access in the course of her employment by the respondent.

[23] The respondent has a confidentiality policy, 26 which relevantly states:

‘All employees of [the respondent] have an obligation to abide by this Confidentiality Policy.

For the purpose of this Policy, “confidential information” is defined as… the names details and information relating to the business affairs of the clients or members of [the respondent];

The employee… must not take any [of the respondent’s] material home overnight.

Any employee found to be in breach of this confidentiality obligation, whilst still employed by [the respondent] will be disciplined, and potentially, dismissed.’

[24] I find that the applicant was or ought reasonably to have been aware of her obligations under the respondent’s confidentiality policy, and the potential consequences of breaching those obligations. The applicant agreed during cross-examination that when she inducted new staff members, she advised them that they should not take any of the respondent’s material home overnight. 27 She also agreed that she was aware that confidentiality was critical to the respondent’s ability to maintain government contracts.28

[25] The respondent also has an information technology policy, 29 which relevantly states:

‘1. Policy Statement

... Compliance with this policy forms part of all staff members’ employment conditions with [the respondent].

3. E-Mail Usage

... Staff must be aware that… [a]ll e-mails sent to and from employers, job seekers, candidates etc must be retained indefinitely to protect everyone concerned.

Disciplinary action (including the termination of employment)… may be filed against employees found breaching the IT policy or related policies…’

[26] I find that the applicant was or ought reasonably to have been aware of her obligations under the respondent’s information technology policy, and the potential consequences of breaching those obligations. 30

Consideration

[27] It is not in dispute that the applicant is a person protected from unfair dismissal. 31 I am satisfied that she is so protected.

[28] Section 385 of the FW Act provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[29] Section 385(a) of the FW Act is satisfied. It is not in dispute that the applicant has been dismissed.

[30] Section 385(c) of the FW Act does not apply in this case, as the respondent is not a small business.

[31] Section 385(d) of the FW Act is satisfied. While the applicant raised issues relating to what she submitted was an impending redundancy, which I address below, neither party contended that redundancy was the reason the respondent actually dismissed the applicant on 24 November 2017.

[32] I must therefore consider whether the applicant’s dismissal was harsh, unjust or unreasonable. Section 387 of the FW Act provides:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.’

Valid reason: s.387(a)

[33] I find that the respondent had a valid reason to dismiss the applicant, because the applicant knowingly breached the respondent’s confidentiality and information technology policies, being on notice that such breaches could result in the termination of her employment. The potential consequences of the breaches are severe enough that the applicant’s actions may be characterised as serious misconduct.

[34] The applicant physically removed at least one document and notebooks containing job seekers’ personal information from the respondent’s premises. This was a breach of the respondent’s confidentiality policy. The contracts the respondent holds with the federal government to provide job placement services require this information to be held securely and in strict confidence. 32 The government audits the respondent’s premises from time to time to ensure this is so.33 I accept Ms Banton’s evidence that failing to maintain the confidentiality of such information, or being unable to produce it on request, could lead to the respondent losing its government contracts.34

[35] The applicant also deleted and directed her husband to delete emails and documents from the respondent’s computer system. So much is evident from the CCTV footage played during the hearing, though it is not possible to tell from that footage alone which documents and emails were deleted. However, the respondent separately tendered a confidential list of documents deleted from the applicant’s computer on 22 October 2017. 35 I accept that list is an accurate record. The list includes many documents that clearly relate to job seekers; their titles include the words ‘cover letter’, ‘client consent form’, ‘CV’ and ‘résumé’. Ms Banton and Mr Till also gave evidence about folders of documents and emails that the applicant deleted, including a folder entitled ‘Mental Health’,36 which contained forms referring people with mental health issues to the respondent. These included the people’s names and what types of mental health issues they had.37 It is evident from this that the documents deleted were not exclusively personal to the applicant as she had contended.

[36] The deletion of emails was a breach of the respondent’s information technology policy, 38 which states that ‘[a]ll e-mails sent to and from employers, job seekers, candidates etc must be retained indefinitely to protect everyone concerned’.39 Additionally, deleting these documents and emails would almost certainly have hampered the respondent’s ability to conduct a handover of the applicant’s responsibilities and to contact clients or job seekers. It could also have hampered the respondent’s ability to process claims to obtain government funding, or demonstrate to what use it had put that funding.40 I accept Mr Till’s evidence that the respondent does not audit or keep a log of which emails and documents employees have deleted, and therefore they would not have been recoverable via the respondent’s backup system indefinitely if Ms Banton had not alerted him that the applicant had deleted them.41 The fact that the documents and emails at issue in this case were ultimately recovered does not negate the severity of the applicant’s actions, nor make their deletion any less a breach of policy.

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[37] I am satisfied that the respondent notified the applicant of the reason for her dismissal and gave her ample opportunity to respond. In its letter of 1 November 2017, the respondent stated that it had concerns about what the applicant did while she was at its Redfern office on 22 October 2017. In its letter of 8 November 2017, it then set out in considerable detail what those concerns were, and invited her to respond. The applicant then responded via her solicitors on 10 November 2017. The applicant (via her solicitors) and the respondent (at times directly and at others via its solicitors) subsequently exchanged further letters relating to the events of 22 October 2017 up until her dismissal on 24 November 2017.

Unreasonable refusal of support person: s.387(d)

[38] I am satisfied that the applicant was not unreasonably denied a support person throughout the process that led to her dismissal. I note again that the applicant retained legal representation during the investigation process that ultimately led to her dismissal, and responded to the employer throughout that process via her solicitors.

Warnings about unsatisfactory performance: s.387(e)

[39] This criterion is not applicable to this application. The applicant was dismissed for misconduct, not poor performance.

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[40] The employer is a national business with a dedicated human resources manager, Ms Banton. I am satisfied that the employer’s investigative processes in the lead-up to the applicant’s dismissal demonstrate the level of expertise that could be expected of such an employer.

Other relevant matters: s.387(h)

[41] The applicant submitted that the respondent dismissed her for alleged serious misconduct to avoid having to pay her redundancy pay. She also submitted that the respondent failed to consult her in accordance with cl 8.1 of the Labour Market Assistance Industry Award 2010. 42

[42] The evidence does suggest there would likely have been a change that had significant effects on the applicant’s role with the respondent, had she accepted its proposal and not been dismissed prior for other reasons. But it also demonstrates that the respondent was still in the process of finalising that change as at 18 October 2017, and that it had undertaken to provide the applicant with more details of the change in writing at a later stage. It is plausible, therefore, that the respondent would have complied with the consultation requirements subsequent to the 18 October 2017 meeting. However, I do not need to make findings in relation to whether this was or would have been a genuine redundancy, as I am satisfied that the applicant’s own conduct in physically removing documents containing job seekers’ personal information from the respondent’s office and deleting documents and emails from its computer system pre-empted any change in her role and possible redundancy.

[43] I do not consider that there are any other relevant matters.

Conclusion

[44] Having taken into account all the criteria set out in s.387 of the FW Act, I find that the applicant’s dismissal was not unfair. I dismiss her application.

SENIOR DEPUTY PRESIDENT

Appearances:

C McArdle, solicitor, for Joan Obuchowski.

B Austin, counsel, for RNTT Pty Ltd T/A Jobs Statewide Employment Solutions.

Hearing details:

Sydney with video link to Adelaide.

2018.

April 23, 24.

May 2.

Printed by authority of the Commonwealth Government Printer

<PR607518>

 1   See, e.g. PN1088-PN1127.

 2   PN1120.

 3   PN1474-PN1490.

 4   PN2354-PN2357, PN2563-PN2565.

 5   PN1710-PN1728, PN1755-PN1802.

 6   Exhibit 4 [10]-[12], appendix 1; PN368-PN406.

 7   Exhibit 9 [7]-[8]; exhibit 13 [7]-[8]; PN2318-PN2333, PN2659-PN2683.

 8   PN2684, PN3185-PN3186.

 9   Exhibit 9 [9]; exhibit 13 [9]; PN2334-PN2340, PN2674-2681.

 10   PN852-PN1209.

 11   Exhibit 12 (confidential).

 12   Exhibit 11; PN2485-PN2562, PN2538-PN2541.

 13   Exhibit 15; PN2471-PN2477.

 14 Exhibit 4 [15].

 15   PN456-PN461, PN563-PN578.

 16   Exhibit 15.

 17   Exhibit 13 annexure JB-6; PN1210, PN2058-PN2062.

 18   PN489, PN1084, PN1085, PN1241.

 19   PN1138.

 20   PN1083-PN1147, PN1201-PN1207.

 21   PN551-PN578, PN923-PN929, PN1177-PN1190.

 22   Exhibit 13 [20.3].

 23   Ibid [20.2]; PN2857-PN2864.

 24   Exhibit 14, annexure JB-11.

 25 Ibid [2].

 26   Exhibit 14, annexure JB-16.

 27   PN1213-PN1214.

 28   PN728.

 29   Exhibit 14, annexures JB-12, JB-15.

 30   PN727.

 31   Fair Work Act 2009 (Cth) s.382.

 32   PN2068-PN2076.

 33   PN1838, PN2617-PN2618.

 34   PN2743-PN2750, PN3111-3112.

 35   Exhibit 12 (confidential).

 36   Exhibit 9, annexure JB-6.

 37   PN2271-PN2275.

 38   Exhibit 14, annexure JB-15.

 39   Ibid cl 3.

 40   PN2056, PN2601, PN3107.

 41   PN2559-PN2561, PN2596, PN2613-PN2615; see also PN2288 (Mr Sharpe).

 42   MA000099.