Roswitha Brook v Parkville Youth Justice Precinct

[2014] FWC 453

[2014] FWC 453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roswitha Brook
v
Parkville Youth Justice Precinct
(U2013/1441)

COMMISSIONER BISSETT MELBOURNE, 28 JANUARY 2014

Application for relief from unfair dismissal.

[1] This is an application by Ms Roswitha Brook (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) in which the Applicant seeks relief from unfair dismissal from her employment.

[2] Ms Brook was employed by the Department of Human Services (DHS, the Respondent) as a youth justice worker at the Parkville Youth Justice Precinct. At the time her employment was terminated Ms Brook was working in a secure unit of the Youth Justice Custodial Centre (the facility). Ms Brook commenced employment with DHS on 4 March 1999. Her employment was terminated on 12 April 2013.

[3] The Applicant was represented with permission by Mr Galbraith of counsel and the Respondent with permission by Mr Bromley of counsel.

[4] On 20 December 2012, DHS put three allegations of misconduct to Ms Brook with respect to taking a mobile phone into the facility on 18 December 2012, having the phone with her while on duty, and denying to her manager that she had the phone with her. Having heard from Ms Brook with respect to the allegations DHS advised that it proposed to terminate her employment.

[5] On 1 March 2013 the relevant DHS officer prepared a brief to the Delegate in DHS (responsible for making the decision on disciplinary action).

[6] On 12 April 2013 the Delegate determined that Ms Brook’s employment should be terminated.

[7] Much of the background to the incident and events after the incident are not contentious. To this extent the relevant factual circumstances are set out below. Some findings on this material however are necessary and have been made.

[8] There are a limited number of highly contested issues in this matter, each of which requires resolution and findings. These are dealt with later in this decision. Following the findings is a consideration of whether or not the dismissal was unfair.

Standard of Proof

[9] It is necessary, where a dismissal is based on the conduct of a party, for the Fair Work Commission (the Commission) to determine for itself if the conduct occurred. 1

[10] In determining such matters I must be satisfied that, on the balance of probabilities, 2 the conduct complained of occurred. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd3 the High Court held that:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw ((7) (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711):

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...”.

clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case. 4

[11] I have applied this standard in making findings in this matter.

Background

[12] What follows is a narrative of events from 18 December 2013 until the dismissal of the Applicant taken from the statements of the Applicant, and Ms Natalie Jones (Manager Workplace Relations) and Mr James McCann (General Manager Parkville Youth Justice Precinct) of the Respondent. Any minor contest in the evidence is noted and necessary findings made.

[13] The Applicant is aware that taking a mobile phone into the facility is prohibited. There is a single secure entry point into the facility and clear signage as to what is and what is not allowed to be brought in.

[14] The day of the incident was the Applicant’s last working day before proceeding on four weeks’ annual leave.

[15] On 18 December 2012 the Applicant arrived at work 8.30am. Prior to entering the facility and submitting to an iris scan she patted down her pockets. She was aware that she had some A4 pages folded in her right side pocket. She proceeded through the metal detector which went off (as it often did, caused by rings on her fingers that she could not remove). She went through a secondary metal detector and moved towards a dais in which she could be ‘wanded’ (i.e. manually screened). The male security guard on duty waved her through as there was no female security guard on duty to wand her down.

[16] At about 12.46pm the Applicant was in kitchen of the unit in which she worked with other staff and clients when she felt a vibration in her pocket and heard her mobile phone ring. 5 It stopped shortly thereafter. She was asked by Mr David Cameron (the Manager Secure Services) if she had a mobile phone on her. She answered no and left the kitchen and went to her locker where she put the mobile phone.

[17] Based on an email Mr Cameron sent to management later that day, Ms Jones says that Mr Cameron approached the Applicant immediately after the phone rang outside the kitchen. 6 Mr Cameron did not give evidence in these proceedings.

[18] The Applicant denies this meeting took place and says that she then tried to find Mr Cameron but was told he had ‘gone up the top’ which she took to mean he had gone to the administration section. She says she tried to contact him but was not successful.

[19] The Applicant proceeded on her lunch break. She returned from lunch at 2.00pm. At 2.10pm she was approached by Mr Jamil Spiroch who told her Mr Cameron wished to see her.

[20] The Applicant’s evidence of her meeting with Mr Cameron is set out in her witness statement. She says:

I walked to David’s office. David laughed when he saw me. We had the following conversation:

a. David said: “now Roz do you have a mobile phone on you?”

b. I said: “no”. The way David was talking and the tone of his voice made me think that he was joking with me, that he knew he was asking me a rhetorical question, because it was obvious to both of us that I had my mobile telephone, and that my answer was “yes”. I also knew that David had seen the CCTV footage.

c. David said; “the incident has been caught on CCTV”.

d. I said: “then you would have seen how shocked I was when it rang”.

e. David laughed and said: “yes, you shit yourself”.

f. I said: “I really had no idea I had it, and if I did want to sneak it in I wouldn’t have had it on the highest volume. I don’t want to lose my job”.

g. David laughed again and said: “don’t worry you won’t lose your job”.

h. I said: “thanks” and walked out of David’s office.

i. I turned back to David’s office and said: “you asked me if I have a mobile phone on me, I said no because I don’t have one on me, but obviously I did earlier”.

j. David said: “ok ok it’s alright, Roz”. 7

[21] At 2.41pm Mr Cameron sent an email to Mr Daniel Emeny and Mr Matthew Belleville of the Respondent. In this email Mr Cameron states that the Applicant initially denied that she had the mobile phone on her, that she then left his office and returned about 30 seconds later when she admitted having the mobile phone and indicated she was scared of losing her job which is why she lied. 8

[22] At 4.20pm that day the Applicant was called to the office of Mr McCann. The Applicant had Ms Stacey Livis with her as a support person. Mr McCann advised the Applicant that there was an allegation that she had brought a mobile phone into the facility and, pending an investigation, she would be stood down on full pay. 9 He also told her that the matter may be referred to the police.

[23] Following the meeting Ms Livis suggested the Applicant send an email that evening to Mr McCann which she did. In that email the Applicant says that she ‘honestly had no idea [the mobile phone] was in my pocket at all. I would never intentionally breach security...I understand theprocedure that must be taken and that this breach is not looked at lightly, but please be aware Ididn’tt do it intentionally’ 10 (sic)

[24] Mr McCann replied the next day and indicated that the Applicant would be given an opportunity to formally respond to the allegations against her. 11

[25] On 20 December 2013 the Applicant received a letter from the Respondent which set out the allegations against her. The letter gave the particulars of the allegations as follows:

Allegation 1: On or about 18 December 2012, you introduced a mobile phone into the Parkville Youth Justice Precinct;

Allegation 2: On 18 December, at or about 12.45pm, while on duty in the kitchen area of the Westgate Unit of the Parkville Youth Justice Precinct, you had a mobile phone on you;

Allegation 3: On 18 December 2012, at or around 12.50pm, while on duty at the Westgate Unit of the Parkville Youth Justice Precinct, you stated to your line manager Mr David Cameron that you did not have a mobile phone in your possession - a statement you subsequently contradicted;

On 18 December 2012, at or around 2.10pm, while on duty at the Westgate Unit of the Parkville Youth Justice Precinct, you stated to your line manager Mr David Cameron that you did not have a mobile phone in your possession - a statement you subsequently contradicted 12

[26] The Applicant met with the Respondent on 17 January 2013. She was accompanied by her union (CPSU) representative. Present at the meeting for the Respondent was Ms Jones and Mr Emeny.

[27] During this meeting the Applicant was asked if she had a phone with her at Parkville to which she answered ‘yes’. At this point the Applicant says Ms Jones and Mr Emeny explained that the meeting was over as the Applicant had admitted to having the mobile phone in Parkville. Ms Jones says that neither she nor Mr Emeny said that the meeting was over because the Applicant had admitted to having the phone. A copy of Ms Jones’ typed notes of the meeting are attached to her witness statement. 13

[28] On 22 January 2013 the Applicant sent an email to Ms Jones setting out a written response to the allegations. The Applicant again said that she took the mobile phone into the unit accidentally, that she is aware of the rules at work and that the incident was an accident. 14

[29] On 4 February 2013 the Applicant received a letter from the Department which states, in part:

The department accepts that your responses essentially constitute an admission to the facts. It also notes the mitigating circumstances cited and reasons you provided for your conduct.

Having considered all of the information available to me and your verbal and written responses to the allegations, the department proposes to apply the following disciplinary outcome:

• Termination of employment.

I would like to give you an opportunity to provide a written response on any matters you believe are relevant for my consideration, including any response to the proposed disciplinary outcome... 15

[30] On 15 February 2013 Ms Dani Salinger of the CPSU, the Applicant’s union representative, provided a response on her behalf to the letter of 4 February 2013. That response raised a number of issues with the findings of the Respondent with respect to the conduct of the Applicant. It questioned if she had, in fact, engaged in misconduct, noted that the Applicant had admitted what had occurred, showed remorse, requested leniency for the Applicant, and attached a number of references for the Applicant. 16

[31] The Respondent replied to the letter from the union. In that letter Mr McCann responded to and/or noted the comments in the union letter. In conclusion he said:

In light of the department’s responses to matters raised, I inform you that this matter will proceed to be considered by a departmental delegate. Ms Brook, and yourself, will be informed of the departmental delegate’s determination of a disciplinary outcome in due course. 17

[32] Some correspondence about process and transparency ensued between Ms Salinger and Ms Jones. It is not necessary to repeat that here.

[33] The delegate ultimately appointed by the Department was Mr Ken Downie, Director of Housing Coordination.

[34] On 1 March 2013 Ms Jones sent a briefing paper with nine attachments to Mr Downie. 18 That briefing paper set out the background, proposed disciplinary outcomes and relevant policy and industrial provisions. The paper also indicated relevant legislative provisions from the Children, Youth and Families Act 2005 (Vic) and stated that the matter had been reported to the Victorian Police because there was a potential criminal offence under that Act.

[35] The Respondent submitted to the delegate that Ms Brook’s conduct was inconsistent with the continuation of her employment and that:

the seriousness of the misconduct committed by Ms Brook is such that it goes to the heart of the employment relationship; and that management can no longer have any trust or confidence in her to perform her duties. 19

[36] On 13 March 2013 Ms Salinger wrote to Mr Jesse Maddison of the Respondent and raised issues with respect to the ‘show cause’ process followed by the Department, that the Applicant had been given only one right of response in the process and the Department would not provide all of the material provided to the delegate.

[37] Ms Jones provided the attachments, except the CCTV footage, to Ms Salinger on 19 March 2013. Ms Salinger had previously viewed the CCTV footage. 20

[38] On 3 April 2013 Ms Salinger wrote to Mr Downie, the delegate, making further submissions on behalf of the Applicant.

[39] On 12 April 2013 Mr McCann contacted the Applicant and invited her to a meeting to be advised of the delegate’s decision. The Applicant indicated she did not wish to be humiliated by attending a meeting to tell her she had been dismissed. Mr McCann then couriered the decision to the Applicant.

[40] In his decision Mr Downie found:

● That Ms Brook has provided false and misleading information in relation to a prohibited item on her person;

● That Ms Brook by her failure to immediately admit that she had a prohibited item on her person raises serious matters in relation to future trust in her by Management at the centre; and

● That Management places faith in employees to strictly adhere to policies in relation to bringing prohibited items through the recently installed secure single entry point building.

[41] Mr Downie then determined that:

● Allegations 1, 2 and 3 are proven:

● The actions of Ms Brook constitute serious misconduct: and

● The employment of Ms Brook be terminated. 21

[42] The covering letter from the Respondent indicated that the Applicant would be terminated effective from 12 April 2013 and that she would receive pay in lieu of notice.

Police Investigation

[43] The potential breach of Children, Youth and Families Act 2005 (Vic) was referred to the Victorian Police.

[44] The Children, Youth and Families Act 2005 states:

Section 501

(1) A person must not without lawful authority or excuse—

(aa) enter or attempt to enter a remand centre, youth residential centre, youth justice centre or youth justice unit; or

(a) communicate or attempt to communicate with a person held in a remand centre, youth residential centre, youth justice centre or youth justice unit in contravention of a clear instruction from the Secretary not to do so; or

(ab) communicate or attempt to communicate with a person who is on temporary leave from a remand centre, youth residential centre, youth justice centre or youth justice unit accompanied by an officer if the communication threatens the security of the remand centre, youth residential centre, youth justice centre or youth justice unit or any person; or

(b) deliver, or in any manner attempt to deliver, to any such person or introduce or attempt to introduce or cause to be introduced into a remand centre, youth residential centre, youth justice centre or youth justice unit—

(i) any firearm, offensive weapon or other article which is capable of being used as a weapon; or

(ii) any form of drug without the consent of the Secretary; or

(iii) any form of alcoholic liquor or beverage; or

(iv) any other article or thing not allowed by the regulations;

...

Penalty: In the case of a child, 15 penalty units or imprisonment for 3 months.

In any other case, imprisonment for 2 years.

[emphasis added]

[45] The Children, Youth and Families Regulations 2007 provides that articles or things not allowed by the regulations includes lighters, matches and unauthorised electronic equipment. 22

[46] The Applicant was charged with a summary offence by the police and summonsed to appear in the Magistrates’ Court.

[47] The matter was heard in the Magistrates’ Court on 17 September 2013. The police charge was dismissed under s.76 of the Sentencing Act 1991 (Vic). 23

[48] Mr McCann says that he understands the Applicant entered a plea of guilty.

[49] Section 76 of the Sentencing Act 1991 allows, should the Court be satisfied as to guilt, for a charge to be dismissed without the recording of a conviction.

[50] As a result of an order issued by the Commission Victoria Police produced the brief of evidence relevant to the charges against the Applicant. This included a copy of her mobile phone billing record produced by Optus, her mobile phone service provider.

[51] The police record of interview with Ms Brook was tendered as evidence in these proceedings. 24 In that interview Ms Brook set out her version of the events of 18 December 2012. She maintained in this interview that she had taken the mobile phone into the facility, that it was an accident, and that she was sorry she had done so.

Mobile phone use and billing record

[52] Whether the Applicant used her mobile phone during the morning of 18 December 2012 in the facility was in contention in these proceedings.

[53] The Applicant’s mobile phone billing record for 18 December 2012 25 was produced. The Applicant’s mobile phone number ends in 6862. This billing record was the same record attached to the brief of evidence provided by Victoria Police.

[54] The following excerpt from the billing record shows the following activity on the Applicant’s phone:

Date	Time	A Number 26	Origin	B Number	Destination	Type of service	Duration	Tariff
18/12/2012	08:35:42	xxxxxx6862	Ascot Vale	GPRS	Internet	2214
18/12/2012	09:55:49	xxxxxx6862	Mobile	xxxxxx8139	Mobile	SMS MO - Standard	0001	Peak
18/12/2012	12:46:39	xxxxxx6862	P’VILLE	xxxxxx0321	VoiceMail	VoiceMail Deposit	0028	Peak
18/12/2012	13:07:50	xxxxxx6862	P’VILLE	GPRS	Internet	3761

[55] The Applicant’s evidence is that she did not use her mobile phone on the morning of 18 December 2012 27 and she did not send an SMS at 09:55:49.28 The Applicant says that those matters described at ‘GPRS’ are her mobile phone ‘apps’ automatically updating through internet roaming.29 That is, her phone automatically connected to the network via the internet without her physically doing anything.

[56] Of the entry in the billing record at 09:55:49 the Applicant says that she sent a text message the evening before and she could not explain why it showed at 9:55 that morning. 30 She says that the number was that of her Avon representative.

[57] The phone call logged at 12:46:39 is the call that came to the Applicant’s phone and went to voicemail when she was in the facility kitchen with clients and staff.

[58] As the Applicant intended to rely on her evidence that the time shown on the billing record of 09:55:49 was not the actual time that she sent the text message, and this had not been identified prior to the commencement of proceedings by the Applicant, the Respondent was granted leave to call a witness to give evidence of what the billing record shows. Whilst the parties were encouraged to find an expert who could produce an agreed statement for the Commission this turned out not to be possible.

[59] Mr David Finlay is a ‘statement officer’ for Singtel Optus Pty Ltd (Optus). He gives evidence is cases (before courts and tribunals) about phone records and what these show as far as he understands the network to operate. 31 He does not profess to be an expert on the technical workings of the SMS network.32 Mr Finlay produced a statement he had made to the police in the criminal proceedings against the Applicant.33 Attached to that statement is the billing record for the Applicant’s mobile phone, a part of which is reproduced above.

[60] Mr Finlay says that the entry at 09:55:49 ‘is indicative of an SMS message being sent to a mobile number ending in 8139.’ 34 Further he says that ‘All date and times on these records are relevant to the number in the A column, which is...6862.’35

[61] Mr Finlay agrees that the ‘technical’ way SMS messaging works is that the sender composes a message, it is received by the sender’s network which waits for the address and routing requirements of the recipient to be approved. Once this occurs the network will attempt to send the message on to the ultimate recipient.

[62] Mr Finlay agrees that there may be a number of reasons why an SMS message might be delayed in reaching the end user. These include: the end user’s phone being turned off, congestion on the network, or the receiver being outside a coverage area. He agrees that if a message is sent to the network, but is not delivered, the network will continue to try to send the message.

[63] Mr Finlay’s evidence is if the SMS message was not delivered at all it would not be a billable SMS and would not show on the phone bill.

[64] Mr Finlay’s evidence is that the time shown on the billing record is the time the ‘A Number’ sent the message. 36 The time on the phone record is the time the SMS is sent from the handset37 which would be the time it is received by the sender’s network.

[65] From the evidence given I find that, regardless of any delays in a message being delivered to the recipient of the message, the billing record shows the time the message was sent by the ‘A Number’ (in this case the Applicant). If, for some reason the message was delayed in being delivered from the sender’s phone to the sender’s network, the billing record would show the time the SMS is received by the sender’s (that is the Applicant’s) network.

[66] I accept Mr Finlay is not a technical expert on the operation of the SMS system. I do accept however that he is able to provide expert evidence on what can be understood from the Optus billing records.

[67] The Applicant was given an opportunity to present evidence to support its contention that the time on the billing record was the time the message was delivered to the recipient, as opposed to the time it was sent by the sender, but did not produce any such evidence.

[68] Mr Galbraith for the Applicant provided documentation on the operation of the SMS network. 38 I do not find that this supports his contention that the time shown on the billing record is the time the SMS was delivered.

[69] On the basis of the evidence before me I find, on the balance of probabilities, that the Applicant did send an SMS message at 09:55:49am on 18 December 2012.

[70] I therefore find that the Applicant used her mobile phone whilst in the facility at approximately 9:55am.

[71] It is not disputed that the Applicant’s phone rang at 12:46 when she was in the kitchen of the facility.

[72] I therefore find that the Applicant did have a mobile phone on her while in the facility.

[73] Whilst the discovery of the phone usage was made after the time the Applicant was dismissed, facts justifying the dismissal should be considered even if the Respondent was not aware of them at the time the dismissal occurred. 39 I have therefore taken this matter into account.

Did the Applicant deliberately take the mobile phone into the facility?

[74] I have found that the Applicant did have a mobile phone with her in the facility. It is necessary to determine if she knowingly took the mobile phone into the facility.

[75] On the day of the incident the Applicant was wearing ‘cargo’ pants with four pockets, one on each hip and one on each thigh. The thigh pocket (in which the mobile phone was located) is 19 cm deep, 17 cm wide and 2 cm in diameter. 40

[76] The CCTV footage 41 shows the Applicant arriving at the main entrance to the facility. A copy of the signage at this entry point indicates that mobile phones are prohibited items and are not to be taken into the facility.42

[77] The CCTV footage shows the Applicant entering the ‘screening’ area. The Applicant agrees that the signs at this secure entry reinforce what cannot be brought in. 43 The CCTV footage shows the Applicant place her watch, bag (containing things she may need during the day that are not prohibited) and shoes into a tray for screening. She then proceeds to put her hands into her right and left side pockets. She places her hand into her right side pocket twice and appears to rummage in that pocket. She removes a small item from her left side pocket and places it on the tray. She then pats down the side pockets.

[78] As the Applicant searches her pockets she looks into the guard house and around her.

[79] The CCTV footage shows the Applicant then proceed to the iris scan and step into the screening device. It apparently ‘rejects’ her and she is required to re-do the iris scan. Again the screening device ‘rejects’ her. She is then seen being entered into the facility by a security guard through the side, non-secure door. She walks through another screening device and walks towards a raised dais (where she would be ‘wanded’), is apparently called back by the guard and proceeds to gather her belonging from the tray that has been through screening.

[80] The Applicant’s evidence is that she has never mistakenly taken her phone into the facility before and that she would always put it into her locker before entering the facility.

[81] The Applicant’s mobile phone was in her right side pocket. 44 She says that in her right side pocket was some paperwork – four pages she had folded in four45 – related to back pay of some allowances that she needed her supervisor to sign. She did not take it out of her pocket and place it on the tray for scanning because it was just paperwork. She says that she never felt her phone in that pocket.

[82] The Applicant’s evidence is that she is occasionally rejected by the screening device as she has two rings on her fingers she cannot remove. She says that sometimes the system allows her to go through and other times it rejects her 46 and when this occurs it is noted. She says that when it rejected her this morning she did not make any attempt to check whether she had anything metal on her.47

[83] The Applicant’s evidence is that at no time during entering the facility or during the morning was she aware that she had the phone in her pocket.

[84] The notes of Ms Jones, taken during the meeting with the Applicant, Ms Salinger and Mr Emeny on 17 January 2013, indicate that the Applicant said at that time that ‘She always checks her pockets – she had half a deck of cards and “paperwork for Tim to sign”. 48

[85] The Applicant’s evidence is that her mobile phone is an Apple iPhone4 and that it weighs 137grams. 49

[86] The Applicant says that she did not know she had the mobile phone on her when she came into the facility, that she had accidently brought it in. She says this in her meeting with Mr Cameron on the day of the incident, 50 in her very brief meeting with Mr McCann on the day of the incident,51 in her email to Mr McCann on the day of the incident,52 in her interview with Ms Jones and Mr Enemy on 17 January 2013,53 in her written statement to Ms Jones,54 the response to the allegations made by CPSU on behalf of the Applicant on 15 February 2013,55 and in the submission made on her behalf to the delegate.56 The Applicant further maintained this statement in her record of interview with Victoria Police.57

[87] Mr Galbraith for the Applicant says that the Applicant’s version of events is not inconsistent with what can be seen on the CCTV footage: she checked her pockets and did not notice the phone was there, she walked to the dais prepared to be wanded or frisked and was waved on. He submits that a conclusion cannot be drawn that the introduction of the mobile phone was anything but ‘accidental, inadvertent or an innocent mistake, alternatively an error in judgment.’ 58

[88] Mr Bromley for the Respondent submits that I must determine what is more probable in the circumstances and, in doing so, the conclusion that must be drawn is that the Applicant had the phone, knew that she had the phone and that she used the phone.

[89] I have carefully considered the CCTV footage of the Applicant going through the security screening area and her evidence of what occurred. I have observed her on CCTV searching her pockets for things in her pockets and placing a small item (lip balm or floss) onto the tray.

[90] I do not accept that the Applicant had a half a deck of cards in her pocket at the time. The only time the half a deck of cards was raised by the Applicant was in the interview on 17 January 2013. She did not raise it with Mr Cameron or Mr McCann on 18 December and it is not in any other statement she has made with respect to the incident or these proceedings.

[91] The Applicant maintains that she inadvertently took the mobile phone into the facility. She says she did not feel it, she was prepared to be wanded, and the mobile phone was turned on. It was her last day at work before going on leave. She says that had she deliberately taken the mobile phone into the facility it is inexplicable that she would have it turned on and at full volume.

[92] I have had to balance the evidence of the Applicant against what I have seen on the CCTV. That footage shows the Applicant searching her pockets. I am being asked to accept that the Applicant did not feel her mobile phone amongst the four sheets of paper folded in four in her pocket, a phone, which despite being lighter and slimmer than earlier mobile phones, still has some weight and bulk.

[93] I have considered the evidence shown on the CCTV footage very carefully against the unwavering evidence of the Applicant that taking the phone into the facility was inadvertent, that she was not aware she had the phone in her pocket.

[94] I find that there is no basis on which I can find that I should reject the evidence of the Applicant on this point. She has consistently said the same from her first meeting after the incident and through all correspondence and meetings with the Respondent. I have also taken into account the CCTV footage which shows the Applicant moving to the area to be wanded.

[95] Whilst the CCTV footage appears to show the Applicant thoroughly searching her pockets I can only conclude that the search was not thorough at all, that it was a routine pat down of her pockets with little attention being paid to what was in them or with little expectation that she would find anything in them that she did not expect to find – that is, pieces of paper and some lip balm. To this extent her actions were not unlike those seen regularly at airport screening points where people pat down their pockets only to have the screening device indicate the presence of some metallic item such as keys.

[96] It was also submitted by Mr Bromley for the Respondent that, at the time she was searching her pocket prior to proceeding to the iris scan, the Applicant looked around to see if there was a female guard on duty. Having seen that there was not she knew she would not be wanded so took the mobile phone with her. The Applicant denies that she was looking for a female guard.

[97] Whilst I have stated above that I observed the Applicant looking around as she searched her pockets there is no basis on which I can infer she was looking to see if there was a female guard on duty. The CCTV shows that other staff were arriving at the same time as the Applicant and it could just as easily be considered that she was looking to see who else was approaching the screening point.

[98] On the balance of probabilities, I find that the Applicant did not knowingly take the mobile phone into the facility on 18 December 2013.

Did the Applicant lie to Cameron?

[99] During her interview with Mr Cameron at 2.10pm on 18 December 2013 the Applicant said she did not have a mobile phone on her.

[100] Mr Cameron was not called as a witness in these proceedings. Evidence has been provided by the Respondent of an email he sent later that day to other managers of the Respondent about the incident.

[101] Mr Galbraith for the Applicant submits that I should draw a jones v Dunkel inference that, had the Respondent called Mr Cameron, his evidence would not have supported its case.

[102] Mr Bromley acknowledges that the Respondent did not call Mr Cameron as a witness but submits that the evidence indicates that the Applicant lied about the mobile phone on 18 December 2012 and that she is lying about it during these proceedings.

[103] I am not satisfied that I can conclude that the Applicant lied to Mr Cameron when she spoke to him at about 2.10pm. The literal words she used may indicate she lied. However, I can only conclude from the Applicant’s evidence that the context and the spirit within which the conversation occurred was joking and relaxed. I am therefore not prepared to conclude that the Applicant lied in that conversation.

[104] The CCTV footage indicates that, at the time the phone rang, the Applicant said she did not have a mobile phone on her. Clearly this was not true. It rang and she has admitted that she had it on her.

[105] I am however prepared to accept that there were extenuating circumstances such that she did not consider it appropriate to admit in front of clients of the facility that she had a phone on her. The Applicant could have perhaps handled the matter better by calling Mr Cameron out of the kitchen immediately to explain that it was her phone but she did not. I do accept however that she believed it would be inappropriate to have such a conversation or make such an admission in front of the clients.

[106] Mr Bromley also submits that I should find that the Applicant lied during these proceedings in that she has maintained that she accidentally took the phone into the facility and that she did not use the phone while in the facility. I have found that the Applicant did use the phone in the facility. In this respect I prefer the evidence of Mr Finlay to that of the Applicant. That the Applicant did use the phone in the facility is not evidence that she knowingly took the phone into the facility.

[107] I have made findings in respect to the use of the phone and the introduction of the phone into the facility. I do not consider it necessary to make further findings as to the truth or otherwise of the statements the Applicant made during these proceedings.

Findings

[108] On the basis of the evidence before me and on a balance of probabilities I find that the Applicant did not knowingly introduce a mobile phone into the facility and that she did not lie to Mr Cameron. I do find that the Applicant had a mobile phone on her in the facility and that she used the mobile phone in the facility.

Was the Applicant unfairly dismissed?

[109] It is not disputed that the Applicant is protected from unfair dismissal, this was not a redundancy situation and the Respondent is not a small business.

[110] In determining if the Applicant was dismissed it is therefore necessary for me to determine if the dismissal was harsh, unjust or unreasonable. In making such a determination the matters set out in s.387(a)-(h) of the Act are relevant. I have considered each of these matters.

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)

[111] The Applicant was, in this case, dismissed because of her conduct.

[112] I have made findings above with respect to this conduct.

[113] For a reason for dismissal to be valid it must be ‘sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason’. 59

[114] Mr Bromley says the Applicant deliberately brought the phone into the facility. He says the Applicant breached: s.501 of the Children, Youth and Families Act 2005 (Vic), the Code of Conduct for Victorian Public Sector Employees 2007, the Department’s values, and a written instruction given to employees.

[115] The conduct was not just a breach of the Respondent’s policy but also a breach of the Children, Youth and Families Act 2005 (Vic) which resulted in criminal charges being laid against the Applicant that were later dismissed.

[116] Mr Galbraith submits that ‘there are matters which characterise and qualify this conduct, whether it is deemed to be inadvertent or not...[T]he nature of the Applicant’s conduct in introducing the mobile phone into the facility was in part very clearly due to... a failure to properly administer the security procedures by the respondent upon entry to the facility’. 60

[117] Mr Galbraith also submits that the actions of the Applicant do not constitute misconduct 61 in that the Commission cannot be satisfied that the Applicant’s conduct in introducing the mobile phone into the facility was anything other than accidental or an innocent mistake. Further he submits that a finding that an employee has failed to comply with the employer’s policy does not mean the dismissal is not harsh, unjust or unreasonable.62

[118] I deal with the issue of the lapse in security along with other relevant matters below.

[119] I am satisfied, objectively considered, that the actions of the Applicant in introducing the phone into the facility, even if it was accidental, and her use of the phone during the morning, provide a valid reason for the dismissal.

[120] Her actions were a breach of policy and a breach of the law. They are not trite matters considering the potential harm that could have come from her actions.

Whether the person was notified of that reason

[121] I am satisfied that the Applicant was notified of the reasons for her dismissal.

[122] She was advised of the allegations against her by mail on 20 December 2013. She was further notified that the Respondent was considering disciplinary action in the form of termination of her employment. She was provide with a copy of the report to Mr Downie (the delegate) and ultimately informed of the outcome of the consideration of the delegate.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[123] I am satisfied that the Applicant was given an opportunity to respond to the reason for the termination of her employment.

[124] The Applicant attended an interview on 17 January 2013 where she was given an opportunity to put her version of events and she was then invited to put anything further she wished to say in writing.

[125] The Applicant was further given an opportunity to respond to the proposed disciplinary action and had an opportunity to make a submission to the Delegate. The material in this respect prepared by the Applicant’s representative was articulate and comprehensive.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[126] I am satisfied that the Applicant was not refused a support person during the process. She had a support person in her brief meeting with Mr McCann on 18 December 2012 and had support through her union after this.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[127] The dismissal did not relate to unsatisfactory performance.

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 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

[128] No substantive submissions were made on this point.

[129] There was some indication from the Applicant that she considered she was not given appropriate opportunities to make appropriate submissions to the decision makers involved in her case. These comments in her witness statement were not developed in submissions and do not provide a basis on which I would conclude that there was an adverse relationship between the size of the Respondent and the procedures used to effect the dismissal.

Any other matters that the Commission considers relevant

[130] A number of additional matters arose during proceedings which I have considered.

[131] Mr Galbraith raised an issue of inconsistent treatment of the Applicant when compared with another employee who had taken a mobile phone into the facility and where clients had access to that phone.

[132] The evidence of Mr McCann is that the facility accommodates some of the most serious young offenders in the State and that the ‘introduction of a mobile phone or the potential for a mobile phone to get in the hands of a client potentially undermines the safety and security of the entire facility which in turn potentially poses a threat to the community more broadly.’ 63 He says that by introducing the phone into the facility the Applicant created a security risk.64

[133] Mr McCann’s evidence is that there was a previous instance where a mobile phone was stolen from a unit manager’s office. This led to his decision to remove the authority for the unit manager to carry a mobile phone. 65

[134] Mr McCann also gave evidence that he is aware of another incident where a staff member’s mobile phone was in the possession of a client and that it contained inappropriate images. The staff member concerned did not have her employment terminated as a result of the incident. Mr McCann was not working at the facility at the time, however he understands that the staff member did not give the phone to the client but the client got hold of it somehow. 66 Mr McCann agrees that the incident created a security concern.67

[135] Mr Bromley says that not enough is known of this earlier incident to enable a conclusion to be drawn about inconsistent treatment. He submits, in any event, that inconsistent treatment does not, of itself, mean that a dismissal is unfair.

[136] Whilst I may not know much of the earlier incident it was open to the Respondent to put such material before me. It did not. My conclusion is therefore based on the evidence of Mr McCann.

[137] I am satisfied that this earlier incident is not dissimilar to that relating to the Applicant. On the basis of the material before me I am satisfied that there appears to be inconsistent treatment of employees engaged in the same misconduct.

[138] Mr McCann’s evidence is that current security procedures were introduced into the facility in 2012. Staff were advised of the procedures by email on 19 April 2012 and the procedures became operational on 23 April 2012. 68 The procedures included new screening procedures for entry, including iris scanning and manual screening with a wand to detect metal items.

[139] Mr McCann agrees that the Applicant was not wanded or manually screened in accordance with the policy. 69 She was not wanded because wanding can only be carried out by a guard of the same gender as the employee and no female security guard was available in this instance.70 The failure to wand the Applicant was caused by a failure by the Department to implement its security measures on site on 18 December 2012.71

[140] Mr Galbraith submits that it was the failure of the Department to implement its own policies that resulted in the Applicant inadvertently taking the phone into the facility. If a female security guard had been on duty the Applicant would have been wanded and the mobile phone found and removed from her. The Respondent’s failure is therefore partly to blame for the entry of a prohibited item into the facility.

[141] Mr Bromley acknowledges that there were lapses in the Respondent’s security procedures. 72 He submits however that such lapses do not take away from the fact that the misconduct occurred.

[142] I have a great deal of sympathy for the submissions of the Applicant in this respect. It is clear from the CCTV footage that the Applicant moved towards the dais to be wanded. The failure of the Respondent to ensure a female security guard on duty is, in part, responsible for all that followed. Even if the Applicant had intended to take the phone into the facility had the Respondent done its job properly this would not have occurred.

[143] The obligation is clearly on those entering the facility to abide by the law and by the policies governing entrance into the facility. Whilst criticism can justifiably be directed at the lax security procedures the Applicant is also responsible for her actions.

[144] A security system that requires any manual screening to be undertaken by a guard of the same gender as the person being screened but then does not ensure there is always an appropriate mix of guards on duty is not a particularly robust security system. Mr McCann agrees that the security system failed. This is not the fault of the Applicant. The security system is there for a purpose and it is the Respondent’s responsibility to ensure it works.

[145] The Applicant says that, even if it is found that she did take the phone knowingly into the facility, no harm came of it – that is the clients did not gain access to the phone.

[146] That no harm came of the actions of the Applicant does not diminish the seriousness of her actions. She did, in taking the mobile phone into the facility, breach the Children, Youth and Families Act 2005 and the policies of the Respondent and this cannot be ignored.

[147] Mr Galbraith submits that it is inexplicable that, had the Applicant intended to bring the phone into the facility, she would not have switched it to ‘silent’ or ‘vibrate’ to ensure it was not discovered if it did ring.

[148] Mr Galbraith submits that the Applicant has shown contrition and apologised for her actions from the time she was first spoken to by Mr Cameron.

[149] This submission is supported by the Applicant’s version of her discussion with Mr Cameron and is reinforced by her police interview and each interview with the Respondent and submission she has made in relation to the matter.

[150] I accept that she is remorseful and truly sorry for having taken the phone into the facility.

[151] The Applicant worked for the Respondent for 13 years. She has had one previous disciplinary matter in March 2011 but I note that the formal warning is to be disregarded after one year. 73

[152] The Applicant has gained alternative employment as a casual youth worker for Transitions Community Care Solutions. She says however that it is difficult to find permanent work in her chosen area as such work requires a police check.

[153] Mr Galbraith says that the effect of the loss of her employment with the Respondent has had severe financial and personal ramifications for the Applicant. The Applicant’s evidence is that she suffered from ‘severe depression from January to June 2013’ and the termination of her employment in April 2013 made this worse.

[154] The Applicant says that since she lost her job her son has gone to live with his father. Her ex-partner has bought her out of one property they owned together although they still jointly own an investment property.

[155] Whilst the Applicant had amassed some financial debt on her credit cards this had been paid off by the time of the hearing. She had moved back to her parents house for a short period of time but now rents a residential property of her own.

[156] Mr Galbraith submits that these are matters I should take into account in determining if the dismissal of the Applicant is harsh, unjust or unreasonable.

Is the dismissal harsh, unjust or unreasonable?

[157] In Byrne v Australian Airlines 74 it was held that

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 75

[158] I have carefully considered my reasons for finding that the Respondent has a valid reason for the termination of the Applicant’s employment. I have carefully considered those further matters the Applicant says I should take into account, particularly the economic and personal effect of the dismissal. I have taken into account that the Applicant has no history of breaching the security systems at the facility, no harm came of her actions and she has shown remorse for her actions since the incident.

[159] I have considered the failure of the Respondent’s security system and the apparent inconsistent treatment of the Applicant compared to another employee who not only took a mobile phone into the facility but allowed a client to access it.

[160] I have also taken into account the Applicant’s extensive period of service with the Respondent and the single blemish on her record. The Applicant has found herself in a situation where she does not have secure employment (although I note that she appears to be receiving regular hours of work), where she has found it necessary to have her son live with his father and where she has lost some financial security for her future in terms of secure employment and an investment she had in the property with her ex-partner.

[161] These matters may have persuaded me that the decision to terminate the Applicant’s employment was harsh or unreasonable.

[162] However, I cannot ignore that the Applicant used the mobile phone at 9:55am to send a text message to another person. Whilst the Applicant has denied this I have accepted the evidence of Mr Finlay.

[163] It is trite that facts which existed at the time of the dismissal but were not discovered until after the dismissal may justify a dismissal that would otherwise be harsh, unjust or unreasonable. 76

[164] The Applicant’s use of the mobile phone as evidenced by the phone billing record indicates that she was aware, at 9.55am, that she had her mobile phone in the facility. From this point on she knew she was in breach of the policies and requirements of the Respondent. She knew she should not have the phone with her but took no action to remove it from the facility.

[165] Even though I have found that taking the mobile phone into the facility was not deliberate, its subsequent use cannot be excused by that finding. The Applicant knew such use was a breach of both policy and her responsibility.

[166] The Applicant’s actions in using the mobile phone whilst in the facility have had a substantial bearing on my decision in this matter.

[167] For all of the reasons I have given I find the dismissal of the Applicant was not harsh, unjust or unreasonable.

Conclusion

[168] I find that the Applicant has not been unfairly dismissed. Her application is dismissed.

COMMISSIONER

Appearances:

A. Galbraith of counsel for the Applicant.

M. Bromley of counsel for the Respondent.

Hearing details:

2013.

Melbourne:

October 23;

December 23.

 1   Edwards v Guidice and ors (1999) 94 FCR 561.

 2   Briginshaw v Briginshaw (1938) 60 CLR 336.

 3 (1992) 67 ALJR 170.

 4   Ibid [2] per Mason CJ, Brennan, Deane, and Gaudron JJ.

 5   The Applicant entry to the facility and her phone ringing are recorded on CCTV footage - exhibit R1, attachment NJ-6.

 6   Exhibit R1, paragraph 5b. See also exhibit A1, attachment RB-5.

 7   Exhibit A1, paragraph 45.

 8   Exhibit A1, attachment RB-3.

 9   Exhibit R2, paragraph 16.

 10   Exhibit R1, attachment NJ-3.

 11   Exhibit R1, attachment NJ-3.

 12   Exhibit A1, attachment RB-4.

 13   Exhibit R1, attachment NJ-4.

 14   Exhibit A1, attachment TB-5.

 15   Exhibit A1, attachment RB-6.

 16   Exhibit A1, attachment RB-7.

 17   Exhibit A1, attachment RB-8.

 18   Exhibit A1, attachment RB-10.

 19   Exhibit A1, attachment RB-10.

 20   Exhibit R1, paragraph 5(g) and attachment NJ-5.

 21   Exhibit A1, attachment RB-13.

 22   Regulation 32.

 23   Exhibit A2, paragraph 3, attachment RB-24.

 24   Exhibit A6.

 25   Exhibit A3. The billing record is as produced by Optus from its billing system and is not in the format more commonly known to a residential customer.

 26   The full mobile phone numbers have been redacted by the Commission.

 27   Exhibit A1, paragraph 43.

 28   Transcript PN386.

 29   Transcript PN75. Note that there were nine billing lines indicating “GPRS’ under the “B Number’ between 01:15:58 and 08:35:42 on 18 December.

 30   Transcript PN80.

 31   Transcript PN1468.

 32   Transcript PN1467.

 33   Exhibit R4.

 34   Transcript PN1449.

 35   Transcript PN1450.

 36   Transcript PN1510-4, PN1521.

 37   Transcript PN1524.

 38   Exhibit A7.

 39   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373.

 40   Exhibit A1, paragraph 20.

 41   Exhibit R1, attachment NJ-6.

 42   Exhibit R1, attachment NJ-7.

 43   Transcript PN301.

 44   Transcript PN308.

 45   Exhibit A1, paragraph 20 and transcript PN314.

 46   Transcript PN340-2.

 47   Transcript PN347-8.

 48   Exhibit R1, attachment NJ-4.

 49   Exhibit A1, paragraph 29.

 50   Exhibit A!, paragraph 45,

 51   Exhibit A1, paragraph 51.

 52   Exhibit R1, attachment NJ-3.

 53   Exhibit R1, attachment NJ-4.

 54   Exhibit A1, attachment RB-5.

 55   Exhibit A1, attachment RB-7.

 56   Exhibit A1, attachment RB-12, paragraph 17.

 57   Exhibit A6.

 58   Transcript PN1568.

 59   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 60   Transcript PN1573. See also Qantas Airways Ltd v Cornwall [1998] FCA 865.

 61   See Michelle de Leon v Spice Temple Pty Ltd[2010] FWA 3497.

 62   See Woolworth’s Limited (t/as Safeway) v Cameron Brown PR963023.

 63   Transcript PN1034-4.

 64   Transcript PN1123-7.

 65   Transcript PN1038.

 66   Transcript PN1282-85, PN1292-3.

 67   Transcript PN1294.

 68   Exhibit R2 attachment JM-5.

 69   Transcript PN1086.

 70   Transcript PN1091.

 71   Transcript PN1100.

 72   Transcript PN1640.

 73   Exhibit A1, attachment RB-7, paragraph 21.

 74 (1995) 185 CLR 410.

 75   Ibid, 465.

 76   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14.

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