Nick Rushiti v Australian Postal Corporation T/A Australia Post
[2012] FWA 2850
•4 APRIL 2012
Note: An appeal pursuant to s.604 (C2012/3531) was lodged against this decision - refer to Full Bench decision dated 21 September 2012 [[2012] FWAFB 7423] for result of appeal.
[2012] FWA 2850 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nick Rushiti
v
Australian Postal Corporation T/A Australia Post
(U2011/8066)
COMMISSIONER RYAN | MELBOURNE, 4 APRIL 2012 |
Termination of employment - dismissed for serious misconduct - dismissal unfair - reinstatement and remuneration lost.
[1] On 16 May 2011 Mr Rushiti was dismissed from his employment with Australia Post for serious misconduct for sending 6 emails from his Australia Post email account to a person outside of Australia Post, where the content of the emails breached Australia Post’s policy on email use. The emails included pornographic content and were sent by Mr Rushiti in late 2010.
[2] Mr Rushiti admitted sending the emails but argued that his dismissal was unfair.
[3] Mr Rushiti commenced employment with Australia Post in 1999 as a driver. In this position Mr Rushiti did not have access to a computer or to the Australia Post IT system. In late 2009 as part of a return to work program following a workplace injury in 2004, Mr Rushiti was transferred to the Melbourne Consolidation Centre at Port Melbourne where he was given access to a computer and to the Australia Post IT system.
Preliminary matters
[4] Australia Post conceded that:
- Mr Rushiti was protected from unfair dismissal; and,
- the application was made within the prescribed period; and,
- the Small Business Fair Dismissal Code did not apply; and,
- the dismissal was not a case of genuine redundancy.
[5] Mr Rushiti conceded that:
- There was a valid reason for his dismissal (s.387(1)(a)); and
- Australia Post had notified him of the reason for dismissal (s.387(b)); and,
- Australia Post had given him an opportunity to respond to any reason related to his conduct (s.387(c)); and
- Australia Post had allowed him to have a support person present to assist at any discussions relating to the dismissal (s.387(d)); and
- The dismissal did not relate to any performance issue (s.387(e)); and
- Australia Post was a large employer with dedicated HR resources (s.387(f) and (g)).
[6] The issue in contest was weight should be attached to other relevant matters under s.387(h).
The Evidence in the Matter
[7] Evidence in support of Mr Rushiti’s application was given both by Mr Rushiti and by Ms Joan Doyle, Branch Secretary of the CEPU, Communications Division, Postal and Telecommunications Branch Victoria (the union).
[8] Evidence in support of Australia Post was given by:
- Mr X, who was the Inquiry Officer for the Disciplinary Inquiry conducted under Australia Post’s Employee Counselling and Disciplinary Policy and Procedures (ECDP) in relation to Mr Rushiti,
- Mr Y, who was the Delegate for the Disciplinary Inquiry conducted under the ECDP in relation to Mr Rushiti,
- Ms Tracey Smith, acting Human Resources Business (HR) Partner, Postal Services in Victoria and Tasmania,
- Mr Andrew Karzens, Area Manager, Transport Hub Network, Metropolitan Transport Hubs.
[9] Evidence was also given by Ms Sharon Robinson who was employed by Australia Post until 25 July 2011 and prior to leaving Australia Post Ms Robinson was employed in the position of HR Manager, Parcels and Transport Business Unit, Postal Services. Ms Robinson was not on the list of witnesses identified by Australia Post but during the proceedings the Tribunal formed the view that Ms Robinson should be required to attend and give evidence in this matter. An Order was issued by the Tribunal requiring Ms Robinson’s attendance. Australia Post treated Ms Robinson as its witness and a prepared witness statement was tendered by Australia Post at the commencement of Ms Robinson’s evidence.
[10] Evidence was also given by Mr Martin Austen, IT Security Analyst with Australia Post. Mr Austen was not on the list of witnesses identified by Australia Post but during the proceedings the Tribunal formed the view that evidence from someone within Australia Post’s IT Security unit should be made available to give evidence to the Tribunal. Australia Post identified Mr Austen as a suitable person and indicated that he would be made available to give evidence to the Tribunal. The Tribunal treated Mr Austen as not being a witness for Australia Post. Both Mr Rushiti and Australia Post were permitted to cross examine Mr Austen.
Australia Post Policies
[11] Australia Post has a number of internal policies which are relevant to the proceedings in this matter. The policies were introduced into evidence through Ms Smith. The relevant policies were:
- Employee Counselling and Discipline Policy and Procedures (ECDP) 1
- IT Systems Security Policy (EAO40102) 2
- Our Ethics 3
- Harassment Discrimination Bullying Policy
[12] The policies were supported and reinforced by Staff Information Bulletins and by training programs and by Tool Box Talks (a misnomer to describe occasional talks by a manager to a small group of staff)
[13] An additional element that was added to reinforce the policies, in so far as they related to use of the IT system, was a pop up box appearing on a computer screen whenever the computer was turned on. The pop up box required the computer user to click on an “Accept” button in order to permit the computer to access the IT system. The text appearing in the pop up box directed the computer user to read the contents contained within the pop up box before continuing to log on to the IT system. The full content of the pop up box was not readily apparent to any user as the pop up box contained a lengthy statement which required the user to scroll down through the document in order to read its entire contents. The pop up box was set up in such a way that any user could log in to the IT system without having read the entire document. The evidence before the Tribunal was that logging in without reading the entire contents of the pop up box was normal.
[14] The wording which was contained within the pop up box, and which was displayed on the screen each time the pop up box appeared, contained the following information:
“4. Australia Post may take disciplinary action under its employee counselling and disciplinary process, and/or legal action against anyone failing to comply with the relevant policies or misusing IT facilities, including e-mail and internet.
5. Misuse includes unauthorised use or
- disclosure of confidential business information
- use, access or transmission of pornographic photos, animation, cartoons and images
- sexually explicit, sexist, racist material
- material that offends, embarrasses or degrades a person because of disability, sex, religion or ethnic background
- unacceptable behaviour or harassment, discrimination or bullying as outlined in the Code of Ethics or Harassment Discrimination Bullying policy.”
[15] Thus even if an employee did not read the entire contents of the pop up box there was a sufficiently clear message on the screen warning against handling sexually explicit emails.
Email Filtering
[16] In October 2010 Australia Post updated its email filtering system by introducing an automatic email filtering system (which was acquired from a significant external vendor) and which was considered to be a comprehensive filter.
[17] This automatic filtering process which amongst other things detected pornographic content was only applied at the gateway for outgoing emails from the Australia Post IT system.
[18] No email filtering to detect pornographic content was in place at the gateway for emails being received by an Australia Post email address.
[19] No email filtering to detect pornographic content was in place for internal emails, i.e. emails generated within Australia Post and sent to another email address within Australia Post.
[20] Every outgoing email passing through the gateway was subject to being checked by the email filtering system which filtered out any email containing any content which appeared to be unacceptable. The system generated an automatic message to a mailbox at Australia Post’s IT Security. The message contained a copy of the email being sent thus allowing IT Security to examine the email and its contents to ascertain whether the email had content which was inappropriate or whether the filter had wrongly identified an email whose content was appropriate (such emails were referred to as “false positives”). Emails which contained inappropriate content were then referred by IT Security to Australia Post’s National HR Management for action.
Investigating Inappropriate Emails
[21] As a result of the introduction of the automated system in October 2010 an unknown number of inappropriate emails were identified by IT Security and forwarded to National HR who then provided the State HR Managers with the records relevant to their area.
[22] The initial referral from IT Security to National HR contained the email account records of 7 employees 4 who were employed in the Victoria/Tasmania area and these records were then given to the State HR Manager for Victoria/Tasmania to deal with. The 7 employees were only identified because they had sent inappropriate emails to an email address outside Australia Post. The examination of the 7 Victorian employees email accounts disclosed that the inappropriate emails either, had been sent to other Australia post employees or, had been received from other Australia Post employees. As a result of this, the Australia Post email accounts of these other Australia Post employees were also investigated.
[23] Additionally as the email filtering system identified other inappropriate outgoing emails the details of the email accounts of these other employees were also referred by IT Security to National HR. As at January 2012 a large number (possibly 70 or more) 5 of Australia Post employees in the Victoria/Tasmania region had been investigated to ascertain if they had also sent any inappropriate emails.
[24] As at August 2011 34 employees in Victoria/Tasmania had been subject to action under the ECDP:
- 12 of these employees were subject to a Disciplinary Inquiry which is used when the conduct to be investigated is considered to be very serious.
- 8 were dismissed,
- 1 resigned after the Disciplinary Inquiry had recommended dismissal but before the Delegate had decided to dismiss the employee, and
- 3 were subject to a penalty of an increment reduction.
- 22 employees were not considered to have engaged in very serious conduct and were subject to Counselling under the ECDP, which is used where the conduct is considered to be a more serious breach but not as high as a very serious breach.
- 18 were subject to Warning Counselling and
- 4 were subject to Formal Counselling. (The differences between Warning Counselling and Formal Counselling were not explained to the Tribunal)
[25] No information was provided to the Tribunal as to the outcomes for employees who were subject to ECDP processes after August 2011 in Victoria.
[26] No information was provided to the Tribunal as to outcomes of any ECDP process applied to any employee employed outside Victoria/Tasmania.
The Australia Post Disciplinary Process
[27] Much of the evidence from witnesses for Australia Post went to the detail of the disciplinary process applied to Mr Rushiti.
[28] Australia Post has in its ECDP a very detailed policy for dealing with disciplinary matters. The ECDP is well structured and comprehensive. The ECDP has a graded approach to disciplinary matters which permits less serious matters to be dealt with through counselling and more serious matters to be dealt with through formal Disciplinary Inquiries. The evidence discloses that the ECDP was applied rigorously in Mr Rushiti’s case.
[29] The evidence discloses the following chain of events in the application of the ECDP to Mr Rushiti:
- Ms Robinson, then HR Manager Postal Services, Victoria and Tasmania received details in February 2011 of emails sent by Rushiti and other employees.
- Ms Robinson recommended to Mr Y, the Delegate, that 4 Disciplinary Inquiries be commenced into the conduct of 4 employees, one of whom was Mr Rushiti.
- Mr Y accepted the recommendation.
- Ms Robinson recommended that 2 or 3 Inquiry Officers be appointed.
- Mr Y appointed Mr X as the Inquiry Officer for Mr Rushiti’s case and Ms Robinson provided Mr X with a copy of the emails sent by Mr Rushiti.
- Mr X prepared and issued to Mr Rushiti a letter dated 4 April 2011 notifying him of the Disciplinary Inquiry and detailing the alleged serious misconduct. The letter also directed Mr Rushiti to attend a Disciplinary Inquiry interview on 7 April 2011 and advised him of his right to be accompanied by an observer but not by an advocate or representative.(Attachment FP1 to Exhibit R1)
- Mr X interviewed Mr Rushiti on both 7 April 2011 and 14 April 2011 and interviewed by telephone Mr Karzons on 7 April 2011. Mr Rushiti had a Mr Henley, CEPU Organiser, as his support person at the interview on 7 April 2011.
- Mr X prepared a detailed Disciplinary Inquiry Report dated 4 May 2011 (Attachment FP4 to Exhibit R1) which was given to Mr Y the Delegate
- Mr X wrote to Mr Rushiti on 4 May 2011 notifying him of the recommendation of the Disciplinary Inquiry and providing him with a copy of the Disciplinary Inquiry Report. The notification also advised Mr Rushiti of his right to make representations to Mr Y, the Delegate, on the question of recommended penalty and procedural issues but not as to the merits of the case. (Attachment FP6 to Exhibit R1)
- Mr Y met with Mr Rushiti and his representative, Mr Henley, CEPU Organiser, on 9 May 2011.(Exhibit A5)
- Mr Y issued his decision on 16 May 2011 summarily dismissing Mr Rushiti as of close of business on 16 May 2011. The letter notifying Mr Rushiti of this decision also advised him of his rights to have the penalty reviewed by a Board of Reference. (Attachment MK1 to Exhibit R3)
[30] I accept the position of Australia Post that the proper application of the ECDP to employees who may be accused of similar offences may lead to very different outcomes given the independence of each Inquiry Officer and Delegate.
Fair or Unfair - Other Matters s.387(h)
[31] A substantial argument from Mr Rushiti was that his dismissal was unfair because other employees of Australia Post had engaged in similar breaches of the Australia Post policy concerning inappropriate emails and had not been dismissed.
[32] The union, as Mr Rushiti’s representative, strongly argued that there was a culture within Australia Post which tolerated and accepted the receiving and sending of inappropriate emails including emails containing pornographic content. Much of Ms Doyle’s evidence went to this issue of the culture within Australia Post.
[33] Having carefully considered the whole of the evidence I do not accept that there is a culture within Australia Post as described by the union. The evidence in this matter makes clear that some Australia Post employees engage in blatant breaches of the Australia Post policies concerning inappropriate email use. The evidence suggests that this problem is endemic in a few specific sites within Australia Post. The evidence in this matter also makes clear that Australia Post has taken some action against some employees for inappropriate email usage.
[34] The specific allegations which were made against Mr Rushiti and found to be proven by the Inquiry Officer and which directly led to the decision of the Delegate to dismiss Mr Rushiti were as follows:
“This letter is to advise you that a Disciplinary Inquiry is to be held into alleged serious breach(es) on your part of Australia Post’s Our Ethics, IT Systems Security Policy and Harassment Discrimination Bullying Policy.
The allegations that will be the subject of the Disciplinary Inquiry are that you sent emails from your Australia Post email account to internal Australia Post email recipients and/or external email recipients which contained unacceptable, inappropriate and/or offensive material. You also received and accessed emails on your Australia Post email account which contained unacceptable, inappropriate and/or offensive material. The email content includes pornographic and sexually explicit images.
Specifically:
1. On 21 September 2010 you received an email on your Australia Post email account with the subject: Roller coaster ride?, you subsequently accessed this email and then forwarded it to Adriana Maugeri on 15 November 2010;
2. On19 November 2009 you received an email on your Australia Post email account with the subject: ?????? 20 ???????+ 18, you subsequently accessed this email and then forwarded it to Adriana Maugeri on 16 November 2010;
3. On 28 May 2010 you received an email on your Australia Post email account with the subject: Grid Chicks, you subsequently accessed this email and then forwarded it to Adriana Maugeri and “HT” on 01 December 2010;
4. On 12 May 2010 you received an email on your Australia Post email account with the subject: Grandmothers in BrazIl, you subsequently accessed this email and then forwarded it to Adriana Maugeri and “HT” on 01 December 2010;
5. On 22 October 2010 you received an email on your Australia Post email account with the subject: Make my day, you subsequently accessed this email and then forwarded it to Adriana Maugeri on 03 December 2010;
6. On 22 October 2010 you received an email on your Australia Post email account with the subject: A problem solved, you subsequently accessed this email and then forwarded it to Adriana Maugeri on 03 December 2010;
In doing so, you failed to discharge your responsibilities as an Australia Post employee and breached the following policies:
IT Systems Security Policy
I. Used Australia Post’s IT system for personal use in an unacceptable manner, involving content that might be regarded as offensive, immoral or unethical
II. Stored, transmitted or accessed unacceptable material including drawings, cartoon, jokes, texts, photographs, animations or videos that are racist, pornographic, sexually explicit, abusive or sexist
III. Stored, transmitted or accessed unacceptable material that might degrade, offend or embarrass a person because of their disability, age, sex, religion or ethnicity, or perform any activity that otherwise constitutes harassment
Harassment, Discrimination and Bullying Policy
I. Failed to ensure your work environment is free of harassing, discriminating or bullying material
II. Viewing and/or distributing material in the workplace that could offend or embarrass others in the workplace
Our Ethics -Work Practices and Performance:
I. Comply with all Australia Post policies and procedures and all relevant laws, industrial awards and agreements that apply to your job and specifically the Harassment Discrimination Bullying Policy and the IT Systems Security Policy [refer Our Ethics, page 8, ethical standard 3.1.1 a} Work Practices 8- Performance]
II. Intentionally causing damage to Australia Post’s interests, employee relations or public reputation [refer Our Ethics, page, ethical standard 3.1.2 a} Work Practices 8- Performance]
III. A reckless act or omission, which causes, or could cause, significant damage or harm and which could adversely affect the employment relationship [refer Our Ethics, page, ethical standard 3.1.2 b) Work Practices & Performance]
Our Ethics - Use of Corporate Property:
I. Safeguard and use correctly and efficiently corporate property under your control in that you used an Australia Post email account [refer Our Ethics, page 17, ethical standard 6. 1.1 a} Use of Corporate Property)
II. Be familiar with, and comply with, current Australia Post policies, relevant laws and regulations relating to the use of property owned or leased by the corporation specifically your Australia Post email account[refer Our Ethics, page 17, ethical standard 6.1.1 c) Use of Corporate Property]
III. Using corporate information resources such as the email outside policy requirements [refer Our Ethics, page 17, ethical standard 6.1.2 b) Use of Corporate Property)”
[35] Mr Rushiti admitted sending the inappropriate emails.
[36] The second email referred to in the allegations was the subject of evidence from both Ms Robinson and Mr Austen. The email was introduced into evidence through Mr X as part of Attachment FP5 to Exhibit R1. The email included an email trail as set out in the following table:
SENDER | RECIPIENT | DATE | TIME | SUBJECT |
(not shown) | 7 MAY 2009 | 19:03:06 | “18+....20....” | |
[email protected] | 8 May 2009 | 11:18:47 | “18+....20....” | |
“MM”@hotmail.com | “MM” | 16 July 2009 | 10:38 PM | “18+....20....” |
“MM” | “PS” “DS” | 17 July 2009 | 9:01 AM | ???? ?? 20 ??? ????+18 |
“WG” | Rushiti, Nick | 19 Nov 2009 | 10:23 AM | ???? ?? 20 ??? ????+18 |
Rushiti, Nick | adriana maugeri | 16 Nov 2010 | 8:41AM | ???? ?? 20 ??? ????+18 |
[37] The email trail discloses the following points of interest.
[38] “MM” received the email on his hotmail account on 8 May 2009 and it was still there when he forwarded it to his Australia Post email account late in the evening of 16 July 2009. The next morning while at work “MM” forwarded the email to 3 other Australia Post employees. One of these employees, “WG” kept the email on his Australia Post email account until at least the 19 November 2009 when he forwarded it to Mr Rushiti. Finally Mr Rushiti kept the email on his Australia Post email account for nearly a year before forwarding it to his sister in law on 16 November 2010.
[39] “MM”s Australia Post email account was the subject of examination but no trace of the email could be found. “MM” deleted the email from his account some time after he sent it to 3 other Australia Post employees.
[40] “MM” was not subject to any disciplinary action.
[41] Ms Robinson’s evidence was that no reliance could be placed upon the email trail as disclosed on the face of the email because it was not possible to have confidence in the accuracy of the email trail. The following extract from the cross examination of Ms Robinson by Mr Dwyer for the Applicant makes the point:
“PN2733 Mr Dwyer: Yes. So when you searched the emails of “MM” this email did not come up?---Ms Robinson: No, it was not in his email account, and I think in actual fact, if the email is to be believed down the bottom, he sent it from his Hotmail account at home anyway, so - - -
PN2734 So it appears that he sent it from home to his work email?---That’s what it appears on this document here.
PN2735 Yes, “MM” sent it from his home account to his work account. Is that what you’re saying?---I don’t know. That’s what I’m saying. There was no evidence of it in his work account.
PN2736 Yes, but you had this evidence that he’d sent it?---No, we didn’t have evidence that he sent it in his account. If you go into an email in someone’s account and go down the bottom you can change it, you can amend it, you can write someone else’s name in there, you can actually - and save it. So to view it as evidence it has to actually be in their account, otherwise you’ve got no way of knowing if they did or they didn’t send it, or if someone has gone in there and written over the top of an email or added their name in.
PN2737 So you’re saying that a printed copy like this would not be evidence?---It wouldn’t be sufficient evidence, no. It’s evidence to have a look at “MM”’s account and investigate if there is any evidence of it, yes. But you couldn’t rely on that to say that he did send it in 2009. I don’t know if he did or he didn’t.
PN2738 So you’re saying this would be an unreliable document to rely on?---Those down the bottom and without having evidence in his inbox in his email account, yes, it wouldn’t be sufficient to rely on. It’s enough to trigger investigation.
PN2739 I understand what you’re saying, thank you. If I could say, while we’re on that attachment, this table, people like “WG”, “RS”, “CB”, the fact that you had emails like this - - -?---Triggered investigation into their accounts, yes.
PN2740 - - - triggered investigation, but you don’t regard as sufficient evidence to do anything about it?---You’d need evidence in their accounts, and if there is evidence in their accounts that they have forwarded on or sent or stored inappropriate content, then that’s what action would be taken. However, on the basis of just the investigation has been triggered, that is why I developed those guidelines and discussions were had with each employee, so - - -
[42] In contrast Mr Austen, an IT Analyst for Australia Post had high confidence that the email trail identified on the face of the email was accurate. In answer to questions from the Tribunal Mr Austen said:
“PN3226 Commissioner: If you have got that in the electronic format that it originally came in, is there sufficient information on that electronic version for you to say with confidence that this came definitely from “WG”?---Mr Austen: I would be feeling very confident. If you wanted additional evidence, you may want to talk to our exchange team who manage the internal exchange. But with that domain, with that name, I would be very confident that it came from that person.
PN3227 So at least at this very first level if the email that you have accessed from Mr Rushiti identifies that it came from another Australia Post employee, that is sufficient to say that other Australia Post employee sent it?---Yes, I would be feeling very confident. The original email, yes.
PN3229 “WG” received it from “MM”. Because the chain shows that, or it says “MM” sent it on 17 July 2009 to three persons, one of which was “WG”. But Ms Robinson has said they could have no reliance upon that because it could have simply been altered. In other words someone could have changed the document and saved it, so therefore they couldn’t rely upon it?---The fact that it comes from a Hotmail address into a Post, from that Hotmail address at the bottom of the screen into a Post address, then from the Post address on, I would be feeling very confident that not only has the person forged an internal Post address that has been accepted by our mail gateway and exchanged, been delivered into that mailbox into the exchange, and then that person has forwarded it on to someone else? I would be very confident. I would find that very difficult that that would be forged. Because it’s not just the end result of the mail address. It’s the fact that it came from external, going into that Post box, and accepted into that Post box, and then forwarded on to someone else. “
[43] Notwithstanding the level of confidence that Mr Austen had in the accuracy of the email chain the approach adopted by Australia Post was to use the email trail to initiate investigations but where there was no evidence of the emails still being in an employee’s email account then no action was taken against the employee.
[44] For the sake of completeness in this matter I have set out the email trail in relation to each of the other 5 emails which were sent by Mr Rushiti to an external email address.
SENDER | RECIPIENT | DATE | TIME | SUBJECT |
“CJ” | “WG” | 21 Sept 2010 | 8:14 AM | Roller coaster ride? |
“WG” | “RS” | 21 Sept 2010 | 8:22 AM | Roller coaster ride? |
Rushiti, Nick | adriana maugeri | 15 Nov 2010 | 7:23 AM | Roller coaster ride? |
SENDER | RECIPIENT | DATE | TIME | SUBJECT |
“CB” | “PP” | 7 May 2010 | 11:26 AM | Grandmothers in Brazil |
“RS” | Rushiti, Nick | 12 May 2010 | 9:35 AM | Grandmothers in Brazil |
Rushiti, Nick | adriana maugeri | 1 Dec 2010 | 8:00 AM | Grandmothers in Brazil |
Rushiti, Nick | “HT” | 1 Dec 2010 | 8:12 AM | Grandmothers in Brazil |
SENDER | RECIPIENT | DATE | TIME | SUBJECT |
Prostreet ([email protected]) | [email protected] | 25 May 2010 | 6:39 PM | |
Mark Cunningham | [email protected] | 26 May 2010 | 9:02 AM | FW |
John Skase| | Cramer, John ([email protected]) | 26 May 2010 | 10:44 AM | |
Trevor Johnson [[email protected]] | Gary Nash | 26 May 2010 | 11:55 AM | |
“WG” | “RS” | 28 May 2010 | 7:44 AM | Grid Chicks |
“RS” | “BK” | 28 May 2010 | 8:02 AM | Grid Chicks |
Rushiti, Nick | adriana maugeri | 1 Dec 2010 | 7:58 AM | Grid Chicks |
Rushiti, Nick | “HT” | 1 Dec 2010 | 8:13 AM | Grid Chicks |
SENDER | RECIPIENT | DATE | TIME | SUBJECT |
“OM” | Rushiti, Nick | 22 Oct 2010 | 9:34 AM | A problem solved |
Rushiti, Nick | adriana maugeri | 3 Dec 2010 | 7:03 AM | A problem solved |
SENDER | RECIPIENT | DATE | TIME | SUBJECT |
“WG” | “RS” | 22 October 2010 | 6:46 AM | Make my day |
Rushiti, Nick | adriana maugeri | 3 Dec 2010 | 7:02 AM | Make my day |
[45] What the emails disclose is that whilst Mr Rushiti received inappropriate emails from November 2009 he only sent those emails to an external email address over a short period from 15 November 2010 to 3 December 2010. This is consistent with the evidence given by Mr Rushiti that he did not know how to forward an email until he was shown how to do so by “HT” a fellow employee. 6
[46] The evidence in this matter makes clear that many Australia Post employees who received and forwarded on to other Australia Post employees inappropriate emails were never subject to disciplinary action simply because the inappropriate emails had been deleted from their email accounts.
[47] Mr Austen gave evidence of the way in which the Australia Post IT system worked [confidential content not published under s.594].
[48] The Australia Post email system was archived each day and all emails contained in an Australia Post’s employee email account would be archived.
[49] [confidential content not published under s.594]
[50] [confidential content not published under s.594] Although the archived email account records were available it was never suggested in any of the evidence that the investigations into any employees email account included an examination of the daily archive reports on the Australia Post email account system.
[51] Although the Australia Post policies make it clear that receipt, retention or sending of inappropriate emails constitutes a breach of policy Australia Post only commenced investigations when inappropriate emails were sent to external email accounts. Even then only current email account details were examined.
[52] In the case of the second email discussed above it is clear that had Australia Post examined their archive of email accounts that “WG”’s email account would have shown that he received the second email from “MM”. [confidential content not published under s.594] the fact that the email account of “WG” contained the received email from “MM” would constitute sufficient proof that “MM” sent the email to “WG”. Thus Australia Post had at all times sufficient evidence to conduct Disciplinary Inquiries into “WG” and “MM” for having sent a pornographic email. Australia Post chose not to do such investigations of the archived email accounts.
[53] Australia Post made strong submissions that the receipt of inappropriate emails was not the basis for initiating any Disciplinary Inquiry against any employee. The ECDP was invoked because employees had sent inappropriate emails.
[54] The difficulty I have with the Australia Post position is that Mr Rushiti could only have sent inappropriate emails because other Australia Post employees had sent inappropriate emails to Mr Rushiti, yet these other employees were not subject to a Disciplinary Inquiry..
The Decision of the Delegate
[55] The decision to terminate the employment of Mr Rushiti was made by Mr Y, the Delegate appointed under the ECDP.
[56] Whilst Mr X the Inquiry Officer recommended the termination of Mr Rushiti’s employment the decision was that of the Delegate.
[57] The ECDP specifically directs the Delegate in carrying out his decision making function:
- consider the Disciplinary Inquiry Report together with any written or verbal* representations made either by the employee or through his or her representative. That representation may only be on the question of the recommended penalty and procedural issues. The merits of the case will not be revisited. The role of the Delegate is to listen and take notes of issues raised by the employee, not to engage in a debate or discussion of the contents of the Inquiry Report. At the conclusion of the representation, the employee is to be informed that his or her comments have been noted and will be taken into consideration before the Delegate makes a final decision. (*If the employee makes verbal contact, a file note of the conversation should be made by the Delegate for consideration and subsequent placement on the employee’s personnel file);
- be satisfied that the employee has had reasonable opportunity to respond either verbally or in writing to the allegations against him or her; and
- take whichever of the following actions is considered to be appropriate based on the evidence provided:
“6.2.11 DISCIPLINARY ACTION
a) ACTION BY DELEGATE
The Delegate will:
1. Accept the Inquiry Officer’s recommendation(s); OR
2. If the recommendation(s) is considered inappropriate (ie either too harsh or too lenient), implement a more appropriate course of action ie:
a) conduct or arrange a Warning Counselling; or
b) transfer the employee to a position of the same or lower classification; or
c) where the breach of Our Ethics and/or the employee’s contractual obligations is sufficiently serious to be only marginally short of dismissal and transfer action would either advantage the employee or result in too harsh a penalty, reduce the employee’s salary by up to two increments for a period of up to 12 months (or equivalent penalty); or
d) dismiss the employee; OR
3. Reject the recommendation(s) on the basis that no disciplinary action is required.
The employee should be advised as soon as possible, in writing, of the decision of the Delegate and the reasons for the decision. Where the decision is that the employee be dismissed, transferred to another position of the same or a lower level or have imposed a salary reduction of up to two (2) increments for a period of up to 12 months (or equivalent penalty), the advice should also include the review provisions (refer s.6.2.12 a) - ‘Review Provisions’ below).
(Refer Appendix 9 for sample Notification of Disciplinary Decision.)” 7
[58] The decision of Mr Y was set out in a letter dated 16 May 2011 as follows:
“Re: Disciplinary Inquiry - DelegateDecision
I refer to the recent Discipline Inquiry conducted by Mr X into your behaviour as detailed in the Inquiry Report of 4 May 2011. Mr X has recommended you be dismissed from your employment with Australia Post.
Having read and considered the Discipline Inquiry report, which is well detailed and supported by significant evidence, I am of the view that the Inquiry Officer’s recommendation was fair, reasonable and entirely appropriate given the serious nature of the breaches detailed in the report.
During our discussion of Monday 9 May 2011 I provided you with one final opportunity to detail any reasons as to why I should not accept the Inquiry Officer’s recommendation.
In response you claimed that the dismissal recommendation was unfair on the basis that you were never trained and/or instructed to read the IT Security daily notification before accepting the terms and conditions associated with use of Australia Post computers and email systems.
I do not find this explanation for your behaviour to be reasonable nor acceptable and am satisfied that you have been repeatedly informed by Australia Post as to the behavioural standards required under Our Ethics, HDB policy and IT Systems Security policy.
Accordingly, my decision is that you will:
1. be summarily dismissed from your employment with Australia Post effective immediately and without payment in lieu of notice
Your employment will be terminated as of close of business 16 May 2011. You will receive final payment of pro-rata recreation leave, annual leave bonus(es) and long service leave (if applicable), less any monies owing at the expiry of an additional period of five working days, which period will be without pay.
If you consider the penalty imposed in relation to your breaches of the Code of Ethics to be harsh, unjust, unreasonable or unfair, and wish that decision to be reviewed by a Board of Reference, you may make an application to Ms Tracey Smith, Acting Manager, Human Resources, People & Community, Southern Operations, GPO Box 2020 Melbourne Vic 3001 within 14 calendar days of the date of this letter, namely 30 May 2011
Yours sincerely” 8
[59] It is apparent from the letter of termination that Mr Y, as the Delegate, only took into account one factor namely the claim by Mr Rushiti that he had not been trained in relation to the IT policy.
[60] In answer to a question from Mr McKenney for Australia Post, Mr Y explained how he made decisions as a Delegate:
“PN1814. Mr McKenney: ....... I just want to ask you, given your experience with the organisation, how do you make an assessment as to what’s appropriate?---Mr Y: Well, it’s a myriad of issues that need to be considered. In the context of the inquiry report it’s relatively straightforward. The inquiry has been undertaken fairly and has reached a due conclusion. The conclusion is backed up by evidence. The recommendation is there. My role as the delegate is to understand if there is peripheral mitigating circumstances that may have influenced the behaviour at that time. In general circumstances that will come about through a meeting face to face with the person involved as it did with Mr Rushiti and others, where they get the opportunity, with some assistance from a representative who is experienced at representing people in those circumstances, to communicate mitigating events or circumstances, but there’s a myriad of reasons that may suggest to me that this was a one-off event or a series of events that were influenced by external factors not available to the inquiry. It’s also an opportunity to review, as in a lot of cases there is a disciplinary history, to have a discussion with the employee about the overall performance behaviours in the business.”
[61] In the case of Mr Rushiti Mr Y explained his decision making process in his witness statement in the following terms:
“19. After careful consideration, I decided the recommendation of the Inquiry Officer to dismiss Mr Rushiti was appropriate. I made this decision based on the fact that Mr Rushiti had undertaken adequate training in relation to his obligations per Our Ethics and the HDB policy. I also gave weight to the fact that each day Mr Rushiti accepted the terms and conditions of use when he logged in to Australia Post IT resources. I was satisfied that Mr Rushiti, by his own admission during interview, had sent those emails and that the content of those emails breached our policies and procedures. Further, I agreed with the Inquiry Officer’s report that the content of the emails are offensive. In my view the conduct of Mr Rushiti constituted serious and wilful misconduct.
20. I decided not to vary Mr X’s recommendation of summary dismissal. This was based on my consideration of the evidence and Mr Rushiti’s conduct during the Inquiry, in particular his lack of contrition and remorse. I also considered Mr Rushiti’s responses during the meeting with myself and the fact that Mr Rushiti failed to provide sufficient mitigating circumstances which would warrant reducing the Inquiry Officer’s recommendation.” 9
[62] I note that a decision to dismiss an employee “may be harsh in its consequences for the personal and economic situation of the employee” 10 In the present matter both the length of service of Mr Rushiti and the financial consequences for Mr Rushiti of a possible dismissal were briefly raised by Mr Rushiti in the meeting with Mr Y before he made his decision11. However, neither the termination letter nor the witness statement of Mr Y discloses that any weight was given in mitigation to either Mr Rushiti’s length of service or the consequences for the personal and economic situation of Mr Rushiti of being terminated after 12 years of employment with Australia Post.
The proper characterisation of the misconduct
[63] The misconduct of Mr Rushiti in sending inappropriate emails has been categorised by Australia Post as constituting serious misconduct for several reasons all of which were detailed by Mr X the Inquiry Officer in his Disciplinary Inquiry Report. In summary they are:
The sending of the 6 emails constitutes breaches of “Our ethics” and constitute serious and wilful misconduct. The reference to “Our ethics” included each of the following policies which are referred to in “Our ethics”: IT Systems Security policy and Harassment Discrimination and Bullying policy. Mr X determined that the conduct was serious misconduct on the basis that the emails sent to an external email address “were accordingly branded as being the property of Australia Post” because of the automatic inclusion of a text on the bottom of every email being sent externally from an Australia Post email account.
[64] As Mr X’s Report stated:
“The above text is automatically generated on emails sent to an address outside the Australia Post IT system. If an email is on-forwarded by an external recipient, the above identifying text accompanies the email. This results in the email, and in this case it’s objectionable content, continuingly being identified as having its origins or a relationship to Australia Post. It is the inquiry officer’s view that such conduct is serious as it has the potential to cause damage to Australia Post’s public reputation, trusted brand name and corporate image.”
[65] In Carter v The Dennis Family Corporation, Habersberger J reviewed some of the key cases on the meaning of serious misconduct as follows:
“36 In Boston Deep Sea Fishing & Ice Co v Ansell, Bowen LJ described serious misconduct as an act “ beyond all dispute a violation of the confidential relation” between employer and employee.
37 In North v Television Corporation Ltd, Smithers and Evatt JJ said:
In such a situation it is reasonable to interpret the expression “misconduct” as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.
38 In Rankin, Gillard J said:
As a general proposition one act of disobedience or misconduct would not generally justify dismissal, but one such act may justify dismissal, “only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason therefore, ... that the disobedience must at least have the quality that it is ‘wilful’: it does (in other words) connote a deliberate flouting of the essential contractual conditions”.
As a general proposition, it is something more than ill advised conduct or omission to act, as a result of an error of judgment. ...
39 In Serventi v John Holland Group Pty Ltd, Madgwick J said:
An employer is entitled to summarily dismiss an employee for serious and wilful misconduct. Such misconduct must be of a kind that, as a practical matter, is likely to make maintenance of the contract of employment impractical.
40 In Sent v Primelife Corporation Ltd, Mandie J said:
Serious misconduct in this context has been held to include conduct, in relation to important matters, that constitutes a repudiation of or is incompatible with or repugnant to the essential obligations of an employee ...
41 The ground is not mere misconduct. Nor will isolated conduct usually suffice. Again, the adjective is not without significance. The misconduct must be serious. As Osborn J said in Connor v Grundy Television Pty Ltd:
The negligence or misconduct may be sufficient to justify summary dismissal either if it is a substantial enough breach of the employee’s duty or if its consequences are sufficiently damaging to the employer.
42 Thus, it is clear that an employer who alleges gross negligence or serious misconduct to justify summary dismissal carries a “heavy burden”.
43 It is also clear from the above quotations that serious misconduct and repudiation are two sides of the same coin. Generally, conduct that meets the test of serious misconduct will also constitute a repudiation by the employee of the employment contract because it will be conduct repugnant to the essential obligations of the contract.” 12
[footnotes omitted]
[66] But in applying the test of whether the conduct of the employee is serious misconduct regard should be had to the caution expressed by the Privy Council in Jupiter General Insurance Co Ltd v Andeshire Bomanji Shroff:
“It must be remembered that the test to be applied must vary with the nature of the business and the position held by the employee, and decisions in other cases are of little value.” 13
[67] In the present matter the position held by Mr Rushiti was that of a low level employee who was originally employed to perform driving duties and only gained access to the IT system as a result of performing return to work duties. The very nature of Mr Rushiti’s use of a computer for work purposes was at a low level and Mr Rushiti was not required to exercise any great skill in understanding or using computers in order to perform the input of certain data into a computer system. Mr Rushiti spent about an hour a day using the computer as part of his return to work duties.
[68] Although Mr Rushiti acknowledged the wrongfulness of his actions he asserted in his evidence that he would never have sent the emails if he knew he would be dismissed for doing so. Whilst this is far from showing genuine remorse it supports a finding that Mr Rushiti was never intending to repudiate his contract of employment by sending the emails.
[69] Whilst Mr X formed the view that “such conduct is serious as it has the potential to cause damage to Australia Post’s public reputation, trusted brand name and corporate image”, nothing was put which considered whether that potential would or could be realised. The fact that Mr Rushiti sent the 6 external emails to his sister in law at her request would suggest that the potential relied upon by Mr X would not eventuate.
[70] The conclusion which I draw from the above analysis is that the misconduct of Mr Rushiti is sufficient to constitute a valid reason for dismissal, as conceded by Mr Rushiti, but when viewed objectively and having regard to the circumstances of the case does not “include conduct, in relation to important matters, that constitutes a repudiation of or is incompatible with or repugnant to the essential obligations of an employee”.
Overall conduct of Rushiti
[71] It is important in my considered view to put Mr Rushiti’s conduct into proper perspective. Mr Rushiti was given access to a computer as from 21 September 2009 as part of his return to work program so that he could provide some limited administrative support at the Melbourne Consolidation Centre.
[72] The training given to Mr Rushiti in relation to “Our Ethics” was given on 7 August and 11 September 2009 before Mr Rushiti was given access to a computer. There is nothing in the evidence of Australia Post to suggest that the timing of the training was to prepare Mr Rushiti to work on a computer. Rather the evidence suggests that at a time when Mr Rushiti was not employed on computer work he was given the “Our ethics” training simply as part of a general program of training Australia Post staff on “Our ethics”. Mr Rushiti did not appear to take the training seriously as his evidence was vague and uncertain about any such training. Mr Rushiti only conceded that he had received the training from Australia Post when presented with evidence of his attendance at various training events. Mr Rushiti had a blasé attitude about the agreement he was entering into each time he turned on his computer. Mr Rushiti never read the contents of the pop up box and merely pressed “ACCEPT” on the pop up box in order to access the Australia Post IT system.
[73] I have no hesitation in finding that Mr Rushiti displayed a naive disregard for the requirements of the Australia Post policies on email use. But this naivety falls far short of any calculated or wilful disregard for Australia Post’s policies. Mr Rushiti was influenced by the conduct of other Australia Post employees who being in roles which required constant long term use of computers were much more culpable in relation to breach of Australia Post’s email use policy.
[74] I accept the evidence of Mr Rushiti that he was genuinely remorseful for his conduct.
Does the Punishment fit the crime?
[75] In Gilbert and Sullivan’s “Mikado” the Emperor of Japan sings of his own virtues when he says:
My object all sublime
I shall achieve in time—
To let the punishment fit the crime,
The punishment fit the crime;
[76] In the context of the unfair dismissal jurisdiction of Fair Work Australia the concept of the punishment fitting the crime is approached through considering whether the dismissal of the employee is a proportionate response to the conduct of the employee. As a Full Bench of the Australian Industrial Relations Commission said: “If summary dismissal was disproportionate to the misconduct that would support a conclusion that the termination was harsh, despite the existence of a ‘valid reason’ for termination.” 14
[77] Having taken into account each of the other matters that I consider relevant under s.387(h) together with each of the matters in s.387(a) to (g) inclusive I find that the dismissal of Mr Rushiti was harsh. The summary dismissal was disproportionate in all of the circumstances of this case to the misconduct.
[78] The punishment did not fit the crime.
[79] This matter will be listed for further hearing as to remedy on 20 April 2012.
COMMISSIONER
Appearances:
D. Dwyer and D. Khatab, CEPU, for the Applicant
M. McKenney of Counsel for Australia Post
Hearing details:
Melbourne|
2011
14 December
2012
10, 11, 12 January
21 February
5 April
Final written submissions:
13 February 2012
1 Attachment TS1 to Exhibit R4
2 Attachment TS9 to Exhibit R4
3 Attachment TS2 to Exhibit R4
4 Transcript at PN2641
5 Transcript at PN2340
6 Transcript at PN772 - PN774, PN817 - PN818
7 Attachment TS1 to Exhibit R4
8 Attachment MK1 to Exhibit R3
9 Exhibit R3
10 Byrne v Australian Airlines Ltd, (1995) 185 CLR 410 at 465
11 Exhibit A5
12 [2010] VSC 406
13 [1937]3 All ER 67 at 73
14 Potter v WorkCover Corporation, PR948009 at pn 55, 15 June 2004, Ross VP, Williams SDP, Foggo C
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