APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 20 JUNE 2017

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2018 WAIRC 00720

DELIVERED : Wednesday, 29 August 2018

FILE NO. : PSAB 11 OF 2017

Appellant

AND

Commissioner of Police, Western Australia Police

Respondent

Catchwords : Industrial Law (WA) – Appeal against decision of the respondent to terminate employment – Whether the appellant committed a serious offence – Consideration of appellant’s criminal conviction in this appeal – Whether the respondent waived the appellant’s misconduct by continuing employment – Whether the appellant was afforded procedural fairness – Whether dismissal was proportionate in the circumstances – Principles applied – Appellant committed a serious offence – Respondent entitled to terminate appellant’s employment – Appeal dismissed.

Legislation : Criminal Code Act Compilation Act 1913 (WA) s 440A

  Public Sector Management Act 1994 (WA) ss 58(4), 59(1), 80, 80A, 80I, 92(1)

  Sentencing Act 1995 (WA) ss 9AA, 11

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr G McIntyre of senior counsel

Respondent : Mr T Pontre of counsel

Solicitors:

Appellant : Thexton Lawyers

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Bennett v The State of Western Australia [2012] WASCA 70

Gaudet v the Department of Corrective Services [2013] WAIRC 00032; 93 WAIG 279

Harvey v Department of Corrective Services [2017] WAIRC 00728; 97 WAIG 1525

Hollington v F Hewthorn and Co Ltd [1943] KB 587

Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961

Kioa v West [1985] HCA 81

Mickleberg v Director of Perth Mint (1986) WAR 365

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31

R v Hill [1979] VR 311

Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

Schugman v Menz [1970] SASR 381

Case(s) also cited:

Addis v Gramophone Co Ltd [1909] AC 488

Alkemade v SERCO Gas Services (Vic) Pty Ltd [1999] AIRC 45

Belinda Pinker v Director General Department of Education [2014] WAIRC 1312

Blyth Chemicals v Bushnell (1933) 49 CLR 66

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Carlyon v Commissioner of Police [2004] WAIRC 11428

Commonwealth Bank v Barker (2014) 253 CLR 169

Concut Pty Ltd v Worrell [2000] HCA 64

Container Terminals Australia Limited v Toby (2000) AIRC 97

Cosco Holdings Pty Ltd v Thu Thi Van Do & Ors [1997] FCA 1353

Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137

Danijel Pantovic v Public Transport Authority of Western Australia [2011] WAIRComm 876

Federal Supply and Cold Storage Co of South Africa v Angehrn (1910) 103 LT 150

Gilles Gaudet v Commissioner Ian Johnson Department of Corrective Services [2013] WAIRC 32

Herbert Clayton v Oliver [1930] AC 209

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44

Krishna Thavarasan v The Water Corporation [2006] WAIRC 04089

Leahy v Liquor, Hospitality and Miscellaneous Union (2009) WAIRC 00580

Lewis v Motorworld Garages Ltd [1986] ICR 157

Malik v Bank of Credit and Commerce International S.A. [1998] AC 20

Marbe v George Edwardes (Daly's Theatre) Ltd [1928] 1 K.B. 269

McDonald v State of South Australia [2008] SASC 134

McGrath v Commissioner of Police (2005) WAIRC 01989

Morton v Transport Appeal Board (No 1) [2007] NSWSC 1454

Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370

North West County Council v Dunn [1971] HCA 34

Paul Smith v Director General - Department of Transport [2014] WAIRComm 134

Public Employment Industrial Relations Authority v Scorzelli [1993] NSWIRC 48

Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217

Selvachandran v Peteron Plastics (1995) 62 IR 371

State School Teachers Union of WA (Inc) v The Director General, Department of Education [2017] WAIRC 00241

State School Teachers Union of WA (Inc) v The Director General, Department of Education [2017] WAIRC 00737

Thi Le Nguyen v Commissioner of Police [1997] WAIRC 213

United Voice WA v Director General, Department of Education (2014) WAIRC 01137

Victoria Laundry (Windsor) Ld v Newman Industries Ltd [1949] 2 K.B. 528

Wadey v YWCA Canberra [1996] IRCA 568

Warner v Commissioner of State Revenue [1997] IRCA 269

Wenham v Ella [1972] 127 CLR 454

Westen v Union des Assurances de Paris [1996] IRCA 610

Withers v General Theatre Corporation Ltd [1933] 2 K.B. 536

Woods v W.M. Car Services (Peterborough) Ltd [1982] ICR 693

Reasons for Decision

1         The appellant worked for the respondent as a level 3 Call Taker/Radio Operator at the respondent’s Police Operations Centre. The appellant started work with the respondent in November 2007 and has been a Call Taker/Radio Operator since about January 2010.

2         The circumstances giving rise to the current appeal had their beginnings on the night of 18 March 2015. Between the hours of 9.00pm and 9.15pm that evening, the appellant attended at the respondent’s Operations Centre. The appellant was on leave at that time. Earlier that day, the appellant had been at the respondent’s Joondalup Police Academy to attend a lecture by a visiting police officer from America. The appellant then went to the Operations Centre and spoke to a work colleague, who was unable to attend the lecture with him earlier in the day.

3         While in the workplace, the appellant’s computer was used to access the registration numbers of four vehicles and eight female persons connected with those vehicles, using the respondent’s Information Management System (IMS). The IMS is a restricted access computer database which may only be accessed by authorised users for authorised work purposes. The access to the IMS by the appellant was disputed. The appellant maintained that he left his login open and someone else must have used his access. The respondent maintained that it was the appellant who accessed the information for both the vehicles and the female persons concerned.

4         In accordance with usual procedures the respondent’s Internal Affairs Unit (IAU) were notified of and investigated the incident. The IAU investigation concluded on 22 December 2015. Earlier, on 5 June 2015, the appellant was charged with unlawful access to a restricted access computer system under s 440A of the Criminal Code (WA). Shortly after, on 17 June 2015, the respondent notified the appellant that it suspected that he had committed a breach of discipline under s 80 of the PSM Act. The respondent commenced its own disciplinary investigation into the appellant’s conduct at about that time, which was subsequently suspended, pending the disposition of the criminal proceedings.

5         On 2 May 2016, the appellant pleaded guilty to the criminal charge and was convicted in the Magistrate’s Court. On 14 July 2016, the appellant was sentenced to a fine of $5,000. The conviction was for a “serious offence” for the purposes of ss 80 and 92(1) of the Public Sector Management Act 1994 (WA). Upon the appellant’s conviction, the disciplinary process recommenced. It took some time.  When the disciplinary process had taken its course, which involved the appellant’s Union, the Civil Service Association acting on his behalf, it was not until 22 June 2017 that the respondent terminated the appellant’s employment by payment of salary in lieu of notice. Some issue was taken by the appellant with the fact that he was deployed on other duties over this time. We will return to this issue later in these reasons.

The appeal

6         The appellant now appeals against his dismissal by the respondent under s 80I of the PSM Act.

7         The appellant maintained that his dismissal was in all the circumstances harsh, oppressive and unfair. The appellant contended that he admitted one access of a vehicle on the night in question, in response to a registration number being “called out” from the North Pod when he was present in the workplace.  Otherwise, the appellant said he had no explanation for his actions other than expressing regret for leaving his computer login access open. The appellant maintained that he had no sinister motive nor did he personally benefit from the commission of the offence.

8         Other matters raised by the appellant in the appeal notice included that he was placed back into the police operations role with monitoring by the IAU after the incident; that the respondent has in the past been more lenient on other employees; and that his original conviction was in error. The appellant sought reinstatement without loss.

Relevant principles

9         It is trite to observe that appeals to the Appeal Board under s 80I of the PSM Act in relation to matters of the present kind proceed as a hearing de novo. As an appeal however, greater scope is given to the Appeal Board to enquire into the circumstances of the dismissal and to decide for itself on the evidence, if misconduct occurred. It is for the employer to establish on the evidence, the conduct of which it complains, whilst the overall onus remains on the appellant to persuade the Appeal Board that it should interfere with the employer’s decision and adjust it: Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266; Harvey v Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525.

10      It is not in dispute in these proceedings that the appellant was charged and convicted of a serious offence. In these circumstances, s 92 of the PSM Act is enlivened. This provision is in the following terms:

92. Employee convicted of serious offence, powers as to

(1) Despite the Sentencing Act 1995 section 11, if an employee is convicted or found guilty of a serious offence, the employing authority may take disciplinary action or improvement action, or both disciplinary action and improvement action, with respect to the employee.

(2) Before any disciplinary action or improvement action is taken with respect to an employee under this section, the employee must be given an opportunity to make a submission in relation to the action that the employing authority is considering taking.

(3) If an employee is dismissed under this section, for the purposes of sections 58(4) and 59(1) the employee is taken to have been dismissed for breach of discipline.

11      The terms of s 92 were considered by the Appeal Board in Gaudet v the Department of Corrective Services [2013] WAIRC 00032; (2013) 93 WAIG 279 at par 24. In that case, the Appeal Board observed that under the legislation, in the case of an employee committing a serious offence, dismissal is not the only outcome. The terms of s 92(1) contemplate that an employer may take disciplinary action or improvement action or a combination of both. The discretion is to be exercised having regard to the circumstances of the case. The view of the employee is required to be sought in response to the employer’s proposed action.

12      As this appeal is a civil proceeding, it is necessary to consider the consequences of the appellant’s conviction for a serious offence under s 440A of the Criminal Code and the ability for it to stand in this appeal as evidence of not only the fact of the conviction itself, but also the facts on which the conviction was based. This question arose before the Western Australian Court of Appeal in Bennett v The State of Western Australia [2012] WASCA 70. In that case, the issue was the admissibility in a District Court criminal trial of the appellant’s prior conviction (after trial) some years prior. In considering the cases, the Court of Appeal referred to Hollington v F Hewthorn and Co Ltd [1943] KB 587, which held that evidence of a criminal conviction was not admissible in subsequent civil proceedings. This approach of the English courts was not followed by the Full Court of the WA Supreme Court in Mickleberg v Director of Perth Mint (1986) WAR 365, which preferred and followed the approach taken by the New Zealand Court of Appeal in Jorgensen v News Media (Auckland) Ltd [1969] NZLR 961. In Jorgensen, it was held that evidence of a prior conviction for a criminal offence may be admitted in subsequent civil proceedings, not just as evidence of the conviction but also as evidence, although not conclusive, of the relevant facts underlying it.

13      By parity of reasoning, the Court of Appeal in Bennett concluded (per Martin CJ at pars 60-66; Buss and Mazza JA agreeing) that the prior criminal conviction should be admissible in the subsequent criminal proceedings and should stand in the same fashion. In further considering the issues, and relevantly for present purposes, Buss JA also said at par 110:

110 Similarly, a plea of guilty to a criminal charge necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. See R v Hill [1979] VR 311, 312 (Young CJ, Menhennitt & Crockett JJ). The plea also negatives all defences. See Schugman v Menz [1970] SASR 381, 381- 382, 386 (Bray CJ). A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements. See Hill (312).

14      Where there is not a clear identification of the facts established by a conviction, the record of the criminal proceedings is the best guide. Also, whether, and if so to what extent, evidence may also be led in a subsequent proceeding to augment or to undermine or impugn the conviction, remains an open question: Bennett at par 67 per Martin CJ. 

15      These matters are directly relevant to the appeal at hand. We consider that the appellant’s plea of guilty and his conviction for the offence against s 440A of the Criminal Code must be taken on its face as evidence of the fact of the conviction and the factual circumstances upon which the learned Magistrate proceeded to convict and sentence the appellant. There was no demur by the appellant from the Statement of Material Facts before the Magistrate’s Court. The appellant maintained in his evidence in these proceedings, that he only pleaded guilty because of an indication by the prosecutor on the day of his criminal trial, that the prosecution would seek a custodial sentence if the appellant was convicted. The appellant also contended that he instructed his counsel, that he would plead guilty only “on the basis that the facts of the offending would be amended to simply state that I had left my computer logged in and unlocked” (appellant’s witness statement par 23).

16      Of course, the Statement of Material Facts (see exhibit R1) was not so amended and nor could it have been. This is because the conduct of the kind that the appellant said he mentioned to his counsel, as the condition for him pleading guilty, does not constitute a criminal offence under the Criminal Code. We consider that the Appeal Board is obliged to accept the Statement of Material Facts and the record of the proceedings before the Magistrate’s Court, as marking out the facts on which the appellant’s conviction was obtained. In these proceedings in his evidence, the appellant confirmed the consistency between the allegations of fact in the Statement of Material Facts and what his counsel submitted to the court on his plea and in subsequent sentencing submissions.

Issues to be determined on the appeal

17      Having regard to the submissions of senior counsel for the appellant and counsel for the respondent, we consider that the issues arising for determination on the appeal are:

(a) Did the appellant commit a serious offence?

(b) What were the circumstances of the offending?

(c) Did the respondent waive the appellant’s misconduct by placing him in other work, especially work involving access to the IMS, pending the disposition of the criminal and disciplinary processes?

(d) Did the respondent afford the appellant procedural fairness?

(e) Having regard to s 92(1) of the PSM Act was disciplinary action in the form of dismissal an appropriate penalty? and

(f) If dismissal was a disproportionate response, what other penalty could have been imposed and are there any other reasons why it should not be imposed?

Serious offence

18      As noted earlier, it is not contested that the appellant was convicted on 2 May 2016 of an offence under s 440A of the Criminal Code and that this was a serious offence for the purposes of ss 80 and 92 of the PSM Act. We find accordingly.

The circumstances of the offending

19      As discussed above, the circumstances of the appellant’s conduct, insofar as it constituted a criminal offence, is the record of the criminal proceedings before the learned Magistrate. Firstly, is the summons dated 2 June 2015. The Statement of Material Facts recorded that the accused attended the respondent’s Police Operations Centre on Wednesday 18 March 2015. Between 9:03pm and 9:15pm it was alleged that the appellant accessed the IMS and searched four vehicles and eight female persons associated with the vehicles. The Statement of Material Facts noted that as a restricted database, the appellant was required to access the IMS by entering his own login credentials and that the database must only be used for official work purposes. As we have also mentioned earlier, the Statement of Material Facts noted that the appellant was not on duty at the time. 

20      On the day listed for the appellant’s trial on 2 May 2016 and prior to the hearing commencing, the transcript revealed that there were some discussions between defence counsel and the prosecutor. The upshot was the appellant entered a guilty plea. It is not uncommon in criminal proceedings for there to be a degree of plea negotiation. An accused may plead guilty to an offence in return for some charges to be discontinued or that submissions on a lesser sentence will not be opposed by the prosecution, for example. (See generally E Colvin and J McKechnie Criminal Law in Queensland and Western Australia Cases and Commentary 5th Ed at pars 27.37-27.41 and s 9AA Sentencing Act 1995 (WA)). Important to such arrangements is that an accused must not maintain their innocence. On any objective view, this is what occurred in this case. The appellant pleaded guilty, in anticipation of a possible advantage in relation to sentencing. We also refer to the observations of Buss JA above in Bennett at par 110, as to the effect of the guilty plea. The plea of guilty in the circumstances in which the appellant said it was entered by him, should not be regarded as impugning or undermining the conviction.

21      It was noted by the prosecutor at the hearing on 2 May 2016 that the appellant declined to be interviewed by the investigating officers and offered no explanation for his conduct: ts 5. This has not been disputed by the appellant in these proceedings. At the later sentencing hearing on 6 July 2016, from the transcript of the proceedings, the appellant’s counsel informed the court that the appellant admitted the facts as alleged: ts 3. There was no qualification. The appellant’s counsel conceded that the offending was “serious” and a “breach of trust”: ts 3.  Counsel for the appellant also informed the court that the appellant was not able to say why he did access the IMS on the night in question. There was a submission made about a practice of the appellant seeing suspicious activity outside of work and noting registration numbers (ts 5), presumably to search them later at work on the IMS. However, regardless of that submission by his defence counsel at the time, and in any event, such access would not be authorised. Submissions were also made that none of the female persons whose information was accessed on the IMS, were contacted in any way by the appellant or followed by him. Defence counsel submitted that there was no sinister motive: ts 6. It was not in dispute that four of the eight females whose details were accessed on the IMS were aged between 19 and 24 years. The others were considerably older: ts 8.

22      The learned Magistrate was taken by the prosecution through the “audit track” of documents, which are copies of screenshots of what was said to have been seen by the appellant on his computer, when the subject vehicles and individual person details were accessed on the IMS system. We were also taken through the same documents by the respondent, copies of which were contained in exhibit R1. It was contended by the prosecution that an inference was open that for the appellant to access the details of young females aged between 19 and 24 years of age in the fashion that he did, the appellant had a sinister purpose. This was especially so in circumstances where the appellant gave no explanation for his conduct, except that he could not recall accessing the system. The prosecutor submitted to the court that its case was strong. Apart from the audit track reports, evidence would have been that others saw the appellant present at the computer where the access to the IMS was performed and that he sent emails to himself from that computer: ts 17. Whilst the prosecution accepted there could be some discount for the guilty plea, it was submitted that it should not be large because of its lateness, being on the day of the trial: ts 16-17.

23      On 14 July 2016 the matter returned to the Magistrate’s Court for sentencing.  The learned Magistrate found that the appellant’s access to the IMS was planned and was not opportunistic. The act was done in the course of his employment, such that persons in the appellant’s position, even though he was on leave at the time, could be expected to access such information. This was therefore an aggravating circumstance, as such unauthorised accesses would be more difficult to detect: ts 2-3. The learned Magistrate was not able to find however, beyond reasonable doubt, that there was a sinister purpose involved in the appellant accessing the IMS records: ts 2. The learned Magistrate imposed a fine of $5,000 and no spent conviction order was made: ts 4.

24      As we have already noted above, when the content of the record of the criminal proceedings was put to him in these proceedings, including the Statement of Material Facts, the appellant accepted that it and the submissions made to the Magistrates Court on his behalf, were consistent. The appellant maintained his contention however, that he only pleaded guilty because he was fearful of receiving a custodial sentence, if convicted after trial.

25      Following the appellant’s conviction and sentencing, the respondent wrote to the appellant on 18 November 2016 and informed him that he had been convicted of a serious offence. The respondent, under s 92(1) of the PSM Act, was pursuing the issue of disciplinary action against the appellant. The respondent noted, as was emphasised in the testimony in these proceedings from Mr Clark, the respondent’s Acting Director of Human Resources, that no explanation had been provided by the appellant for his conduct. It was the appellant’s case however, that he could provide none, as he had no recollection of the material events and denied that he had improperly and unlawfully accessed the IMS in any event.

26      In the respondent’s letter the appellant was invited to respond to the breach of discipline allegations. Whilst the letter was undated, it seems that on 6 January 2017 the appellant did respond. In the letter and in his testimony before the Appeal Board, the appellant referred to the events on the night in question on 18 March 2015. He said that he was seated in the 000’s POD and was checking his emails. He heard a registration number being called out and he logged onto the IMS to “run the registration”. The appellant testified that he then spoke to another officer for ten minutes or so, left the area for a short while, returned, logged off the system and then left the building.

27      The appellant said in his written response to the respondent, that he only admitted to one access of the IMS, being the first referred to above. He denied all other access, other than to say that he accepted that his identifier was logged on and it accessed the four vehicles and eight female individuals. This denial is, of course, completely at odds with the plea of guilty, the submissions of defence counsel, and the sentencing remarks of the learned Magistrate in the criminal proceedings to which we have referred in some detail above.

28      As part of the appellant’s response to the respondent, he referred to there being no sinister motive found by the learned Magistrate in the criminal proceedings.  The appellant also expressed remorse for his actions and noted the toll it had taken on him personally, both in terms of his mental health and the breakdown of his relationship with his fiancé. It was later accepted in these proceedings, that the latter event was largely the result of the stresses caused by the criminal proceedings. The appellant also referred to his period of employment in the “CAD” project for some 18 months or so in which he said he did well. He also referred to moving back to the POC for a period, prior to his dismissal. We will comment on this further below. The appellant also referred to his nine and a half years of employment with the respondent and his claim of a good employment record.

29      In his oral evidence in this appeal, the appellant accepted that there were inconsistencies between what was before the Magistrate’s Court in the criminal proceedings and what he told the respondent in response in the disciplinary action. Importantly, I note that the appellant’s explanation that he told his counsel he would only plead guilty because of the possibility of a custodial sentence and that he understood that he was only pleading to leaving his computer logged on only emerged for the first time in this appeal. No mention of this was made to the respondent at the time of the recommencement of the disciplinary investigation. This is reflected in the correspondence between the appellant, his Union on his behalf, and the respondent. One would have thought that these matters would have been raised by the appellant or his Union on his behalf at the first opportunity, explaining what had occurred in the criminal proceedings. Whether an adverse inference should be drawn about this is a matter we will consider below.      

30      Having regard to the principles discussed in Bennett, we accept the appellant’s conviction on its face and the facts on which it was founded, from the record of proceedings before the Magistrate’s Court. We are satisfied that the offending was serious for the reasons identified by the learned Magistrate in his sentencing remarks.

31      Furthermore, not only is the fact of the offending serious, the appellant’s explanation as to what he says he instructed his defence counsel to indicate to the court that he was prepared to admit to, lacks credibility. As we have just mentioned, none of this was put to the respondent in the appellant’s explanations for what occurred, despite ample opportunity to do so. As already noted too, it was some 21 months ago that the respondent confirmed it was proceeding with the disciplinary action under s 92 of the PSM Act and invited the appellant to respond in full. Some oblique reference to the appellant’s “conviction was in error” appears in a letter from the CSA to the respondent of 15 May 2017, but there is no reference to the matters now raised by the appellant for the first time in these proceedings. Nor did the appellant raise with the respondent in his responses in the disciplinary matter, that he only pleaded guilty to avoid a possible custodial sentence. Again, this is a matter raised for the first time in these proceedings. Nor does the Appeal Board have the benefit of any corroborating evidence of what the appellant was said to have told his counsel when he entered his guilty plea, or in the subsequent sentencing proceedings.

32      We note that there was a substantial period between the appellant pleading guilty on 2 May 2016 and the hearing on 6 July 2016, when sentencing submissions were made by the prosecution and defence. Despite this time lag, there was still no demur by the appellant’s counsel on 6 July, from anything put to the court when the guilty plea was entered. 

33      The respondent did not accept the appellant’s response to the proposed disciplinary action. The respondent maintained that the appellant’s suggestion that someone else used his login to access the details of four vehicles and eight individual females, over the timespan involved and in the circumstances described, was not credible. Nor was his assertion that he accessed the first registration number based on it being “called out” on the night in question, able to be established. The respondent considered in the circumstances that there had been a breach of trust. On what is before us in this appeal, we consider, for the reasons developed further below, that it was open for the respondent to reach those views.

Waiver

34      It was contended by the appellant that because he continued in employment after his conviction then the respondent has, by its conduct, waived the appellant’s misconduct. For the following reasons we do not accept this contention. Mr Clark gave evidence that it was a common practice for an employee subject to disciplinary processes to be kept at work and gainfully engaged. This was said to benefit both the employer and the employee. When the appellant was placed on the CAD project work he did not have access to critical and sensitive information technology systems. Later, in about mid-November 2016, the appellant, due to then staff shortages, was placed back in the POC as a dispatcher for a period. Mr Clark’s evidence was that this was subject to a risk assessment and that the appellant’s use of the databases was subject to close supervision and audit by the IAU. We accept that it was in this context, that the appellant received the email from the IAU dated 18 April 2017, to which the appellant referred, indicating that no breaches had been committed by the appellant of the respondent’s security system.

35      Additionally, it is clear from the correspondence between the appellant, the CSA on behalf of the appellant and the respondent, that the disciplinary process had resumed by the 18 November 2016 letter from Mr Clark to the appellant. The material contained in exhibit R1 and the material annexed to the notice of appeal and the notice of answer, makes it plain that the disciplinary process was continuing and did so up to and including the letter dated 20 June 2017 from the respondent to the appellant, which terminated the appellant’s employment. Viewed objectively, and having regard to this material, there could be no conclusion reached in our view, that the appellant’s misconduct had, at any time, been waived by the respondent.

Procedural fairness

36      The appellant in his written submissions maintained that he was not afforded   procedural fairness by the respondent. This was said to be so, as we understood the contentions, that the respondent in its correspondence with the appellant, had proposed to him that it considered the appropriate disciplinary penalty was dismissal and sought the appellant’s response. It seemed to be the appellant’s argument that this constituted prejudgment and the respondent was not affording the appellant an opportunity to be heard on possible outcomes.

37      There can be no doubt that in public sector disciplinary matters, the principles of procedural fairness apply. This is recognised in the “Commissioner’s Instruction No. 3 Discipline-general” that applies to public sector employers in relation to disciplinary matters. The general principles in relation to procedural fairness applicable to the exercise of statutory powers that may have an adverse effect on a person’s interests are well known and do not require any exposition (See for example Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636). The content of the obligation to afford procedural fairness will also be conditioned by the terms of the statutory provision in question.

38      In this case, the terms of s 92(2) specify what an employer is required to do before taking any disciplinary or improvement action. It requires that before taking the proposed action, the employer is to provide the employee with an opportunity to make a submission. In this case the proposed action was dismissal. The chain of correspondence in evidence discloses that the respondent first wrote to the appellant on 17 June 2015 and set out in some detail the allegations and the process that was to be followed. On 18 November 2016, the respondent again wrote to the appellant referring to his conviction and invited the appellant to provide any explanation or response, before considering what disciplinary response may be proposed by the respondent. As mentioned above, the appellant did so in some detail by his letter of reply provided on 6 January 2017. On 7 March 2017 the respondent advised that it was proposing the disciplinary action of dismissal and invited the appellant to make any representations that he wished to in response, which he did by way of a letter from the CSA to the respondent, requesting the respondent’s reasons for the proposed action and an extension of time to further reply. In its letter of 12 April 2017, the respondent set out in some detail the reasons for its proposed action and granted an extension of time to reply.

39      On 15 May 2017, the CSA on the appellant’s behalf, provided a reply, again in some detail, to the proposed action of dismissal. Supporting documents were attached to the reply. The respondent subsequently responded by letters of 13 and 20 June 2017, the latter confirming and implementing the respondent’s decision to terminate the appellant’s employment. It is plain from the above steps that the respondent did take account of the matters raised by the appellant and on his behalf. 

40      Given these steps, which arguably go beyond the strict requirements of s 92(2) of the PSM Act, it cannot be concluded that the appellant was to any extent, denied procedural fairness in our view.

Was dismissal a proportionate response?

41      Improper access to the respondent’s IMS system is an act of serious misconduct.  The appellant’s conduct, on its face, as was submitted on his behalf to the Magistrates Court, was serious and involved a breach of trust. It is the case that the sanction of dismissal is the most severe form of disciplinary action open to an employer under s 80A of the PSM Act. As mentioned earlier, s 92(1) does not mandate that dismissal is the only outcome in cases where an employee has committed a serious offence. The circumstances of the case need to be considered.

42      In relation to proportionality, the appellant raised the issue of the treatment of other staff by the respondent, both sworn police officers and public service staff, who had improperly accessed the respondent’s IMS system and had not been dismissed. At par 39 of the appellant’s witness statement, he referred to several other individuals in this regard. Whilst each case must turn on its own circumstances, the following will briefly outline the evidence and submissions made in this respect. 

43      In the case of a public servant Ms K, in 2009, she was charged with an offence under s 440A of the Criminal Code and a spent conviction was entered. Ms K accepted her misconduct, was contrite and Mr Clark testified from a review of the file, that Ms K received a reprimand for a serious breach of discipline. Another public service employee, Ms P, was also found guilty of an offence in 2010. She was later dismissed from the Police Force in 2013 for other reasons. Mr Clark said that in her case, Ms P had admitted her guilt and expressed remorse. The persons that she accessed on the system were known to her and she provided an explanation why she had acted as she did. Mr Clark was not generally aware of cases involving sworn police officers, as these matters were referred to the Professional Standards Division and not the Human Resources Division.

44      Another case in 2007, involved a public servant Ms C, who was also found guilty of an offence. An explanation was provided as to who the persons were that she accessed on the IMS. Ms C was contrite and accepted that she had done the wrong thing. Two other public service employees were disciplined for improper access to the IMS, both of whom resigned in the face of proposed dismissal. One case occurred in 2014 and the other occurred in 2016.

45      Whilst the Appeal Board is concerned with the facts and circumstances of the present case, what these other cases demonstrate is that each case will turn on its own circumstances, as is implicit under s 92(1) of the PSM Act.

46      This case has involved some unusual features. In some respects, the Appeal Board is placed in a difficult position. On the one hand we are obliged to accept the appellant’s criminal conviction on its face, and the facts upon which that conviction is based. However, we are now told, well after the events in question, that the respondent was not told the full story at the time. The appellant says the respondent should have accepted the appellant’s denial of his actions for the reasons he then outlined, as effectively supplemented by what he tells us now on this appeal, which was not mentioned to the respondent, some two years or so earlier. Furthermore, we are invited to conclude we should accept the appellant’s version of events that, despite the guilty plea, someone else opportunistically used the appellant’s login credentials to conduct targeted searches of records kept in the respondent’s IMS over a short period of some 12 minutes between 9.03pm and 9.15pm on 18 March 2015.

47      There is a fundamental difficulty with this contention in face of the guilty plea, the conviction and sentencing, given the conclusions discussed above in Bennett.  Additionally, the scheme in s 92 of the PSM Act is also inconsistent with the appellant’s position. The section enables an employer to take disciplinary action on the strength of the conviction for a serious offence alone. It is implicit in s 92 that, as the employer may take disciplinary action, which can involve dismissal, the conviction or finding of guilt constitutes a breach of discipline, in this case for misconduct, in the terms of the statutory scheme in Division 3 of Part 5 of the PSM Act. It is inconsistent with the statutory scheme for an employee, duly convicted, to later deny the conduct the subject of the serious offence they committed and for which they were convicted. The conviction or finding of guilt for the purposes of s 92(1) must be taken as conclusive in our view.   

48      In any event and alternatively, the 35 pages or so of the copy of the screenshots of the computer screen reveal that the search conducted on the appellant’s login was plainly performed by someone well versed in the use of the IMS. The search was targeted and was not random. Whilst other females were searched, there was a focus of the inquiries on young females between the ages of 19 and 24 years of age. It is the case that the respondent was rightly able to be concerned as to the nature of the searches and the apparent targeting of young females. Furthermore, other employees were apparently working relatively close to the appellant’s location, as can be seen from the diagrammatical floor plan of the POD in evidence before us. From this plan of the POD area, in particular the location of the 000 call takers, it is difficult to accept that in the short period of time the appellant says he was absent from the work station where he was sitting, someone else arrived and sat at that same location, completely unnoticed, and then conducted searches of the IMS over a period of 12 minutes. This is especially so in circumstances where the appellant was not supposed to be at work on this occasion and on his own admission, was noticed by others present that evening and engaged in conversations with them. We consider it highly implausible that this occurred. None of the persons present were called to give evidence in these proceedings.

49      Given the fact of the conviction, and that the respondent was entitled to rely on it as evidence of misconduct establishing a breach of discipline for the purposes of s 92(1) of the PSM Act, the evidential burden rests on the appellant to make out his case on this issue. We are not convinced that he has.

50      Despite the appellant’s claim to the contrary, he did not have an unblemished employment record with the respondent. There was an earlier incident in 2009 where the appellant, along with others it seems, engaged in inappropriate use of the respondent’s email system by sending images of a sexual nature to others. A reprimand was issued at that time about appropriate use of the respondent’s information systems. There was a further matter in 2013 when the appellant was provided with “verbal guidance” following occurrences of neglect of duty.

51      Having regard to these considerations, we are not persuaded that the dismissal of the appellant by the respondent was a disproportionate response. In view of our conclusions on the question of proportionality, it is not necessary to consider alternatives to dismissal.                 

Conclusions

52      We are not persuaded that the appellant has established a case such that the Appeal Board should interfere with and adjust the respondent’s decision. The appeal is accordingly dismissed.