The Public Service Appeal Board dismissed the appeal of the respondent’s decision to dismiss the appellant based on the substantiated allegations of excessive use of resources and use of out of service equipment.

While the Board allowed the appeal out of time because the delay was caused by representative error and the appellant presented an arguable case, it found that the appellant's lack of insight into the seriousness of his actions and his refusal to acknowledge the validity of the out of service tag supported the decision for dismissal.

Background

The appellant was employed by the TAFE respondent as a Technical Support Officer – Fabrication, at its Midland campus from 1 September 2007 to 13 April 2022.

On 9 March 2022, the respondent notified the appellant that it was terminating his employment, providing five weeks’ notice, for:

1. contravening the respondent’s Staff Code of Conduct, the Public Sector Code of Ethics, and the respondent’s Information Services Acceptable Use Policy for Staff by using excessive work time and resources on non-work-related matters; and
2. breaching the Code of Conduct, the PS Code, the Occupational Safety and Health Act 1984 (WA), and the respondent’s Occupational Health and Safety Policy by removing an out of service tag from a forklift without authorisation and using the forklift.

The forklift, which was the subject of point 2 above, had been experiencing mechanical issues, including problems with the brakes, emitting a squeaking noise, and other wear and tear. On August 25, 2021, a technician serviced the forklift, identified brake issues, and tagged the forklift as "out of service" due to metal-on-metal brakes and other necessary repairs.

On September 15, 2021, the Senior Supervising Technician observed the appellant driving the tagged-out forklift. The technician informed the appellant that the forklift was tagged out due to brake issues and instructed him to park it. The appellant reportedly dismissed the issue, claiming there was nothing wrong with the brakes and continued to operate the forklift.

The Technician immediately reported the incident to his superior detailing the appellant’s actions and comments. The Technician noted that the appellant claimed the issues with the brakes were "rubbish" and ignored the screeching noise from the brakes during the demonstration. The forklift was retagged and secured to prevent further use.

The Technician also received guidance from a safety consultant regarding the proper procedures for tagging out equipment. The consultant emphasized that tagged-out equipment must not be operated until authorised personnel have removed the tag and ensured safety.

Contentions

The appellant contested his dismissal and appealed to the Board, arguing that he should not have been dismissed.

The appellant's appeal was filed late, on 30 March 2022, approximately four months after it was due on 27 July 2022. He claimed that this delay was due to confusion and representative error. He had sought legal advice but had difficulty securing representation due to financial constraints.

The respondent acknowledged that the appellant's appeal presented an arguable case and did not object to his out-of-time application. They also stated that, aside from defending the appeal, they would not face any specific prejudice if an extension was granted.

 The appellant concedes that he used his work email for personal matters, including sending and receiving personal emails concerning his daughter's legal issue, tenancy matters, the Speedway Commission, movie streaming, cryptocurrency trading, and contesting an infringement. He admits that these emails were not endorsed or approved by the respondent and he should not have utilised his work email for personal matters, instead, he should have refrained from working on personal tasks during work hours.

 The respondent argued that the appellant's use of work hours for personal matters and sending personal emails from his work account were serious actions. The respondent described the allegation against the appellant as "using excessive work time and resources on non-work-related matters," which they equated to time theft, a serious allegation.

 The respondent contended that these actions could undermine the public's confidence in the respondent's responsible use of taxpayer-funded resources and might give the impression that such actions were. It was argued that the appellant's use of the respondent's resources, including his work email, for personal purposes could potentially tarnish the respondent's reputation. External parties might interpret these actions as being carried out on behalf of the respondent, which could negatively affect its image.

 However, the appellant contends that his extensive work conducted from home over 14 years far outweighed the time he spent on personal matters while at work during six months of unauthorised email use. His arguments centre on his belief that his extensive work dedication and personal situation mitigated the alleged misuse of resources.

 Regarding the forklift incident, the appellant contended that he had a deep mechanical understanding and could accurately determine the safety of the forklift. He alleged that the decision to tag out the forklift was influenced by others within the organization, and he claims that the reported issues with the brakes were exaggerated or manipulated to justify servicing. He disputes the notion that the forklift was unsafe and argues that the whole incident was a charade to validate the service of the forklift.

 The respondent contended that the appellant's lack of understanding about the seriousness of his actions demonstrated an absence of insight. It was suggested that this lack of insight was relevant when determining the appropriate penalty for his actions. The appellant argues that he had valid reasons for his behaviour, particularly related to his daughter's situation and that his actions were not as detrimental as portrayed.

 Finding

The Board held that the appellant was blameless for the delay in filing the appeal and found the  representative error was a sufficient reason to extend the time to file the appeal. Further, the Board acknowledged that the appellant had an arguable case in the circumstances. Thus, the appeal was allowed out of time.

The Board found that the appellant did indeed remove an "out of service" tag from a forklift and operated it while knowing it had been tagged out. This conduct was against the respondent's guidelines and procedures. While The appellant contended that the tagging was a façade, the Board did not accept this explanation. It concluded that the tagging was due to genuine concerns about the forklift's safety.

The Board noted that the appellant lacked insight into the seriousness of his conduct. He failed to acknowledge the validity of the out-of-service tag and the potential risks associated with operating a tagged-out forklift. The Board considered this lack of insight as relevant when determining an appropriate penalty.

Despite mitigating factors such as the appellant's age, length of service, and financial situation, the Board found that these factors did not warrant altering the respondent's decision to dismiss him. The Board concluded that the appellant's conduct in both the excessive use of the respondent resources and the out-of-service incident justified his dismissal. The Board ordered that the appeal be dismissed, thereby upholding the respondent's decision to terminate the appellant's employment.

The decision can be read here.