Mr Mark Williams v St Vincent de Paul Society
[2011] FWA 6457
•27 SEPTEMBER 2011
[2011] FWA 6457 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mark Williams
v
St Vincent de Paul Society
(U2011/7762)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 27 SEPTEMBER 2011 |
Application for unfair dismissal remedy - termination for alleged misconduct.
[1] On 11 May 2011, Mr Mark Williams (the applicant) filed an application with Fair Work Australia (FWA) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act2009 (the Act).
[2] The applicant's employment with the respondent was terminated on 28 April 2011 on the grounds that the applicant had engaged in serious misconduct.
[3] The applicant was employed by the St Vincent de Paul Society (the Society, the respondent) in the position of information systems infrastructure manager (IT Manager) and was responsible for managing the respondent's IT systems for all Central Councils, excluding the Sydney Central Council.
[4] The applicant's employment was terminated on the following grounds:
- The applicant deliberately disabled the Workplace Relations Manager’s (Mr McInerney’s) ActiveSync;
- The applicant obtained access to the e-mail accounts of other users in the Society without permission;
- The applicant configured the server to block e-mails from Mr McInerney on 29 October 2010;
- The applicant inappropriately directed a contractor and an employee to delete his own e-mail account; and
- The applicant improperly obtained a copy of an email from Mr McInerney to Ms Bailey dated 24 January 2011.
[5] The matter failed to settle at conciliation. Hearings were subsequently conducted in Sydney on 5, 6 and 7 September 2011.
[6] The applicant gave evidence on his own behalf, as did Mr Simon Dempsey. The following witnesses gave evidence on behalf of the respondent:
- Ms Robyn Bailey (who was appointed as an investigator in relation to the allegations made against the applicant);
- Mr Cameron McInerney (the respondent's Workplace Relations Manager);
- Mr Eric Ellem (retired administration advisor);
- Ms Beverly Kerr (Vice President of the respondent);
- Mr Daniel Lewkowitz (Chief Consultant, Calamity);
- Mr Craig Franklin (IT consultant);
- Mr Peter Miller (Chief Financial Officer of the New South Wales State Council of the respondent); and
- Ms Amanda Coburn (HR Manager with the respondent).
The evidence
[7] I state at the outset that I consider the applicant to be an unreliable witness. Where his evidence conflicts with that of the respondents' witnesses, I prefer the evidence given by the latter. I have mainly formed this view based on the number of occasions the applicant contradicted his own evidence, as well as the way he responded when such contradictions were pointed out.
[8] For example, under cross examination, the applicant said ‘I never asked for my email account to be deleted’. 1He emphatically repeated this proposition.2 His attention was then drawn to the statement he had personally tendered on his own behalf earlier that day.3
[9] Mr Williams at first denied that he had filed the statement, saying it had come from the ASU (which had represented the applicant at an earlier stage in the proceedings.) 4 He repeatedly denied that he had filed the statement. When it was pointed out to him that the statement was filed after the ASU had ceased acting on his behalf he admitted that he was indeed the author, but tried to suggest that he was not well when he had prepared it.5
[10] He was then taken to the part of his statement that included the following:
‘On the 20th December 2010 I requested that Ian Dale delete both my email account and network account.’
[11] He then claimed his own statement (which he had affirmed as true and correct only that morning) was in fact not correct. 6 He continued to insist during cross examination that he had not deleted, or requested other staff to delete, his email account. This is directly contrary to what he had stated on a number of other occasions. For example, on 24 December 2010 the applicant stated in an e-mail to Mr Zadow alleging harassment and victimisation of him by Mr Miller:
"He has indicated I deleted my vinnies.org.au e-mail account whilst on sick leave. This is not the case, this account was deleted on my last day at work, before sick leave, this was deleted by Ian Dale at my request. I requested this by Peter Miller previously or he requested a 3rd party to access my email account in an unauthorised manner". 7
[12] The applicant’s willingness during cross examination to contradict his own written evidence was also demonstrated in an exchange concerning whether he had threatened to extract an email from Mr McInerney describing his conduct as inappropriate.
‘you threatened that you, in your capacity as infrastructure manager, would do it---No.
Yes, you did? --- No I didn’t.
You deny that? --- Yes.’ 8
[13] This is despite the applicant saying in his own statement:
‘I also indicated on the telephone that if the email from Cameron McInerney was not forthcoming in order to add to the allegations of bullying against Cameron McInerney that I would endeavor in my capacity as Infrastructure Manager to extract them from the mail server.’ 9
[14] Such contradictions make it difficult to rely on any statement made by the applicant.
[15] I turn now to deal with the specific allegations against the applicant. The first of these allegations concerns the claim that the applicant deliberately disabled Mr McInerney’s ActiveSync around 7 October 2010. This prevented Mr McInerney from receiving work emails on his mobile phone. The applicant agreed that for someone in his position deliberately to do such a thing would constitute misconduct. 10 On 7 October the applicant and Mr McInerney had engaged in a series of rather fraught emails concerning the Society’s Motor Vehicle Policy. Mr McInerney had ended the exchange by telling Mr Williams to ‘cease this line of communication’. The applicant was clearly angered by this response from Mr McInerney.
[16] The allegation concerning the disabling of Mr McInerney’s ActiveSync, together with the other allegations made against the applicant, was investigated by Ms Bailey. Mr Williams initially told Ms Bailey that the suggestion that he had disabled Mr McInerney’s ActiveSync was ‘ridiculous’, but that it could have happened accidentally. 11 However, a report was subsequently conducted by the IT security company Calamity.12 Calamity was asked to identify any evidence of ActiveSync being de-activated for a specific user on a specific date range, by a specified system administrator. Calamity was also asked to identify any evidence of access privileges being changed for a specific HR folder on the share drive; and whether any logs were available to trace a specified systems administrator accessing the HR manager’s and CFO’s e-mails. Calamity confirmed that Mr Williams had disabled Mr McInerney’s ActiveSync at 7:00am on 8 October 2010. In his written statement to the tribunal13 the applicant accepted this finding but said that:
‘…I inadvertently changed the setting whilst faultfinding the problem with the mail delivery…. I stress that this was not intentional but an accident.’
[17] During the hearing the applicant stated that he was working on the mail environment for the Society’s employees at the time:
‘We had just implemented a new e-mail environment and we were moving mailboxes, re-establishing mobile phones to the new accounts. We were doing lots of things and you have to bear in mind this is just a little tick box, it's not anything more than that. The disabling is just a tick in the box’. 14
[18] Mr Lewkowitz, the senior consultant with Calamity, was asked whether the applicant could have disabled Mr McInerney’s ActiveSync by accident:
‘I don't believe it could be done by accident, just given the number of steps that would be involved in doing it. It wouldn't be a single stray mouse-click or typo that could lead to that.’ 15
[19] Mister Lewkowitz was asked ‘but what do you say to the proposition that that could be done by someone accidentally who happened to be doing other mail box maintenance tasks?’ He responded:
‘We didn't see evidence of similar tasks on other mailboxes. If we searched the logs in their entirety for the "remove ActiveSync device" command, we only found it applying to the account belonging to Cameron McInerney. We didn't see it on anyone else's. Generally speaking, mistakes- genuine mistakes would be mirrored, effectively, across a number of accounts or quickly deployed across a wide variety of areas. But we didn't see that and, again, felt that this stood out.’ 16
[20] I am satisfied, based on the evidence, that the applicant deliberately disabled Mr McInerney’s ActiveSync.
[21] The second complaint was that the applicant obtained access to the e-mail accounts of other users in the Society without permission. As already noted, the applicant had threatened to obtain access to an email from Mr McInerney.
[22] The Calamity report indicated:
‘On various dates and times on around 29 October, Mark Williams used administrative privileges to gain access to the e-mails of Cameron McInerney, as well as Peter Miller, Wendy Rocks, Vee Kostovski, Emma Zimmer and Eric Ellem. After each occasion, this access was subsidy removed.’
[23] The applicant said in his statement that:
‘Modifying Exchange server user mailbox permissions does NOT constitute access to e-mail. Permissions to users mailboxes is a normal procedure to carry out essential tasks as an administrator of the mail system. Without full permission of mailboxes normal everyday tasks cannot be carried out. In this situation these users have been “cherry picked to try and cast a shadow in relation my integrity’.
[24] Mr Lewkowitz gave evidence that the alterations in mailbox permissions were not “cherry picked”, nor could they be considered as part of “routine mailbox maintenance.”
‘It doesn't seem to be the case. It would be reasonable to suggest that IT administrators do have a higher level of access than the normal user. However, administration tasks are usually performed in a batch across a whole number of users. I suppose, if I can draw an analogy, it would be like moving house, you wouldn't move the cutlery set, you'd move all the furniture in one lot. Whereas what we saw in the logs appeared to concentrate on the accounts of Peter Miller, Cameron McInerney and to a significantly less extent the few other names indicated on this list. So I think it unlikely that that could be considered a routine task, simply because it seemed to focus on specific uses rather than being performed across the board. 17’
[25] I am satisfied that the applicant accessed the e-mails of other users for his own purposes, without their knowledge or permission.
[26] With regard to the allegation the applicant configured the server to block e-mails from Mr McInerney on 29 October 2010; this was not pressed by the respondent. I am satisfied that the applicant was given permission to do this by Mr Miller. 18
[27] The next allegation is that the applicant inappropriately directed a contractor and an employee to delete his e-mail account. As noted earlier, the applicant’s own statement concedes he directed his email account to be deleted. He stated in a response to Mr Zadow:
‘Firstly in relation to my email account, this was deleted weeks ago on the last day that I attended work. I do not need your, Peter Millers or anyone elses permission to do so, when deleted I was the IT manager for the society in NSW.’ 19
[28] The deletion of the applicant’s email account was inappropriate given that the applicant knew at the time the email account was subject to matters involved in an investigation.
[29] The final allegation concerned the applicant obtaining an email from Mr McInerney to Ms Bailey dated 24 January 2011. I am unable to conclude, based on the evidence, how the applicant obtained this email.
Consideration
[30] It is not in issue that the applicant was, at the time of the termination of his employment, protected from unfair dismissal. The issue to be determined is whether his dismissal was harsh, unjust or unreasonable.
[31] S. 387 of the Act states:
‘In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.’
[32] As the Society’s IT Manager, the respondent had a right to expect the applicant to act with a high degree of integrity and honesty. On the basis of my findings concerning the allegations made against him, it is clear that the applicant’s conduct was completely at odds with that reasonable expectation. Deliberately disabling Mr McInerney’s ActiveSync and obtaining access to the email accounts of Mr Miller and Mr McInerney without their permission are in particular clear instances of misconduct. His lack of honesty in the way he responded to the allegations simply compounds the fault. The applicant made various allegations of his own that he had been bullied by Mr Miller and Mr McInerney (amongst others). I indicate for the record that I saw no evidence that the applicant had been bullied by anyone. The nearest thing to bullying that I saw was an email from the applicant to Mr Franklin threatening the latter because he had contacted Mr Dale to ask his permission before carrying out the applicant’s request to delete the applicant’s account. 20 In summary, the respondent had a valid reason to terminate the applicant’s employment.
[33] The applicant was informed about the allegations against him, and was given ample opportunity to respond to those allegations.
[34] There was no evidence that the respondent unreasonably refused the applicant to have a support person present to assist at any discussions.
[35] Criteria e), f), and g) in s.387 are not relevant to this case. There are no other matters that I consider relevant.
Conclusion
[36] The application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr M Williams, on his own behalf
Mr J Murphy, of counsel, for the St. Vincent de Paul Society
Hearing details:
SYDNEY
2011
5, 6, 7 September
1 PN699
2 PN700-711
3 Exhibit W1
4 PN 731, 735, 738, 744, 753
5 PN 773-789
6 PN817
7 Exhibit S10
8 PN509-510
9 Exhibit W1
10 PN37
11 Exhibit S3, attachment B, page 15
12 Attached to Exhibit S3
13 Exhibit W1 - line 50
14 PN78
15 PN1351
16 PN1358
17 PN1370
18 Exhibit S9, paragraph 58
19 Exhibit S2
20 Exhibit S1
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