Western Australian Industrial Relations Commission

Dismissal upheld following guilty plea to unlawful access charge

The Public Service Appeal Board dismissed an appeal against the Commissioner of Police’s decision to terminate a Call Taker/Radio Operator’s employment. The appellant’s dismissal arose from an incident where the appellant’s computer was used to access the registration numbers of four vehicles and eight females connected with those vehicles, using the respondent’s Information Management System (IMS). The appellant was charged and pleaded guilty in the Magistrates Court to unlawful access to a restricted computer system under the Criminal Code (WA).  Despite the appellant’s guilty plea, he maintained in the proceedings before the Appeal Board that he left his computer login open and someone else must have used his access.

The Appeal Board found that the appellant’s plea of guilty and his conviction for the offence must be taken on its face as evidence of the fact of conviction and the factual circumstances upon which the learned Magistrate proceeded to convict and sentence the appellant.  The Appeal Board noted the appellant’s explanation, that he only told his counsel he would plead guilty because of the possibility of a custodial sentence and he understood that he was only pleading guilty to leaving his computer logged on.  However, these explanations only emerged for the first time in this appeal.  They were not mentioned to the respondent after the Magistrates Court proceedings and when the respondent recommenced its disciplinary investigation, despite the appellant having ample opportunity to do so. The Appeal Board found that the respondent was entitled to be concerned as to the nature of the searches and the apparent targeting of females between the ages of 19 and 24 years old.  The respondent was entitled to form the view that there had been a breach of trust, and that the appellant’s suggestion, that someone else had accessed his login over the timespan involved and in the circumstances described, was not credible. Dismissal was found to be proportionate given the seriousness of the misconduct.

The Appeal Board rejected the appellant’s arguments that the respondent had waived the appellant’s misconduct by continuing his employment after his conviction and that the appellant was not afforded procedural fairness by the respondent. The Appeal Board noted witness evidence of the respondent’s Human Resources Director, that it was common practice for an employee subject to disciplinary processes to be kept at work and gainfully employed, and that steps were taken by the respondent, such as limiting and monitoring the appellant’s access to critical and sensitive information technology systems, after the incident. The respondent was found to have taken account of matters raised by the appellant and it could not be concluded that the appellant was, to any extent, denied procedural fairness.

The appeal was dismissed.

The decision can be read here

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