McInerney v South Australian Metropolitan Fire Service (No 2)
[2011] SADC 85
•9 June 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
MCINERNEY v SOUTH AUSTRALIAN METROPOLITAN FIRE SERVICE (NO 2)
[2011] SADC 85
Reasons for Decision of His Honour Judge Soulio
(Assessor Mr K Fischer and Assessor Mr S Thompson)
9 June 2011
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - GENERALLY
Appeal from determination of Disciplinary Committee established under Fire and Emergency Services Act 2005 (SA) - employee found to have used employer's equipment to view pornographic material and to have made false and misleading statements - whether Disciplinary Committee erred in terminating employment.
Held: Appeal dismissed.
Fire and Emergency Services Act 2005 (SA) s 49; District Court Act 1991 (SA) ss 42 and 47; Workers Rehabilitation and Compensation Act 1986 (SA) s 54; District Court Civil Rules 2006 (SA) rr 290 and 292 , referred to.
Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd & Anor (1976) 135 CLR 616; Henschke v Guardianship Board [1998] SADC D3850 (unreported, Lunn DCJ, 27 July 1998); In the Matter of Guardianship and Administration Act 1993 Re: N,A [2010] SADC 13 (unreported, Smith DCJ, 1 February 2010); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118; McInerney v South Australian Metropolitan Fire Service [2008] SADC 92 (unreported, Soulio DCJ, 22 July 2008); Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; Jones v Morley (1981) 29 SASR 57; Holman v Telstra Corporation Ltd (2006) 153 IR 445; Williams v Centrelink [2004] AIRC 48 (unreported, Commissioner Whelan, 15 January 2004); Capral Aluminium Ltd v SAE (1997) 75 IR 65; Vakauta v Kelly (1989) 167 CLR 568; Tavitian v Public & Environmental Health Council and City of Playford (2003) 231 LSJS 127; Ventura v Sustek (1976) 14 SASR 395; Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield [No 2] [2000] SASC 140 (unreported, Doyle CJ, Lander and Bleby JJ, 2 June 2000); Queensland Rail v Wake (2006) 156 IR 393; Rajagopalan v Medical Board of South Australia [1998] SASC 6667 (unreported, Cox, Mullighan and Williams JJ, 5 May 1998); Covino v Samuels [1976] SASC (unreported, Wells J, 17 February 1976); Hall v State of South Australia [2010] SASC 219 (unreported, Gray J, 22 July 2010); Livesey v The New South Wales Bar Association (1983) 151 CLR 288; Hot Holdings Pty Limited v Creasy & Ors (2002) 210 CLR 438; Webb and Hay v The Queen (1994) 181 CLR 41; Galea v Galea (1990) 19 NSWLR 263; McInerney v Chief Officer SA Metropolitan Fire Service (unreported, Muecke DCJ, 29 May 2009); Baker & Anor v Commissioner of Federal Police (2000) 104 FCR 359; Wickham v Commissioner of Police [1997] SASC S6497 (unreported, Olsson J, 23 December 1997) , considered.
MCINERNEY v SOUTH AUSTRALIAN METROPOLITAN FIRE SERVICE (NO 2)
[2011] SADC 85Introduction
The appellant was a firefighter employed by the South Australian Metropolitan Fire Services (‘the SAMFS’). The Chief Officer of the SAMFS referred two complaints of misconduct against the appellant, which fell to be investigated and determined by the SAMFS Disciplinary Committee (‘the Committee’). The first complaint related, in broad terms, to the use by the appellant of the SAMFS computer system to view pornographic and other explicit material. The second complaint related, in broad terms, to allegations that the appellant had made a false and misleading claim of harassment against the SAMFS, and a false and misleading statement in a claim for workers compensation. The Committee found both complaints proved, and determined, separately in relation to each complaint, that the appellant’s employment should be terminated. The appellant lodged an appeal against the decision of the Committee pursuant to s 49(1) of the Fire and Emergency Services Act 2005 (SA) (the ‘FES Act’).
Proceedings Before the Committee
The complaints were referred by the Chief Officer to the Committee and were dealt with pursuant to s 47 of the FES Act which provides:
47(1)The Disciplinary Committee will, on complaint made by the Chief Officer, investigate any alleged misconduct on the part of an officer or firefighter of SAMFS or, if an officer or firefighter has been convicted of an offence punishable by imprisonment, determine what penalty (if any) should be imposed on the officer or firefighter in relation to the conduct that comprised the offence.
(2)If the Committee finds that an officer or firefighter has been guilty of misconduct or has been convicted of an offence punishable by imprisonment, it may impose one or more of the following penalties:
(a) it may reprimand him or her;
(b) it may reduce him or her in rank for a period determined by the Committee;
(c) it may suspend him or her from office with, or without, pay;
(d) it may dismiss him or her.
The Committee is an administrative tribunal and is not bound by the rules of evidence, nor by the requirement to observe the technicalities of legal forms. It must, however, accord an employee procedural fairness. Proceedings are not in the nature of criminal proceedings, and the criminal standard of proof does not apply.[1]
[1] Rajagopalan v Medical Board of South Australia [1998] SASC 6667 (unreported, Cox, Mullighan and Williams JJ, 5 May 1998).
The Committee is, in part, investigatory, and the Committee is not restricted, in its consideration of a complaint, by reference only to the evidence put before it by either the Chief Officer, or the employee the subject of the complaint. The Committee is entitled to conduct its own inquiries, subject to exercising procedural fairness.
The Committee investigated the two complaints in detail, received numerous documents and statements of witnesses, and ultimately delivered detailed reasons totalling some 130 pages. The appellant had legal representation at the disciplinary hearing. He gave evidence, and both written and oral submissions were made on his behalf. The hearing took place over a number of days over a relatively protracted period while technical evidence was obtained, opportunities were provided to respond to certain allegations, and the like.
The Committee found both complaints proved. It then exercised its power to impose a penalty pursuant to s 47(2) of the FES Act, separately in relation to each complaint, and, in respect of each complaint, determined that the appellant should be dismissed from his employment pursuant to s 47(2)(d) of the FES Act.
The Appeal
The appeal was lodged pursuant to s 49(1) of the FES Act. At the time such an appeal lay to the District Court in its Administrative and Disciplinary Division.[2]
[2] Section 42B District Court Act 1991 (SA). Such an appeal now lies to the Industrial Court.
Section 42E of the District Court Act 1991 (SA) (the ‘DC Act’) provides:
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
This Court, may, on appeal, affirm the decision appealed against; rescind the decision and substitute a decision that the Court considers appropriate; or remit matters to the original decision maker for further consideration, or further consideration in accordance with any directions or recommendation of the Court.[3]
[3] Section 42F District Court Act 1991 (SA).
The appeal is in the nature of a re-hearing[4] whereby the Court is to determine whether the decision appealed against is correct at the time of the appeal, bearing in mind the evidence before the Committee, and any further evidence properly placed before this Court, as well as with any relevant evidence of what has occurred since the original decision.[5] It is not in the nature of a hearing de novo where the matter is determined by this Court unfettered by the proceedings and determination of the decision maker at first instance.
[4] In Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd & Anor (1976) 135 CLR 616 at [622] Mason J referred to the phrase “by way of re-hearing” as a “Delphic utterance” that did not shed much light on the question of Parliament’s intention as to the nature of the appeal.
[5] See Henschke v Guardianship Board [1998] SADC D3850 (unreported, Lunn DCJ, 27 July 1998. District Court Civil Rules 2006 r 290 and r 292 do not change the position – see In the Matter of Guardianship and Administration Act 1993 Re: N, A [2010] SADC 13 (unreported, Smith DCJ, 1 February 2010).
In reviewing the decision of the Committee on appeal, it is necessary to bear in mind that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision maker. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way the reasons are expressed.[6] The reasons of the Committee must be read reasonably and naturally, and not as if they were formal conveyancing documents.[7]
[6] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at [272].
[7] See Jones v Morley (1981) 29 SASR 57, referring to reasons delivered by a court of summary jurisdiction, and citing Covino v Samuels [1976] SASC (unreported, Wells J, 17 February 1976).
The requirement placed upon this Court to give due weight to the decision under appeal means that the Court should be slow to depart from the decision, or to remit the matter for consideration or further consideration, if the original decision is one that was within the reasonable range of responses available to the decision maker, even if this Court might have made a different decision. Such a departure should not be made except for cogent reasons.
The principles generally applicable to appellate courts are relevant in deciding whether there is a cogent reason to interfere. In the context of this appeal, if the Committee failed to take into account a material consideration; or if it arrived at a finding that had no evidence to support it; or if it drew an inference which did not reasonably arise from proven facts; then the decision of the Committee would be reviewable by this Court.[8] If, having regard to the material before the original decision maker, and such other material as may be admitted in evidence on the appeal, the findings and conclusions of the original decision maker were reasonably open, there would be no cogent reason to depart from the decision.
[8] See State Rail Authority of New South Wales v Earthline ConstructionsPty Ltd (in Liq) (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118.
The appellant’s amended notice of appeal refers to the appeal as being against ‘the decision’ of the Committee. The Committee in fact made two decisions, each of which must be considered separately on appeal. Should this Court find that there is a cogent reason to depart from the Committee’s decision in relation to the first complaint, it does not necessarily follow that there is a cogent reason to depart from the Committee’s decision in relation to the second complaint.
History
The decisions of the Committee were delivered, and the notice of appeal lodged in August 2007. The appellant lodged amended grounds of appeal in January 2008 and the respondent filed its answer in February 2008. Following further preliminary hearings, the appeal was first listed for hearing on 27 June 2008. The appellant asserted that one of the assessors appointed to hear the matter had apparently made a potentially adverse comment about the matter, and the appellant made an application that the assessor disqualify himself on the grounds of bias. There were no other assessors available. The parties requested that a preliminary point as to the jurisdiction of the Committee proceed pursuant to s 20(4)(ab)(i)(A) of the DC Act, without assessors. Judgment was delivered on 22 July 2008 dismissing the appeal insofar as it related to lack of jurisdiction.[9]
[9] McInerney v South Australia Metropolitan Fire Service [2008] SADC 92 (unreported, Soulio DCJ, 22 July 2008).
On 29 July 2008 the appeal was relisted for a seven day hearing to commence on 17 November 2008 before Judge Trenorden (sitting with assessors). On 1 October 2008 the appellant issued a subpoena to be served on the respondent. The respondent applied to set aside the subpoena and on 31 October 2008 the Master ordered that the subpoena be set aside, and delivered reasons. On 7 November 2008 the appellant lodged an appeal against the Master’s decision and successfully applied to vacate the hearing date, over opposition from the respondent. That appeal was heard by Judge Muecke on 11 February 2009 and dismissed on 29 May 2009.[10]
[10] McInerney v Chief Officer SA Metropolitan Fire Service (unreported, Muecke DCJ, 29 May 2009).
The appeal was then listed for hearing to commence on 22 March 2010 before Judge Davey (sitting with assessors) who determined that the appeal should be heard before the judge who had determined the preliminary issue. The appeal hearing proceeded in April 2010.
Further Evidence on Appeal
During preliminary hearings in this matter the appellant foreshadowed an application to call further evidence on the appeal. The appellant was ordered to file particulars of the documents proposed to be tendered, the witnesses proposed to be called, and the basis of the application in each case, the detail of which is referred to below.
The Court has a discretion, pursuant to s 42E(1) of the DC Act, to allow further evidence to be presented on appeal. Such evidence should not be received to allow the applicant to argue a case of a different nature than that conducted before the Tribunal, nor, generally speaking, where the appellant had an opportunity to present that evidence to the Committee but declined to do so.
Notwithstanding the discretion to allow further evidence or material to be presented, and that the Court is not bound by “legal forms”, in order for this Court to receive fresh evidence, there must be some compelling reason for doing so, in accordance with the established principles for admitting fresh evidence on appeal.[11]
[11] Tavitian v Public & Environmental Health Council and City of Playford (2003) 231 LSJS 127 at [131].
In Ventura v Sustek[12] Bray CJ said:
The principles on which an appellate court in a civil case will act in deciding whether it will allow the calling of fresh evidence before that court were exhaustively explored by the Court in Orchard v Orchard. … In that case this Court considered the rules laid down by Denning L.J., as he then was, in Ladd v Marshall in the following words:
"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible though it need not be incontrovertible." (citations omitted)
[12] Ventura v Sustek (1976) 14 SASR 395 at [399].
As the Court further observed in Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield [No2]:[13]
Whilst there is clearly a discretion to admit the fresh evidence, as the Court said in Chakravarti, there is a public interest in the finality of litigation. Particularly in litigation such as this, the Court should not allow a party to patch up its case as it wends its way through the judicial system. Collex has offered no explanation why the complete picture of its proposal was not presented in evidence before Debelle J or put to Mr Gray for his comment. It is inappropriate to allow further evidence of that nature to be introduced at the appeal stage by a party whose diligence and proper application could have made it available at the trial.[14]
[13] Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield [No 2] [2000] SASC 140 (unreported, Doyle CJ, Lander and Bleby JJ, 2 June 2000).
[14] The Court cited with approval the decisions in Ladd v Marshall [1954] 1 WLR 1489 at 1491; Orchard v Orchard (1972) 3 SASR 89; Ventura v Sustek (1976) 14 SASR 395 at [399], [406].
In addition to seeking to call the appellant to give evidence generally, for which there was no basis, the appellant sought to lead fresh evidence on the appeal in relation to matters which fell into a number of broad categories.[15]
[15] Ultimately this Court ruled on the application insofar as it related to documentary evidence and determined that it would, if required, rule on the application to call oral evidence from the witnesses identified by counsel for the appellant after completion of general submissions.
The first category concerned evidence as to an alleged culture of misconduct within the SAMFS. The appellant sought to lead oral evidence from W and V, employees of the SAMFS also subject to disciplinary proceedings regarding inappropriate computer use; oral evidence from a Mr Eckerman in relation to the alleged culture; and to tender monthly computer usage reports. Before the Committee the appellant had refused to answer questions concerning the existence of any such culture, and did not seek to lead evidence as to the existence of such a culture.
An email from Mr Eckerman dated 10 November 2008 was received into evidence. That email stated that many firefighters were accessing inappropriate non-work related sites “even XXX sites”, and exhorted that the SAMFS provide a reminder to employees about “policy 43 re internet usage.” We refuse the application to call W and V, and Mr Eckerman.
The second category related to evidence supporting the contention that the Committee had treated the appellant inconsistently with other employees, that is, that the penalty imposed upon him was not on par with that imposed upon other employees. Such submissions were made to the Committee. The Committee concluded that the proceedings relating to other employees were not comparable with those relating to the appellant. Further, the appellant was provided with an opportunity to respond to a proposition put to him in those terms by the Committee, and did so.
Ultimately we admitted into evidence the Committee’s Reasons relating to the two other employees, W and V, annexed to which were printouts of the material they had accessed, and their respective letters of apology.
The third category of fresh evidence related to training and implementation of policies. The appellant sought to lead oral evidence from a Mr Leach as to workplace culture, and training and service directives. The appellant argued before the Committee that he required further training in the use of computer resources, and in particular in relation to the issue of dealing with unsolicited emails containing offensive material. Nevertheless, he conceded before the Committee, that it was self evident that his employer’s computer should not be used for non-work related purposes. The appellant could have called additional evidence before the Committee in relation to this issue, but did not do so. No reason was proffered on the appeal for such failure.
The Committee dealt with this issue in its reasons, and did so properly.[16] The Committee found that no further training was necessary for the appellant to have an understanding that the private use of the computer systems to access sexually explicit material was not authorised.[17] We refuse the application to call Mr Leach.
[16] Committee’s Reasons pp 79-82.
[17] Committee’s Reasons p 81.
The fourth category of fresh evidence related to supplementary technical evidence. Mr Manton, who provided a report to the Committee in relation to technical issues, was not challenged on his report before the Committee and no request was made to cross-examine him. Further, no submissions were made in relation to whether his evidence could be relied upon. Indeed the appellant’s counsel conceded that the appellant did not require the Committee to make any further inquiries of Mr Manton despite the Committee expressly raising the issue that Mr Manton’s evidence appeared to contradict denials made by the appellant.
The Committee gave the appellant an opportunity to provide instructions on that issue. The submission in response was only to the effect that Mr Manton’s report was inconsistent with the appellant’s evidence as to the manner of access to inappropriate material. No submission was made on the areas where the evidence of Mr Manton differed from that of the appellant. There is consequently no basis for the appellant’s subsequent contention that Mr Manton should have been presented for cross-examination before the Committee. There is also no basis for Mr Manton to be cross-examined on appeal.
However, an affidavit of Mr Manton sworn 5 August 2009 was received. The effect of that is to clarify the information originally provided to the Committee. The evidence in the supplementary affidavit does not assist the appellant.
The final category of fresh evidence which the appellant sought to admit related to the second complaint, namely medical evidence and workers compensation documents. The appellant sought to call or tender evidence from Dr Ch’ng, the appellant’s general practitioner; various documents relating to the appellant’s workers compensation claim; a report from Dr Cosoff, who examined the appellant on behalf of the respondent; and the letter of instruction to Dr Cosoff from the respondent; and oral evidence from Dr Clarke, the appellant’s treating psychiatrist.
The appellant had submitted psychiatric evidence to the Committee. Also received on the appeal were a letter of instruction to Dr Cosoff, who provided a report used at the hearing before the Committee, and a report dated 4 November 2008 from Dr Clarke, who had provided a report used at the earlier hearing. The balance of the application to tender the balance of the additional documents was refused, and we refuse the application to call Dr Clarke.
First Complaint - Misuse of Equipment
The Allegation
The appellant was alleged to have engaged in misconduct, namely misuse of SAMFS computer equipment, in breach of paragraph (i) of Schedule 2 of the FES Act, that is, the Code of Conduct. The initial particularisation of the misconduct was that the appellant had stored pornographic material in his personal computer profile on the SAMFS computer system. It was further alleged that the conduct was a breach of SAMFS policy 43 “internet and electronic mail” which provides that the use of computer equipment is not authorised except for work-related purposes; and of SAMFS policy 11 “information technology security”.
Proceedings Before the Committee
At the commencement of the hearing the Committee notified the appellant that the gravamen of the allegation was that he had used a SAMFS computer for unauthorised purposes, regardless of whether the images could be described as “pornographic”, and regardless of whether he had “stored” the images. In its reasons, the Committee said that there was good reason for abandoning the description of the images as “pornographic” as, whilst many of the images might be described as pornographic, some images might be more appropriately described as grossly indecent or depraved images, some might be described as child pornography, and some images depicted mutilated or dismembered human beings or parts of their dismembered bodies.[18]
[18] Committee’s Reasons p 11.
The Committee initially also considered an allegation that the appellant had breached the Code of Conduct under Part 2, Section 6 of the Public Sector Management Act 1995 (SA) (the ‘PSM Act’) in that he had produced cannabis at his place of residence, obstructed police, and made comments of a threatening nature to police who were searching his premises. The appellant had pleaded guilty in the Port Adelaide Magistrates Court to a charge of production of cannabis and was fined without a conviction being recorded. No charges were proceeded with in relation to his conduct towards police. Ultimately the Committee determined that the PSM Act and Code of Conduct did not apply to the appellant at the relevant time, and withdrew the complaint in relation to cultivation of cannabis and misconduct towards police. Reference was made to those matters however, in the course of the hearing, and in the Committee’s reasons in relation to the question of the appellant’s character, to which reference is made below.
Ultimately the Committee concluded that the appellant was responsible for images appearing on the SAMFS computer system in the temporary file folder, and in a directory and sub directories.[19] The Committee found that there were 126 images in the temporary file folder that were attachments to emails sent to or from the appellant, of which only seven could be considered work-related. In the directory and sub directories the Committee found that there were no less than 332 images, of which three were work-related, 32 might have been work-related, 23 were unintentionally downloaded advertising images incidental to viewing web pages, and 247 files could not be regarded as work-related, given the nature of the images. Of the 247 files, the Committee found that 70 per cent were sexually explicit, 22 per cent were of dismembered dead bodies and body parts, and three per cent were images “in relation to child sexual connotations, drug use, [and] animal sexual connotations.”[20]
[19] Temporary file folder named OLK55, and directory named CONTENTS IE5.
[20] Committee’s Reasons pp 52 and 53.
After considering the nature of the misconduct, and the appellant’s conduct during the course of the hearing, the Committee concluded that the misconduct was proved. In considering penalty the Committee said:
To use the equipment merely for personal sexually salacious entertainment is inconsistent with the importance of the equipment to SAMFS. To access such files and web pages, in particular pornography sites and pornographic files, exposes the organisation and its computer systems to a well known and unacceptable risk of loss, damage or possible catastrophic dysfunction.
To use the computer systems in this way for mere personal pleasure and prurient sexual interest is serious misconduct and must have serious consequences. There is a need to incorporate in this penalty a function of general deterrence of conduct of this kind.[21]
[21] Committee’s Reasons p 88.
The Committee took into account that the conduct took place over an extended period, that the appellant had made false denials in relation to his responsibility for many of the files, and that he consistently understated his misconduct. The Committee formed the view that the appellant was not genuinely remorseful.
The Committee took into account, in the context of a submission by counsel for the appellant, that the appellant was of “good character”; that the appellant had pleaded guilty to a charge of production of cannabis which was grown in an underground room using a hydroponic system; that he failed to co-operate with police and was “belligerent and unco-operative throughout their investigation”; that he told police he would not be interested in preserving evidence at fire scenes, and that if he found police in a burning building in future he would look the other way; and the presence of degrading, gruesome and sexually explicit images on his personal computer profile, as being relevant to his claim that he was a person of good character.
The Committee found that without proper cause or authorisation, the appellant used property belonging to the SAMFS between about 13 August 2003 and 1 October 2005, contrary to paragraph (i) of Schedule 2 of the South Australia Metropolitan Fire Services Act 1936 (SA) as it applied prior to 1 October 2005, and between 1 October 2005 and 15 November 2005, contrary to paragraph (i) of the Second Schedule of the FES Act 2005, and was also in breach of policy 43.
The Committee determined that the appropriate penalty for that misconduct was dismissal from the service.
Grounds of Appeal
Overview
The grounds set out in the amended notice of appeal, in summary, include a number of criticisms of the Committee in making erroneous findings, and assertions that there was a lack of procedural fairness. The grounds are to some extent repetitious. The appellant contended that the Committee erred in refusing to allow the appellant an adjournment when requested; erred in taking into account irrelevant, erroneous and prejudicial material; erred in not making all necessary investigations; erred in delaying the hearing; erred in not considering a penalty other than termination of employment, and was biased against the appellant.
The transcript of the hearing before the Committee, together with the images, and other annexures, were before this Court. Some of the images found to be non-work related were uncontroversial. Others might perhaps be regarded as novelties. However, other images portrayed severely mutilated corpses and body parts, pornographic images of naked men and women, pornographic images of persons being sexually penetrated by objects, images of what might be described as sexual fetishes, and images portraying forms of torture. After viewing the images, the Committee said:
As we have said before, some of these images were vile and degrading, some might be described as child pornography. It is incomprehensible that an employee would not know that this conduct was unacceptable.[22]
[22] Committee’s Reasons p 83.
The general characterisation made by the Committee is not inaccurate.
Although there may appear to be some tension in the approach taken by the Committee in focusing on the issue of non-work related use of the computers rather than the precise nature of the use, on one hand, and then proceeding to a detailed analysis of the nature of the non-work related use on the other, ultimately the latter inquiry was relevant in establishing that the use could not conceivably be work-related, and later, in considering the seriousness of the breach for the purpose of determining penalty.
As Gray J observed in Hall v South Australia, the conduct of a public service employee who had been dismissed for accessing pornography on his employer’s computer was not only personal, but private, and that sexual gratification through use of pornography is a very private matter,[23] and therefore not work-related.
[23] Hall v Sate of South Australia [2010] SASC 219 (unreported, Gray J, 22 July 2010) at [39].
Gray J went on to say:
The public sector holds itself out to be a model employer. The alleged conduct carries with it the potential to produce dangers in the workplace, including sexual harassment. The conduct was serious conduct affecting employment, with the possibility of attracting criminal sanctions depending on the age of the participants in the pornography. The alleged conduct was sustained over a significant period of time. If established, the conduct is grounds for dismissal.[24]
Adjournment
[24] Ibid at [40].
The appellant contended that the Committee erred in refusing to allow adjournments when requested, resulting in prejudice to the appellant. (Ground 7)
The appellant was unable to point to any particular refusal to allow an adjournment, which resulted in prejudice to the appellant. An example to the contrary involved the appellant’s counsel foreshadowing an application to make a submission as to whether or not the appellant was subject to the code of conduct under the Public Sector Management Act 1955 (SA). The appellant was advised that he would be granted an adjournment if required. He declined. Ultimately this ground was not actively pursued upon the appeal.
Delay
The appellant complained that the Committee erred in delaying the hearing (Grounds 13 and 14). The appellant remained employed, and paid, during the course of the inquiry. No submission was made specifying the manner in which any delay may have adversely affected the interests of the appellant. The appellant did not make any complaint before the Committee as to concerns regarding delay in the completion of the investigation, and a reading of the Committee’s Reasons does not disclose an error in the Committee’s approach.
As a matter of general principle in the industrial jurisdiction, where an employer asserts misconduct by an employee which warrants disciplinary dismissal, the employer is bound to exercise the right of dismissal within a reasonable time after the offending conduct has come to notice.[25]
[25] Wickham v Commissioner of Police [1997] SASC S6497 (unreported, Olsson J, 23 December 1997) at p 6).
At the first hearing date before the Committee the appellant denied that he had accessed most of the 19 images which were initially shown to him. A fresh hearing date was fixed for 6 June 2006 to, amongst other things, meet the appellant’s convenience. He did not attend and a request for an adjournment was conveyed to the Committee. The Committee adjourned to 15 June 2006 when a further adjournment was requested. Given the absence of a global admission by the appellant as to the accessing of images, and the protracted process which would be involved if the appellant viewed each image during the hearing, the Committee offered to forward the images to the appellant’s solicitor for viewing and comment by the appellant, but that proposal was not accepted. The appellant terminated his solicitor’s instructions prior to the following scheduled hearing, and then reinstructed the same solicitor, but so proximate to the adjourned hearing date as to require a further adjournment. Further time was expended given the necessity to obtain technical evidence, again due, at least in part, to the lack of global admission by the appellant; and to provide him with an opportunity to respond to that evidence.
Having regard to the nature of the allegations, and the investigation required, together with the appellant’s own contribution to protracting the proceedings, the delay in finalising the proceedings before the Committee was not unreasonable.
Bias
The appellant contended that the Committee’s conduct of the proceedings, and its reasons, demonstrate bias against the appellant, that it erred in relying on factually incorrect matters which again demonstrated bias and an absence of procedural fairness, and erred in making comments such that a fair minded observer of the hearing would reasonably apprehend that the Committee might not bring an impartial and unprejudiced mind to bear on the resolution of the question as to whether the appellant should retain his employment. (Grounds 12, 48 and 50)
A judicial officer would be disqualified by virtue of the appearance of bias if, in all the circumstances, a fair-minded lay observer, with knowledge of the material objective facts, might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the question to be tried.[26]
[26] Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at [293-4].
The test for reasonable apprehension of bias is the same for administrative and judicial decision makers.[27] The standard required of the fair-minded observer may vary according to the nature of the function being discharged by the decision maker in question and the particular circumstances.[28] The fair-minded observer would also be taken to know things such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers.[29]
[27] Hot Holdings Pty Limited v Creasy & Ors (2002) 210 CLR 438 at [460].
[28] Webb and Hay v The Queen (1994) 181 CLR 41 at [53].
[29] Galea v Galea (1990) 19 NSWLR 263 at [282].
The conduct of the proceedings, and the findings of the Committee were, for reasons articulated elsewhere in this decision, justified having regard to the circumstances, and to the evidence. Having regard to the established principles, there is no proper basis for finding that there was apprehended or actual bias on the part of either the Committee or any of its individual members. In any event, the appellant’s counsel took no objection before the Committee as to the constitution of the Committee, nor as to its procedures during the course of the hearing. The appellant cannot therefore, on this appeal, complain of apprehended or actual bias.[30]
Failure to Provide Information
[30] Vakauta v Kelly (1989) 167 CLR 568 at [586-8].
The appellant contended that the Committee failed to provide information as to the dates of his alleged access to computers, and so was unable to provide a proper response to the allegations and unable to obtain a fair hearing. (Ground 18)
In fact, by letter dated 6 September 2006 the appellant’s solicitors were advised that the Committee was still engaged in the process of investigating the technical aspects of the appellant’s alleged misuse of computers, and that the Committee considered, as a matter of procedural fairness, the appellant should view the relevant images and be invited to make comment as to the allegation that he was both responsible for the access, and that such access was not for a work-related purpose.
The Committee agreed to provide the appellant’s solicitor with an electronic copy of the relevant files, subject to a number of conditions, including requiring a response from the appellant as to whether he was responsible for accessing the images using SAMFS computer equipment, whether the access was for a work-related purpose, and if not responsible, whether he had any comment as to how the images came to be recorded on the computer system as having been accessed by a person using his user code and password. The Committee’s proposal, it was suggested, would avoid the need to have the appellant appear before the Tribunal, view each file, and make comment, a process which had been complained about by the appellant’s solicitors.
In any event, the relevant dates of access were provided to the appellant, by the Committee, under cover of letter dated 16 October 2006 and were set out in documents which the Committee advised it proposed to take into account at the hearing. During the hearing before the Committee the dates referred to were not challenged by the appellant.
Combined Inquiry
The appellant complained that the Committee erred in combining an inquiry into two different complaints, in that it was prejudicial, an abuse of process, and lacked procedural fairness. (Ground 51). The submission put upon appeal was that had a separate inquiry been announced the appellant would have had the opportunity to request that the second complaint be dealt with by a separately constituted Committee, the present Committee having already intimated a refusal to believe the appellant.
It is not apparent, upon reading the reasons of the Committee, that the two complaints were combined into a single inquiry in any event. The appellant did not contend, during the hearing, that he was prejudiced by the manner in which the Committee proceeded, nor that the procedure adopted by the Committee amounted to an abuse of process. The appellant was not prejudiced in any event, the Committee having delivered separate reasons in respect of the two complaints, and having imposed separate penalties. The appellant was legally represented, and once the Committee embarked upon the investigation into the second complaint, the issue of any asserted bias could have been raised.
Manton’s Evidence
The appellant complained that the Committee erred in that it proceeded with the hearing prior to obtaining advice from an information technology specialist; proceeded on preliminary advice which was limited and tainted the Committee’s view as to the appellant’s explanations; erred in proceeding without ensuring that the Committee had complete unaltered computer records; and erred by receiving such evidence in private in circumstances where it could not be tested at the hearing. (Grounds 26 and 27)
As observed earlier, the Committee was entitled to conduct its own investigations. The statement of Mr Manton was provided to the appellant’s solicitors. No submission was made by the appellant’s counsel that Mr Manton’s evidence should not be accepted and relied upon by the Committee, and, despite the Committee pointing out areas in which the Committee took the view that Mr Manton’s evidence differed from that of the appellant, counsel for the appellant did not seek to challenge Mr Manton’s evidence. We do not consider that the course taken by the Committee discloses any prejudice to the appellant, or error in approach.
The Police Matters
The appellant complained that he was not given an opportunity to address matters relied upon by the Committee, namely the police matters referred to earlier. (Ground 47)
The appellant had made a submission to the Committee that he was a person of good character. He was given notice, by letter of 15 November 2006 to his solicitors, that the Committee proposed to take the police matters into account when assessing his assertion that he was a person of good character. Submissions were made by the appellant’s counsel in relation to the police matters. Further submissions were made by letter dated 15 February 2007 from the appellant’s solicitor to the Committee. The appellant’s contention is without substance.
Culture of Misconduct
The appellant contended that the Committee failed to consider that there was a culture of misconduct within the SAMFS, such that accessing material of the kind accessed by the appellant was acceptable conduct in the workplace. (Grounds 22, 24, 32-35 and 38)
The Committee found that the appellant’s assertion that he was not aware that his behaviour in accessing such material was “unacceptable behaviour”, and that he was working in a culture that would accept such conduct, was unfounded.
The Committee concluded:
The Committee members (other than the presiding officer) can call upon their own personal knowledge of attitudes within the fire service. We did not accept that there was such a culture. The Committee considers that the employee had no reasonable grounds for believing any right-minded member of the fire service would consider that this was an acceptable use of SAMFS computers.
…
The plain fact of the matter is that the viewing of sexually explicit images was unequivocally non-work related and was conducted to satisfy the employee’s own salacious, voyeuristic, sexual interests. The right-minded fire service employee would deprecate such activity in work hours and the use of SAMFS equipment to satiate such interest. The employee had no reasonable grounds for thinking otherwise.[31]
[31] Committee’s Reasons p 83.
As was submitted by the respondent, the appellant was legally represented before the Committee and it was open for him to call evidence to substantiate his assertion that such a culture existed. No such evidence was called. The appellant was invited to substantiate the assertion by naming individuals participating in such conduct, but refused to do so. Indeed, the appellant conceded that he had received a warning from his employer against logging onto internet sites such as a site which appeared to be the source of at least some of the gruesome images to which we have previously referred. The provision of such a warning is inconsistent with a tolerance of a culture of misconduct, and given that warning, the appellant knew, or at least ought to have appreciated, that the use of the employer’s equipment to view material of the kind available on sites such as was not authorised by the employer.
Even if the appellant had been able to demonstrate that there was a general culture of using the SAMFS computers for non-work related purposes, and that such use was tolerated by the SAMFS, the images accessed or viewed by the appellant were such that his conduct would not have been tolerated in any event.[32]
[32] See Williams v Centrelink [2004] AIRC 48 (unreported, Commissioner Whelan, 15 January 2004); and see McInerney v Chief Officer SA Metropolitan Fire Service (unreported, Muecke DCJ, 29 May 2009) at [27].
The further evidence admitted on appeal, namely the email from Mr Eckerman, does not assist the appellant. It was written well after the hearing before the Committee. It is not evidence of acceptance of misconduct, but rather, of action to be taken against such misconduct.
The Committee was entitled to find that the appellant had no reasonable grounds for believing any right-minded member of the Fire Service would consider that his use was an acceptable use of SAMFS computers, and further, was entitled to take into account the nature of the images in dismissing the appellant’s contention that his conduct was tolerated within a culture of misconduct.
Technical Evidence and Findings
The appellant contended that the Committee had erred in misunderstanding the operation of computers including internet and email access, storage, retrieval and downloading of images, and that expert evidence should be called in relation to those issues. (Ground 20)
Counsel for the appellant was broadly critical of the way in which the Committee had obtained, and then interpreted, technical evidence as to the use of the computer system by the appellant. Whilst the appellant conceded that the technical information ultimately relied on was provided by the Committee to the appellant’s representatives, and an opportunity afforded to make submissions on that information, the appellant contended on appeal that the Committee failed to distinguish between processes whereby the system automatically stored images once accessed, and where the appellant actively took steps to store images in his own file. Further, the appellant contended that insufficient weight was placed on the lack of evidence that the appellant had distributed the images.
The appellant conceded that he had engaged in the use of his employer’s computers to access a particular website containing at least gruesome images, ( and to access links contained, he said, in emails sent to him by others. He sought to draw a distinction between that conduct, and conduct involving actively searching for pornographic or other inappropriate material.
In the grounds of appeal the appellant conceded, although under the rubric of a complaint about delay in the hearing, that inquiries were made of an information technology technician, and information was provided to the appellant. The appellant was given an opportunity to challenge the technical evidence before the Committee but did not do so. Nor, as has been said, did he seek to have the Committee’s technical advisor called for cross-examination before the Committee, nor to otherwise challenge that evidence.
In any event, the reasons of the Committee do not suggest that the Committee failed to appreciate a distinction between the two types of conduct. The Committee’s findings as to the use by the appellant of a web browser to access images, whether initially by accessing a link sent by email, or by direct searching, was justified on the evidence.[33] As the Committee found:
It is plain from an analysis of the dates and times of viewing of images in the web browser that the employee used the web for significant periods of time whilst at work and over a protracted period of years.[34]
[33] Committee’s Reasons p 79.
[34] Committee’s Reasons p 71.
It has not been demonstrated on appeal that the Committee in fact did fall into error in its analysis of the evidence, and even if a distinction is to be drawn between images stored as a result of direct web-searching as opposed to accessing sites by clicking on emailed links to pornographic or other inappropriate sites, that does not vitiate the Committee’s findings, nor its conclusion.
Appellant’s Knowledge of Computer Systems
The appellant complained that the Committee erred in finding that he had a greater understanding of computer workings than he had stated, in the absence of any evidence to that effect, and in drawing inferences prejudicial to the appellant as a result. (Ground 25)
The Committee rejected the appellant’s assertion that he had very limited knowledge and experience in relation to computers. It did so, at least in part, on the basis of the appellant’s evidence before the Committee concerning receipt of emails, his use of email attachments and of the internet, his familiarity with search engines and his understanding of links. In any event, as was submitted by the respondent, the extent of the appellant’s knowledge of computer systems was not necessarily a crucial issue in determining whether the appellant was acting inappropriately.
Appellant’s Use of Computer Systems
The appellant complained that the Committee erred in proceeding on an incorrect factual basis as to the extent of the appellant’s use of the computer and email links to access images. (Ground 21)
The Committee was entitled to make its findings as to the extent of the appellant’s use of the computer system for inappropriate purposes based on the evidence of Mr Manton. The appellant admitted responsibility for the presence of the images on the system in some cases, and yet denied responsibility in others. He conceded that no other person could have accessed the computer using his user profile and password. Further, the Committee was entitled to find on the basis of Mr Manton’s statement, that the appellant had used the SAMFS computer system to access websites by clicking on links which had been emailed to him. The appellant conceded as much during the hearing before the Committee. Further, the Committee was entitled to find that the appellant had accessed the internet for significant periods of time. One example referred to in the Committee’s Reasons was access for a period of three quarters of an hour to view gruesome images of dead bodies, severely injured bodies, pornography, and images of what might be described as sexual fetishes.
Appellant’s Responsibility for Storage of Images
The appellant complained that the Committee erred by proceeding on an incorrect factual basis in that it failed to differentiate between an actual responsibility for images on the SAMFS computer system, and the appellant’s understanding and/or knowledge as to that responsibility. The appellant further complained that the Committee erred in failing to take into account that there was no evidence the appellant had distributed images or stored images in his own file. (Grounds 15 and 28)
The Committee found that the appellant had misused the computer equipment. That finding was supported by its findings of fact, properly made, that the images had been viewed by the appellant using SAMFS equipment whether by means of internet access to a site or sites, or by opening emails containing images, or by accessing sites using emailed links. The presence of the images on the SAMFS system was as a result of the appellant’s use of the equipment. In response to questions from the Committee, the appellant conceded responsibility, at least in relation to certain categories of images, for the storage of images accessed under his user name, whether by virtue of an automatic process of the system or otherwise.
The issue was the use of SAMFS computer equipment to access or view such images. The appellant did not make a submission to the Committee that he was not to be held responsible for the presence of the images on the computer system by virtue of the fact that the computer system automatically stored images viewed by the user without his knowledge. It was therefore not necessary for the Committee to draw a distinction between the appellant’s responsibility for images on the computer system, and his understanding or knowledge as to that responsibility.
Having regard to the nature and quantity of the images viewed by the appellant on the SAMFS computer system, the Committee was entitled to proceed to determine the issues without having regard to whether the appellant had distributed the images, or had intended to store or save the images.
Period of Conduct
The appellant complained that the Committee erred in finding that the appellant’s conduct occurred over a protracted period, and that he was accessing sexually explicit images between 13 August 2003 and 6 May 2005 on a regular basis. (Grounds 29 and 30)
The Committee found:
The employee’s use was extensive and systematic and occurred over a protracted period of time. His use occurred during work hours. He well knew that the computers were not provided for his personal salacious viewing of images. He is (a) long term employee of SAMFS and would have known the attitude of his employer to such conduct.[35]
[35] Committee’s Reasons p 81.
Mr Manton’s evidence supports the finding as to the pattern of usage. The Committee proceeded on the basis that information as to the date images were created, and the date images were modified, could be used to indicate dates upon which the images were viewed by the appellant. That approach was not challenged by the appellant, and was appropriate on the evidence.
False Denials
The appellant complained that the Committee erred in finding that he made false denials, and that his explanations at hearings were inconsistent. (Grounds 16 and 17)
The principal submission put by the appellant was that at an early stage the appellant was prepared to concede improper use of SAMFS computer equipment, and from that point the Committee should not have embarked upon an analysis as to the nature, or the extent, of such improper use.
At the outset of the investigation, the appellant denied having viewed many of the images that were stored under his user profile, denied having used the computer system to view images of a sexual nature, and denied having used the computer for the purpose of internet access except for an admission of prior access to the website As the respondent submitted, it was open to the Committee to find that those denials were false, in some cases by virtue of subsequent admissions made by the appellant, and in other cases by relying upon the evidence of Mr Manton.
The Nature of the Images
The appellant complained that the Committee erred in taking into account the nature of the images, rather than focussing solely on the stated objective of the inquiry, namely the unauthorised use of equipment. (Ground 30)
The nature of the images was relevant to both the suggestion by the appellant that at least some of the images were viewed for work-related purposes, which the Committee properly rejected, and to the question of the appropriate penalty. For example, the use of equipment to view potential holiday destinations may be a matter which attracted one sanction, but the use of the equipment to view pornographic images, is quite properly, the subject of a far more significant sanction.
Appellant’s Motive
The appellant complained that the Committee erred in making references in its reasons, to the appellant’s motive in viewing images, and drawing prejudicial inferences from the motive, given that the purpose of the inquiry was an allegation that the appellant had engaged in unauthorised use of the computer system. (Ground 31)
The respondent’s submission was that the subjective motivation of the appellant was relevant to the penalty to be imposed. The appellant alleged an innocent motivation for his conduct, and in that sense invited the Committee to make findings with respect to his motivation. The appellant contended that in relation to images showing dead and mutilated persons, he was endeavouring to inure himself to the potential shock of seeing dead persons in the course of his work. That contention was obviously rejected by the Committee, a finding which was properly available on the evidence. The appellant also suggested that his behaviour had been in some instances, naive and stupid. His motivations were, we accept, relevant to the question of whether there had been any work-related purpose for his viewing of such images, and to the question of the seriousness with which his conduct was to be viewed.
Penalty
The Police Matters
The appellant complained that the Committee erred in taking into account “the police matters”, that is, allegations of complaints regarding other unrelated misconduct after those matters were withdrawn by the Committee. (Grounds 19 and 41-45)
In fact, as has been earlier observed, the Committee took those matters into account in the context of the appellant’s assertion that he was of otherwise good character. The appellant was on notice, by letter dated 15 January 2007 sent by the Committee to the appellant’s solicitors, that the police matters would be taken into account, and the appellant’s counsel made submissions both orally, and by letter of 15 February 2007, in relation to those matters. The material relating to the police matters was not misused by the Committee. Indeed the Committee acknowledged that:
There is only a limited use that information contrary to a claim of good character can be put. It cannot be used to increase the penalty that might otherwise be appropriate on the facts of the case. It can however be used to assess what probative value will be attributed to the claim of good character in mitigation and reduction of penalty.[36]
[36] Committee’s Reasons pp 85-86.
It was in that context that that material was used, and properly used.
Parity
The appellant complained that the Committee erred in imposing penalty; in failing to have regard to the issue of parity with penalties imposed on other employees; and by stating that the extent of misconduct by other employees was almost inconsequential by comparison to the misconduct of the appellant, given the absence of evidence before the Committee as to the nature of the use of the SAMFS computer system by other employees. (Grounds 37-39)
Counsel for the appellant made submissions to the Committee regarding the conduct of other employees. The Committee found that the examples relied upon by the appellant were not comparable. The Committee provided the appellant with an opportunity to respond. During the course of the hearing the presiding officer put to counsel for the appellant that the other cases he had referred to were “in a different league in terms of the volume of material and the extent of the use, is there anything you wanted to say about that, extent of the use?” Counsel for the appellant responded that the only submissions in relation to usage was that, of the two other employees, one employee had only been at the relevant station for a month and had accessed perhaps 30 images, and the other employee worked shift work and perhaps did not have the same opportunity to access or use the computer system. Counsel for the appellant conceded that the appellant’s offending was over a much longer period of time.
Counsel for the appellant on appeal purported to draw comfort from the decision in Williams v Centrelink[37] and submitted that the decision stood for the proposition that the Committee was required to assess the appropriate penalty by having regard to the penalty imposed on others. He referred to the industrial principles of a fair go all round.[38]
[37] Williams v Centrelink [2004] AIRC 48 (unreported, Commissioner Whelan, 15 January 2004).
[38] Queensland Rail v Wake (2006) 156 IR 393.
The Committee noted that there were other members of the fire service who were brought before the Committee on allegations of misuse of the computer system by accessing non-work related images and images that might be described generically as sexually explicit. The Committee observed that unlike the appellant, other members had made full and frank admissions in general terms, and then specific admissions about the images shown to them at their respective hearings. They expressed unqualified regret and offered to present themselves to the Chief Officer to make a personal apology. Their timely admissions of misconduct avoided the need to conduct further investigations.
The number of images, and the time spent by the appellant in accessing images, was far more extensive, and the period over which the appellant accessed the images was more extensive. Each of the other members had a good work history and were of general good character.
The Committee carefully considered the parity argument and concluded that the appellant was not in the same position as the other employees and the details of his conduct were such that no claim could reasonably be made for parity of penalty.[39]
[39] Committee’s Reasons p 85.
In Holman v Telstra Corporation the Commissioner observed:[40]
In an unfair dismissal case it may be relevant to determine whether employees have unfairly received different treatment where they were involved in the same incident. If one employee was dismissed and another not, then it might be relevant to determine if there was any proper basis for distinguishing between them. (National Jet Systems Pty Ltd v Mollinger (unreported, Australian Industrial Relations Commission, Commonwealth, print R3130, 18 March 1999).) In Aggenbach v TXU Networks Pty Ltd (unreported, Australian Industrial Relations Commission, Commonwealth, Senior Deputy President Kaufman, Print PR902343, 7 March 2001) there was no proper basis for distinguishing between the employees, whereas in Capral Aluminium Ltd v Sae (1997) 75 IR 65 there was. In every case the outcome will depend on the circumstances.[41]
…
Although in this instance there was some evidence about the conduct of other employees before the Commissioner, it was not within the scope of the application before him to enquire into and make an objective assessment of the comparable treatment of the appellant and the various employees. There may be many relevant differences between employees involved in similar conduct such as the nature of the conduct, the period over which the conduct occurred, the relevant period of employment, the detailed employment history, the extent of cooperation and contrition, and other relevant personal mitigating factors. Although the Commissioner could have expressed himself more felicitously, that seems to be the point he was making in pars 169 and 172 of his decision. For that reason it was unnecessary for him to express any view about the relative culpability of the appellant and the other employees.[42]
[40] Holman v Telstra Corporation Ltd (2006) 153 IR 445.
[41] Ibid at [128].
[42] Ibid at [131].
Having regard to the nature of the appellant’s conduct, and the nature of the images accessed by him, it was open to the Committee to find that his conduct could not be compared to the conduct of the other employees subjected to disciplinary proceedings.
Further, the consistent treatment of employees does not necessarily require that penalties be on par.[43] In Williams v Centrelink[44] the applicant’s employment was terminated after he had sent a number of emails containing pornographic and sexually explicit images on the Centrelink email system. On the hearing of the application to set aside that decision the Commissioner accepted that the culture in a workplace may be a relevant factor in considering whether termination in a particular circumstance was harsh, unjust or unreasonable.
[43] Capral Aluminium Ltd v SAE (1997) 75 IR 65 at [68].
[44] Williams v Centrelink [2004] AIRC 48 (unreported, Commissioner Whelan, 15 January 2004).
In that case the applicant submitted that the Commissioner should take into account the fact that of all persons investigated and found to be guilty of the same misconduct, the applicant was one of only two that had their employment terminated. A minority of employees at the particular office, including the office manager, participated in circulating off-colour jokes and images. The Commissioner found that the material being circulated went further than that. He concluded that a reasonable person would be aware that there is a distinction between poor taste jokes and sexually explicit and degrading material.
The Commissioner found that it was open to the primary decision maker to come to the view that the applicant’s behaviour warranted termination of his employment and that the extent of his activity and the nature of the material with which he was dealing distinguished him from the other employees. The Commissioner said:
In Capral Aluminium Ltd v Sae (1998) 854 FCA, Madgwick J dealt with the issue of disparity in treatment between two employees who were caught fighting. Mr Kuoch was given a written warning and Mr Sae was dismissed. His Honour referred to the approach of criminal law to sentencing, which he considered to be a useful analogy. His Honour referred to the decision of Mason J in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 in that regard and went on to say:
"The question is whether what the company did in relation to him could be regarded as consistent with what was done in relation to Mr Kuoch or, in other words, whether the discrepancy gives rise to a justified sense of grievance on Mr Sae's part. In my view it was well open to the company officer who made the decisions about the two men to take the view that they were being dealt with consistently. Consistency does not necessarily mean equality".[45]
[45] Williams v Centrelink [2004] AIRC 48 (unreported, Commissioner Whelan, 15 January 2004) at [72].
It was not necessarily the task of the Committee to closely analyse the conduct and circumstances of other employees so as to assess whether or not there was parity in disciplinary action. In any event the Committee was asked to address the question of parity and did so.
Appellant’s Length of Service
The appellant complained that the Committee erred by failing to give sufficient weight to the length of service and meritorious service of the appellant. (Ground 49)
It is apparent that the Committee took into account the appellant’s long history of service, and specifically made reference to that service in its reasons.[46] Further, the Committee specifically referred to the appellant’s conduct as a fire officer and must have taken that into account, before concluding that the appellant’s service history could not outweigh the seriousness of the conduct proven against him.[47]
Failure to Consider Other Penalties
[46] Committee’s Reasons p 87.
[47] Committee’s Reasons p 87.
The appellant complained that the Committee erred in not considering any penalty other than termination. (Ground 10)
Detailed submissions were made by counsel for the appellant as to the nature and circumstances of the offending, and as to the appellant’s work record. In particular, submissions were addressed to the issue of whether termination was justified. Counsel for the appellant urged the Committee to consider the imposition of a reprimand with retraining. The Committee set out, in some detail, its reasoning in relation to penalty.[48] It is apparent that the Committee must have given consideration to the imposition of other penalties. Counsel for the appellant urged the Committee to do so. The mere fact that the Committee did not accede to that submission does not support the contention that the Committee failed to consider other penalties. Having regard to the findings of the Committee, justified on the evidence, we do not consider that the penalty imposed was inappropriate.
[48] Committee’s Reasons pp 82-90.
The Second Complaint – False and Misleading Statements
The Allegation
By letter dated 21 September 2009 the appellant wrote to the Chief Officer making a formal allegation that he had been harassed and humiliated while working at the Port Adelaide Fire Station. The appellant alleged that on about 12 September 2006 a person or persons had written humiliating and embarrassing remarks about him on a whiteboard.
The appellant asserted that on 14 September 2006 he had informed a Harassment Officer about the incident, and that the officer suggested that the appellant “bend over and take it up the bum”, and that the appellant take time off work, but did not remove the offending material from the whiteboard. The appellant said that the offending material was still on the whiteboard on 15 September 2006, and had photographed the remarks on that date.
The appellant asserted that the insults had caused “untold grief”. He further asserted that the harassment “will have a long lasting effect, and I will be on medication for some time to come”. He said that the material had devastated him, and necessitated him seeing a general practitioner and a psychologist who in turn referred him for a psychiatric assessment. The appellant concluded the complaint by saying, “As I believe you are personally responsible Mr Lupton (the Chief Officer), I also believe that reconciliation will only occur between our personal parties”.
The second aspect of the second complaint relates to the appellant lodging a claim for workers compensation alleging that he had suffered a work-related injury caused by “insults on a whiteboard”.
The letter alleging harassment, and the claim for compensation, were each written at a time when the appellant was facing a complaint lodged by the Chief Officer in relation to the computer usage issue, which complaint was still the subject of a hearing before the Committee.
A consultant psychologist, Ms Bakjac was engaged by the SAMFS to investigate the complaint of harassment. Commencing on 29 September 2006 she interviewed the appellant, and then proceeded to interview other witnesses. On 27 October 2006 she provided a report to the SAMFS.
Following the receipt of Ms Bakjac’s report, the Chief Officer referred a complaint to the Committee in relation to the making of false and misleading statements by the appellant.
The Committee conducted a preliminary investigation and formulated two allegations of misconduct in relation to the complaint.
The first limb of the allegation of misconduct was a breach of Schedule 2, (paragraph j) of the Code of Conduct alleging that the appellant knowingly made a false and misleading statement in the course of his duties, namely the formal allegation of harassment. The second limb was that the appellant filed a Workcover claim for a work injury occasioned as a consequence of “insults on a whiteboard”, which claim was false.
By letter of 18 January 2007 the Committee notified the appellant through his solicitors, that the Chief Officer had referred a complaint. The Committee particularised the allegations of misconduct asserting that in relation to the first limb, the appellant’s written statement to the Chief Officer alleging that he had been humiliated, had suffered untold grief, had been devastated, that the harassment had been reported to the harassment officer, and that the response had been merely to say “bend over and take it up the bum” was false and in the latter two respects, false, or, in the alternative, deliberately misleading. In relation to the second limb the Committee particularised the statement claiming injury as a result of the whiteboard statements as false.
Proceedings Before the Committee
In considering the second complaint the Committee had regard to the contents of Ms Bakjac’s report. She expressed opinions in her report to the Chief Officer, which the Committee expressly declined to take into account. The Committee did, however, rely on witness statements obtained by her.
The Committee found that the appellant “had commenced a joke notice on the whiteboard aimed at Mr Lindsay Heaven by writing that the station had neither a union shop steward nor an occupational health and workplace safety representative, and that they should “Vote 1, Lindsay Heaven””.[49] Underneath that notice someone had added handwritten comments which purported to be written by the appellant seeking his own nomination to the position, and purported to set out a list of his personal attributes as follows:
1. I have experience in negotiation with the upper management
2. Dealing with conflict resolution (ask Maurie Wilson)
3. Vast knowledge of electronic medium (ask succock.com.au)
4. Adept in horticulture (ask Bob Marley)
5. Expertise in relationships with opposite gender (ask Melanie)
(hope these facts get me the job)
Macca
[49] Committee’s Reasons p 114.
When interviewed by Ms Bakjac the appellant had explained that the written remarks related to a previous harassment claim against Maurie Wilson, the alleged improper use of computers to view pornography, his reputation for smoking marijuana on frequent occasions, and his ongoing problems with his former partner.
The appellant told Ms Bakjac that when he first saw the notice he laughed about it. He declined to disclose the name of the author, nor did he want action taken in relation to the author. The appellant told Ms Bakjac that the station officer, Mr Williamson, had been on duty the day the notice was written, and made no attempt to remove the notice. He said he wanted action taken against Mr Williamson and the other officers at the station for not removing the notice from the whiteboard. He sought an apology from every officer in the chain of command up to the Chief Officer because the notice had been left on the whiteboard. He sought an undertaking that the SAMFS would train staff who had left the material on the board, and said that he also wanted a resolution of the computer misuse allegations. He said that it was important that he be able to return to work at the Port Adelaide Fire Station as it was conveniently located near his private golf-related business.
The self-confessed author of the whiteboard notice was Mr Heaven. He told Ms Bakjac that before he had added the comments referred to above he had seen written in the appellant’s handwriting under the notice seeking an OH&S officer the words “Vote 1 Lindsay Heaven”. He interpreted that as a joke, wiped those words off, and wrote the notice previously described. He said that he was a friend of the appellant’s, and that he had heard the next day that, when the appellant read the notice, the appellant had laughed about it. He also said that the appellant had added a further personal attribute about himself, namely “extensive knowledge of cells and police operations”. The two had exchanged conversation during changeovers and no adverse comment had been made about the whiteboard notice. Mr Heaven said that humorous and insulting notes had been left on the whiteboard “a thousand times before”, and that the appellant had participated in such actions in the past, including writing such notes to other firemen.
Mr Heaven said that on the day after the appellant had added the words “extensive knowledge of cells and police operations” to the supposedly humorous list of personal attributes, the appellant had received further correspondence regarding the computer usage issue. Mr Heaven said that the appellant had been very angry upon receipt of that letter and left the station saying to Mr Heaven that Mr Heaven would not be seeing the appellant for a long while.
Mr Parker, a fellow employee, said that the appellant showed him the whiteboard notice and was laughing about it. He described the appellant as being proud of the references, and not apparently distressed in any way. Mr Parker confirmed that he had seen other comments added to Mr Heaven’s writing, but they were not depicted in the photograph taken by the appellant. Mr Parker said that the appellant had a poor relationship with the station officer, Mr Williamson.
The harassment officer, Mr Francis, said that in late August he had had a conversation with the appellant, in which the appellant expressed his upset about allegations made by the department regarding accessing pornographic material. Mr Francis did not agree that there was any discussion with the appellant on 14 September 2006 as alleged by the appellant, and the Committee found that the assertion by the appellant regarding the conversation with the harassment officer was false, and that the appellant well knew that he had not said anything to Mr Francis about the writing on the whiteboard.
Ms Bakjac also interviewed Mr Williamson, Mr Hutchins, Mr Mason and Mr Killian. Broadly speaking, their statements were consistent with the statements of Mr Heaven and Mr Parker.
The Committee was provided with comprehensive written submissions from the appellant’s solicitors, supplemented by oral submissions, in relation to the allegations constituting the complaint alleging the making of false and misleading statements.
The Committee took into consideration the appellant’s submissions, and his assertion that the insult exacerbated an existing work injury of a psychiatric nature and caused further psychiatric injury. The Committee noted that despite his claim of having been insulted by the notice, the appellant had added words to the notice, deleted those words before taking the photograph, and had not removed the offending material.
The Committee said:
We do not consider that it is a matter for us to decide whether the alleged insult exacerbated an existing injury. We do think that in determining whether or not the employee was so offended, we should take into account the mental condition of the employee at the time he viewed the subject writing. However we take this into account in conjunction with all other evidence. Our task is to decide whether he was so offended and this should be decided on the whole of the evidence.[50]
[50] Committee’s Reasons pp 108-109.
The Committee took into account the contents of the medical reports provided, including the opinion of Dr Clarke that “the major factor which exacerbated his condition so that he could no longer work was the offence and harassment he felt from what was written on the whiteboard at his place of employment in September 2006”.
However, in considering the weight to be attached to Dr Clarke’s opinion, the Committee noted what it described as the significant shortfall in the information made available to Dr Clarke for the purpose of formulating his opinion. The Committee concluded:
With due respect to the qualifications of Dr Clarke we did not consider that he was in a good position to make an accurate assessment of how in fact the employee did genuinely feel on first viewing the notice on the whiteboard. We consider that we can only attach limited weight to the opinion of Dr Clarke in determining if the employee was in fact distressed by the whiteboard notice to the extent that he claimed in his letter the subject of the charges.[51]
[51] Committee’s Reasons p 112.
The Committee stated that the test, in considering whether the allegations were proven, was whether the Committee could find to the requisite degree of satisfaction that the employee was not disturbed by viewing the notice on the whiteboard. The Committee observed that there was no onus of proof upon the appellant, and that he was to be presumed innocent of misconduct until the Committee was satisfied on the balance of probabilities that each essential element of the allegation and the necessary facts or inferences drawn from those facts, are proved. The Committee used the test outlined by Mulligan J in Rajagoplan v Medical Board of South Australia.[52]
[52] Rajagoplan v Medical Board of South Australia [1998] SCSA 6667 (unreported, Cox, Mullighan and Williams JJ, 5 May 1998).
The Committee conducted a detailed investigation and analysis of the evidence relating to the specific allegations as formulated. The Committee proceeded to make a series of findings consistent with the account of other witnesses, and inconsistent with the contentions of the appellant.
On the basis of the evidence of Mr Francis, of the appellant’s statements to Ms Bakjac and to medical practitioners, the Committee concluded that the appellant was not offended by the notice, did not display any animosity towards Mr Heaven, and that, although he had spoken to the harassment officer Mr Francis in relation to other matters, he had made no reference to the notice on the whiteboard, and had made no complaint until the written statement to the Chief Officer by the letter of 21 September 2006.
The Committee found that the appellant was angry as a result of his perception of being singled out over the issue of accessing pornography on the computer system, and angry at the delay in providing him with information as to the dates upon which he was supposed to have accessed the computer images.
The Committee found that the appellant used an otherwise innocuous jest written by Mr Heaven as a vehicle to pursue a vexatious complaint of harassment against the SAMFS as personal retribution for a perceived sense of persecution over his conduct when accessing pornography and other non-work related images on the computer system.
The Committee found that the appellant’s assertions that he had been humiliated, had untold grief caused to him, and that he had been devastated by the harassment, were statements which were knowingly false. Further, the Committee found that the appellant’s assertion that he had made a report of harassment to Mr Francis, and his assertion as to Mr Francis’s response, were also knowingly false.
The Committee found that the appellant was not offended by the comments on the whiteboard, and consequently his claim for compensation for a work-related injury caused by “insults on a whiteboard” was also knowingly false.
The Appeal
Jurisdiction
The appellant contended that the Committee erred in proceeding with the hearing of the second complaint on the basis that the Workers Rehabilitation and Compensation Act 1986 (SA) (the ‘WRC Act’) is a complete code for the determination of claims for compensation and that an allegation that the appellant made a false and misleading statement should not have been dealt with by the Committee. (Grounds 52, 53 and 61)
The Committee in fact concluded that it was not the task of the Committee to determine whether the insult to which the appellant had been allegedly subjected had exacerbated an existing injury. The Committee did however conclude that it was entitled to decide whether the appellant was offended, and that that should be decided on the whole of the evidence, including the mental condition of the appellant at the time he viewed the writing on the whiteboard which was said to constitute the insult.
The appellant did not assert before the Committee that the Committee had no jurisdiction to hear the complaint, nor did he seek an adjournment to enable his worker’s compensation claim to be determined by the Workers Compensation Tribunal, prior to or during the hearing of the complaint. Of course, the fact that no complaint was made as to lack of jurisdiction does not confer jurisdiction.
The Committee did not purport to determine whether the appellant might have a valid claim for compensation, but rather proceeded to determine whether the appellant had in fact been offended by comments made on a whiteboard as asserted in his letter to the Chief Officer, and as asserted in his worker’s compensation claim.
Section 54 of the WRC Act provides that the WRC Act is a complete code for claims which may be brought against an employer in respect of personal injuries arising out of the course of employment. Section 120 of the WRC Act provides:
(1) A person who—
(a) obtains by dishonest means a payment or other benefit under this Act; or
(b) dishonestly claims to be entitled to a payment or other benefit under this Act; or
(c) dishonestly makes a statement about a claim under this Act knowing the statement is false or misleading; or
(d) dishonestly makes an application, or gives a return, under this Act knowing the application or return to be false or misleading, is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for one year.
The making of a false claim may give rise to a number of different consequences independently of s 54, including civil, disciplinary, and criminal consequences. There is no general prohibition preventing an employer dismissing an employee in relation to conduct which is also the subject of incomplete criminal proceedings.[53]
[53] Baker & Anor v Commissioner of Federal Police (2000) 104 FCR 359 at [30].
In Hall v South Australia[54] where disciplinary proceedings under the PSM Act were the subject of judicial review, Gray J observed that outside of s 58(a) of the PSM Act, which requires an inquiry to be suspended if the employee is charged with events to which the inquiry relates, there is on the face of the Act no other rule which requires that administrative action under the PSM Act must await the determination of any criminal proceedings arising from the same conduct.[55]
[54] Hall v State of South Australia [2010] SASC 219.
[55] Ibid at [74].
The provisions of the FES Act and of the WRC Act, do not preclude an investigation, or the making of findings, in relation to issues which might also bear on a claim for compensation under the WRC Act. Even if the Committee proceeded to make findings which may be said to have an adverse effect on the appellant’s claim for compensation, it does not follow that the Committee lacked jurisdiction or misunderstood its role in relation to the investigation of the complaint.
However, it is not necessary for this Court to decide whether the Committee had jurisdiction to determine whether the appellant had made a false statement in his claim for worker’s compensation. The Committee was entitled to determine the complaint asserting that the appellant had knowingly made false and misleading statements concerning his allegation of harassment.
Medical Evidence
The appellant complained that the Committee erred in making findings that the statements made by the appellant were false and misleading, and maliciously made, without regard to the appellant’s medical condition, the fact that he had sought medical treatment, and that there were expert reports supporting the appellant’s reaction to the events, including a report from a psychiatrist retained by the SAMFS. (Grounds 55 and 58)
The Committee considered the medical evidence submitted before it, and expressed findings as to the weight to be attached to the medical opinions, in the context of all of the evidence before it, in relation to the allegation of harassment.
After reviewing the additional material in Ms Bakjac’s report, Dr Clarke, in his report of 4 November 2008, reiterated his opinion that the appellant was offended by the writing on the whiteboard. Whilst that addresses in part, the issue raised by the Committee as to the weight to be attached to Dr Clarke’s opinion, again the Committee assessed the entirety of the evidence including that given by the appellant in arriving at its conclusion. The further opinion expressed by Dr Clarke, and the additional material, do not provide cogent reasons to depart from the Committee’s decision.
We accept the respondent’s submission that the reasons do not disclose a material error that would justify a departure from the Committee’s conclusion. The Committee accepted that the appellant had some pre-existing mental health issues associated with stress in relation to both his personal life, and in relation to accusations of having accessed pornography at work. The Committee correctly characterised those matters as matters to which weight could be attributed in determining whether the appellant was in fact vulnerable to a psychological reaction to the comments on the whiteboard notice. The Committee’s findings were clearly open on the evidence available to it.[56]
False and Vexatious Claim and Failure to Understand the Defence
[56] Committee’s Reasons pp 114-119.
The appellant complained that the Committee erred in finding that the submission of a claim for compensation amounted to the making of a false and vexatious claim. (Ground 54)
In fact, the Committee made a finding that the appellant’s statement on the face of his claim for workers compensation as to the effect of the “insults on a whiteboard” was knowingly false. It did not make a finding that the appellant’s statements were malicious and vexatious, although it did make a finding that the complaint of harassment made to the Chief Officer was a vexatious complaint.
The appellant further complained that the Committee erred in failing to understand the nature of the appellant’s defence to the charge of making malicious and vexatious statements. (Ground 59)
Again, the complaint was the making of false and misleading statements. The fact that the appellant’s defence was not successful does not demonstrate that the Committee misunderstood his defence. Indeed the Committee considered the appellant’s evidence and rejected his evidence that he felt harassed by the remarks on the whiteboard.
The reasoning of the Committee, having regard to the evidence before it, could not be said to be in error. The finding on the issue of whether the appellant had knowingly made a false statement was made upon an analysis of the whole of the evidence before the Committee. As the respondent submitted, the Committee was entitled to take into account the appellant’s motivation for making the false allegation of harassment in determining the penalty to impose, and its finding that the allegation of harassment was vexatious was a finding it was entitled to make in the context of determining the appropriate penalty.
Even if the Committee was not entitled to investigate and determine the second issue raised in the second complaint, it was entitled to investigate the first allegation, and its findings in respect of that allegation were sufficient of themselves to justify the dismissal of the appellant from his employment. That is particularly so, having regard to the employment structure under the FES Act whereby firefighters and officers are appointed to ranks of relatively seniority, officers are conferred with broad invasive powers at the scenes of fires and other emergencies, and employed in positions of trust in relation to each other and the wider community. Further, the assumption of control at the scene of a fire or emergency by the highest ranking officer is facilitated by the officer giving directions to lesser ranking officers. The relationship of trust and obedience between firefighters and officers is of fundamental importance to the performance of the functions of the SAMFS. The nature of the appellant’s false and misleading statements contained in the allegation of harassment are such as to undermine trust and confidence in the appellant, and to make the penalty of termination of employment one which was clearly open to the Committee.
Conclusion
First Complaint
The Committee did not err in its approach, or in its findings in relation to the first complaint nor in the penalty which the Committee saw fit to impose.
Second Complaint
In relation to the second complaint, without determining whether the Committee was entitled to investigate and make a determination in relation to the allegation that the appellant had made a false and misleading statement in his claim for compensation, we are of the view that the Committee was entitled to investigate and make a determination as to whether the appellant had made a false allegation of harassment. We do not consider that the Committee was in error in its approach, or in its findings, in relation to that allegation. Having regard to the nature of the appellant’s employment, and the command structure to which we have previously referred, the penalty of termination of employment was open to the Committee.
In any event, upon making positive findings in relation to the first complaint and the second complaint, the appropriate penalty in combination, a finding the Committee would have been entitled to make, was that the appellant’s employment be terminated.
None of the grounds of appeal, the additional evidence provided on appeal, nor the submissions advanced on behalf of the appellant provide cogent reasons to depart from the original decision of the Committee.
Accordingly, the appeal is dismissed and pursuant to s 42F(a) of the DC Act the decisions of the Committee are affirmed.
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