2021 WAIRC 00468
APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT DATED 27 JANUARY 2021
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00468

CORAM
: SENIOR COMMISSIONER R COSENTINO - CHAIR
MR M ABRAHAMSON - BOARD MEMBER
MS L KELLY - BOARD MEMBER



HEARD
:
MONDAY, 2 AUGUST 2021

DELIVERED : MONDAY, 2 AUGUST 2021

FILE NO. : PSAB 6 OF 2021

BETWEEN
:
KATHLEEN IRWIN
Appellant

AND

DIRECTOR GENERAL, DEPARTMENT OF HEALTH
Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Nature of Appeal to Public Service Appeal Board – Hearing de novo – Bias – Discovery, production and inspection of documents – Confidential information, information redacted
Legislation : Public Sector Management Act 1994 (WA)
Industrial Relations Act 1979 (WA)
Result : Application granted in part
REPRESENTATION:

APPELLANT : MS H HARPER AND MS J MOORE, AS AGENTS
RESPONDENT : MR S PACK, OF COUNSEL

Case(s) referred to in reasons:
AON RISK SERVICES AUSTRALIA LTD V AUSTRALIAN NATIONAL UNIVERSITY [2009] HCA 27; (2009) 239 CLR 175
AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, MISCELLANEOUS WORKERS DIVISION, WESTERN AUSTRALIAN BRANCH V BURSWOOD RESORT (MANAGEMENT) LTD (1995) 75 WAIG 1801
Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60
Compagnie Financiere Du Pacifique v Peruvian Guano Co [1883] UKLawRpKQB 95; (1882) 11 QBD 55
Department of Education and Training v PN (GD) [2006] NSWADTAP 66
Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525
Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341
Perpetual Trustees Company Ltd v Burniston [2012] WASC 26
Sanzana v Director General, Disability Services Commission [2011] WAIRC 00888; (2011) 91 WAIG 2106
Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434
West Australian Newspapers Ltd v Bond [2009] WASCA 127
Youlden Enterprises Pty Ltd v Health Solutions WA Pty Ltd [2005] WASC 60

Reasons for Decision
Ex Tempore

1 This is the unanimous decision of the Public Service Appeal Board (the Board).
Background
2 The appellant, Kathleen Irwin, was employed by the respondent as a Level 6 Public Service Officer under s 64 of the Public Sector Management Act 1994 (WA) (PSMA). She was dismissed from her employment on 27 January 2021 for misconduct involving allegations that she made 85 unauthorised accesses to confidential information between 27 November 2018 and 13 December 2019.
3 Ms Irwin disputes that she had engaged in misconduct.
4 On 17 February 2021 Ms Irwin commenced an appeal to the Board against the dismissal decision. Ms Irwin alleges that the dismissal decision is harsh, oppressive and unfair for reasons including that:
(a) she was denied procedural fairness. In particular, she says that she was not provided with adequate details of the allegations;
(b) some of the information that she accessed was in the public domain, could not therefore be regarded as “confidential information” and therefore did not involve a breach of any relevant policy;
(c) some of the information she accessed was relevant to her official duties and therefore did not involve a breach of any relevant policy;
(d) the respondent did not have adequate policies or had not communicated policies in such a way as to make it clear to staff that accessing internal departmental information by staff could constitute misconduct; and
(e) the allegations, the investigation and the decision to dismiss were a sham, being taken because Ms Irwin had disputed a decision to make her position surplus to requirements and because of her activities as a CSA delegate.
5 On 11 June 2021, Ms Irwin filed an application for discovery, production or inspection of 26 categories of documents. The documents sought by her application fall into two groups:
(a) twenty five categories of documents that are the subject of an informal request for discovery; and
(b) a single category comprising 102 documents the appellant was alleged to have inappropriately accessed.
6 In the second category of 102 documents, the respondent has produced copies of the documents with personal and identifying information redacted. The appellant presses her application for access to unredacted copies of these documents.
7 As at the date of the hearing, the parties had reached agreement on several of the categories of documents.
8 The first group of documents remaining in dispute was the request for discovery of various categories described as relating to the suspected breach of discipline investigation report; these being items 7, 8, 9, 10 and 17 of Table A to Ms Irwin’s submissions filed on 15 July 2021.
9 At the hearing, this request was further confined to be a request for discovery of:
(a) an audit report dated December 2019, “if it exists”;
(b) any document explaining the decision to proceed with a disciplinary process and/or to substantiate the finding of misconduct; and
(c) any document recording Ms O’Keefe’s conflict of interest.
10 The second category was the request for production of unredacted copies of documents discovered by the respondent, being the list of record titles (Table B itself) and the 102 documents allegedly accessed by Ms Irwin (the documents listed in Table B).
11 The parties originally asked the Board to determine the discovery application on the papers. Following conferral between the parties, it was agreed that the application should be listed for a hearing to enable oral argument. Both parties filed written submissions prior to the hearing of the application. The appellant provided further written submissions at the hearing of the application, which the Board had regard to in determining this application.
General principles
12 While the Board is empowered by section 27(1)(o) of the Industrial Relations Act 1979 (WA) to make orders for discovery, discovery, production and inspection of documents is not available as of right in matters before the Board. Such orders will only be made if it is just to do so. It is for the applicant for orders to establish that it is just for the orders to be made: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801.
13 Ordinarily in applications of this kind, the applicant for orders must establish:
(a) that there are reasonable grounds for being fairly certain that the documents exist;
(b) that the documents are in the respondent’s possession, custody or power; and
(c) that the documents sought are relevant to a matter in issue in the proceedings.
See Perpetual Trustees Company Ltd v Burniston [2012] WASC 26 at [17], [27] and [29]; Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60.
14 Documents are relevant when they may either advance a party’s case or damage their opponent’s case or lead to a train of inquiry that can do either of these things: Compagnie Financiere Du Pacifique v Peruvian Guano Co [1883] UKLawRpKQB 95; (1882) 11 QBD 55 at [63]; Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341.
15 Even if these prerequisites are established, the Board may refuse to exercise its discretion on the basis that the order is not just. That is, for reasons such as the effect of the order would be oppressive; or there are less onerous means of the applicant gaining access to the documents sought; or that the costs, time and delay involved in the discovery exercise is outweighed by other case management considerations for the efficient determination of the matter according to equity, good conscience and the substantial merits: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
16 One of the matters to be considered in exercising the discretion to order discovery is whether the production of the documents sought would be oppressive, or the utility of those documents would not justify the burden placed upon the respondent in providing it: Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60 at [7].
17 We observe that parts of Ms Irwin’s application sought evidence, information or to compel the respondent to inform her of whether documents are in existence or not. Such requests are not proper requests for discovery, production or inspection. We do not accept the appellant’s submission that the first step which needs to be undertaken is for the respondent to state whether the documents are in its possession or control. This is an application for discovery of particular classes of documents and it is for the applicant, Ms Irwin, to show that the documents sought are likely to exist.
18 The appellant submitted that orders for discovery should be made:
So that both parties have full disclosure over the Allegation documents at the heart of the disciplinary matter and necessary to answering whether the Board should interfere with and adjust the Respondent’s findings and decision to impose the disciplinary action of a dismissal on 27 January 2021.
19 Even if this articulation of the purpose of discovery orders in this case is apt, at least in relation to production of unredacted copies of documents, the appellant did not provide the Board with a basis to find that the particular unredacted documents sought were necessary in the sense described. While the redactions might relate in the broadest way to the allegations, in many cases the appellant made no attempt to articulate relevance to the appeal. Although referring in her submissions to the documents relating to issues to be proved, issues were not identified, nor was there any cogent argument to show how the documents could tend to prove the appellant’s case on the issues, or disprove the respondent’s case on the issues.
20 The respondent’s grounds for opposing the further discovery sought are variously that the discovery orders would be oppressive, unnecessary for the just disposal of the appeal, or that the documents sought are not relevant. The respondent also relies upon the accepted conventions of redacting confidential information that is irrelevant to issues in dispute.
Consideration - breach of discipline investigation documents
21 Ms Irwin submits the documents sought are relevant to the appeal because the validity of the respondent’s reasons for the dismissal are in issue, including the decision to pay salary in lieu of notice, although this aspect was not emphasised in oral submissions.
22 Ms Irwin also asserts the respondent changed its rationale for her dismissal during the course of the disciplinary process. Ms Irwin says she believes there was not a true or proper investigation and that the decision to dismiss involved matters of opinion, which were not ultimately disclosed as reasons for the dismissal.
23 The respondent submits that because the appeal to the Board is a hearing de novo, the Board will be required to itself determine:
(a) whether the appellant accessed the documents as alleged;
(b) if so, whether she committed an act of misconduct in doing so; and
(c) if so, whether dismissal was an appropriate penalty in the circumstances.
24 The respondent submitted that Ms Irwin would have a full opportunity to be heard on the issues in dispute during the hearing of the appeal, so that any procedural failings in the disciplinary process at first instance would be irrelevant. The respondent refers in this regard to what was said by the Board in Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 at [65][66]. The Board there noted that in determining matters by hearing de novo, the Board decides for itself whether the appellant engaged in the misconduct complained of, so that breaches of procedural fairness can be cured.
25 In Harvey the appellant had submitted that the litany of procedural fairness deficiencies in the disciplinary proceedings against her could be taken alone as determining the outcome of her appeal, for the purpose of quashing the decision and remitting it back to the employing authority under s 78(5) of the PSMA.
26 The Board in Harvey referred to an extract from Forbes, JRS Justice in Tribunals 4th Ed, where the learned authors said at [14.11]:
In McIntosh v Minister for Health it was pointed out that a tribunal proceeding de Novo need not deal with points of natural justice arising from the primary hearing. At first sight, this may seem inconsistent with the rule that the second hearing must be unrestricted, but precisely because it is a rehearing de novo, what occurred in the primary tribunal does not really matter. A rehearing de novo is a re-trial, rather than an appeal.
27 At [66] of the Harvey decision the Board continued:
Given the comprehensive nature of the appeals in these proceedings, any allegations of a failure to comply with procedural fairness can be remedied, and the Appeal Board can reach its own conclusions on the merits of the investigations and the decisions, after a fulsome consideration of the evidence and submissions. For the purposes of this issue, we include the contentions advanced by the appellant in relation to procedural fairness generally, and bias and conflict of interest. Whilst we accept that s 78(5) of the PSM Act can have work to do in certain circumstances, this very much depends on the grounds of appeal and the nature and circumstances of the case. We do not find it necessary to consider exercising the power of quashing the respondent’s decision for breaches of natural justice, without hearing the merits of the appeals, and sending the matters back to be dealt with again, in the circumstances of these appeals.
28 The respondent says that even if the documents have some marginal relevance, the forensic significance of both the documents and the issues to which they are said to be relevant is insufficient to justify the effort to which the respondent would be put in compiling the documents sought.
29 This appeal involves a review of the respondent’s decisions de novo. As such, the Board needs to consider the appeal based on the evidence before it, not merely on the basis of whether the respondent made the right decision at the time. The Board has greater scope to substitute its own view for that of the respondent. In Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434 at [20], in the context of a case involving dismissal for misconduct the Board said:
…that the misconduct allegations must be established as a matter of fact, as the basis for the employer’s decision to dismiss…[our emphasis].
30 Most frequently a Board is engaged in an exercise of considering, on the evidence, whether the conduct complained of actually occurred, so as to ground the employer’s decision to dismiss the employee. But the above extract from Thavarasan suggests that the employer’s belief and subjective reasoning may also be relevant.
31 What precisely the Board must consider in these proceedings ultimately depends upon the nature of the challenge to the decision under review: Harvey at [26] and [29]. The authorities do not, in our view, confine the issues on appeal, in absolute terms. The respondent’s counsel accepted, in his oral submissions to the Board, that the Board may decide the matter on a procedural point.
32 We remain in some doubt about the precise nature of the grounds that will ultimately be run in this case. Ms Irwin appears to maintain the decision to commence the disciplinary process and/or the decision to dismiss her were taken for reasons related to her role as a Union delegate and grievances she had raised in the past. She maintains that the process generally was tainted by bias. At hearing, Ms Irwin’s representative indicated Ms Irwin had not yet made an assessment of whether she would run her appeal on a strict hearing de novo basis, or whether she would seek to have the decision quashed for procedural deficiencies only.
33 Accordingly, we do not accept that in a hearing de novo the Board is unable to consider whether reasons other than those advanced by the employer motivated the decision to commence a disciplinary process or the decision to dismiss: see for example Sanzana v Director General, Disability Services Commission [2011] WAIRC 00888; (2011) 91 WAIG 2106, although the outcome in that case was that the employee’s complaints were found not to have motivated the substandard performance process.
34 It can readily be accepted that evidence as to such reasons will not reflect upon whether findings of misconduct are sound or not, or whether the Board would find that the misconduct occurred. But they may be relevant to the decision so far as it concerns procedural aspects, particularly bias, the reasonableness of the sanction imposed for the misconduct and what, if any, adjustment to the decision should be made. They may also be relevant to determining whether the procedural issues on their own are sufficient to warrant the decision being quashed and remitted for redetermination.
35 The respondent indicated that an audit was conducted in or around December 2019. However, it was unclear as to what, if any, documents were produced as a result of that audit. We are satisfied by virtue of the fact the disciplinary process was instigated, combined with the nature of the allegations then made, that it is reasonably likely a document or documents exist which record the findings of an audit of the use of the respondent’s records management system.
36 We are also satisfied that if documents recording the outcome of an audit exist, they will be relevant to the issues in the appeal, including whether Ms Irwin’s use of the record management system accorded with normal user behaviour or indicated deliberate access.
37 We are satisfied documents explaining the reasons for initiating the disciplinary process and the sanction imposed are reasonably likely to exist and that they are relevant to the reasons for dismissal, including whether it was motivated by Ms Irwin’s activities as a Union delegate or her grievances about an earlier restructure. We do not consider it would be overly onerous for the respondent to provide discovery of these documents.
38 As for the conflict of interest document, Ms Irwin has not established such a document exists or is reasonably likely to exist, nor has she established the relevance of such documents.
Consideration - Document Titles list (Table B)
39 In the course of the disciplinary investigation, Ms Irwin was provided with a list of record titles, which is reproduced as Table B in her application. This lists the records which Ms Irwin is alleged to have accessed and which are the subject of the allegations against her. As provided, the list contains redactions of what the respondent describes as “confidential and personal identifying information” so that some titles in that list are incomplete. Ms Irwin seeks production of the unredacted list/Table B.
40 In the submissions supporting her application in this regard, the appellant says when she opens a document on the record management system, the only information she has access to initially is the record title. Therefore, it is not possible for her to respond to an allegation she selectively opened and viewed a particular record, when the title of that record is partially redacted.
41 Ms Irwin also highlights discrepancies between the description of record titles in the list and their title at the time of viewing. The issue of errors or inconsistencies in the titles does not advance the question of whether there should be further discovery; the document has been discovered. The issue is the form of inspection that should be permitted and whether such inspection should be of a redacted or unredacted copy.
42 The appellant submits that provision of allegations with information redacted means she has insufficient notice of the details of the allegations to be able to respond. She says she is disadvantaged because she does not have the information which the respondent has. She does not contend the records were not accessed by her and does not appeal on that basis. Rather, the appellant says her access was either authorised, accidental, or was otherwise not inappropriate so as to amount to misconduct.
43 In particular, the appellant says provision of the redacted information will aid her recollection of the particular circumstances of, and reasons for, accessing the records. She also submits that access will enable her to argue whether the content of the records was or was not confidential, as alleged by the respondent.
44 Despite the appellant’s assertion she is prejudiced in her ability to respond to the allegations without knowing the full title of the records she was alleged to have accessed, the appellant has not established that inspection of the redacted information is necessary for a fair hearing in these proceedings. The appellant now has access to not only the redacted Table B but also the redacted records themselves.
45 The nature of the documents listed in Table B is plain on the face of its contents. It is apparent redacted information has been confined to that which is personal or of an identifying nature. Ms Irwin has not provided a cogent argument that it will make any difference to the fairness of the conduct of the proceedings if she is provided with a document title “J Bloggs Medical Certificate 7 May 2018”, as opposed to “[Redacted] Medical Certificate dated 7 May 2018”, particularly in circumstances where the appellant concedes her duties did not require her to access other employees’ medical certificates at any time.
46 Further, if the case the appellant wishes to advance is that insufficient details of the allegations were provided to her such as to render the disciplinary process procedurally unfair, there is no need for the unredacted document to make that case. The redacted information is not relevant in the necessary sense. It was accepted by the appellant’s representative during the hearing that the respondent bears the risk that not providing particular information may mean the Board is unable to conclude the record was confidential in nature; or that its access was unauthorised or inappropriate. Similarly, it would be a problem for the respondent if the redacted information tends to prejudice the appellant in her response in the proceedings.
The 102 allegation documents
47 Finally, in regard to the 102 allegation documents themselves, the appellant submits the respondent should provide inspection of the unredacted versions of the 102 accessed documents, as the redactions preclude any proper assessment of whether the documents are confidential or not, and to assist her to recall the circumstances of access and reasons for doing so.
48 The Board has reviewed the redacted documents and the redacted Table B. Table B is of greater significance than the documents accessed because, as the appellant herself says, it is only the record title which is displayed when accessing a record from the respondent’s records management system. Table B shows many of the records contain the words, “medical certificate” in their title or refer to integrity procedures; secondment terms; disciplinary matters; expenditures and reimbursements; notification of complaints regarding misconduct; Corruption and Crime Commission matters; WA Police matters; workers compensation claims; breaches of Public Sector standards, complaints, investigations etc. Other record titles include the word “confidential”.
49 We have not identified any redactions, either in Table B or the documents themselves, which prevent an identification of the nature of the document, its personal or confidential nature, or the need to have access to it in order to fulfil the appellant’s duties. While in theory it is certainly possible redactions could have the effect the appellant submits, those effects are not demonstrated in this case.
50 The appellant appears to argue that employee records and employee personal information are not confidential because, at common law, employees have no right to privacy and the information is not protected by privacy legislation. Whilst noting this appears to be at odds with the appellant’s and other delegates’ apparent concerns about protecting employee personal information from improper access, it is also clearly wrong. Information imparted by an employee to his or her employer in confidence is confidential information.
51 It can also be readily accepted that documents concerning employees’ performance, disciplinary matters and investigations are also confidential between the employer and the employee concerned by their nature. Such documents contain personal information, as that term is used in privacy legislation: see Department of Education and Training v PN (GD) [2006] NSWADTAP 66. A duty of confidence has been said to arise whenever a person receives information, he or she knows or ought to know is fairly and reasonably regarded as confidential provided the information has the necessary quality of confidence about it. See West Australian Newspapers Ltd v Bond [2009] WASCA 127 at [42]-[43].
52 The information described in Table B reasonably raises the prospect the information contained in the documents is confidential in this sense.
53 The appellant submits that a selection of documents are in the public domain and are therefore not confidential such that redactions in those documents should be disclosed to her. The appellant’s submissions in this regard are misplaced, as it is not the redacted content of the documents she identifies as being in the public domain but, rather, the form of the document or some other incidentally related information. The appellant has not established that the redacted content is in the public domain nor that it is relevant to her appeal.
54 We also reject the appellant’s submission that documents which predate 2015 “on account of the passage of time cannot evince a confidential nature”, and that the redactions should therefore be removed. While the date of the documents alleged to have been accessed may be relevant to an assessment of the degree of sensitivity of those documents, that is an issue which can be argued in the appeal without the need for the redacted content to be disclosed. The redacted information is nevertheless confidential information, being information that is personal to, or identifying of, individuals other than in their official capacity. It is appropriate that it be redacted.
55 It should also be noted that disciplinary action was not taken against the appellant on the basis she had breached a duty of confidence. If the documents are confidential, it is the respondent who owes the duty of confidence to the relevant employees whose personal and sensitive information is involved. The relevant finding which the appellant is appealing is that she had accessed confidential information for purposes not related to her role, and was therefore in breach of the acceptable use of Information and Communications Technology (ICT) Policy by using ICT resources for an improper purpose.
56 It may well evolve there will be an issue in the appeal as to whether accessing the documents in itself amounts to a breach of the policy and, if so, the relative seriousness of the breach in the circumstances. We do not consider disclosure of other employees’ personal information is necessary for those issues to be fully and fairly canvassed.
57 We accept the respondent’s submission that it is appropriate and an established practice to entitle a party to redact irrelevant confidential information from discoverable documents. The appellant has failed to establish that the redacted information is relevant to any issue in the appeal.
58 The Board proposes making orders for discovery of two categories of documents:
(a) documents relating to the audit of December 2019; and
(b) documents recording the decision to deal with the matter as a disciplinary matter against the appellant, or which record reasons for the findings of misconduct against the appellant.
59 The application will otherwise be dismissed.