Ms Jocelyn LabuguenvCommonwealth of Australia (Department of Defence)
[2012] FWA 8522
•12 OCTOBER 2012
Note: An appeal pursuant to s.604 (C2012/5868) was lodged against this decision - refer to Full Bench decision dated 20 December 2012 [[2012] FWAFB 9875] for result of appeal.
[2012] FWA 8522 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Jocelyn Labuguen
v
Commonwealth of Australia (Department of Defence)
(U2011/10591)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY,12 OCTOBER 2012 |
Termination of Employment
[1] This is a decision arising from an application by Ms Labuguen pursuant to section 394 of the Fair Work Act (the Act) seeking reinstatement to her previous position with the Department of Defence (Defence).
[2] Mr Crow of Counsel, instructed by McCooe, Raves and Poole, Solicitors, represented Ms Labuguen. Mr Warren of Counsel, instructed by Ashurst, Solicitors, represented Defence. The application was listed before me in Sydney on 10, 11, 12 and 13 July 2012. Final submissions were received on 4 August 2012.
[3] Ms Labuguen’s employment was terminated by Defence on 25 July 2011 for alleged misconduct. That alleged misconduct was the provision of a false name in the "Person Visited" field of the Visitor’s Register at Defence Plaza Sydney (DPS) and the facilitation of an unauthorised access to the Defence Restricted Network (DRN) by her husband, Mr Michael Hickey. Ms Labuguen denied any misconduct.
[4] On 21 June 2010 Ms Labuguen and Mr Hickey met at DPS after Ms Labuguen had finished work at her workplace at Garden Island. It was Ms Labuguen’s intention to access, on a computer on Level 24 of DPS, an email sent to her by her husband from her home computer and then transfer the contents of that email to her H drive. She wished to then insert the contents of that email into a performance related document which she was preparing.
[5] After having obtained entry to Level 24 at DPS Ms Labuguen experienced difficulty in transferring the content of the email. Her husband assisted her.
[6] There is a factual dispute about the circumstances by which Ms Labuguen and her husband gained access to and exited DPS. There is also a factual dispute about the manner in which Mr Hickey assisted Ms Labuguen to "drag and drop" the email into her H Drive and whether or not his assistance in either manner amounted to access to the DRN.
[7] Ms Labuguen is 46 years old. She emigrated to Australia from the Philippines in 1986. Her first language is Ilokano, followed by Tagalog and then English.
[8] Ms Labuguen joined the Australian Public Service (APS) on 19 July 1988. She was initially employed by the Department of Veterans Affairs. On 29 April 1997 Ms Labuguen was transferred to Defence. She subsequently joined the Navy Group on 1 November 1999 where she filled a temporary vacancy working as an acting Finance Officer in the Fleet Information System Support Organisation (FISSO) at Garden Island until 31 August 2000. Ms Labuguen rejoined FISSO on 1 July 2002 after a short appointment within the Navy and Shore Communications Sustainment Management Office.
[9] On 12 March 2009 Ms Labuguen was reprimanded for a breach of the APS Code of Conduct (Code of Conduct) for inappropriate communications to work colleagues. She was then reassigned to the Navy Psychology Unit on 16 March 2009 and appointed to the role of a Psychology Assistant. It was whilst Ms Labuguen was performing this role that the alleged misconduct occurred.
[10] Ms Labuguen was dismissed with notice by Defence on 25 July 2011 for the alleged serious misconduct which I have previously described, being an alleged breach of the Code of Conduct. Defence did not rely on any performance issues in relation to the termination of Ms Labuguen’s employment.
[11] I have summarised the evidence of the witnesses regarding the alleged facilitation of access to the DRN.
[12] Ms Labuguen denied that she had facilitated or allowed Mr Hickey to use the DRN unsupervised. Ms Labuguen believes that she used and operated her DRN account in accordance with standard practice and procedures detailed within the DRN Information System Security Practices and Procedures (IS-SPP) at all times. Ms Labuguen did not deny that the conduct occurred, but she denied at all stages that her conduct amounted to a breach of the Code of Conduct or the IS-SPP.
[13] On Saturday 19 and Sunday 20 June 2010 Ms Labuguen completed draft amendments to her Performance Feedback Assessment and Development Scheme (PFADS) performance agreement (performance document) on her home computer, with her husband’s assistance. Following Mr Hickey’s review of this document for grammar and syntax, Ms Labuguen requested that he email this document to her at her work address.
[14] At work at Garden Island on Monday 21 June 2010 Ms Labuguen discovered that the email had not been received. Ms Labuguen then telephoned Mr Hickey and asked that he resend it. Sometime before lunch Ms Labuguen made arrangements with Mr Elysee, a work colleague based at DPS, to use a workstation at DPS after 4:00pm that day for the purposes of completing her PFADS form. Ms Labuguen then contacted Mr Hickey and informed him that she would be going to DPS after work to complete her PFADS form. She asked Mr Hickey if he could remind her how to copy the contents of the email she had prepared the previous weekend and populate the PFADS form. Mr Hickey told her that it was too difficult for him to explain the process over the telephone, but that he would meet her at DPS at 4:00pm to assist her if she encountered any difficulties.
[15] Ms Labuguen met Mr Hickey outside DPS at about 4:00pm. After signing in at the Security Desk both she and her husband went up to Level 24. Ms Labuguen had arranged with Mr Elysee for a terminal to be available on Level 24 in Ms Logathassan’s section. Although Mr Elysee would not be there he said that he had informed Ms Logathassan of Ms Labuguen’s arrival that afternoon. Ms Labuguen introduced Mr Hickey to Ms Logathassan. Ms Logathassan then pointed Ms Labuguen to a vacant workstation and left shortly thereafter.
[16] Ms Labuguen sat at the workstation and Mr Hickey sat behind her and, with his back to her, at another vacant workstation reading his book. After logging on to the DRN Ms Labuguen commenced working. Ms Labuguen occasionally spoke to Mr Hickey asking him questions about the correct words to use in a relevant context etc and Mr Hickey responded.
[17] Shortly after commencing working on her PFADS form Ms Labuguen encountered a problem. She said to her husband that she believed that her mouse was “sticking” and that she could not cut and paste the contents of the email into the PFADS Webform. After providing unsuccessful verbal instructions on how to perform a "cut and paste" manoeuvre Mr Hickey moved his chair over to Ms Labuguen’s workstation.
[18] Mr Hickey was at this point looking directly at Ms Labuguen’s computer monitor. At this time Ms Labuguen had two documents open on the screen. The first was the email that she and her husband had prepared at home, which had been sent to her work address. The second document was a draft version of the PFADS form. Both these documents were "unclassified".
[19] Mr Hickey demonstrated the "drag and drop" manoeuvre to Ms Labuguen by putting his right-hand over her right-hand, which at this time was on the mouse, and his left hand on the "control" key. He did this to show Ms Labuguen how to copy the text from the email to the PFADS form. After several tries they were still unsuccessful. Mr Hickey them demonstrated the "cut and paste" manoeuvre on Ms Labuguen’s keyboard, that is, "control + c" to "copy" and "control + v" to "paste ". Having provided this assistance Mr Hickey returned to reading his book.
[20] Ms Labuguen then looked at 8 PSYMAN Test Instructions, printed three documents and at 5:27pm commenced shutting-down the DRN workstation.
[21] Ms Labuguen and Mr Hickey then left Level 24 and went to the lobby. Mr Hickey handed his visitor’s pass to the Security Desk and they both left DPS.
[22] Mr Hickey's evidence was that over the weekend of Saturday 19 and Sunday 20 June 2010 he assisted Ms Labuguen draft words to include in her next PFADS performance agreement.
[23] On Monday 21 June 2010 Mr Hickey received a telephone call from Ms Labuguen. She asked whether he could check to see if the email of the text that had been drafted over the weekend had been successfully sent from their home email account to Ms Labuguen’s work account. Mr Hickey advised that it had not gone through. Ms Labuguen asked him to resend it. Ms Labuguen informed Mr Hickey that she was going to go to DPS at 3:30pm that day. She asked Mr Hickey if he would meet her there after work and then they could travel home together. Mr Hickey was going to be in the City that day. He agreed and said that he would wait for Ms Labuguen in the DPS lobby.
[24] Mr Hickey affirmed during his cross-examination that he was aware that the purpose of meeting Ms Labuguen at DPS that afternoon was to show him the latest version of the draft PFADS agreement before she sent it to her supervisor. He said that he expected that he would see a paper copy of the PFADS agreement and, if he deemed it necessary, Ms Labuguen would use a DRN workstation to amend it.
[25] When Mr Hickey arrived at DPS that afternoon Ms Labuguen was waiting for him outside the building. She advised him that she had arranged with her colleague, Mr Elysee, to use one of the DRN terminals on Level 24 and that Mr Elysee had advised Ms Logathassan about it.
[26] Mr Hickey signed in at the Security Desk and both he and Ms Labuguen took the lift to Level 24.
[27] Ms Labuguen introduced Mr Hickey to Ms Logathassan. Ms Logathassan pointed to a computer and a workstation and said that they could use it. Ms Logathassan left work shortly after this exchange.
[28] Ms Labuguen sat at the workstation identified by Ms Logathassan, with her back to Mr Hickey, who was seated at another vacant workstation, and began working. At this time, Mr Hickey began reading a newspaper and his book. He occasionally spoke to Ms Labuguen during this time when assisting her with her grammar and syntax.
[29] At approximately 5:00pm Mr Hickey heard Ms Labuguen muttering to herself and he asked her what the problem was. Ms Labuguen replied that her mouse was “stuck” and that she could not "cut and paste" the contents of the email to the Webform. Mr Hickey verbally instructed her how to perform a "copy and paste" manoeuvre. Ms Labuguen followed Mr Hickey’s instructions but, after failing twice, she requested Mr Hickey’s assistance. Mr Hickey moved his chair next to Ms Labuguen’s chair in order to assist her. At this time Mr Hickey was looking directly at Ms Labuguen’s monitor. Mr Hickey observed two documents which were open on the screen at that time. The first document was the draft PFADS form, and the second document was the email which contained the text. At this point, Mr Hickey put his right hand over Ms Labuguen’s right hand, which was on the mouse, and his left hand on the "control" key. He did this to show Ms Labuguen how to copy the text from the email to the PFADS form. After several tries, they were unsuccessful. Mr Hickey them demonstrated the "cut and paste" manoeuvre on Ms Labuguen’s keyboard, that is, "control + c" to "copy" and "control + v" to "paste". Mr Hickey then rolled his chair away and continued reading his book.
[30] After another 5 or 10 minutes Ms Labuguen had completed what she needed to do and both she and Mr Hickey left Level 24. Mr Hickey handed back his visitor’s pass to the Security Desk and they exited DPS.
[31] Ms Robinson gave evidence that Ms Labuguen should not have accessed any of the 8 PSYMAN documents after she had left her workplace at Garden Island in the presence of Mr Hickey or any other unauthorised person. These documents are psychology test instructions and are marked "Psychology-In-Confidence". Ms Labuguen had been expressly instructed prior to 21 June 2010 that she was not to copy such documents. Ms Labuguen was also not authorised to copy the chapters of PSYMAN or their annexures from the G drive (accessible only to Defence Psychology personnel) to her "My Documents" folder in her H drive, which is her personal drive.
[32] Ms Lim’s evidence was that Ms Labuguen was not permitted to transfer "Psychology-In-Confidence" documents from the G drive to her H drive. Ms Lim's evidence was that, as part of her induction training, she showed Ms Labuguen the test instructions and advised her on more than one occasion that she should take her time and familiarise herself with its contents.
[33] During her induction training, Ms Lim provided Ms Labuguen with a DRN Access Request Form. Once completed, this form authorises Ms Labuguen to access and use the G drive. The documents contained within the G drive are all "Psychology-In-Confidence".
[34] Ms Lim had informed Ms Labuguen on a number of occasions about the security measures required for the "Psychology-In-Confidence" documents and the need to keep the contents of such documents confidential.
[35] Mr Di Prinzio gave evidence that on 11 May 2010 he responded to an email sent by Ms Labuguen. She had requested permission to make photocopies of the PSYMAN folder which was available in electronic format on the Navy Psychology Fleet G drive. Mr Di Prinzio’s evidence was that he was surprised to receive this request from Ms Labuguen. After confirming with Ms Robinson that photocopying the contents of the PSYMAN folder was not permitted, Mr Di Prinzio wrote to Ms Labuguen expressly informing her that she was not permitted to take copies of any PSYMAN documents out of the Garden Island building. Ms Labuguen’s action in copying the eight PSYMAN documents from the G drive into the "My Documents" folder in her H drive, and thereafter accessing it from DPS, was contrary to his instructions to her.
[36] Ms Logathassan’s evidence was that she did not know that Ms Labuguen would be attending DPS. Ms Logathassan did not recall speaking to Mr Elysee prior to Monday 21 June 2010 regarding Ms Labuguen attending DPS. Ms Labuguen asked for Mr Elysee. She introduced her to her husband. She said that she had sought permission from Mr Elysee to use one of the computers on his level. Ms Logathassan pointed to a spare computer and told Ms Labuguen that she could use it. Ms Logathassan did not observe Ms Labuguen login nor did she observe what Ms Labuguen was doing. She recalled that at one stage Mr Hickey was sitting next to Ms Labuguen and facing the computer monitor.
[37] Mr Bountros gave evidence that he was behind the Security Desk on the lobby level of DPS at approximately 4:00pm when Ms Labuguen and Mr Hickey arrived. Mr Bountros heard Ms Labuguen tell the security guard on duty that she would like to sign her husband in so they could go to Level 24.
[38] Between 4.40pm and 5.00pm, whilst on his way home from work, Mr Bountros called the front Security Desk and asked for Mr Douma. He asked Mr Douma to patrol Level 24 to verify whether Ms Labuguen and Mr Hickey were there, what they were doing and whether Mr Hickey was using the DRN. He asked Mr Douma to report back to him when he had completed his patrol.
[39] Mr Bountros received a return call from Mr Douma shortly afterwards. Mr Douma informed him that he had seen Mr Hickey in full control of the DRN whilst Ms Labuguen observed him. He had not disturbed them and they did not see him. Mr Bountros then contacted Ms Rose and reported Mr Douma’s observations.
[40] Mr Douma’s evidence was that at approximately 5.00pm on Monday 21 June 2010 he was asked by Mr Bountros to do a walk-through of Level 24. He then patrolled that level. Mr Douma observed two people facing a computer monitor. A male, who he knew to be Mr Hickey, was working on the DRN terminal at one of the workstations. Mr Hickey was seated directly in front of, and facing the computer monitor, with his back to Mr Douma. Mr Douma saw Mr Hickey’s right hand on the mouse and his left-hand on the keyboard. Mr Douma also saw Ms Labuguen seated facing the computer monitor. She was not in control of the computer. Mr Douma walked past them slowly but did not observe them for long. He contacted Mr Bountros and reported what he had observed.
[41] Ms Rose’s evidence was that shereceived a telephone call from Mr Bountros on 22 June 2010. He advised her that he had asked Mr Douma to conduct a "sweep" of Level 24 the previous evening. He told her that Mr Douma had reported that he had observed Ms Labuguen sitting next to Mr Hickey and that Mr Hickey was driving the computer.
[42] On 22 June 2010 Ms Rose contacted Ms Garrett (Information Systems Security Officer) and asked for her assistance in obtaining a forensic snapshot of Ms Labuguen’s H drive from 21 June 2010. Ms Garrett advised Ms Rose that she was aware that Ms Labuguen had logged on at a terminal on Level 24 of DPS. She advised her of the asset number of the computer Ms Labuguen had used.
[43] Ms Rose then contacted Mr Randall, Regional ICT Security Manager, and requested that he “secure” the hard-drive of the computer that Ms Labuguen and Mr Hickey had accessed at DPS on 21 June 2010. On 24 June 2010 Ms Rose had the hard drive and RAM sticks of that computer analysed by a forensic specialist and received the results on 10 July 2010.
[44] The results showed that Ms Labuguen had logged onto that machine at 4.00pm on Monday 21 June 2010 and had logged off at 5.28pm on the same day. During this time, a number of documents had been accessed including documents containing the caveat, "Psychology-In-Confidence ". These had been opened from both email and from Ms Labuguen’s "My Documents" directory within her H drive. The report also confirmed that a number of documents had been printed, although it was not conclusive about which documents they were.
[45] Ms Rose prepared an investigation brief. A copy was forwarded to Mr Ringering from Conduct, Performance and Probation.
[46] Ms Billett gave evidence in this matter. Ms Billett was then Director, Conduct Performance and Probation, for Defence. In this role she was the decision maker who recommended that the employment of Ms Labuguen should be terminated.
[47] After reviewing the evidence collated by Mr Ringering and Ms Rose’s investigation report Ms Billett determined that an investigation should proceed. In the interim, Ms Billett recommended that Ms Labuguen’s ability to sign visitors into Defence establishments should be suspended and that she should not be permitted to access work areas outside Garden Island.
[48] On 4 November 2010 Ms Billett wrote to Ms Labuguen outlining the circumstances of her suspected misconduct and invited her to respond to the allegations set out in that letter. This letter was appended with materials which Ms Billett had relied upon for the purposes of the investigations. Ms Labuguen responded on 5 November 2010 and 8 November 2010 in three pieces of correspondence.
[49] Ms Billett was concerned that Ms Labuguen did not accept responsibility for her conduct. She commented that Ms Labuguen did not seem to appreciate or acknowledge the seriousness of her conduct. Ms Labuguen did not accept that she had allowed an unauthorised person to have access to the DRN.
[50] On 22 February 2011 Ms Billett decided to suspend Ms Labuguen from her duties for thirty days on full pay pending the outcome of her investigation.
[51] Ms Billett did not recall Ms Labuguen ever raising any issue of her mouse being "stuck" or "sticking". Ms Billett also gave evidence that, after initially denying that Mr Hickey provided her with any assistance, Ms Labuguen had later stated that Mr Hickey had assisted her with a "cut and paste" task.
[52] On 10 March 2011 Ms Billett determined that Ms Labuguen had breached the Code of Conduct. She concluded that Ms Labuguen’s conduct, in allowing an unauthorised person to access the DRN, was very serious. Ms Billett was “particularly concerned” that Ms Labuguen rejected any proposition that she had facilitated an unauthorised access to the DRN or that she had breached Defence’s policies and procedures. Ms Billett proposed that Ms Labuguen’s employment with Defence be terminated.
[53] I have summarised the evidence of the witnesses regarding the alleged entry of a false name into the "Persons Visited" field of the "Visitor’s Register", for the purpose of gaining access to the DPS.
[54] Ms Labuguen’s evidence was that, whentheyarrived at DPS, she and Mr Hickey immediately approached the security guards who were seated at a desk with the Visitor’s Register open in front of them. Ms Labuguen introduced Mr Hickey to the security guards. She told them that they intended to go to Level 24.
[55] Mr Hickey began filling in the Visitor’s Register. Ms Labuguen wrote her name in the "Persons Visited " section of the Visitor’s Register and attached her extension number. Mr Hickey then told Ms Labuguen that it may be a good idea if they inserted the name and telephone number of Ms Logathassan, the person they were going to report to on Level 24. Ms Labuguen agreed. She inserted Ms Logathassan’s name and telephone extension number, which Mr Elysee had given her, and wrote “Lvl 24” in the Visitor’s Register. Ms Labuguen then crossed out her phone number. The security guard seated at the desk then gave Mr Hickey an Escorted Visitor Pass.
[56] Mr Hickey’s evidence was that, as he and Ms Labuguen were familiar with the security procedures, they immediately reported to the Security Desk and Mr Hickey began completing the Visitor’s Register. He wrote his name and address and his occupation as “Retired”.
[57] Mr Hickey then witnessed Ms Labuguen complete her details in the “Persons Visited” column and place her own phone number in the “Office Telephone Number” column. Mr Hickey then told Ms Labuguen that he thought she should include the name of the person they were going to see on Level 24 in case someone wanted to contact them. Mr Hickey observed Ms Labuguen refer to a handwritten note and then write down Ms Logathassan’s name and contact details. The security guard then gave Mr Hickey an Escorted Visitor Pass.
[58] Mr Bountros was on duty and seated behind the Security Desk on Monday 21 June 2010. At approximately 4:00pm Mr Bountros saw Ms Labuguen and Mr Hickey enter DPS and approach the main sign-in desk. He heard Ms Labuguen say that she wished to sign in her husband so that they could go to Level 24. After they had signed in Mr Bountros observed them, via the security camera, walk to the elevator.
[59] Mr Bountros then approached the sign-in desk to check the Visitor’s Register. He noticed that the Visitors Register effectively indicated that Mr Hickey was visiting Ms Labuguen. At that time there had been no amendment made to the person visited or the telephone number. Mr Bountros then checked the extension number Ms Labuguen had entered into the Visitor’s Register in the Directory and discovered that it had not been allocated to anyone. He then called Ms Rose. Ms Rose requested that he ask a security guard to go up to Level 24 and check what they were doing and, upon their return to the lobby, ask them to nominate the correct person on the Visitor’s Register. Mr Bountros directed his staff at the Security Desk to request that Ms Labuguen identify who she had visited on Level 24 and to correct her entry in the Visitor’s Register when she returned.
[60] On his way home Mr Bountros contacted the Security Desk and asked Mr Douma to conduct a patrol of Level 24 and check where Ms Labuguen and Mr Hickey were, what they were doing and whether Mr Hickey was using the DRN terminal. Mr Bountros asked Mr Douma to report back to him once he had done this.
[61] After conducting her investigation Ms Billett concluded that Ms Logathassan was unaware that Ms Labuguen had signed Mr Hickey in using her name as the person to be visited, and that therefore Ms Labuguen had used Ms Logathassan’s name without her knowledge or permission.
[62] Ms Billett concluded that Ms Labuguen had misrepresented her reason for attending DPS and had provided misleading information in the Visitor’s Register.
[63] Ms Billett acknowledged that Mr Elysee’s account of the incident varied from Ms Logathassan’s. Mr Elysee recalled the conversation he had had with Ms Labuguen on the morning of Monday 21 June 2010, but he said that he was not aware that Ms Labuguen would be accompanied by Mr Hickey.
[64] Mr Crow provided both Written Submissions 1 and Supplementary Written Submissions. He submitted that Ms Labuguen was authorised to use the DRN and that access by visitors under her supervision was permitted by the IS-SPP. Mr Hickey was a visitor under her supervision.
[65] Mr Crow also submitted that Mr Hickey’s admission that he looked at the screen when Ms Labuguen had access to the DRN is misleading. The evidence of Ms Labuguen and Mr Hickey was that the only document that he saw on the screen was Ms Labuguen’s unrestricted PFADS form and the email from him to her. This evidence was unchallenged by Defence.
[66] Although Ms Labuguen accessed a number of restricted documents from DPS on Monday 21 June 2010 the respondent’s analysis of the evidence indicated that these documents, which were instructions for administering psychology tests, were only accessed for a total of 2 minutes at the end of her visit.
[67] There was no sinister reason for Ms Labuguen requesting the assistance of Mr Hickey in attaching copied text from her email to her PFADS form after she had made an unsuccessful attempt to do so.
[68] Ms Labuguen was open about her conduct on 21 June 2010 at DPS and there were no inconsistencies in her evidence.
[69] Mr Warren submitted that the termination of Ms Labuguen’s employment was not harsh, unjust or unreasonable because she had facilitated unauthorised access by Mr Hickey to the DRN when she clearly understood that Mr Hickey was not authorised to use or access the DRN.
[70] On 23 March 2009 Ms Labuguen had signed a DRN Access Request Form as a result of which she had agreed to read and abide by the requirements of the IS-SPP, and acknowledged that a breach could lead to disciplinary action against her.
[71] Ms Labuguen also confirmed that, on each occasion she logged on to the DRN, including on 21 June 2010, a pop-up screen appeared asking the user to acknowledge that they had read and understood the IS-SPP. The pop-up also advised users that inappropriate use of the DRN would not be tolerated and may lead to disciplinary action.
[72] When Ms Labuguen joined Navy Fleet Psychology she was provided with ongoing training and instructions from her supervisors regarding the confidential nature of their work.
[73] Mr Hickey was also aware that he did not have authorisation to use or to access the DRN. Despite this he had confirmed that he had viewed the screen of the workstation whilst it was logged in to the DRN.
[74] The seriousness of the alleged misconduct should be considered when having regard to the sensitivity and confidentiality of the material which is on the DRN. Such information is carefully held by Defence and employees who are granted access to the DRN are required to act in a manner consistent with the policies and procedures relating to the use of the DRN and to ensure that it is not improperly accessed or used.
[75] Ms Labuguen’s admission that she “printed” various PSYMAN pages to soft-copy on her H drive is an admission of conduct which was a direct contravention of the direction she was given by Mr Di Prinzio not to copy PSYMAN documents.
[76] How did Ms Labuguen and Mr Hickey gain access to DPS?
[77] The evidence of the Defence witnesses is that Ms Labuguen and Mr Hickey engaged in various underhand manoeuvres to enable Mr Hickey to gain access to Level 24 thereby compromising other employees, particularly Ms Logathasson. In addition it is alleged that they engaged in an alteration to the Visitor’s Register to further their purposes and hide their intentions.
[78] In relation to what actually occurred when Ms Labuguen gained access to DPS, I prefer the evidence of the Defence witnesses. Despite that, I am not persuaded that there was an underhand motive for any of Ms Labuguen’s and Mr Hickey’s conduct. No underhand arrangement was necessary. Ms Labuguen was entitled to have Mr Hickey with her so long as he was an approved visitor. No matter what they intended to do on Level 24, there was no need to have any sneaky arrangements about access. Ms Labuguen and Mr Hickey had no reason to think anybody would be suspicious regarding their access or activities. They had no reason to think anybody would be checking on them. I have been unable to think of any reason why they would have thought that anybody at DPS would have been interested.
[79] I am not prepared to find that Ms Labuguen and Mr Hickey gave false evidence concerning when and how they signed the Visitor’s Register or when they changed the contact number to that of Ms Logathasson. It is possible that their recollection is mistaken. In any event, I am not satisfied that there was any misconduct, intentional or otherwise, involved in the access arrangements.
[80] Ms Billett made a number of findings regarding the use of Ms Logathasson’s name in the Visitor’s Register. These findings included a finding that Ms Labuguen’s conduct showed a lack of honesty and integrity, that it was blatantly unethical and not the behaviour expected of a Defence employee. I do not understand how such emphatic findings could be made from so little material and arise from such a trivial event in terms of its consequences.
[81] What assistance did Mr Hickey provide to Ms Labuguen when attempting to transfer the email?
[82] Ms Labuguen’s evidence was that Mr Hickey assisted her in the mechanical task of "drag and drop" which she was unable to perform on her own. Mr Hickey’s evidence is that he placed his hand on the back of his wife's hand whilst she was holding the mouse, to demonstrate to her how to perform the "drag and drop". Whilst Ms Labuguen said that the computer was not working, it was Mr Hickey’s evidence that it was more likely that his wife was unable to perform the task effectively. The evidence of the only witness called by Defence on this issue gave evidence that he observed Mr Hickey operating the mouse on his own.
[83] I do not think that any matter of moment turns on whether or not Mr Hickey operated the mouse on his own to demonstrate the "drag and drop" or whether he did so with his hand over his wife’s hand.
Conclusion
[84] I have considered the purpose for which Ms Labuguen wished to gain access to DPS. I am satisfied and find that the reason Ms Labuguen wanted to work on her performance document at DPS instead of Garden Island was to provide herself with privacy. Did she want to avoid being observed when she was transferring an email that had been prepared with the assistance of her husband? Was privacy needed because she wanted to work on a sensitive performance related document away from her workmates? Was privacy needed to enable her to avoid observation by anyone at her workplace if Mr Hickey needed to assist her? Did she decide to work at DPS because she intended to seek the assistance of her husband in performing the transfer and thereby risk knowingly acting in breach of the policy?
[85] Having considered the evidence I am satisfied and find that Ms Labuguen attended DPS to attend to the completion of her performance document in private, away from her local place of employment, to enable her to seek the assistance of her husband in the physical task if that assistance was required. She intended to use him to assist her if she needed him. She did not then, or at the hearing, acknowledge any reason why she should not. There is no other explanation for the attendance of her husband unless that was the purpose. The document that needed to be transferred was already prepared. She did not need his assistance for that. Any amendments could have been discussed by telephone.
[86] I am satisfied and find that Ms Labuguen did not do this because she thought what she was doing was a breach of the Code of Conduct. I am satisfied and find that Ms Labuguen knew that access to the DRN by non Defence employees was contrary to Defence policy. She just did not think that what she was doing amounted to such restricted access.
[87] Mr Crow submitted that Mr Hickey's access to the DRN was permitted. He set out the provisions of the IS-SPP that support his submission.
“......
18. These provisions of the IS-SPP support the following conclusions.
(1) Use of the DRN by visitors is permitted provided they are supervised at all times and they are cleared for, and have a need-to-know, any information displayed, or capability demonstrated, to them.
(2) The impromptu demonstration of information or capability to visitors is contemplated.
(3) Access to a DRN user’s account to facilitate the use of DRN by a visitor will be unauthorised access if the visitor is unsupervised.
(4) Not every contravention of the IS-SPP in the use of the DRN will result in disciplinary action.
19. It is common ground that the applicant was authorised to access the DRN. Her husband was a visitor on 21 June 2010, but she supervised him in the moments that he assisted her on the computer. Her husband, a recently retired employee of Defence, was familiar with the DRN. He assisted her by trying to perform a ‘drag and drop’ from an email to a form. This was an impromptu demonstration, or attempted demonstration, of a ‘common or garden’ capability of the computer, albeit by the visitor rather than to him. It was strictly supervised by the applicant. It did not cause the display of any information on, or capability of, the DRN. It was conduct contemplated by the IS-SPP. It was not prohibited by it.” 2
[88] I am not persuaded that Mr Hickey's access to the DRN was the kind of access that was contemplated by those provisions. He was not cleared for access. He did not have a "need to know". He was not being provided with a demonstration.
[89] I am satisfied and find that what Mr Hickey did, on his own version of events and at his wife's request, amounted to Ms Labuguen facilitating his access to the DRN contrary to Defence's policy. I am satisfied and find that this conduct was misconduct which amounted to a valid reason for the termination of employment of Ms Labuguen.
[90] I am satisfied and find that the printing of the "Psychology-in-Confidence" documents at the end of her access section was a breach of a direct instruction to Ms Labuguen and could have also provided a valid reason for the termination of her employment.
[91] The criteria for considering whether a termination of employment is harsh, unjust or unreasonable are set out in s. 387 of the Act. Section 387 is set out below:
" 387 Criteria for considering harshness etc.
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."
[92] Pursuant to ss.387(a), as I have already indicated, I am satisfied and find that there was a valid reason for the dismissal of Ms Labuguen related to her conduct.
[93] Pursuant to ss.387(b) I am satisfied and find that Ms Labuguen was notified of the reason for the termination of her employment.
[94] Pursuant to ss.387(c) I am satisfied and find that Ms Labuguen was given an opportunity to respond to the reason related to her conduct which was relied on as a reason for termination of her employment.
[95] Pursuant to ss.387(d) I am satisfied and find that there was no unreasonable refusal to allow Ms Labuguen to have a support person present at any relevant discussions.
[96] I am satisfied that ss.387(e) is not relevant to this application.
[97] Pursuant to ss.387(f) I am satisfied and find that the size of the employer's enterprise would have had no impact on the procedures followed in affecting Ms Labuguen's termination of employment.
[98] Pursuant to ss.387(g) I am satisfied and find that there was no absence of dedicated human resource management specialists or expertise at Defence which was likely to affect the procedures followed in affecting Ms Labuguen's termination of employment.
[99] Pursuant to ss.387(h) I have considered and taken into account a number of issues in mitigation of Ms Labuguen’s misconduct
[100] During examination-in-chief and cross-examination I had the opportunity to observe and consider Ms Labuguen’s responses. Whilst this is a difficult matter to assess, I am satisfied that Ms Labuguen is not a particularly clever or sophisticated person. This can affect any employee’s perception of what is or is not compliance with policy. I am satisfied that Ms Labuguen still does not understand that it is access to the system that is important, not the personal need for it. The potential for serious consequences matters. I am also satisfied that Ms Labuguen still does not understand that printing "Psychology-in-Confidence" documents was contrary to the instructions she received from Mr Di Prinzio.
[101] Mr Hickey had been, until his relatively recent retirement, a senior Defence employee. There was nothing on the DRN that was likely to be a surprise to Mr Hickey and Ms Labuguen was aware of that. She might not have contemplated him as an outsider to Defence systems.
[102] There is nothing particularly confidential about the material on the DRN. There are no national security secrets on the DRN.
[103] The breach of policy alleged by Defence against Ms Labuguen was a minor breach from the perspective of its consequences.
[104] Ms Labuguen was concentrating on completing a performance document which was very late. This was at the forefront of her mind. She seemed to be possessed by some sense of urgency in relation to the document. Objectively, there seems to have been no reason for urgency. The task that Ms Labuguen was intending to complete was one that had required completion for some time. Ms Labuguen’s evidence was that Fulvio, her supervisor, was putting pressure on her. Given the time that had elapsed since this task became due, I would be surprised if that was actually the case. However, despite that background, and however objectively unreasonable, I am satisfied and find that Ms Labuguen felt some urgency to complete the task. She just wanted to get the job done.
[105] I am satisfied and find that no Defence information was viewed by Mr Hickey or Ms Labuguen, and that neither Mr Hickey nor Ms Labuguen had any purpose in accessing the DRN, other than the advancement of Ms Labuguen's performance issues.
[106] Ms Labuguen’s attitude to this issue appears to me to be very strongly reflective of Mr Hickey's attitude. There is a very paternalistic involvement of Mr Hickey in his wife's employment. He has involved himself to a significant degree in his wife's ongoing employment with Defence. Some of that involvement had a negative impact on his wife's employment. For example, Ms Labuguen forwarded correspondence to Defence that was mostly drafted or edited by her husband. As a result it was clear, well constructed and precise. On one occasion Ms Labuguen asked for an extension of time to respond, which would have been a reasonable request if Defence had had any idea that the articulate response provided by Ms Labuguen was in fact drafted by her husband. I am also certain that the involvement of Mr Hickey in assisting Ms Labuguen to draft performance related documents did not help her. The disparity between the understanding, language and communication skills demonstrated by Ms Labuguen and the level of sophistication in the documents drafted by Mr Hickey is vast. I am satisfied that, left to her own devices, Ms Labuguen would have obtained a position with Defence more suited to her talents, less likely to lead to performance and disciplinary issues, and therefore less likely to cause her to have any need to seek her husband's assistance.
[107] Another relevant issue is the dire financial consequences for Ms Labuguen and her family arising from the termination of her employment.She has lost long-term, secure employment and is now working at a much less well remunerated job. This has had very serious adverse consequences for her and her family.
[108] Issues in explanation and mitigation of Ms Labuguen’s conduct are not the only matters to be considered. Defence has developed a policy for its own operational reasons and it is entitled to expect that it will be followed. Defence can set the bar for access to its network. It can require compliance. Compliance with policy is important of itself. It has a legitimate purpose. Policy is not meant to be set aside for personal reasons or convenience.
[109] If this policy is breached confidential information can be accessed. Personal details, administrative processes and other confidential material can be accessed and observed, even that did not occur on this particular occasion. If Ms Labuguen had followed Defence policy, no other employee of Defence would have had to check, at a great cost in time and effort, whether or not she and her husband were up to no good. Because she did breach the policy, and there was possibility of adverse consequences for Defence arising from such a breach, a number of officers of Defence had to spend time and resources in an investigation.
[110] Usually, if there is a lengthy period of employment, this is a factor which weighs against termination of employment. Whilst length of service is also a factor in this case, the alternative argument is that the lengthy period of Ms Labuguen’s employment should have added to her awareness of the policy, the manner in which it is expected to be followed and the obligation not to breach it. An employee with a shorter period of employment might not be expected to have such an understanding.
[111] Taking into accountall of these matters I have to consider whether or not the termination of Ms Labuguen's employment was harsh, unjust or unreasonable. Could she have been demoted instead? Was there some other alternative to termination of employment which was not implemented?
[112] Despite what Defence says about performance not being an issue, there is something about the way in which Ms Labuguen's termination of employment has been dealt with that seems to me to have been opportunistic. I am left with the uncomfortable suspicion that Ms Labuguen provided Defence with the valid reason it was looking for to terminate her employment. Ms Billett’s findings concerning Ms Labuguen’s conduct and motivation are excessive. Reading her findings one might be excused for concluding that Ms Labuguen was an employee engaged in maliciously motivated conduct, recklessly indifferent to its effect on other employees including Ms Logathasson. The tone of Ms Billett’s findings in relation to these matters is inappropriately extreme given the background facts. The findings of dishonesty and unethical conduct are inappropriate and unsupported by the facts.
[113] After having given consideration to the matters set out above I am satisfied and find that the termination of Ms Labuguen’s employment was harsh, unjust or unreasonable. I am satisfied that the outcome of termination of employment was harsh.
[114] I now have to consider what remedy should arise. I am satisfied that Ms Labuguen is a person protected from unfair dismissal and I am satisfied that Ms Labuguen has been unfairly dismissed.
[115] I have given consideration to the remedy of reinstatement but, in all the circumstances of this case, I am satisfied and find that reinstatement is inappropriate for the following reasons.
[116] Ms Labuguen has been employed by Defence for many years. She was aware of the policy regarding restricted use of the DRN. She understood that she was obliged to comply with that policy. Despite those understandings, even at the end of these proceedings, Ms Labuguen still did not understand or acknowledge that what she had done was in breach of the policy.
[117] I do not believe that Defence could have any confidence that Ms Labuguen would apply the policy regarding restricted access to the DRN in the future and I am not persuaded that it would not be appropriate to impose an employee on Defence in whom they could not have confidence regarding this issue.
[118] In addition Ms Labuguen could not perform a satisfactory "drag and drop" or "cut-and-paste" of one document into another. Even though she was convinced that the mouse was dysfunctional, her husband understood that the problem was not likely to be a dysfunction of the equipment but rather, a failure by Ms Labuguen. She ought to have been able to confidently perform this function. I am satisfied that Ms Labuguen has very low skill level in relation to such tasks. I gave consideration to this matter when considering reinstatement.
[119] I gave consideration to returning Ms Labuguen to a restricted position, one with the type of interim restrictions that Ms Billett imposed during her investigation. I have concluded that that is not a viable long-term solution.
[120] Defence’s answers to my enquiries at the end of the arbitration convinced me that there was no position to which I could return Ms Labuguen that did not require some access to the DRN.
[121] I am satisfied and find that an order for payment of compensation in lieu of reinstatement is appropriate in all the circumstances of this case.
[122] The criteria for deciding an amount of compensation payable in an application such as this is set out in ss. 392 (2) which is extracted below.
“392 Remedy—compensation
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
Note: subsection 395(5) indexed to $61,650 from 1 July 2012
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[123] Pursuant to ss.392(2)(a) I am satisfied that there will be no effect on the viability of Defence's enterprise by the payment of compensation pursuant to any order I might make. I have taken this into account.
[124] Pursuant to ss.392(2)(b) Ms Labuguen’s service with Defence has been lengthy. I have taken this into account.
[125] Pursuant to ss.392(2)(c) I have considered the remuneration that Ms Labuguen would have been likely to receive at Defence if her employment had not been terminated. Ms Labuguen’s remuneration at termination of employment was $55,880 per annum. To the end of October 2012 she would have earned approximately $69,850 taking into account a wage increase but no incremental movement. I have taken this into account.
[126] Pursuant to ss.392(2)(d) I have considered the efforts Ms Labuguen has made to mitigate her losses by engaging in alternative employment. Ms Labuguen has earned $560 per week from 1 October 2011 to the date of the completion of the arbitration before me. I have calculated these earnings at $30,800. I have not been advised of any change in this situation. I consider this to be a positive factor in Ms Labuguen’s favour. I have taken this into account.
[127] Pursuant to ss.392(2)(e) I have considered the remuneration earned by Ms Labuguen in other employment since the termination of her employment with Defence and my Decision and Order. These earnings are set out in paragraph 126 of this decision. I have taken this into account.
[128] Pursuant to ss.392(2)(f) I have considered the amount of any income likely to be earned by Ms Labuguen from the making of my Order until the payment of compensation. These earnings are set out in paragraph 126 of this decision. I have taken this into account.
[129] Pursuant to ss.392(3) I must reduce any amount that I order payable to Ms Labuguen pursuant to ss392(1) by ".... an appropriate amount on account of the misconduct." I do not consider any amount to be an appropriate amount in the circumstances of this application.
[130] Having regard to all the circumstances of this case I am satisfied and find that six months compensation is the appropriate amount of compensation to be paid to Ms Labuguen in lieu of reinstatement.
[131] Having considered the earnings of Ms Labuguen at the date of her termination of employment from Defence, I order that Defence pay Ms Labuguen sum of $27,940 within 14 days of this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr R Crow, Counsel for Ms Labuguen
Mr R Warren, Counsel for the Commonwealth of Australia (Department of Defence)
Hearing details:
2012
Sydney
10, 11, 12 and 13 July
1 Exhibit Labuguen 6
2 Exhibit Labuguen 6 paras 18 and 19
Printed by authority of the Commonwealth Government Printer
<Price code G, PR529852>
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