Thanh Vu v Commonwealth of Australia as represented by the Australian Taxation Office

[2014] FWC 755

[2014] FWC 755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thanh Vu
v
Commonwealth of Australia as represented by the Australian Taxation Office
(U2013/12630)

COMMISSIONER DEEGAN CANBERRA, 30 JANUARY 2014

Application for relief from unfair dismissal.

[1] On 16 August 2013 Mr Thanh Vu (the applicant) lodged an application seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment with the Commonwealth of Australia as represented by the Australian Taxation Office (the respondent or the ATO).

[2] Conciliation of the matter was unsuccessful. Directions were issued on 16 October 2013 for the filing of statements and submissions in preparation for a hearing on 9 December 2013.

Background

[3] The applicant has been an employee of the Commonwealth of Australia since 23 May 1983. At the time of the relevant events he was employed at the APS5 level in the Australian Taxation Office.

[4] On 29 April 2013 the applicant sent an email (the ‘corpse email’) from his ATO email account to his home email address. A routine check carried out the following day by the responsible area of the ATO determined that the email contained unacceptable images. A further check was then conducted of the applicant’s computer holdings, and additional material including a ‘bride photograph,’ a ‘Vietnamese story’, and a ‘2010 calendar’ was discovered. This material was considered to be in breach of the respondent’s policy concerning use of emails and of the internet

[5] A Code of Conduct investigation into the matter was commenced on 13 May 2013. On 23 May 2013 the applicant was informed that, due to the discovery of the inappropriate material, suspension of his employment was being considered. On the same day the applicant was provided with a ‘Notice of Suspected Breach of the Code of Conduct’ outlining the suspected breaches, the process that would be followed in investigating the suspected breaches, the evidence and the potential sanctions. The applicant responded to the Notice on 30 May 2013.

[6] The applicant was suspended from duty on full pay on 29 May 2013. The investigation into the suspected breaches was conducted and on 18 June 2013 the applicant was informed that the outcome of the investigation was a finding that the applicant had breached the APS Code of Conduct. On the same day, the applicant was provided with a copy of the investigation report. On 27 June 2013 the applicant wrote to the appropriate delegate responding to the report.

[7] On 12 July 2013 the delegate wrote to the applicant advising that she was considering terminating his employment and allowing him the opportunity to make submissions as to why his employment should not be terminated.

[8] The applicant responded to the 12 July letter on 17 July setting out the reasons why he believed his employment should not be terminated.

[9] By letter dated 6 August the delegate advised the applicant that his employment would be terminated effective 8 August. He was paid in lieu of notice.

The Applicant’s case

[10] The Applicant lodged two written statements of evidence 1 (the second of these was lodged in reply to the respondent’s witness statements). He noted that he had worked for the ATO since 2002 and that his main duties at the time of his termination included setting up new IT accounts for ATO staff and preparing reports for IT about updating IT systems.

[11] The applicant described the events leading to the Code of Conduct investigation, his suspension from duty, the manner in which the investigation was carried out, his responses to the allegations and his response to the letter seeking his comments as to why his employment should not be terminated.

[12] It was the applicant’s evidence that the email of 29 April was sent to him by a friend. After opening the email and looking at the first few photos he immediately forwarded the email to his home email address so that he could look at it at his home as he did not want to look at it at work. He then deleted the email from his work computer. He understood that he had breached the Code of Conduct by sending the email to his home address but, at the time, ‘did not think about the IT policy or Code of Conduct at all’ 2.

[13] So far as the content found on his H:Drive was concerned, the applicant noted that this drive was personal and accessible only to him. He recalled saving the ‘bride photo’ to his H:Drive some 2 or 3 years earlier but had forgotten he had saved it. The photograph was a joke received by him and others at the office. He did not think the photo was pornographic but accepted that he had breached the Code of Conduct by saving it.

[14] Similarly, the Vietnamese story saved to his H:Drive had been emailed to him 2 or 3 years earlier by a friend. He did not read it at the time, but saved it to his H:Drive to read later. He did not know when he saved it that it was sexual in nature. He accepted that he had breached the Code of Conduct by saving the story.

[15] The applicant also claimed that he had saved the 2010 calendar to his H:Drive some 3 years earlier after it had been emailed to him by a friend. He did not forward it, or show it, to anyone else. He had forgotten he had saved it. Again he accepted that he had breached the Code of Conduct by saving the document.

[16] The applicant noted his long employment record with the Commonwealth and that he had received commendations and expressions of gratitude for the work he had performed at the ATO.

[17] So far as his personal circumstances were concerned the applicant noted that:

• He was 53 years of age , married with 4 children;



• The loss of his job had caused him and his family financial pressure and impacted seriously on his superannuation benefits (calculated by the applicant to be approximately $400,000);



• His skills were not readily transferable and he was worried that he would not find other employment given his age and the fact that he had been sacked.

[18] In his oral evidence, the applicant stated that his usual practice when receiving emails from friends, while at work, was to have a quick look then, if it was interesting, to save the email to his H:Drive or, if not, to delete it. He claimed that he did not ordinarily forward them to his home email address. The applicant also stated that he did not have time to clean up his H:Drive folder as he had too much work to do but, prior to the Code of Conduct investigation, he had never been told by the ATO that he had too much personal material stored on his H:Drive.

[19] Under cross-examination Mr Vu agreed that the ATO communicated its IT Policy 3 in many different ways. He also agreed that the policy stated that:

• sanctions that may be imposed where it is proven that the APS Code of Conduct has been breached (include) termination of employment;



• ATO has a zero tolerance approach to unacceptable use of IT facilities;



• Users will be personally accountable for any actions that they perform;



• Users must not use ATO IT facilities to access, create, copy, transmit or store inappropriate material

[20] The applicant agreed that he must have seen the ATO IT policy during his employment. He also stated that he had never told any manager or supervisor that he had problems reading policies because of his understanding of the English Language.

[21] While the applicant’s evidence was that he was aware that pop-ups on the computer system sometimes dealt with the IT policy, he stated that he was unable to remember what those pop-ups were as he had ceased his employment with the ATO six months ago. 4 He was taken to a number of pop-ups that had been on the ATO system including ones that stated ‘It’s not acceptable to send or store inappropriate or offensive material using tax office IT equipment’ and ‘serious breaches could result in disciplinary action’ and ‘if you receive inappropriate material delete it immediately.’5

[22] The applicant was unable to remember seeing a number of emails 6 sent on 13 December 2010, 18 May 2011, 18 November 2011 and 20 July 2012 from senior ATO managers with subject lines dealing with proper use of IT facilities. He claimed that mostly he was so busy he just skimmed the emails he received or did not read them at all. He agreed that the emails in question reminded staff of the IT policy, including the zero tolerance for inappropriate use of IT facilities, and warned staff that email traffic is scanned for classification levels and inappropriate content.7 He also agreed that the sanctions for inappropriate use were referred to in the emails, including the sanction of termination of employment. The applicant conceded that while employed by the ATO he was aware that outgoing emails were scanned by the ATO for inappropriate content.

[23] The applicant conceded that on 29 November 2010 he had been sent an email, 8 with the title ‘Reminder Notice Proper Use of IT Facilities.’ concerning an email he had sent from his ATO email address. While he claimed that he did not remember receiving the reminder notice, he agreed that he had replied to the email and confirmed that he had removed any inappropriate material from his H:Drive. When queried about whether the he had received the material stored on his H:Drive (specifically the ‘bride photograph’ and the ‘2010 calendar’) before or after he received the reminder email, the applicant claimed that he was unable to remember.9

[24] It was also the applicant’s evidence that he had undertaken training in relation to the unacceptable use of the ATO IT facilities but that the training had been conducted online and that he had just skimmed though it.

[25] The applicant agreed that the ATO IT policy included definitions of the expressions used in it, including a definition of ‘offensive material’ in the following terms:

• “material that offends community standards includes images, data or other material that is humiliating, vulgar, discriminatory or racially based against any person or group of persons”



• “Portrays violence or trauma towards people, animals”



• “Multimedia images, text files or data whose main focus is pornography and / or sexual acts.” 10

[26] The applicant also agreed that the policy definition of ‘unacceptable material’ included material that is:

• “... tasteless, crude, grotesque or otherwise offensive”



• “Contains nudity or partial nudity”



• “Sexually oriented in nature.” 11

[27] When taken to the images that were the subject of his Code of Conduct investigation the applicant agreed that some people viewing the ‘corpse email’ may have been offended 12 and described the images as ‘bad’13. He also agreed that the ‘bride photograph’ showed the woman’s naked pubic area and was ‘sexual in nature’. Further the applicant conceded that the 2010 Calendar had images of an animal performing a sexual act with a woman. He stated that the images on the calendar had been ‘photo shopped’ but agreed that they were not acceptable in the workplace.

[28] The applicant conceded that when he sent the corpse email to his home address he changed the title of the email to read from “Chinese eating a person in Angola” to “Angola.” He denied doing this in an attempt avoid the email being picked up on the ATO scan.

[29] Finally the applicant was asked whether he would be able to do his job with the ATO if he lost his security clearance. He claimed that he did not need a ‘Highly Protected’ security clearance for the work he had been performing.

[30] A statement 14 by Mr Van Nam Nguyen, acknowledging that he was the person who sent the applicant the ‘corpse email,’ was tendered.

The Respondent’s case

[31] Evidence for the respondent was given by

• Paul Reed



• Monique Pope



• David Miller



• Christine Dacey



• Kestie Clarke



• Ian Scensor

[32] Only Ms Clarke and Mr Scensor were required for cross-examination.

[33] Mr Reed is a Computer Forensic Officer in the Trusted Access Branch of the ATO. He conducted the scan of ATO emails that detected the ‘corpse email’ having been forwarded by the applicant to the applicant’s home emails address. Mr Reed’s statement 15 included the following paragraph:

On 1 May 2013 I recall finding a very graphic image attached to an email which I was reviewing which had been sent on 29 April 2013, and as a result , I sent an email to ATA Forensics and Investigations and copied to Ms Kestie Clarke and Ms Karen Blackman with a request attached to it for a back of LAN (BOL) and Outlook snapshot on a staff member named Mr Thanh Minh Wu.

[34] Ms Pope, is an HR Adviser in the People Management and Advice team at the ATO. According to Ms Pope,  16 she sent the “Reminder Notice: Proper Use of IT Facilities” to the applicant 29 November 2010. The reminder notice related to a ‘cartoon image containing crude content’ sent by the applicant to an external email address on 11 October 2010. As the breach of the IT policy was considered to be a low level breach (determined by the Trusted Access area of the ATO), the reminder notice was sent as a warning to the applicant. The reminder notice attached to Ms Pope’s statement included the following request:

‘Please reply to all advising that you have checked your Outlook and H:Drive, and have deleted any inappropriate material including the below email/s’

According to Ms Pope the applicant responded 17 the same day advising that he had checked his Outlook and H:Drive and deleted inappropriate material.

[35] Mr Miller, currently Executive Director of Enterprise Agreement at the ATO, filed a statement 18 setting out the ATO Corporate Management Practice Statement entitled “Proper Use of IT Facilities.” In his statement Mr Miller noted that the ATO takes the Practice Statement very seriously. He stated that ‘it is very prescriptive and an indication of the level of clarity that the ATO wishes its employees to understand.’ Mr Miller’s statement also referred to the numerous ‘pop-ups, newsletters and emails sent out by various areas of the ATO reminding staff of their obligations and the ramifications of a breach of the IT policy.’ According to Mr Miller the ATO also has mandatory on-line training relating to the use of the ATO IT facilities, which all staff are required to complete every two years. Finally it was Mr Miller’s evidence that:

‘ I consider it implausible for any employee, and in particular any employee in the IT area of the ATO, not to know of the policy on the use of IT facilities and updates on that policy, how it is enforced, and the consequences of breaches of the policy.’

[36] Ms Christine Dacey is the Assistant Commissioner, ATO People. Ms Dacey filed a statement 19 of evidence to the effect that Ms Annette Begoff, the decision-maker in the termination of the applicant’s employment, was, for health reasons, on leave from work and had been since 24 September 2013. This statement was for the purpose of explaining the absence of any evidence from the decision-maker.

[37] Ms Kestie Clarke, Human Resources Consultant with the ATO, carried out the Code of Conduct investigation into the applicant’s alleged breach of the IT policy. Ms Clarke’s statement of evidence 20 set out her experience and qualifications and detailed the manner in which she conducted the Code of Conduct investigation.

[38] It was the evidence of Ms Clarke that in carrying out the investigation she took into account the APS Code of Conduct, the Corporate Management Practice Statement on the Proper Use of IT Facilities, the emails and images that were the subject of the alleged breach, action taken by the ATO to make the applicant aware of the IT Policy and the submissions made by the applicant during the investigation. Ms Clarke also took into account the applicant’s length of service and the training he had undertaken relevant to the alleged breach.

[39] As a result of the investigation Ms Clarke recommended to the sanctioning delegate (Ms Begoff) that a ‘high to severe sanction’ should be imposed. It was her evidence that she considered the “cumulative effect of the distribution and storage of the inappropriate material to be an extremely serious” IT policy breach. According to Ms Clark she came to this conclusion because she considered:

• the corpse email, taken at face value, to be grotesque, with an inference of cannibalism;



• the bride image (while at the lower end of the scale) to be inappropriate for the workplace (a view of female genitalia from a distance)



• the calendar to be sexually explicit, portraying sexual activity between a woman and a tiger, including the genitals of both;



• the story in Vietnamese to be serious, containing, as it did, phrases of an explicit and sexual nature ( the story was translated by Ms Clarke using Google Translator). 21

[40] Ian Scensor is the Assistant Commissioner for Business Intelligence, Corporate Work, Management and Small Systems with the ATO. In his statement of evidence 22 he described the work of the area of the ATO in which the applicant was employed. It was Mr Scensor’s evidence that, if he were asked to take the applicant back as an employee, he would have three concerns. The first was that due to the nature of the work, the applicant would require a security clearance. The second was that the breach for which he was terminated was not the first breach of the IT policy committed by the applicant. The third concern held by Mr Scensor was that, if the applicant had applied an incorrect security classification to the email he sent to his home in an attempt to avoid detection by the ATO scan, then doubts arise as to the applicant’s integrity and ability to be trusted.

[41] When cross-examined Mr Scensor conceded that, although he did not know for sure, it was likely that prior to his termination the applicant had never been disciplined for poor performance. He also agreed that he had no reason to believe that the applicant had misused or improperly dealt with material that was within his security classification during the course of his employment.

Submissions for the Applicant

[42] It was submitted on the applicant’s behalf that the material facts of the case were not in dispute.

[43] It was argued however, that it was important to note that the corpse email was picked up by the ATO filtering system and did not come to management’s attention because of a complaint by a staff member or someone else who had seen the images and considered them inappropriate. Further, the material contained on the H:Drive dated back some two or three years.

[44] The applicant’s representative noted, in relation to the material that was discovered, that:

• The bride image was considered by the investigator to be low level;



• The applicant had not looked at the Vietnamese story before saving it to his H:Drive;



• The calendar was three years old.

[45] It was argued that the fact that the material on the H:Drive had been there from two to three years demonstrated that the applicant was a not a person who flagrantly disregards policies and has done so over an extended period of time. The applicant had conceded that by saving the material onto his H:Drive he had breached the policy of the ATO.

[46] Mr Howell submitted that the current matter could not be characterized as one of the more serious matters that has come before the Commission but conceded that it was not trivial. He noted that there was no allegation that the applicant had downloaded that material whilst at work, having spent time surfing on the Internet. Nor was there any allegation that the applicant had distributed the material. It was conceded that the material was inappropriate.

[47] It was noted, for the applicant, that he was a good worker who immediately upon being notified of the breaches had deleted all folders and emails unrelated to his work, had apologised and acknowledged his wrongdoing. The applicant had explained that the material was sent by his friends and that he is not in control of who sends him emails. He had also pointed out that he had reminded his friends to be aware of government security breaches, especially emails that may get him into trouble.

[48] Mr Howell, for the applicant, raised the matter of whether there was an inference that could be drawn from the letter of termination that the delegate was under some misapprehension as to the material that had been emailed and that which had been saved, and that the ‘corpse email’ may have been stored for a period of years.

[49] It was submitted that the applicant did not cavil with the fact that there was a valid reason for the termination, that being a breach of the employer’s policies, but it was argued that it was not the nature of, or the severity or explicitness of, the material in the case that was relevant. According to Mr Howell, ‘the Commission is not a Commission of morals but of law’ 23 and it should consider the underlying principles behind the policy that has been breached rather than the nature of the material in determining the appropriate sanction. In particular, regard should be had to the fact that the applicant did not distribute the material but stored it on his H:Drive, which was accessible only to himself. The applicant relied heavily on the decision of the Full Bench in B,C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 (Australia Post). It was put that while there was a valid reason for the dismissal, the sanction was disproportionate in all the circumstances of this case. It was argued that the breach was not such that the ATO’s reputation was liable to damage or that the applicant had put an unreasonable burden on ATO IT resources.

[50] Finally, it was argued that the ATO policy was not sufficiently clear as to the sanctions that might be applied if the policy was breached. It was put that in Queensland Rail v Wake (2006) 156 IR 393 (Queensland Rail) the relevant policy was much clearer that zero tolerance for breach of the policy meant dismissal. By way of comparison, the ATO policy referred to disciplinary action for breach of the policy.

The Respondent’s Submissions

[51] It was submitted on behalf of the respondent that the applicant had been found to have breached section 13 of the APS Code of Conduct in failing to: comply with reasonable and lawful directions, to use Commonwealth resources in a proper manner, and to uphold the APS values and the integrity and the good reputation of the APS. The respondent agreed with the submissions put for the applicant to the effect that the key issues were those set out in subsections 387(a) and (h) of the Act.

[52] The respondent refuted the suggestion put for the applicant that the delegate for the termination was under some misapprehension as to the nature of the breaches committed by the applicant. It was clear from the letter of termination, based as it was on the investigation report of Ms Clarke, that the decision maker had it clear in her mind the nature of the email sent by the applicant and that of the material stored on the H:Drive.

[53] It was put that the majority decision in Australia Post had found that where there is a valid reason for termination of employment the Fair Work Commission must weigh the valid reason with whether the termination was harsh, unjust or unfair. The Commission is required to consider all of the circumstances of the case by weighing the gravity of the misconduct and other factors weighing in favour of the termination, and the mitigating factors. It was the respondent’s position that the applicant’s case appeared to be that the termination of employment was harsh, both because of the personal and economic circumstances of the applicant, and because the termination of employment was disproportionate in the circumstances.

[54] It was the view of the respondent that the decision in Queensland Rail was more closely aligned to the facts in this case than to the facts of the Australia Post decision. The respondent agreed with the applicant’s submission, however argued that the Commission should take an objective view of the material, and as stated in the Australia Post decision, it is not a moral judgment of the material but, a reasonable person test in terms of the nature of the content of the material. In this respect the respondent relied on the decision in Budlong v NCR Australia 24 for the proposition that the particular circumstances of each case must be considered.

[55] The respondent submitted that the material involved in thiscasewas disturbing. The calendar showed penetration by an animal with explicit pictures of genitalia. These images were not at the lower end of the scale, and the fact that theimages were photo shopped did not detract from seriousness of the content. The applicant had agreed that the photo shopping did not make the images any more appropriate for the workplace. Similarly, the corpse images were extreme, even more than grotesque. The applicant’s arguments that similar images are available to him on television were not accepted by the respondent. It was put that these images were at the very serious end of any range of content that would be unacceptable in the workplace.

[56] The critical difference between this matter and the situation in the Australia Post case was, it was argued, is that the ATO took active steps to advise its employees of their obligations under the IT policy, in relation to the Code of Conduct, and the consequences of conduct that breached the policy and the Code. The ATO had shown a commitment over a period of time to change the behaviour of its employees. The applicant should have been aware of the many communications sent to him about the IT policy and the consequences of any breach. He had, in, fact, been specifically put on notice in November 2010 when he breached the policy. The email in relation to that breach amounted to a warning. It set out an overview of the policy, told the applicant to review the policy and told him that he may be subject to a code of conduct process if he engaged in the conduct again.

[57] It was also the respondent’s position that the applicant had admitted editing the email before forwarding it to his home address. He assigned it a classification which indicated that it was work related. There was, the respondent argued, an inference that he had attempted to cheat the ATO system by his actions.

[58] It was submitted that, in all the circumstances, given the notifications concerning the IT policy, the training completed by the applicant and the warning directed to him in 2010, the respondent could not be confident that the applicant actually understands his obligations as an employee of the ATO.

[59] Finally, it was put that there was no evidence that the ATO has a culture where this kind of unacceptable conduct is, or will be, tolerated.

Consideration

[60] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of his employment, the applicant was a person protected from unfair dismissal. The respondent is a not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[61] As conceded by both parties, the majority of the facts in this matter are not in dispute.

[62] In determining whether the applicant has been unfairly dismissed I must take account of those matters set out in s.387 of the Act which is as follows:

Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[63] I am satisfied on the evidence before me that there was a valid reason for the termination of the applicant’s employment based on his conduct. The applicant does not deny the facts upon which the termination was based. It is clear that he breached the policies of the respondent dealing with the use of the ATO email and internet. The policies are clear and I am satisfied that they were brought to the attention of the applicant and that he knew or should have known that his actions in sending the email to his home address on 29 April and storing on his computer the calendar containing pornographic material was in breach of the policy. The applicant worked in the area of information technology for the ATO. I do not accept that he did not know that his conduct could bring about the termination of his employment. He had undergone training in the relevant policy and had had an earlier breach brought to his attention. I am satisfied that he understood the seriousness of the breach. The applicant’s representative conceded that there was a valid reason for the termination.

[64] The applicant had been warned about breaching the policy in November 2010. That was a minor breach but the response of the ATO to that breach must have informed the applicant of the seriousness with which breaches of the policy were treated. Additionally various newsletters included information about the number of employees disciplined and dismissed, or who had resigned, as a consequence of investigations of such breaches.

[65] The applicant was notified of the reason for the termination and was given every opportunity to explain his conduct to the employer, at the investigation stage. The applicant was given full details of each of the allegations and allowed ample time to respond. Similarly when the employer was considering termination the applicant was invited to put his case and allowed sufficient time for the purpose.

[66] There was no unreasonable refusal by the respondent to allow the applicant to have a support person at any meeting relating to the termination. It appears that there was no meeting for this purpose and that the interaction between the applicant the investigator and the decision-maker was conducted in writing.

[67] The termination was not related to any unsatisfactory performance on the applicant’s part.

[68] The ATO is a very large organisation with dedicated human resource management specialist. In the circumstances these matters did not impact on the procedures adopted in effecting the dismissal. There was no suggestion of any lack of procedural fairness in the manner in which the termination was effected.

[69] The determination in this case rests upon those other relevant matters that should be taken into account pursuant to s.387(h) of the Act. The question is whether there are other matters which operate to make the dismissal unfair, in circumstances where there is no dispute about the existence of a valid reason, and the applicant has been afforded procedural fairness.

[70] The applicant relied on the decision in Australia Post to mount an argument that the dismissal was harsh in all the circumstances. The respondent argued that the facts of this case were more akin to those of Queensland Rail, where the Full Bench decided that a lengthy employment period was not sufficient to render a termination harsh in circumstances where an employee had breached a company policy which was ‘firm and well publicised.’ 25

[71] Common to both decisions relied upon by the parties in this case is the principle that “(e)very case must be assessed by reference to its particular circumstances.’ 26 The Full Bench in Australia Post set out examples of cases in which a termination of employment arising from a breach of an employer’s policy dealing with the accessing or emailing of unacceptable material using the employer’s resources might be found to be harsh, unjust or unreasonable:

‘[67] Thus, a failure to monitor compliance or enforce a policy can be a relevant factor that weighs against a finding that a dismissal for breach of the policy was not harsh, unjust or unreasonable. If widespread breaches of policy, of the sort that occurred in this case, occur without an employer response then this weighs against a decision that the dismissal was justified and not harsh, unjust or unreasonable.

[68] Bearing in mind that, putting aside the effect of an employer’s policy, it is not unlawful for an employee to access or email pornography of the sort with which this case is concerned, generally speaking, if an employer wishes to elevate contravention of a policy against accessing or transmission of pornography and other unacceptable material on its IT system to the level where a breach of the policy constituted by a series of group emails of unacceptable material to willing recipients will be of an order of seriousness to justify a dismissal (especially of an employee with a substantial period of satisfactory service) that will likely be immune from a finding that it was harsh, unjust or unreasonable, then notions of ‘a fair go all round’ dictate that the employer must have taken adequate steps to bring home to employees that breaches will be treated seriously and will likely result in dismissal.

[69] If breaches of policy present as a spectrum of seriousness, particular mitigating factors that may make a dismissal harsh notwithstanding the existence of a valid reason also present as a spectrum. The adverse personal consequences of a dismissal tend to increase with age and duration of employment. For some employees, the loss of employment is not particularly damaging. A young, single employee with an in-demand trade or skill will likely find new employment very quickly. However, for an older employee without qualifications or a trade, dismissal can amount to a personal catastrophe and lead to long term unemployment, serious depression, loss of the family home, failed relationships and all of the myriad tribulations that flow from that for children.’

[72] On the evidence before me it is clear the ATO takes compliance by its employees with the IT policy very seriously. The policy is stringently monitored and enforced, emails are routinely scanned for non-compliance and if evidence of a breach is located then further investigations are undertaken to determine if other breaches have been committed. Employees are notified on a regular basis about sanctions imposed against employees who have been found to have breached the policy.

[73] In Australia Post the Full Bench found that ‘the primary facts found by the Commissioner call for a finding that the DLC was a workplace where there was a culture of toleration.’ 27 There was no evidence whatsoever in this case that the ATO had any ‘culture of toleration’ in relation to the IT policy. A minor breach of the policy was brought to the applicant’s attention in November 2010 and the seriousness with which that matter was treated would have informed a reasonable person that breaches would not be tolerated.

[74] The case before me, can be distinguished from the facts in the Australia Post case, as there was a prior warning given to the applicant about a breach of the policy. The Reminder Notice sent at that time included the following statements:

‘A summary of the sent email(s) , containing material constituting unacceptable use, is listed at the end of this email. I remind you that the CPMS sets out the Tax Office’s policy regarding the proper use of IT facilities and is issued as a formal direction to all employees. It is therefore your responsibility to both fully acquaint yourself with the contents of the CPMS and to comply with the direction contained therein.

You should take particular note of the fact that the CPMS does not allow non-business usage of IT facilities, except where specifically permitted by the CPMS itself. Permitted personal use does not and will never include the storage distribution and /or transmission of unacceptable material or of any of the other unacceptable uses as defined in the CMPS.

It is your responsibility to:

Seek clarification from your manager if there is any doubt about what is proper use of IT facilities.

Check your Outlook and H:Drive to ensure what is contained there is consistent with the requirements of the CMPS.

Delete any unacceptable material immediately (i.e. that may be store in your Outlook or H:Drive).

Please reply to all advising that you have checked your Outlook and H:Drive, and have deleted any inappropriate material, including the below email/s.

In the event that there remains any unacceptable material, or if you are in doubt as to whether any remaining material is unacceptable, you should seek clarification from your manager and delete any unacceptable material immediately.

Having considered that the content within this email is at the lower end of the scale in relation to unacceptable material, Health & People Management have decided to only issue you with a reminder on this occasion.

Should a subsequent similar occurrence come to light after the date of this email, it will most likely be dealt with formally under the Tax Office’s Procedures for Determining whether an Employee has breached the Code of Conduct’.

Please note the Commissioner’s comments in the News Extra Edition of 11/08/08 “Let me state in unambiguous terms: People should heed our inappropriate email policy because our new technology scans all emails and there are serious consequences for those that breach our corporate policies. In this regard, we have a low threshold of what we regard as inappropriate, and if an inappropriate email is inadvertently forwarded to others or to your home, you are required to inform your manager.”‘ 28

[75] There is no doubt that the applicant was put on notice that any further breach of the policy would ‘most likely be dealt with formally under the Tax Office’s Procedures for Determining whether an Employee has breached the Code of Conduct’. If the applicant was in any doubt about the seriousness with which breaches of the policy are regarded the reference to the Commissioner’s comments that followed were unambiguous.’

[76] The existence, in this case, of a prior warning to the applicant is important. In light of that warning the applicant cannot maintain a claim that he was unaware of the policy or the ramifications of a breach. In response to that warning the applicant notified the officer who had issued the reminder notice that he had ‘checked Outlook and H:Drive and deleted inappropriate material.’ 29 That occurred on 29 November 2010. The applicant claimed that the calendar, the bride image and the Vietnamese story had been stored on his H:Drive ‘two to three years’ prior to the identification of the breach in 2013. It is apparent, therefore, that either the applicant did not delete that material in November 2010 as he had advised his employer, or proceeded to store the material very soon after receiving the reminder.

[77] At the conclusion of the Australia Post the Full Bench determined as follows:

‘[110] On the rehearing, given the factors we have discussed and weighing the seriousness of the misconduct against the factors mitigating against dismissal, we conclude that the misconduct did not warrant dismissal and that in each case the dismissal was harsh. In particular, the culture that existed at the DLC, and the historical absence of monitoring and enforcement of policy within the DLC, rendered it harsh to dismiss employees such as the Appellants, without any prior warning, for breaches of policy of a type that had been widespread and unaddressed for an extended period. That conclusion is enforced by a consideration of the examples relied upon by Mr Dwyer in relation to treatment of the same species of misconduct by other employees, especially (junior) managers. In relation to Mr B, we adopt the Commissioner’s findings against the contention that Mr B had been misleading during the investigation.’

[78] None of the matters relied upon by the Full Bench exist in this case as mitigating factors. There was no evidence of any disparate treatment. The evidence was clear that not all breaches of the policy resulted in the dismissal of an employee. Resignation was a more likely occurrence, an option not unusual in the public service in the face of a Code of Conduct investigation.

[79] The mitigating circumstances in this case relate mainly to the applicant’s age and long period of employment. As noted by the Full Bench in Australia Post:

‘[69] If breaches of policy present as a spectrum of seriousness, particular mitigating factors that may make a dismissal harsh notwithstanding the existence of a valid reason also present as a spectrum. The adverse personal consequences of a dismissal tend to increase with age and duration of employment. For some employees, the loss of employment is not particularly damaging. A young, single employee with an in-demand trade or skill will likely find new employment very quickly. However, for an older employee without qualifications or a trade, dismissal can amount to a personal catastrophe and lead to long term unemployment, serious depression, loss of the family home, failed relationships and all of the myriad tribulations that flow from that for children’ 30

[80] The applicant is 53 years of age. He has worked for the respondent for 30 years, 11 of these with the ATO. He has raised the severe effect termination has had on his superannuation benefits and the fact that his skills are significantly related to work performed only at the ATO. I accept that the applicant will suffer as a result of the dismissal. I do not however, accept that the effect of the dismissal on him is such that it renders the termination, in all the circumstances of this case, harsh. All employees who lose their jobs suffer to differing degrees. Many don’t have superannuation benefits at the levels enjoyed by public servants.

[81] The dismissed employee in Queensland Rail was in a similar position to the applicant in this matter. In that case the Full Bench stated as follows:

‘...Although an employee of 27 years without any history of being disciplined, he breached the policy in a serious way in 2003 and on a number of occasions in late 2005 and early 2006. Although we have not set out the contents of the 2003 files, it seems to have been common ground that they were caught by the policy. The employee conceded as much in his evidence before the Commissioner. Having seen the material it is apparent to us that it contains material that the policy was directed at. While we have dealt with two of them ourselves above, details of the 2005/6 images are set out in the Commissioner’s decision. It is apparent that the breaches were not minor or few in number. Looked at objectively there is evidence of flagrant and repeated breaches.’ 31

[82] In my view the breaches of the policy in this case were serious. The ‘corpse email’ was not at the lower end of any spectrum and clearly fell into the definition of unacceptable and offensive content. The IT Policy was clear that forwarding such an email, even if forwarded to the applicant’s home email address, would be a breach of the policy. Given the notifications, training and warnings the applicant was provided with in the latter years of his employment, if he was unaware of this fact, it was through no fault of the employer. Similarly, the applicant could have been in no doubt that the content of the calendar stored on the H:Drive was stored there ‘in flagrant breach’ of his employer’s policy. The following comments of the Full Bench in Queensland Rail are apposite:

‘[22] While the employee’s representative put all that could reasonably be put on his behalf, it has not been established that the termination of his employment was harsh, unjust or unreasonable. The use of company electronic communications systems for storage and transmission of images containing sexually-related, pornographic and violent material is a serious and socially important issue. The appellant, rightly in our view, made sustained efforts over a number of years to make employees aware of its policy and the consequences of breaching the policy. Despite those efforts and repeated warnings the employee breached the policy in a substantial way and on a number of occasions. While appreciating that loss of employment is a bitter blow, we see no proper basis on which the Commission might properly intervene to reverse the employer’s decision in this case.’ 32

[83] In my view the applicant committed flagrant breaches of the ATO IT policy, a policy that was actively promulgated by the respondent on a regular basis He was on notice that such breaches would incur disciplinary action up to and including termination of employment. I do not accept his claims that the breaches were inadvertent. All the evidence supports a view that he knew his conduct was in breach but, nevertheless, engaged in the conduct. As an employee engaged in the IT area of the ATO, the applicant had no excuse for being in any way unfamiliar with the IT policy and what it entailed. He emailed, in contravention of the policy, a disturbing and offensive email. I agree with the characterisation of that email made by Ms Clark in her investigation report. I also agree that the calendar stored on the H: Drive was at the high end of the spectrum of unacceptable material. So far as the Vietnamese story was concerned, I do not think that the fact that it was not in English makes it any less a breach of the policy. I accept Ms Clark’s view that its storage was a breach of the Code of Conduct and note the applicant’s acknowledgement of this fact. Even in the absence of the translation which revealed the sexually explicit nature of the content, it was a large document which the applicant should not have stored without ascertaining the nature of the content.

[84] In all the circumstances of this case I do not find that the termination of the applicant’s employment was a disproportionate sanction for those breaches of the employer’s policies committed, and admitted to, by the applicant.

[85] The termination of the applicant’s employment was not harsh, unjust or unreasonable. The dismissal was not unfair. The application is dismissed.

Appearances:

Mr A Howell, of Counsel, and Ms S Pethbridge, for the applicant.

Ms S Ralph, of Norton Rose Fullbright, for the respondent.

Hearing details:

2013.

Canberra:

9 December.

 1   Exhibits V1 and V2

 2   Exhibit V1 paragraph 35

 3   Exhibit ATO 1

 4   Transcript PN 210

 5   Transcript PN216

 6   Exhibit ATO4

 7   Transcript PN291

 8   Exhibit ATO5

 9   Transcript PN303

 10   Transcript PN376

 11   Transcript PN377

 12   Transcript PN 388

 13   Transcript PN 413.

 14   Exhibit V3

 15   Exhibit ATO6

 16   Exhibit ATO7

 17   Exhibit ATO7 Attachment C

 18   Exhibit ATO8

 19   Exhibit ATO9

 20   Exhibit ATO 10

 21   Ibid

 22   Exhibit ATO11

 23   Transcript PN913

 24 [2006] NSWIRComm 288

 25  Queensland Rail v Wake (2006) 156 IR 393 at 21

 26   B,C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 at 51

 27   Ibid at 100

 28   Exhibit ATO7 Attachment A

 29   Exhibit ATO7 Attachment C

 30   B,C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191

 31   Queensland Rail v Wake (2006) 156 IR 393 at 21

 32   Ibid at 22

Printed by authority of the Commonwealth Government Printer

<Price code C, PR547314>