2025 WAIRC 00803
APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 29 NOVEMBER 2024
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00803

CORAM
: PUBLIC SERVICE APPEAL BOARD
COMMISSIONER T EMMANUEL - CHAIRPERSON
MR B HAWKINS - BOARD MEMBER
MR P HESLEWOOD - BOARD MEMBER

HEARD
:
TUESDAY, 29 JULY 2025

DELIVERED : THURSDAY, 25 SEPTEMBER 2025

FILE NO. : PSAB 32 OF 2024

BETWEEN
:
HARSHA RANASINGHE ARACHCHILLAGE
Appellant

AND

THE BOARD OF HEALTH SUPPORT SERVICES
Respondent

CatchWords : Public Service Appeal Board – Application for discovery – Request for further and better particulars – Confidential and sensitive information – Breach of confidentiality – Breach of discipline – Disciplinary action a fair response – Application dismissed
Legislation : Health Services Act 2016 (WA) ss 172(2), 220
Industrial Relations Act 1979 (WA) ss 27(1)(o), 80I(1), 80L(1), 125, Sch 6 cl 5(3)
Industrial Relations Legislation Amendment Act 2024 (WA) s 57      
Result : Application dismissed
REPRESENTATION:

APPELLANT : MS T RAJAPAKSA (AS AGENT)
RESPONDENT : MR J CARROLL (OF COUNSEL)

Case(s) referred to in reasons:
Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 180
Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WASCA 00728; (2017) 97 WAIG 1525
Millward v Chief Executive, North Metropolitan Health Service [2021] WAIRC 00152; (2021)  101 WAIG 414

Reasons for Decision
1 These are the unanimous reasons of the Public Service Appeal Board (Board).
2 Mr Harsha Ranasinghe Arachchillage (Mr Ranasinghe) is employed by Health Support Services (HSS) as a Level G8 Senior Supply Specialist. He has appealed HSS’s decision to reduce his remuneration and reprimand him after HSS found that Mr Ranasinghe engaged in three breaches of discipline.
3 Mr Ranasinghe says the decision maker failed to facilitate a fair and reasonable outcome based on all available facts. He asks the Board to quash the disciplinary action.
4 HSS says the Board should find that Mr Ranasinghe committed three breaches of discipline and the decision to reduce his remuneration and reprimand him was a fair response in the circumstances.
What the Board must decide
5 To resolve this matter, the Board must decide:
a. Did Mr Ranasinghe engage in the conduct alleged?
b. Did the conduct amount to a breach of discipline?
c. If so, was the disciplinary action a fair response in the circumstances?
Overview of the allegations
6 Allegation 1 is that Mr Ranasinghe breached confidentiality when he sent two emails attaching a confidential and sensitive document to Mr Simon Harrison (and Mr Harrison was not employed or engaged by HSS).
7 Allegation 2 is that Mr Ranasinghe breached discipline by failing to raise any concerns with his subordinate when he emailed personal and confidential information to Mr Harrison (and Mr Harrison was not employed or engaged by HSS, and had no other lawful business receiving that information).
8 Allegation 3 is that Mr Ranasinghe breached confidentiality when he emailed personal and confidential information to Mr Harrison (and Mr Harrison was not employed or engaged by HSS).
Background
9 The following background is not in dispute.
10 The WA Health System – HSUWA – PACTS Industrial Agreement 2024 applies to Mr Ranasinghe’s employment with HSS.
11 Mr Ranasinghe is employed as a Level G8 Senior Supply Specialist. From time to time he has acted as a Level G10 Manager, Inventory. He has acted as a Level G11 Director, Inventory and Customer Supply. At the time the disciplinary action was imposed, he was substantively a Level G8.2 but was acting in a Level G10.2 position.
12 In a letter dated 12 April 2024, HSS put three allegations of breach of discipline to Mr Ranasinghe. It is not in dispute that:
a. on 1 April 2022, Mr Ranasinghe sent two emails from his work email address to Mr Harrison’s personal email address titled ‘Corona Virus Kathrin file’ and ‘Stock Summary’;
b. on 1 April 2022, Mr Dassanayake copied Mr Ranasinghe into two emails sent to Mr Harrison’s personal email address with attachments titled ‘Supply Controller Level 4.csv’ and ‘Inventory Controller Level 5.csv’; and
c. on 25 March 2022, Mr Ranasinghe sent an email from his work email address to Mr Harrison’s personal address titled ‘Available positions’.
13 On 22 April 2024, Mr Justin Rapanaro approved and submitted an M3 Staff Movement form for Mr Ranasinghe to be put on higher duties as a Level G10.1 Manager Inventory for the period 1 January 2024 to 30 January 2024. Payroll processed that form and Mr Ranasinghe was back paid a higher duties allowance.
14 Mr Ranasinghe responded to the allegations by email on 26 April 2024.
15 The matter was investigated by an external investigator.
16 In around August 2024, HSS proposed to find all three allegations substantiated and proposed to take disciplinary action by way of dismissal. Mr Ranasinghe requested the investigation report to respond and eventually on 20 September 2024 HSS gave him a redacted copy of the investigation report.
17 On 16 September 2024, Mr Ranasinghe responded to HSS.
18 By letter dated 24 October 2024, HSS confirmed its findings that all three breaches of discipline were substantiated and took disciplinary action by imposing a reprimand for each breach of discipline, a reduction in monetary remuneration and a final warning. That letter was superseded by a letter dated 29 November 2024.
19 Mr Ranasinghe was a Level G8.2 but was acting in a Level G10.2 position when HSS reprimanded and demoted him.
Allegations
20 Specifically in relation to the three allegations at the heart of this matter, the parties agree:
Allegation 1
18. A copy of the job description form for the position Level G8 Senior Supply Specialist is found at Agreed Document 6.
19. On 28 February 2022, while at work for Health Support Services, the appellant sent two emails from his work email address to Mr Harrison's personal email address at [redacted]@iinet.net.au. The first email was sent at around 4.39 pm and was titled "Corona Virus Kathrin file", and the second email was sent at around 4.53 pm and was titled "Stock Summary".
20. Copies of those emails and the attachments to those emails are found at Agreed Documents 1.4 and 1.5.
Allegation 2
21. On 1 April 2022:
(a) Mr Madhuka Dassanayake was employed by Health Support Services as Senior Supply Specialist, Warehouse & Logistics, Procurement and Supply.
(b) The appellant was employed as the Acting Manager Inventory, Warehouse & Logistics, which was a Level G9.1 position at this time, and was Mr Dassanayake's line manager.
22. On 1 April 2022, Mr Dassanayake sent two emails from his work email address to Mr Harrison's personal email address at [redacted]@iinet.net.au. Mr Dassanayake copied the appellant into both of these emails. The first email was sent at around 2.50 pm and the second email was sent at around 3.45 pm.
23. The emails contained attachments which contained information relating to a Health Support Services recruitment process for a Supply Controller Level 4 position and an Inventory Controller Level 5 position. The first attachment was titled "Supply Controller Level 4.csv" and it contained information about 47 job applications. The second attachment was titled "Inventory Controller Level 5.csv" and it contained information about 58 job applicants.
24. The appellant, Mr Dassanayake and the Mr Rapanaro were each on the Health Support Services' selection panel for the selection and appointment for the Supply Controller Level 4 position and an Inventory Controller Level 5 position.
25. The panel also included Ms Victoria Arrowsmith (HSS panel voting member) and Mr Peter Buckingham (Independent Recruitment Consultant).
26. Copies of the two emails sent by Mr Dassanayake to Mr Harrison, copying in the appellant, and their attachments are found at Agreed Documents 1.6 and 1.7.
Allegation 3
27. On 25 March 2022, at around 11.37 am, the appellant sent an email with an attachment from his work email address to Mr Harrison's personal email address at [redacted]@iinet.net.au titled "Available positions".
28. A copy of that email and attachment is found at Agreed Document 1.8.
Legal framework for this appeal
21 Section 125 of the Industrial Relations Act 1979 (WA) (IR Act) provides that the Board may hear and determine this appeal. Repealed Part IIA of the IR Act continues to apply in relation to this appeal as if the Industrial Relations Legislation Amendment Act 2024 (WA) s 57 had not been enacted. Mr Ranasinghe has a right of appeal against the decision to take disciplinary action against him in accordance with the now repealed s 172(2) of the Health Services Act 2016 (WA) (HS Act). Under s 80I(1) of the IR Act, the Board’s remedial power is limited to ‘adjusting’ the decision Mr Ranasinghe appeals.
22 This appeal is by way of a hearing de novo and any procedural defects can be cured by the de novo hearing before this Board: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WASCA 00728; (2017) 97 WAIG 1525: [65].
Witnesses
23 Mr Ranasinghe did not give evidence at the hearing. He called Ms Pauline Woods and Mr Justin Rapanaro as his witnesses. Ms Woods presented as a credible witness, but her evidence did not go to the matters in issue in these proceedings. In cross-examination she gave evidence of peripheral relevance that Mr Rapanaro complained to the Office of the Chief Executive about the disciplinary process in relation to Mr Ranasinghe, and that Mr Ranasinghe signed the N1 Request to Appoint dated 21 August 2024 appointing Mr Harrison to his position at HSS.
24 Mr Rapanaro’s evidence in chief focussed on Mr Ranasinghe’s skills, experience, professionalism and integrity. In cross-examination, Mr Rapanaro was less than forthcoming in answering some questions. We found his evidence to be evasive at times. Mr Rapanaro was very reluctant to, or did not, make some concessions that were clearly due, as set out in [47], [58], [62] and [68] below. As a result, the Board treats Mr Rapanaro’s evidence with some caution.
25 Ms Kathrin Macher gave evidence for HSS. She was forthcoming in her evidence and presented as a reliable, credible witness. Her evidence was not undermined in cross-examination. The Board accepts her evidence. To the extent of inconsistency between the evidence of Ms Macher and Mr Rapanaro, the Board prefers the evidence of Ms Macher.
Interlocutory decision – Mr Ranasinghe’s Form 1A
26 Shortly before the hearing, Mr Ranasinghe applied for discovery of 13 categories of documents. He also sought an order for further and better particulars and invited HSS to admit facts (Form 1A Application). HSS opposed the Form 1A Application.
27 Under s 27(1)(o) of the IR Act, the Commission has the power to ‘make such orders as may be just’ within respect to the discovery, inspection or production of documents. Section 27 of the IR Act applies to the exercise of the jurisdiction of this Board: former s 80L(1) of the IR Act (applied through Sch 6 cl 5(3) of the IR Act). As the Board in Millward v Chief Executive, North Metropolitan Health Service [2021] WAIRC 00152; (2021)  101 WAIG 414 said at [7]:
Discovery is confined to what is in issue on the pleadings. The Board can only make an order for discovery under s 27(1)(o) of the Industrial Relations Act 1979 (WA) if it is just to do so and necessary for the fair disposal of the case. ‘Just’ means ‘right and fair, having reasonable and adequate grounds to support it, well-founded and conformable to a standard of what is proper and right’: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801 at 1805.
28 Despite Mr Ranasinghe’s case focussing on bias and procedural matters, what is in issue in this case is:
a. Did Mr Ranasinghe engage in the conduct alleged?
b. Did the conduct amount to a breach of discipline?
c. If so, was the disciplinary action a fair response in the circumstances?
29 We were satisfied that the documents Mr Ranasinghe seeks in categories 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 13 are not relevant because they do not go to any of the matters in issue. Category 12 was less clear, however we accepted (based on the affirmed affidavit before us) that no informal discovery request was made in relation to Category 12, and the formal request was made very late in the proceedings. Overall, we considered that it was not necessary to order discovery for the fair disposal of the case, and it would not be just to do so.
30 Further, Mr Ranasinghe did not identify which facts he wanted HSS to admit or which particulars were sought.
31 In those circumstances, the Board dismissed the Form 1A Application.
Did Mr Ranasinghe engage in the conduct?
Allegation 1
32 Mr Ranasinghe disputes that the conduct amounts to a breach of discipline, but he does not otherwise dispute that he engaged in the conduct.
33 HSS says it is uncontroversial that Mr Ranasinghe engaged in the conduct alleged in Allegation 1.
34 It is not seriously in dispute that Mr Ranasinghe engaged in the conduct alleged. Clearly he sent the emails with the attached spreadsheets to Mr Harrison’s personal email address.
35 We find that Mr Ranasinghe engaged in the conduct alleged in Allegation 1.
Allegation 2
36 Again, it is not seriously in dispute that Mr Ranasinghe engaged in the conduct alleged in Allegation 2. Plainly he was copied into the emails in question and there is no evidence before us to suggest that he raised any concerns about it.
37 We find Mr Ranasinghe engaged in the conduct alleged in Allegation 2.
Allegation 3
38 Again, it is not seriously in dispute that Mr Ranasinghe engaged in the conduct alleged in Allegation 3. Plainly he sent the email in question.
39 We find Mr Ranasinghe engaged in the conduct alleged in Allegation 3.
Was the conduct a breach of discipline?
40 Overall, Mr Ranasinghe characterises his actions as ‘reaching out and asking for help during the global pandemic’, when he emailed his former HSS colleague who had previously had access to much of the information he shared. Mr Ranasinghe says he was using his initiative to ask Mr Harrison for help, because Mr Harrison was uniquely qualified and skilled to help quickly and at no cost to HSS.
Allegation 1
41 Mr Ranasinghe oscillated between whether the information in question was confidential/sensitive or not. For example, in his response to Ms Emily Pestell dated 16 September 2024, on page 3 Mr Ranasinghe admits he sent the emails and says if he shared commercially sensitive information, then it was unintentional, and he was confident in Mr Harrison’s integrity and trustworthiness, while on page 7, Mr Ranasinghe seems to agree that some of the information was confidential and ‘could be sensitive’ in particular hands. In Mr Ranasinghe’s response, and his opening address at the hearing, Mr Ranasinghe said the information was not confidential or sensitive but then when Mr Ranasinghe objected to HSS’s line of questioning during Mr Rapanaro’s cross-examination at the hearing, Mr Ranasinghe agreed the information was confidential.
42 Further, Mr Ranasinghe argues that Mr Harrison previously had access to the information when he was engaged by HSS, and the information was only shared with a trusted mentor and an ex-colleague rather than with competitors or the public. He argues that Mr Harrison did not use the information for any other purpose and by engaging Mr Harrison during the COVID-19 pandemic, HSS had shown that it trusted Mr Harrison with HSS data and information.
43 Mr Rapanaro gave evidence generally about the unprecedented circumstances of the COVID-19 pandemic. He explained that Mr Harrison was engaged to assist HSS via an intergovernmental agency arrangement during the early part of the COVID-19 pandemic. While engaged at HSS, Mr Harrison had IT access. Mr Rapanaro agreed in cross-examination that by the relevant period in 2022, Mr Harrison was not doing any work for HSS.
44 Mr Rapanaro gave evidence that if Mr Ranasinghe had asked him at the time, Mr Rapanaro would have given him permission to send Mr Harrison the documents the subject of Allegations 1 and 3.
45 In cross-examination Mr Rapanaro agreed that the ‘Corona Virus Kathrin’ and ‘Stock Summary’ spreadsheets show:
a. price per unit of purchase;
b. the demand of all hospitals that HSS supplies;
c. how many weeks of stocks remain;
d. pricing that HSS pays for goods; and
e. when metropolitan hospitals would run out of a particular item (if it was known how much of that item the hospitals had in stock).
46 Mr Rapanaro also agreed in cross-examination:
a. if a supplier saw the information in the spreadsheet, the supplier might work out if HSS was a ‘desperate buyer’ of a particular item, and that could influence the price at which the supplier was willing to sell the item to HSS; and
b. unit pricing is confidential.
47 Mr Rapanaro was extremely unwilling to agree that the information in the spreadsheet was confidential, but eventually Mr Rapanaro agreed that unit pricing is confidential.
48 Ms Macher gave evidence about the ‘Corona Virus Kathrin’ spreadsheet. She said she created an earlier version of that document (which carries her name) and Mr Harrison developed the document while he was at HSS during the pandemic. The effect of Ms Macher’s evidence was that the pricing details and other information in the spreadsheet are confidential and sensitive, because it affects competition, and that data about stock on hand is generally confidential to the Western Australian health system.
49 In cross-examination, Ms Macher said that Mr Harrison had access to the information while he was working for HSS, but that information is still generally sensitive information for anyone outside the organisation. Ms Macher said it was not for her to judge the risk involved in sending the information to Mr Harrison.
50 HSS says that there can be no doubt that the information was confidential and sensitive. On the face of the document, it includes commercial in confidence prices that vendors agreed as the price for HSS to buy goods from them. The ‘Corona Virus Kathrin’ spreadsheet is not publicly available and stock levels are confidential. Even if Mr Ranasinghe wanted Mr Harrison’s help to merge two documents, that is not a permissible use or disclosure of the information under s 220 of the HS Act and is not permitted under the Code of Conduct. The prevailing circumstances of the pandemic are not relevant to determining whether there was a breach. They could only be relevant to context and for the purpose of mitigation if appropriate.
51 HSS says it is irrelevant whether Mr Rapanaro would have approved the release of the information. Mr Rapanaro did not approve it and he had no authority to do so. HSS disagrees with Mr Ranasinghe’s argument that there was no harm caused. HSS says there is harm:
a. in the trust and confidence the employer needs to have in Mr Ranasinghe;
b. in an ongoing risk that confidential, sensitive information was released and is uncontrolled by HSS;
c. potentially to HSS’s reputation if vendors become aware their commercial in confidence information was released; and
d. potentially to the pricing HSS will have to pay for products if the release of the information led to vendors not offering their best price to HSS because they become aware HSS is willing to pay a higher price.
52 We agree that the context of the pandemic is not relevant to determining whether there was a breach. Rather it is a matter that goes to mitigation and the proportionality of the response. Obviously, the information in the spreadsheets was commercially sensitive. Information about pricing detail, stock on hand and the matters set out at [45] is confidential and sensitive.
53 Even if Mr Ranasinghe did not intend to share commercially sensitive information, plainly he did. Considering that Mr Harrison is a trustworthy person of integrity does not change that. Mr Harrison’s past employment or engagement with HSS is not relevant. HSS is quite correct that as Mr Harrison:
…was not an employee or contractor and otherwise had no confidentiality obligations to HSS, the disclosure of the information to Mr Harrison meant the information was no longer under the control of HSS and HSS could not limit Mr Harrison’s use of the information or his further disclosure of the information.
54 Whether Mr Rapanaro would have approved the release of the information is irrelevant in circumstances where he did not and we accept that there is harm as set out from [51a] – [51d] above.
55 The conduct the subject of Allegation 1 amounts to a breach of discipline.
Allegation 2
56 Mr Ranasinghe says that he thought it was appropriate to seek ‘high level opinions and advice from experts without divulging specific details’ and the outcome of the recruitment was not influenced by Mr Harrison. Accordingly, Mr Ranasinghe says that he did not believe that Mr Dassanayake had done anything wrong.
57 Mr Rapanaro gave evidence that he does not think that Mr Ranasinghe needed to take any action in relation to Mr Dassanayake in the circumstances. Mr Rapanaro considers that sharing the information with Mr Harrison did not risk the confidentiality of that information and the information does not have any great value to anyone. In Mr Rapanaro’s view, sharing the information the subject of Allegation 2 posed ‘very very low risk, if any’.
58 In cross-examination Mr Rapanaro agreed that he was on the selection panel related to Allegation 2. He agreed that the names of applicants for a job with HSS are confidential and should not be shared outside HSS. Mr Rapanaro was evasive about whether the assessments in the relevant document should not be shared outside HSS. He would not agree that it was improper to get advice from someone not employed by HSS but eventually agreed that the advice sought should not disclose confidential information.
59 HSS says there can be no doubt the information was personal and confidential. It included names of those who applied for positions at HSS and comments from a member of the selection panel assessing whether candidates addressed and met selection criteria. There was no reason for that information to have been disclosed beyond the selection panel (being Mr Ranasinghe, Mr Dassanayake and Ms Arrowsmith). HSS submits that Mr Dassanayake’s conduct was a plain and obvious breach of the Code of Conduct. It should have been obvious to Mr Ranasinghe that he was obliged to raise concerns about that conduct, but he did not. HSS argues that the conduct was a gross breach of confidentiality. Mr Harrison had no business being asked to comment on the quality of the applicants and that approach was ‘grossly inconsistent with public sector decision making regarding selection and appointment.’ HSS says that the conduct plainly exposed HSS to complaints of breach of confidence and breach of the Employment Standard.
60 The difficulty for Mr Ranasinghe is, contrary to his submission set out at [56] above, Mr Dassanayake did divulge specific details about confidential information. We think that it is clear that the conduct the subject of Allegation 2 amounts to a breach of discipline. Mr Dassanayake sent confidential information about a recruitment process to a person outside the organisation who was not involved in that recruitment process and was not subject to any contractual confidentiality obligation. The attachment to his email showed applicants’ names, whether they were or would be interviewed, whether they had answered selection criteria and comments about their application. All of that information should have been treated as confidential. We agree that the conduct exposed HSS to complaints of breach of confidence and breach of the Employment Standard. Mr Ranasinghe was copied into the email in question. He was on the selection panel and was Mr Dassanayake’s line manager. It was a breach of discipline to fail to raise concerns about what Mr Dassanayake had done, and Mr Ranasinghe’s lack of insight into this matter reflects poorly on him.
Allegation 3
61 Mr Ranasinghe says that he shared the Warehousing and Logistics organisation chart to get Mr Harrison’s support in finding short term employees to recruit. Mr Ranasinghe says he was told to leverage his networks to identify and recruit skilled employees. In his later response in August 2024, Mr Ranasinghe disputed that the information was confidential and sensitive, saying the organisation chart is widely available and shared.
62 Mr Rapanaro was evasive when answering questions about whether a briefing note should be sent outside of government. He eventually agreed in cross-examination that Mr Harrison had no contractual obligation of confidentiality.
63 HSS says the confidential information was potential positions within the Warehousing and Logistics function of HSS. The information was internal to HSS and contained budget uplift information, budget increases and newly created positions. Mr Ranasinghe did not have authority to provide that information to people outside the agency.
64 Being told to leverage one’s networks to identify and recruit skilled employees is not permission to divulge confidential information. Further, even if the organisation chart is widely available, we consider it obvious that the information relating to potential positions within the Warehousing and Logistics function of HSS, and budget uplifts and increases were confidential. We accept that Mr Ranasinghe had no authority to provide such information to people external to the agency. The conduct in question clearly amounts to a breach of discipline.
65 Overall, we consider that the conduct the subject of each of the allegations is conduct that amounts to a breach of discipline.
Was the disciplinary action a fair response?
66 Mr Ranasinghe’s submissions focus very much on his work ethic and performance, which he says is outstanding. He highlights the unprecedented circumstances of a global pandemic and the demands on his team at the time. Mr Ranasinghe says he did not deny that he had sent the emails and he ‘firmly believed that he had taken the best possible action during a difficult period’. Mr Ranasinghe argues that he acted in WA Health’s best interests and caused no damage or loss to HSS.
67 In effect, Mr Ranasinghe submits that the disciplinary action was not a fair response, it has had a significant impact on him and the Board should quash the findings of breach of discipline. Mr Ranasinghe asks the Board for a range of remedies that he concedes are outside of the Board’s power to order, for example:
a. to declare that the external report is unreliable and lacks credibility;
b. to order an apology from Ms Emily Pestell, Mr Philip Watson, Mr Tony Franks, and Mr Ben Prescott; and
c. to order that Mr Peter Burgess be removed from the Common Use Agreement.
68 Mr Rapanaro gave evidence that in November 2024 he approved Mr Ranasinghe acting in a Level G10 position from 2 September 2024 until 2 March 2025. After that acting arrangement ended, Mr Rapanaro approved a further acting up arrangement for Mr Ranasinghe from 4 March 2025 until 29 June 2025. Despite this, Mr Rapanaro would not agree in cross-examination that his actions in approving those acting arrangements for Mr Ranasinghe largely made the disciplinary action redundant.
69 Mr Ranasinghe’s written submissions centre around various matters of procedural fairness and apprehended bias. They focus on perceived deficiencies in the investigation and investigation report.
70 The difficulty for Mr Ranasinghe is that the de novo nature of an appeal of this kind means that procedural defects can be cured by the hearing before the Board. We must determine the matter ourselves, by answering the questions set out at [5] above.
71 Taken at its highest, Mr Ranasinghe’s submissions characterise the conduct as a minor, low risk information breach. The effect of his submissions is that the Board should adjust the disciplinary outcome such that no disciplinary action should be imposed.
72 HSS sees matters quite differently. It says the conduct in question is serious:
a. Allegation 1 is particularly serious, and some of the information disclosed is highly confidential and commercial in confidence. The disclosure could seriously harm HSS and its reputation with vendors.
b. Allegation 2 involves highly confidential information but Mr Ranasinghe’s conduct is less serious because it was the failure to raise concerns with the release of the information, rather than the release of the information itself.
c. Allegation 3 involves sensitive information.
73 HSS argues that the totality of the conduct is very serious because of the magnitude of information released under Allegation 1, the nature of information released, Mr Ranasinghe’s seniority and his ‘profound lack of insight into his wrongdoing.’
74 HSS concedes that the prevailing circumstances surrounding the COVID-19 pandemic and Mr Ranasinghe’s explanation for being under stress and simply trying to achieve the best result for HSS provided moderate mitigation of his wrongdoing and was enough to save his job. However HSS submits that on its face, the conduct warrants dismissal, particularly given Mr Ranasinghe continues to fail to see the error of his ways.
75 Having not been dismissed, HSS argues that the reduction in remuneration and reprimands imposed were not unfair in the circumstances.
76 Finally, HSS says:
The fact that the reduction in remuneration was largely defeated by his manager providing him with acting opportunities in a manner inconsistent with the disciplinary action imposed upon him is a further reason why the disciplinary action should not be adjusted. He essentially has not suffered the full impact of the fair disciplinary action imposed upon him. Indeed, that may be a factor influencing his ongoing profound lack of insight. (footnotes omitted)
77 The Board has considered this matter carefully. As set out above, we are satisfied that Mr Ranasinghe engaged in the conduct alleged and the conduct amounts to breaches of discipline.
78 In our view, Mr Rapanaro’s actions in approving the acting arrangements set out above at [68] largely undermined the effect of the reduction in remuneration aspect of the disciplinary action.
79 Contrary to Mr Ranasinghe’s submission, this matter does not involve ‘a minor, low risk information breach’. We accept HSS’ submission set out at [72] above. We are satisfied that the conduct involves three breaches of discipline and that Allegation 1 is particularly serious. Overall we consider the conduct to be serious, because of how much of information was released under Allegation 1, the nature of that information released, Mr Ranasinghe’s seniority and because it is clear that Mr Ranasinghe lacks any insight into why his conduct is problematic.
80 Without the extenuating circumstances of a global pandemic and the unique and significant pressures that placed on Mr Ranasinghe and his team at the time of the events in question, we would have considered that the appropriate disciplinary response was dismissal. However, in light of those circumstances, like HSS, we consider that a lesser response is appropriate. We have taken into account Mr Ranasinghe’s previously unblemished record.
81 We consider that the disciplinary action taken by HSS was fair and proportionate in all the circumstances and we are not persuaded that we should adjust it.
82 We must dismiss application PSAB 32 of 2024.