2024 WAIRC 00959
APPEAL AGAINST THE DECISION OF THE EMPLOYER TAKEN ON 27 NOVEMBER 2023
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00959

CORAM
: PUBLIC SERVICE APPEAL BOARD
COMMISSIONER C TSANG – CHAIR
MS R ANDERSON – BOARD MEMBER
MS J SYMONS – BOARD MEMBER

HEARD
:
TUESDAY, 24 SEPTEMBER 2024,
WEDNESDAY, 25 SEPTEMBER 2024

DELIVERED : THURSDAY, 7 NOVEMBER 2024

FILE NO. : PSAB 25 OF 2023

BETWEEN
:
KAREN AUZINS
Appellant

AND

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent

CatchWords : Public Service Appeal Board – appeal of dismissal for breach of discipline – misconduct in accessing colleague’s Departmental emails without authorisation – whether appellant guilty of misconduct to the Briginshaw standard – whether CCTV footage reliable in substantiating allegations – whether personal circumstances and employment history render dismissal disproportionate
Legislation : Industrial Relations Act 1979 (WA), ss 80C(1), 80I(1)(d)
Public Sector Management Act 1994 (WA), ss 64(1)(a), 78(1)(b)(iv), 82A(3)(b)
Result : Appeal dismissed
REPRESENTATION:

APPELLANT : MS G MURRAY WITH MS J MOORE (OF COUNSEL)
RESPONDENT : MS S POWER (OF COUNSEL)

Cases referred to in reasons:
Briginshaw v Briginshaw (1938) 60 CLR 336
Byrne v Australian Airlines Limited (1995) 185 CLR 410
G v H (1994) 181 CLR 387
Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728
Minister for Health v DrakeBrockman [2012] WAIRC 00150
Reasons for Decision
Background
1 The appellant (Ms Auzins) was employed by the respondent as a Level 3 School Based Network Support Officer at Kelmscott Senior High School (KSHS).
2 On 27 November 2023, the respondent dismissed Ms Auzins for her conduct on 22 May 2023, for accessing, without proper authorisation, her subordinate Ms Kamalanathan’s departmental emails on Ms Kamalanathan’s work mobile phone (workphone) and forwarding one of Ms Kamalanathan’s confidential emails to her own Departmental email address.
3 On 19 December 2023, Ms Auzins filed a Form 8B – Notice of Appeal - Government Officers, Public Service Officers, contesting the dismissal (Form 8B).
The Board’s jurisdiction
4 There is no dispute that:
(a) Ms Auzins was a public officer appointed under s 64(1)(a) of the Public Sector Management Act 1994 (WA) (PSM Act);
(b) The respondent dismissed Ms Auzins under s 82A(3)(b) of the PSM Act for committing a breach of discipline;
(c) Ms Auzins was a ‘government officer’ pursuant to s 80C(1) of the ‍‍Industrial Relations Act 1979 (WA) (IR Act);
(d) By s 78(1)(b)(iv) of the PSM Act, Ms Auzins has standing to appeal her dismissal to the Public Service Appeal Board (Board); and
(e) By s 80I(1)(d) of the IR Act, the Board has jurisdiction to hear the appeal.
Legal principles and issues for determination
5 There is no dispute that:
(a) The appeal involves the review of the dismissal de novo. Accordingly, any procedural fairness issues are able to be cured in the disposition of the appeal by the Board: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728.
(b) As it is Ms Auzins’ appeal, she has the onus of satisfying the Board that it should interfere with and adjust the dismissal.
(c) The Board must be satisfied to the Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) standard that Ms Auzins engaged in the alleged misconduct.
(d) The questions for determination, as outlined in Ms Auzins’ legal submissions, are:
(i) Where was Ms Kamalanathan’s workphone on Monday 22 May 2023, 3:34pm when Agreed Document 1 (the Email) was sent?
(ii) Was the Email sent from Ms Kamalanathan’s work-phone?
(iii) Can the CCTV footage be relied upon to substantiate the allegation that Ms Auzins accessed Ms Kamalanathan’s workphone when the Email was sent?
(iv) Do Ms Auzins’ personal circumstances and employment history render her dismissal disproportionate in the circumstances?
6 Briginshaw at [5(c)] above, was a High Court appeal of the decision of Martin J of the Supreme Court of Victoria, dismissing the appellant husband’s petition for divorce on the ground of adultery under ss ‍80 and 86 of the Marriage Act 1938 (VIC):
80 Upon any petition for dissolution of marriage, it shall be the duty of the court to satisfy itself, so far as it reasonably can, as to the facts alleged.
86 Subject to the provisions of this Act the court, if it is satisfied that the case of the petitioner is established, shall pronounce a decree nisi for dissolution of marriage.
7 In dismissing the husband’s petition for divorce, Martin J stated (Briginshaw, 337):
I have done my best to decide, but the petitioner must satisfy me that his story is true. I think I should say that if this were a civil case I might well consider that the probabilities were in favour of the petitioner, but I am certainly not satisfied beyond reasonable doubt that the evidence called by the petitioner should be accepted.
8 There were four grounds of appeal before the High Court (Briginshaw, Latham CJ, 340–341):
(1) That the learned judge wrongly decided that he could not hold that adultery was proved unless he was satisfied of the fact of adultery beyond reasonable doubt; that is, that it was wrongly held that the criminal standard of proof should be applied in divorce proceedings, at least in relation to a charge of adultery;
(2) that the reasons for judgment given by the learned judge showed that he was satisfied to the fact of adultery according to civil standards of proof, that is, upon a preponderance of probabilities, and that therefore the petition should have been granted;
(3) alternatively, that upon the evidence the learned judge should have been so satisfied;
(4) alternatively, a new trial is sought.
9 In the context of the background outlined at [6]–[8] above, Dixon J stated (Briginshaw, 361–‍363, 368–369) (footnotes omitted) (emphasis added):
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
…
When, in a civil proceeding a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
These illustrations show the good sense of Professor Wigmore’s statement that, in civil cases, it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain.
…
Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find.
10 Applying the principles at [9] above, the Board can be satisfied to the Briginshaw standard that on the balance of probabilities, Ms Auzins engaged in the misconduct alleged, if the Board scrutinises the evidence and is satisfied the evidence appears ‘precise and not loose and inexact’ and not ‘susceptible of some other not improbable explanation’.
Filed documents
11 On 16 April 2024, the parties filed a Statement of Agreed Facts, stating (Agreed Document number references, other than Agreed Document 1, omitted):
The Events of 22 May 2023
3. An email written by [Ms Kamalanathan] was sent to Ms Kerry Date [(Ms Date)] on Thursday 18 May at 10:06pm. The email was to advise of Ms Kamalanathan’s resignation due to her perceived poor treatment from [Ms Auzins] and described numerous negative incidents between herself and [Ms Auzins].
4. The email was forwarded to [Ms Auzins’] DOE email address on 22 May 2023 at 3:34pm from Ms Kamalanathan’s DOE email address. [This Email is Agreed Document 1].
5. [Ms Auzins] entered the back area of the library which contains the printing room, staff kitchen and IT Storeroom (the Area) at KSHS at 3:28pm on 22 May 2023. She was accompanied by a tradesperson who exited the Area after 13 seconds, while [Ms Auzins] remained in the Area.
6. Another employee, Mr Bruce Walther, entered the Area at 3:30pm and exited the IT storeroom 25 seconds later. [Ms Auzins] remained in the Area until 3:37pm.
7. [Ms Auzins] approached Ms Date on Tuesday 23 May 2023 to discuss the contents of the Email. When Ms Date asked [Ms Auzins] how she knew about the Email, she said the Email had been forwarded to her DOE email address, from Ms Kamalanathan’s DOE email address.
The Disciplinary Process
8. The respondent initiated the disciplinary process [via] a letter dated 15 August 2023 (the Complaint Letter) to [Ms Auzins] from [Ms McCallum-Van Lierop], A/Principal Investigator, setting out two complaints as follows:
Complaint 1
On 22 May 2023, you were employed as a Network Support Officer at [KSHS]. It is alleged that you accessed the Departmental emails of [Ms Kamalanathan], using a work mobile phone that had been issued to Ms Kamalanathan, without authorisation to do so.
Your alleged conduct is considered a breach of discipline pursuant to section 80(c) [PSM Act]. Additionally, this would be a breach of the Department’s Code of Conduct standards – Behave professionally and with integrity, behave honestly and use public resources responsibly.
Complaint 2
On 22 May 2023, you were employed as a Network Support Officer at KSHS. It is alleged that you forwarded a confidential email written by Ms Kamalanathan to your own email address, using Ms Kamalanathan’s work phone, without authorisation to do so.
Your alleged conduct is considered a breach of discipline pursuant to section 80(c) [PSM Act]. Additionally, this would be a breach of the Department’s Code of Conduct standards – Behave professionally and with integrity, behave honestly and use public resources responsibly.
9. On 16 August 2023, [Ms Auzins] made a telephone call to SID in response to the Complaint Letter.
10. [Ms Auzins] also provided a written response (the Initial Response) to the Complaint Letter on 17 August 2023.
11. [Ms Auzins] provided a further written response (the Second Response) to the Complaint Letter by email dated 17 August 2023, to which she attached a time sheet which she claimed was proof that she was not at the school on 22 May 2023.
12. [Ms Auzins] provided a further written response (the Third Response) to the Complaint Letter by email dated 18 August 2023.
13. The DOE issued a findings and proposed outcomes letter (Proposed Outcome Letter) on 25 October 2023 from [the respondent].
14. The Investigation Report (dated 4 September 2023) [(Investigation Report)] was also provided with the Proposed Outcome Letter on 25 October 2023.
15. The CSA, on behalf of Ms Auzins, provided a response to the Proposed Outcome Letter on 17 November 2023 [(CSA Letter)].
16. On 27 November 2023, Ms Auzins received a Final Outcome letter from the Respondent that advised her that she was dismissed from her employment effective immediately. Ms Auzins was paid in lieu of the notice period.
12 On 16 May 2024, Ms Auzins filed her amended outline of evidence.
13 On 31 May 2024, the respondent filed outlines of evidence for:
(a) Ms Kamalanathan.
(b) Ms Date, Manager Corporate Services at KSHS, and previous manager of both Ms Auzins and Ms Kamalanathan.
(c) Daniel Whitney (Mr Whitney), Senior Investigator at the Department’s Standards and Integrity Directorate, and investigator into the allegations of misconduct against Ms Auzins.
14 The respondent’s outlines of evidence attaches three documents:
(a) Respondent’s Document 1: A hand drawn map of the Library, outlining the following areas:
(i) Room 1: IT Room.
(ii) Room 2: Librarian Office.
(iii) Room 3: Kitchenette area.
(iv) Area 4: Doorways for entering and exiting the Library.
(v) Room 5: Server Room.
(vi) Room 6: Tech Support Office.
(vii) Room 7: SIDE Room (for students to access distance education online).
(viii) Area 8: External security door to the IT Room.
(b) Respondent’s Document 2: comprising:
(i) a School Quotation and Purchase Order Form, for an iPhone 12 Pro Max, signed by Ms Auzins on 11 June 2021; and
(ii) a Tax Invoice, for an iPhone 12 Pro Max 128GB – Pacific Blue, signed by Ms Auzins in two of four signatory spaces on 14 June 2021.
(c) Respondent’s Document 3: comprising:
(i) a document labelled ‘Timesheet provided by Ms Auzins’; and
(ii) a document labelled ‘Timesheet provided by [KSHS]’.
15 The Investigation Report did not form part of the parties’ Agreed Documents. After hearing the parties’ respective submissions on the admissibility of the Investigation Report, the Board determined that it would permit the Investigation Report to be tendered and for the respondent’s witnesses to be cross-examined on its contents. This decision was made because the Investigation Report was attached to the Form 8B, and the Board considered that certain attachments to the Investigation Report, specifically still photos of the Library and IT Room (Attachments 4 and 5), may be relevant to the issues for determination in the appeal. Specifically, the Board considered that these attachments could assist in determining questions regarding access to, and visibility of, the IT Room (Room 1) from the room Ms Auzins is captured on CCTV exiting at 3:37pm (Room 3).
The documentary evidence
16 The Statement of Agreed Facts [8] outlines the complaints in the Complaint Letter.
17 The Statement of Agreed Facts [10] notes that shortly after receiving the Complaint Letter, Ms Auzins provided the Initial Response, stating (emphasis added):
On 22 May 2023 at 3.34 pm, I received an email from [Ms Kamalanathan] in my Education inbox titled ‘Fwd: Job Changing’. I was dumbfounded that [Ms Kamalanathan] would forward me the email as I had not yet been informed by our line manager, [Ms Date], that she was even leaving her position at KSHS at this stage and that the context of the email was extremely defaming towards myself, so I presumed that this was her way of letting me know how she felt. I approached my line manager the next day and asked if [Ms Kamalanathan] was leaving and that [Ms Kamalanathan] had sent me the email. I asked [Ms Date] did I need to take any action against the unfounded allegations that [Ms Kamalanathan] had made with regard to me and her reason for her resignation. [Ms Date] informed me that she too had not read the email as she had been under the pump and had not had time but had been told verbally that [Ms Kamalanathan] was leaving. [Ms Date] then read the email and said, ‘Let it go she will be out of here soon, stop stressing’. In hindsight, I now wish I had gone with my gut feeling of upandcoming backlash from [Ms Kamalanathan] that I had acted at the time. I now find myself equally dumbfounded that this has been made a Standards and Integrity issue 5 months after the email was originally sent to me by [Ms Kamalanathan] herself.
18 In the Initial Response, Ms Auzins states (emphasis added):
[Ms Kamalanathan] and I did not share a workspace together, so I really have no idea where she kept her things as the only time I went into her office was to get IT supplies, i.e. printer toner, HDMI cables etc, when requested by staff and [Ms Kamalanathan] was not at work to do so. … The work area that [Ms Kamalanathan] had been assigned was also used as a storeroom when Admin was doing renovations. This meant anyone could have gone in the room as it was not locked during the day (either the cleaners or [Ms Kamalanathan] would lock it at the end of the day, I made sure that unless it was absolutely necessary I gave [Ms Kamalanathan] her own space and stayed away) and touched the phone. The room was also unlocked and accessible from the library’s internal kitchen area, which all staff members, including teachers, had access to allowing them to make coffee, heat lunches etc, so again if her phone was left unattended it would have been open slather to anyone in that area. Please note that the office [Ms Kamalanathan] occupied could also be accessed via an outside door so there were two access points for anyone to go in and out of.
…
I hereby officially deny going onto her phone, I deny sending the email to myself and feel there is very little evidence to support the complaints made.
Reasons being:
1. I had no idea what passcode/lock was set on her devices. …
2. Access to her workspace, where she says her devices were kept, was freely accessible to anyone (internal/external access). …
19 From the Agreed Documents, it appears that Ms Auzins emailed the Initial Response to Mr Whitney on 17 August 2023, 3:49pm.
20 Thereafter, they exchanged the following emails:
(a) 17 August 2023, 4:34pm: Email from Mr Whitney to Ms Auzins, stating:
On the phone yesterday I do recall you saying that you had finished early on 22/05/2023 and that you weren’t even at school when the email was sent. Are you able to confirm this with a timesheet or something similar? That would assist a lot.
(b) 17 August 2023, 5:29pm: Email from Ms Auzins to Mr Whitney, stating:
With the time sheets this is where I confirm that something along the lines of being setup comes into play. My copy that I kept says I left at 1.30pm on that Monday but the copy held on Admin Shared drive at the school which again is open to anyone allowing sheets to be manipulated says 3.45pm. The strange thing is that I was away the last week of term 2 sick and then first two weeks this term long service leave totalling 5 weeks in total that I was not at school. Yet my time sheet has been updated until the 10/8/23. I have been using, since returning from long service leave, the sign in cards that we use to login/logout via Compass kiosk so again endorsing my belief that I am being setup in some way. I am starting to think someone had my Enumber and password which I have changed this week.
(c) 18 August 2023, 7:46am: Email from Mr Whitney to Ms Auzins, stating:
Can you send me a copy of the timesheet you kept please?
Also, could you please send me a copy of [all] the discrepancies you can see in your timesheets? Just for my info, is it possible for any person to change the timesheet entry of another person or do you need that person’s E number and password?
(d) 18 August 2023, 10:08am: Email from Ms Auzins to Mr Whitney, stating (emphasis added):
Because I am not in my office, I don’t have access to the document I saved, but I can say that all the time sheets are on the shared drive at work and can be accessed by anyone as they are not locked down. I am extremely concerned about losing my job and retaliation from fellow staff members with regard to someone falsely being accused of editing timesheets, and I don’t want to be classified as a troublemaker. This would make working at the school extremely challenging and stressful. Therefore, I will accept whatever is noted on the sheets as true. In saying this, can we focus more on the accusations made and the fact that I believe [Ms Kamalanathan] has set me up to return to KSHS without me being there? Please ring the contacts I supplied to verify my statement, as they have seen firsthand the issues and accusations, I faced with [Ms Kamalanathan]. Even if the timesheets say I was onsite, there are still too many variables i.e. mainly being the open access to the said workspace and phone from anyone within the school, to prove that I have done what I am falsely accused of.
I hope you understand my position, but I am the one that needs to face these people each day and I know, as having the role of union delegate, that this is not right and you cannot be targeted for speaking up, but unfortunately, it happens every day. …
(e) 18 August 2023, 10:35am: Email from Mr Whitney to Ms Auzins, stating:
I may be confused about your worked hours on 22 May 2023.
You stated that you left work at 1.30pm and you have documentation to prove this. I really need a copy of that.
When you return to work next week, could you please send me the document you saved?
(f) 18 August 2023, 10:51am: Email from Ms Auzins to Mr Whitney, stating:
I have gotten in touch with a co-worker who sent me the sheet I have so I have attached it for you.
(g) 18 August 2023, 2:44pm: Email from Mr Whitney to Ms Auzins, stating:
Do you remember why you left at 1.30pm on 22 May?
Was there a Dr’s appointment or something similar or is there anyone you may have visited that can verify you being there?
(h) 18 August 2023, 2:56pm: Email from Ms Auzins to Mr Whitney, stating:
If my memory is correct I went to see my 90yr old father who lives in Pinjarra and who had fallen over in the garden and was shaken up but I doubt he will remember dates etc as his memory is not what it used to be.
21 The Proposed Outcome Letter states:
Proposed Action
I have now considered all of the information available to me and I propose to make the following findings.
Firstly, you committed a breach of discipline by using the work phone of your colleague, [Ms Kamalanathan], to access her emails without authorisation to do so.
Secondly, you used the phone to forward a confidential email written by Ms Kamalanathan to your own email address, without authorisation to do so. Ms Kamalanathan’s phone was in the IT storeroom and there is evidence to show that you were also in the IT storeroom at the time the email was forwarded from her phone to your email address.
Based on the evidence gathered, I propose to dismiss you from your employment.
The Department has an expectation that all employees will behave in an exemplary manner and in a way that is consistent with the Code of Conduct. Your alleged conduct is wholly inconsistent with the Department’s values and standards.
Additionally, I am concerned that you have been dishonest in the course of the discipline process. In particular, you provided a timesheet stating that you left work at 1:30pm on the afternoon in question. This was at odds with the school’s timesheet. Also, CCTV footage from the school shows that not only were you at school on the afternoon in question, but that you were in the IT storeroom (which was used by Ms Kamalanathan as an office) at the time the email was sent from her phone (which was located in the IT storeroom that afternoon). This disproves your claim that you were not at school and suggests that you fabricated the timesheet that you produced in support of your claim.
Should I ultimately be satisfied that you were dishonest in that regard, in addition to the conduct referred to in the complaints, I would also hold concerns that your lack of honesty presents an obstacle to me having the necessary trust and confidence for you to remain employed in the Department.
22 The Proposed Outcome Letter attaches the Investigation Report, which states:
Ms Auzins has been subject to the following complaints previously received by SID:
· in July 2019, it was alleged Ms Auzins used her Departmental email to forward inappropriate emails to a restaurant that gave her poor service. Ms Auzins also submitted her email on the restaurant’s Facebook page. Ms Auzins was subject to Improvement Action for her conduct. (F21/0162022 refers)
· on 10 March 2023, Ms Auzins stated to a KSHS colleague that it was against policy for them to speak their ‘native language’ in the workplace. Whilst this was considered a breach of the Code of Conduct by Ms Auzins, it did not constitute minor or serious misconduct and so the matter was dealt with by local management. (REF0005329 refers)
23 The CSA Letter (Statement of Agreed Facts [15]) states (emphasis added):
Reliance on CCTV footage that does not contain a view of the room needed to form the conclusions
The CCTV footage does not include a view of the space where the alleged action took place. The investigation report provides stills of Ms Auzins entering and then exiting this area but no view of her in the room. The room itself contains the kitchenette area where staff often keep food or have breaks so Ms Auzins entry to this area is not unauthorized or unusual. In the provided CCTV stills Ms Auzins was chewing when exiting the room, the logical conclusion being that she entered the room to have something to eat.
The CCTV footage does not show Ms Auzins picking up a phone and using the phone for the time one would assume it would take a person to send an email on that phone. It simply shows an employee proceeding with usual activities.
Location of the work phone belonging to Ms Kamalanathan
There is no independent or corroborated evidence presented in the report that establishes that Ms Kamalanathan’s phone was in the IT storeroom on that day and at that time. Furthermore, the alleged location is a thoroughfare to the kitchen for staff and for staff to access other IT rooms and amenities. If the phone was in fact in the IT storeroom there any number of people who could have picked it up. If the investigator cannot establish that the phone was actually in that location how can it be established on the balance of probabilities that Ms Auzins accessed the phone.
Reliance on recall of location over more than 3 months ago
…
In the investigation report it was provided that Ms Auzins stated that she was not at the workplace on the date and time in question. This is incorrect. Ms Auzins has provided to the investigator and to the CSA that she believed that she may have left early that day for a family emergency. However, on review of her timesheets, conversations with a coworker and her sister, she was able to recall that she had mixed up the days that week that she had left early, and furthermore, that the family emergency in question had happened in April, not May. These recall issues are not uncommon for individuals when asked to recall events from memory occurring more than a few days ago.
The investigator should have followed up any concerns or inconsistencies with Ms Auzins and given her the opportunity to refresh her memory before relying on her initial response, which was heavily influenced by the stress of the situation and the pressures of the deadline. I note that the investigator did request to speak with Ms Auzins to ask her more questions, but when the CSA responded asking for the questions to be in writing and a written response would be provided, there was no further communication from the investigator.
24 The Final Outcome letter states:
My Decision
In my previous letter, I outlined the factors that I considered in reaching the preliminary decision to dismiss you from employment. I continue to rely on those considerations.
As above, there has been no new relevant information received since my previous letter and as a result, I maintain my findings in relation to complaints 1 and 2. In my previous letter, I outlined why your conduct, as particularised in these complaints, was concerning to me. I maintain those views.
Your conduct in complaints 1 and 2 fell well below the standard that is expected of Department employees. I am satisfied that you were aware of the standard of conduct expected of you in your position as it has been brought to your attention previously.
Your failure to take responsibility for your actions and your attempts to fabricate certain details of the matter during the course of the investigation is of great concern. Therefore, I am not confident that imposing a reprimand, fine, demotion or disciplinary transfer, or a combination of these, would result in you sustaining a change of behaviour that would allow me to have the necessary trust and confidence in your ability to perform your duties appropriately.
Therefore, I am of the view that dismissal is the appropriate disciplinary action in the circumstances, and I dismiss you from your employment from the Department immediately.
The oral evidence
25 Ms Auzins gave the following evidenceinchief:
(a) As the Network Support Officer, her duties included purchasing technology resources under $5,000, which included phones.
(b) The process for purchasing staff phones involved the Manager of Corporate Services informing her to order a phone, and her purchasing the phone from a CUA supplier.
(c) When the phone arrived, she would turn the phone on to ensure it was working and then deliver the phone to the Admin Officer ‘to put it on their asset manager’.
(d) It was policy that everybody should have a passcode on their phone.
(e) Prior to Ms Kamalanathan, she was the only Network Officer that KSHS ever had.
(f) Ms Kamalanathan was to be the first port of call for technical support (including troubleshooting, installing and reimaging machines, laptops, iPads, and helping if there was printer or printing issues), and she provided that training to Ms Kamalanathan.
(g) After about five weeks, she was advised by Ms Date that ‘all training will be taken off and it was just better if we had no verbal communication’, and she was asked to set up a different work area for Ms Kamalanathan.
(h) Room 1 is an IT room and also called the Rainbow Room, accessible for student councillors, the Aboriginal Indigenous Officer, and psychologist. ‘It was basically open all day, every day, from the outside, because it was actually classed as a meeting room’.
(i) Her office, since October–November 2022, was in Room 6, which she shared with the Media Support Officer (Kirsten Lindley).
(j) Upon walking into Room 3, ‘if you turn right, down the bottom there, is all the library store cupboards, the, um, relief staff iPad lockbox, the kitchenette, the microwave, the fridge, um, and the doorway to the IT office’. The doorway is a four-panel barndoor that is ‘always locked’.
(k) On 22 May 2023 around 3.30pm, she had a conversation with Hugh Lancaster (contractor, cabling technician), and as she had said to Bruce Walther (Library Officer) that she would clean up the kitchen, she attended to the following end of day tasks: cleaning up the kitchen area, ensuring staff iPads were on charge and locked away and taking out and turning on any laptops on loan for staff the next day.
(l) The CCTV footage shows her entering and exiting Room 3. The only part of Room 1 that is visible on the CCTV footage are the glass windows above Room 2 and 3, from which you can see the windows into Room 1, which are ‘completely black’ and ‘you can’t see in there without putting lights on’ so ‘if anybody was in there, lights would’ve gone on’ because ‘you literally can’t see in that room without it being lit up’.
(m) She first became aware of the Email when she returned to her office, as her daily routine before leaving in the afternoon is to sit down, go through her emails and then shut down her computer. She was ‘gobsmacked’ because she did not know that Ms Kamalanathan had resigned from KSHS and was ‘dumbfounded’ because the Email was ‘really quite demeaning’ of her. She turned and asked the Media Officer whether she knew that Ms Kamalanathan had resigned, and she said that she did not know.
(n) The only reason she did not speak with Ms Date about the Email was because Ms Date was in a senior staff meeting that afternoon. So she went home and spoke to her husband about the Email. She said to her husband that ‘I don’t believe this. Have a look at what I got’.
(o) The next day, she went to see Ms Date and asked if she could have a conversation. She closed the door, sat down, and asked Ms Date if it was true that Ms Kamalanathan had resigned. Ms Date asked her how she knew and she said that Ms Kamalanathan had sent her an email and that ‘it wasn’t a nice email’. She asked if there was any reason she needed to be worried about the Email. Ms Date said she had not yet read the email but that Ms Kamalanathan had resigned. Ms Date then read the email and said ‘Don’t worry about it. She’s out of here at the end of the week. Let her go’. That was the end of their conversation so she got up and left Ms Date’s office.
(p) On 16 August 2023, about 2:00pm–2:30pm, the Principal provided her with the Complaint Letter. She returned to her office and telephoned Mr Whitney. Mr Whitney told her to ‘put down what had happened’ and she was led to believe ‘just put it all into writing and everything will be okay’. Mr Whitney only told her to contact PeopleSense. He did not advise her to seek union help ‘or anything like that’.
(q) After providing the Initial Response, she spoke with Mr Whitney ‘once in person’ and there were ‘to and froing emails’.
(r) She does not remember how they came to discuss her timesheet, but when she saw that her timesheet had been completed until 10 August yet they had stopped using them because they were using Compass login cards on the Compass desktop, and that she had been overseas for five weeks and seven days, she queried who had completed her timesheets. She looked at her timesheet for 22 May 2023, and saw that ‘the time had been missing’ and said ‘Well, according to this here’ ‘I wasn’t even at the school’.
(s) When she settled down and had another look, she realised that she was at the school on 22 May 2023. The timesheet showed her ‘signing back on from lunch. I wasn’t signing off at 1.30. That’s actually me signing back on’.
26 Under crossexamination, Ms Auzins gave the following evidence:
(a) She has worked for the Department for approximately 17 years.
(b) During that time, she has not adhered to the Department’s policies and procedures on one occasion in 2019, when a friend used her iPad to send an email, and the email was sent from her Department email account because they had not realised that the ‘Education email had been changed to default on my iPad’. She denies she was investigated by SID. She says, it ‘just came back to the school to be dealt with’. She agrees she was subject to Improvement Action.
(c) In relation to the March 2023 complaint at [22] above, she disagrees the conduct was found to not be serious enough misconduct to require the oversight of SID but that it was found to be a breach of the Department’s Code of Conduct and the complaint was sent back to the Principal to address. She says she was not allowed to give evidence about the matter. She says, when she went to give evidence, the Principal and Ms Date said, ‘Don’t want to know about it’, and that ‘that was the exact words’ they had used.
(d) Ms Kamalanathan was under her management, and she communicated KSHS’ policies regarding the use of work mobile phones to her. She cannot recall whether she communicated KSHS’ policies regarding the use of work mobile phones to Ms Date when Ms Date commenced at KSHS.
(e) KSHS’ policies included that work mobile phones should always be left on school grounds if there was no need for the employee to be working at home.
(f) She agrees that when she was Ms Kamalanathan’s manager, she communicated to Ms Kamalanathan that she should keep the workphone at work, and not take it home.
(g) She agrees that Ms Kamalanathan was the first port of call for technology issues. She says, if Ms Kamalanathan was absent, then ‘we didn’t know what was – what was needed to be done’.
(h) She denies entering Room 1 from Room 3 on 22 May 2023 at around 3:30pm, picking up Ms Kamalanathan’s workphone, using it to access Ms Kamalanathan’s Departmental emails, and using it to forward the email to her own email address.
(i) She says she approached Ms Date on 23 May 2023 to discuss the Email. She denies she approached Ms Date to discuss something else. She denies talking with Ms Date about another position in Support Services. She says that discussion occurred in April 2023 at her performance management meeting. She denies raising the idea of her moving to a position in Student Services as a solution to Ms Kamalanathan leaving KSHS.
(j) When she said in evidenceinchief that she asked Ms Date if there was anything she needed to do about the Email, she meant should she have gone and sought advice from the union because it was a ‘very, very demeaning’ email, and ‘basically made me out to be a complete bully, which was not true’. She says she asked Ms Date ‘Do I need to take any actions against this?’, ‘Do I need to cover myself … from any actions from Ms Kamalanathan?’
(k) She had thought for some time about whether to make a complaint to SID about Ms Kamalanathan. After reading the Email her thoughts about making a complaint ‘became stronger’.
(l) In response to a question about whether she said to Ms Date that Ms Kamalanathan had forwarded the Email to her and she ‘wasn’t too smart about it’, she says all she said was that Ms Kamalanathan had forwarded the Email to her, because Ms Date had asked her how she got the Email.
(m) She maintained that Ms Date told her not to worry and to just ignore the Email.
(n) She denies that she was not expressing worry or concern during her conversation with Ms Date and denies that she came across as smug.
(o) She agrees that she telephoned Mr Whitney on the same day that she received the Complaint Letter. She does not recall saying to Mr Whitney that she had a timesheet that could confirm that she was not at school on the afternoon of 22 May 2023. She denies Mr Whitney encouraged her to seek advice and support from her union to assist her in her response, and says Mr Whitney only encouraged her to seek support from PeopleSense.
(p) Regarding Respondent’s Document 3, the KSHS timesheets were on the S drive, which is KSHS’ shared drive. Everything from the Department is on there. The timesheets were in the timesheet folder because up until the time they were using Compass sheets, they were using physical timesheets. She says the only time she kept a copy of her timesheet ‘was to keep a track of TOIL’.
(q) She says, she told Mr Whitney to ‘take what is on S drive as to be true’, because ‘mine was actually really only for me to keep my TOIL’.
(r) She says that when she sent the emails at [20] above, she believed that Ms Kamalanathan was setting her up so that she can return to KSHS. She says, since then, she has been seeing a psychologist and now realises she was thinking with her emotions and not with her head.
(s) The timesheet she provided to Mr Whitney shows that across April, May and June 2023, other than on 27 April 2023 (when she left early to see her father):
(i) She takes her lunchbreak between 12:45pm–1:15pm each day, except on 22 May 2023, when it records her taking her lunchbreak between 12:45pm–‍1:30pm. She says she cannot recall the reason for that. Nor can she recall any reason why she needed a longer lunchbreak on that one day.
(ii) Her workday ends at 4:00pm each day, except on 22 May 2023, when there is no finish time recorded. She says she cannot think of any reason why the timesheet does not show a finishing time. Nor can she think of any reason why that might have been the case on that one day.
(t) The timesheet kept and provided by KSHS, shows her taking her lunchbreak between 12:45pm–1:15pm and finishing at 4:00pm on 22 May 2023. She cannot think of any reason for the discrepancies between her timesheet and KSHS’ timesheet.
(u) She says that at some point after the emails at [19]–[20] above, and prior to the CSA Letter at [23] above, that she spoke with Mr Whitney on the phone and informed him that she had gotten the day she went to visit her father mixed up, and that it was not on 22 May 2023 as she initially stated to him.
(v) She says that she returned the Departmental phone in 2020/2021 and from that time was using the Departmental SIM in her own dual-SIM iPhone. She denies the phone recorded in Respondent’s Document 2 was allocated to her, and that she did not return it to KSHS when requested to return all KSHS property upon her dismissal. She says that when she went on long service leave, she took the Departmental SIM from her phone, inserted it into an old handset in the Media Officer’s drawer, and left the handset there. She says she did not return the Departmental SIM to her own phone upon returning from long service leave because KSHS refused her TOIL so she refused to take the phone home after that. She says that Ms Date ‘knew that I never had a phone. She knew that I had my own personal phone right from when she first started, because she actually asked me – we had to buy her a new phone. And she asked me what model mine was. And we had talked about it. And she knew I didn’t have my own phone.’
(w) On Respondent’s Document 1, Room 1 is as long as Room 3, and the door from Room 3 to Room 1, is closer to the number 8. They are four barndoors. If entering Room 3 from Room 1, you have to push the doors out. The two doors at the top were always open. The two doors at the bottom were swinging doors. They were locked during the day, so that nobody can come in from Room 1 into Room 3.
27 In response to clarifying questions from the Board, Ms Auzins gave the following evidence:
(a) On 22 May 2023, on returning to her office, which she shared with the Media Officer, and finding the Email in her Inbox, she said:
I was dumbfounded. I just could not believe it. And I – and I – I – because I didn’t know that she’d even resigned. So, you know, like, I had no idea. Um, and I was just absolutely dumbfounded what she’d – she’d actually written. Because, pretty much, what she’d written was complaints that I had already made to Ms Date about the treatment that I had received of Ms Kamalanathan. And I was – I was just dumbfounded that it had been turned around to make me look like the bad guy. And I was, like, ah – I – I couldn’t believe it.
(b) In response to a question about whether she thought about making a complaint about Ms Kamalanathan after receiving the Email, she said:
I wanted to speak to Ms Date first, um, being my line manager. And I thought it was only, um, fair to try and keep it within school. You know, I didn’t sort of want to have to bring on anything that wasn’t necessary. And it was – after speaking to Ms Date, when she said, ‘Just let it go’, um, that – that’s when I let it go. I just – ‘Okay’ which – ‘She’s – she’s’ – as she said, ‘She’s out of here at the end of the week. Let her go’. And I – I knew I had the Friday off. So it was only a couple of days that I actually had to, you know, see Ms Kamalanathan.
(c) In response to a question about whether she wanted to speak with Ms Date on the same day as receiving the Email, she said:
No. Because I knew – I knew that Ms Date was in the senior staff, ah, meeting, which is always held between 3 and 4 pm on a Monday. Um, and to be honest, I just wanted to get home. I was – I was just – I actually wanted to speak to my husband before I spoke to [Ms Date]. I was gobsmacked.
28 In re-examination, Ms Auzins gave the following evidence:
(a) At the time of her dismissal, she did not have a Departmentissued mobile phone. She had a Departmentissued SIM, which was in the phone that she left at KSHS. Ms Lindley and her replacement, Christohper Horton, are aware that at the time of her dismissal she was using that phone and that it was left at KSHS.
(b) She no longer believes that her timesheets were completed to set her up. She believes that her timesheets were completed because they were required to be completed to ‘cross the Ts, dot the Is’.
29 Ms Date gave the following evidenceinchief:
(a) On 23 May 2023, Ms Auzins came to her office and said that she knew what Ms Kamalanathan had written about her, and:
I just said, ‘I don’t know what you’re talking about’. And she said, ah – ah, ‘She’s not that smart. She sent that email to me’. And I sort of started to panic a little bit inside, thinking how would she have received that email. Um, then she proceeded to tell me that, ah, ‘It’s okay’, that she has a solution for me, that she would be happy to go and be an SSO, ah, in Student Services, because we had a job going. And she’d expressed interest in that role. Um, and she said, ‘So if I went over there, then [Ms Kamalanathan] could take my role and everyone would be happy’. And that’s when I just informed her I’d have to talk to the Principal and ended the conversation. And then I shut my door and had a bit of a, ‘What was that about?’ And I rung Ms Kamalanathan to ask her, um, if she had given – if she’d forwarded that email to Karen.
(b) She recalls Ms Auzins’ demeanour as very calm, and:
In fact, I felt like she was – she wanted to tell me she’d read the letter and the email. And in her eyes, she had a solution for the whole thing. And it was, like, she was bragging about the letter – the – the email that – and I think she said something like, um, you know, ‘She’s not too smart, because she sent it to me’. And I thought, you know – I just – I just thought that was very out of character for [Ms Kamalanathan] to send that to her. Because she was very distressed about their relationship. She was, um, very emotionally unstable, ah, towards the last few months that she worked at [KSHS].
(c) She says Ms Auzins did not mention any concern about the Email. Nor did she ask if she needed to take any action. ‘She was pretty much giving me a solution, saying that she could go work as an SSO, because that’s what she wanted to do’.
(d) She denies telling Ms Auzins not to worry about the Email as Ms Kamalanathan will be out of KSHS soon.
(e) She had read the email from Ms Kamalanathan before speaking with Ms Auzins. After speaking with Ms Auzins, she reopened the email to check that it had only been sent to her. She shut her office door and telephoned Ms Kamalanathan, who ‘immediately got very upset’. She told Ms Kamalanathan to be calm, and asked her to hang up the phone, go through her emails, and call back if she found anything.
(f) Ms Kamalanathan returned her call about 10 minutes later and said she had found the Email in her deleted box, and that the Email had been forwarded on the day that she was not at KSHS and had left the phone in the IT office.
(g) When Ms Auzins was dismissed, it was the Principal who was responsible for asking her to return any KSHS property in her possession. She was not satisfied that Ms Auzins did because:
[W]hen I started at the school, ah, [Ms Auzins] made a point of telling me that, um, she broke her phone in the past at school and the school agreed to buy her, um, an iPhone to use for work. And, um, that was the phone that she had in her possession. And then before she was dismissed, it was budget time. And she said to me that, um, her phone’s a couple of years old and could she be considered for a – an – an upgrade. Um, and I just told her that, ‘Yeah. Sure. Everything gets considered by the finance committee. It needs to be in your budget submission, so add that to your budget submission’. Um, but of course, we didn’t get to that point. Um, so when I received the phone and the keys back from the Principal, I noticed that it wasn’t the phone that she was issued by the school. Um, it looked like an iPhone 4 or, um, just a really – a – a really basic, um, iPhone. Not the one she was issued. But I thought, ‘I better check this’. So I took it to IT and they scanned it and it was registered as Kirsten Lindley’s, um, phone. So I showed her the phone and she confirmed that that was the phone she used, um, when she was the tech officer years and years ago. Six years ago. I don’t know how – how many exactly. Um, so then I started to go, ‘Well, where is Karen’s phone?’ So I pulled up the, um – the purchasing records of the phone that we’d – the school purchased for Karen and two other staff members.
(h) Respondent’s Document 2 are the documents that she retrieved when trying to determine what happened to Ms Auzins’ phone and its serial number. She believes these documents refer to the phone allocated to Ms Auzins because:
Ah, so the details and description of the phone is the one that I’ve – I’ve viewed, that she’s shown me. She’s – it also the one that I’ve asked, um, various school officers that, ah, worked with [Ms Auzins], that confirmed that she had a blue iPhone 12 and that the school paid for it. I’ve also been told that, um, the previous employee, Sacha, wasn’t happy about the purchase, because it didn’t fulfil, um, the financial agreement that we have in schools, which I can see straightway, it’s not. Um, so I’m not sure if you remember, Department of Communities got ripped off for millions, and this is because people were abusing purchase orders. So it was decided, um, that a school of our size would need four signatures – four separate signatures, to approve any purchases from purchase orders. Um, so you have to have one person to, ah, sign the order book. And that has to be an authorised person. Any person can agree that it was received. So that’s the second person. The third person has to incur it. And a fourth person then certifies it.
(i) When a new phone is purchased by KSHS, IT are responsible for recording the serial number into Hardcat (the resourcing software used to record phones, laptops, desktops, cameras, etc). At the time, that was Ms Auzins. Ms Auzins recorded the serial number for Ms Date’s phone, so Ms Auzins knew the process. However, and despite the iPhone referenced in Respondent’s Document 2 being purchased with government funds, there is no record of the phone in Hardcat. Further, the iPhone referenced in Respondent’s Document 2 has not been returned to KSHS and is not in KSHS’ possession.
(j) In relation to the Ms Kamalanathan’s workphone, she said:
[Ms Auzins] was very particular that [Ms Kamalanathan], um, should leave hers at work at all time and unlocked and in a certain place, so that, um – because it was deemed the IT helpdesk phone, that it could be retrieved and used to answer, um, IT help that any teachers had, because they had that number as the call number for when – when they were at work. So look, I felt that was a little bit controlling, but I could see [Ms Auzins’] point of view. And she’s got way more experience in IT than myself, so I trusted that that was a system that worked at the school. Ah, and – and that’s how we – we treated that – that IT helpdesk phone.
(k) In relation to the March 2023 complaint at [22] above, she said:
I’d had various staff come to me with this complaint. Some quite distressed. Ah, so I spoke to the Principal and that’s when he actioned the SIDs, um – the – the SIDs inquiry. When it came back, [the Principal and I] met with [Ms Auzins] and verbally explained that it wasn’t acceptable to – ‘It –‍‍ it just is deemed that you’re – you’re intimidating someone when they’re using their own, you know, language, and that we feel that we’re quite welcoming and if it’s not upsetting anyone, we don’t see the big deal. And perhaps to come to us next time’. Ah, and she didn’t take it too well, um, and denied it happened. But I have three witnesses that said it happened.
(l) When asked if Ms Auzins might have something to say to defend herself, whether she would have told her that she did not want to know about it, she said:
No. We sat and talked for quite a while about it. And we just explained that we’re a multi-racial – national, um, country and, you know, Olga speaks in her language on the phone. People – people should be able to speak however they want to speak. Um, and we just said it’s just – we don’t want that environment at our school. We want everyone to feel welcome, um, and not intimidated.
30 Under crossexamination, Ms Date gave the following evidence:
(a) She addressed the working relationship between Ms Auzins and Ms Kamalanathan by working with both on them on it. She spoke with Ms Auzins about being less dominating and more empowering of Ms Kamalanathan.
(b) Ms Auzins told her that she was only going to interact with Ms Kamalanathan via email unless there was a witness in the room. She said it was not ideal but she did not want either of them to be under too much stress, so that ended up being how their communication was undertaken.
(c) The relationship between Ms Auzins and Ms Kamalanathan was clearly fractured. She knew Ms Kamalanathan was applying for other jobs, and that they should start looking for someone to replace her to assist Ms Auzins because it is a big job in a school to be in charge of all the IT. But Ms Auzins did not mention that she was going to make a complaint about Ms Kamalanathan.
(d) The phone recorded in Respondent’s Document 2 would have been issued to Ms Auzins by her predecessor. She is not sure if Ms Auzins had a dualpurpose SIM on her personal phone.
(e) In relation to the March 2023 complaint at [22] above, the Principal handled the complaint and arranged the meeting, which she attended. At the meeting, the Principal said that ‘it’s informal but it’s serious’ and ‘to think about how you treat others in the workplace and it needs to be a safe environment for everyone’.
(f) In relation to the 23 May 2023 discussion, she says that she was working and Ms Auzins came and stood in her doorway and was having idle chitchat and then said that she had read the email that Ms Kamalanathan had sent her.
(g) When asked about the SSO position and whether Ms Auzins was concerned about the Email, she said:
And so when you’re talking about the SSO position, was this a conversation that also occurred on 23 May 2023, or was this a conversation that was had during her performance review in April?No – no. I knew that – we’d – we’d already talked about it before. But, um, she – she’d come out with that idea, that, um, [Ms Kamalanathan] could move into her role and she can move into a new SSO role. Because we had quite a lot of movement there. We hired three in one year.
And so Ms Auzins, to your account, did not seem concerned with the content of the email, which was, of course, quite disparaging towards her?Yeah. No. She wasn’t. She said, um, ‘I know what she thinks of me and I know that she can come back and take my job’, um, ‘And I’ll do the SSO job’. Um, she had talked to me about she was getting a bit bored and stale in her role, which I understood. It happens. And, um, we did talk about the SSO role. So, um, in her mind, she thought that was a great solution.
(h) She became aware that Ms Kamalanathan had found the Email in an archived deleted folder, when Ms Kamalanathan returned her call 10 or 20 minutes later. She had told Ms Kamalanathan to calm down and look through her inbox, deleted, spam, and sent folders and to return her call if she saw anything.
(i) The CCTV footage shows Ms Auzins entering Room 3, which goes through to Room 1. The CCTV footage does not show Ms Auzins entering Room 1, or that Room 1 is viewable on the CCTV footage.
31 In response to some clarifying questions from the Board, Ms Date gave the following evidence:
(a) The idea for Ms Auzins and Ms Kamalanathan to interact in writing, was Ms Auzins’ idea. She recalls the arrangement commenced when she returned from leave in early May 2023.
(b) The CCTV footage shows the entry to Room 3. Room 3 is used as a room but it is also a thoroughfare for Room 1. Room 3 contains the kitchen and storage area. The IT staff go straight forward, from Room 3 into Room 1. The Board understands Ms Date to be saying that the door to Room 1 is directly opposite the entryway into Room 3.
(c) ‘Barn doors’ are an accurate description of the four doors to enter Room 1 from Room 3.
(d) There is a door between Rooms 2 and 3, but there is a heavy bookshelf against it. So the only way to get to Room 1 is via Room 3, or via the external door, which is numbered 8 on Respondent’s Document 1. Room 1 runs the length of Room 3.
(e) She accessed the CCTV footage for 22 May 2023. She downloaded and reviewed the CCTV footage of the external door (numbered 8) for the whole day, and she saw an IT contractor exiting through the door at around 3:00pm but nobody else entering via the external door the entire day. She accessed the CCTV footage for the doorway to Room 3, and witnessed Ms Auzins enter the area where Ms Kamalanathan was working and ‘she came back out within minutes of the email being sent to herself. So I felt like, um, that was fairly evident that she’d accessed that phone and – and forwarded it to herself. I don’t understand why anyone else would want to do that’.
(f) When Ms Kamalanathan returned her call, ‘she had figured out in her head that it had been sent via her phone’ because she said it had ‘Outlook Mobile’, and said that the Email had been sent from her phone, and her phone is at work, and she was not at work that day, she was at Jandakot Primary.
(g) When Ms Kamalanathan said her phone was at work, she understood that to mean that the phone was in Room 1, because ‘if something happened, or it started ringing, [Ms Auzins] could check it and deal with the IT issue in [Ms Kamalanathan’s] absence’.
(h) She holds the belief that the phone was in Room 1, because:
Ah, [Ms Auzins] was very clear that it had to stay at work at all times, um, because, um, it was a – it – it was for IT, ah, help. So you know, the – the – the teachers, if they needed help in a classroom, they could ring that mobile number. And also, if [Ms Auzins] needed to locate her, she’d take the phone with her. So it needed to stay at – at work. That – that was the reasoning I got given. Um, and that [Ms Auzins] needed to know where it was. So it was always held in the same spot in the same room, so that, um, if she was sick or absent, we could still operate.
(i) She said that Ms Auzins told her the reason why Ms Kamalanathan’s phone was supposed to be left in Room 1, and that Ms Auzins gave her that reason at the time when she signed the paperwork to issue the phone to Ms Kamalanathan. Ms Auzins’ reason sounded reasonable to her because Ms Auzins was an experienced IT person who has had people work for her before. She did not vary this direction.
(j) As Ms Kamalanathan was absent from KSHS on 22 May 2023, Ms Auzins would have been checking Ms Kamalanathan’s phone throughout the day, if there was a teacher that had an issue, ‘that’s the agreement’.
32 In reexamination, Ms Date gave the following evidence:
(a) She reviewed the CCTV footage for both the external and internal doors, and is confident that except for Ms Auzins, nobody was in Rooms 1 and 3 as a combined area, at the time the Email was sent.
(b) Students do not have independent access to Room 1. The arrangement was that students were required to be supervised at all times.
(c) She did not witness Ms Kamalanathan domineering or yelling at Ms Auzins as they worked in a different building. However, she finds it hard to believe. She saw their relationship as one of Ms Auzins having difficulty and being frustrated with Ms Kamalanathan, because she was new, there were language barriers, and she made mistakes.
33 Mr Whitney gave the following evidenceinchief:
(a) The Principal provided the Complaint Letter to Ms Auzins, and she called him later the same day. He was surprised that she called so soon. She said straightaway that she was not at the school that day. He describes her demeanour as straight onto the defensive, saying that it was not her and she did not do it. He says that she was not uncertain in her responses during this call.
(b) He already had possession of the CCTV footage so he knew she was at school that day, so he instantly became a little bit suspicious, and told her that she needed to ‘speak to a union representative to get some legal advice’.
(c) He did not say to Ms Auzins that everything would be okay if she sent her reply in. As outlined in the Complaint Letter, he would have said what she can do in order to provide a response. This is because often employees do not respond. So, he would not say that everything would be fine if she sent a response. Essentially, it was her choice whether or not to respond.
(d) He does not recall a subsequent telephone discussion with Ms Auzins. He thinks it was mainly email exchanges at that point. He does not think that Ms Auzins subsequently telephoned him to say that her reason for not being at the school on that day was false. He thinks ‘everything was on email, back and forth’.
(e) The first time Ms Auzins corrected her story was via the CSA Letter.
34 Under crossexamination, Mr Whitney gave the following evidence:
(a) From the second still photo of Attachment 4 to the Investigation Report (which depicts Ms Auzins exiting Room 3), you cannot see the entrance to Room 1.
(b) Whilst he had only been in Room 3 once, he believes that upon entering Room 3, you enter Room 1 ‘slightly to the right’.
(c) From the CCTV footage, you cannot see Ms Auzins enter Room 1, but you can see her going to the right.
(d) He took the third still photo of Attachment 4 to the Investigation Report (which depicts Room 1). In the background of this photo is a door. He cannot remember if the door depicted is the external door, but he does remember seeing a door, and he does know there was an external door where CCTV is pointing, and he was informed that the external door was locked at all times.
(e) He did not take any photos from inside the Library because there were people present. The stills from inside the Library attached to the Investigation Report are enlarged stills from the CCTV footage. From these, the inside of Room 1 is not visible at all.
(f) Ms Date informed him as part of the investigation that the external entry door to Room 1 was locked, so the only entry to Room 1 is the entry via Room 3 that is depicted in the CCTV footage. Therefore, he reviewed the CCTV footage for anyone entering Room 3, and no one else, other than Ms Auzins, entered Room 3 at the time the Email was sent.
(g) Ms Auzins called him on the same day that she was served the Complaint Letter. He does not recall the time she called, nor how long the call lasted. During the call, he gave her the specific advice to speak to a trusted person:
Because I thought there was a chance she was going to say something that she probably may need some advice before saying. Because I knew I already had the CCTV. Um, and then she’d explained that, you know, she wasn’t even at the school. So I thought, ‘Oh, maybe you need to get some advice’. Um, she also spoke about, um, it being quite stressful. And, um – and part of the – the letter, it says, um – um, further support, you know, for    um, for whatnot    for that sort of stuff    PeopleSense.
(h) Whenever he has a telephone call, he makes a note of the call and the contents of the call on a running sheet. He does not recall having a subsequent telephone call with Ms Auzins in which anything was said that ‘stands out’. If a phone call provided evidence, it would be in the Investigation Report. The running sheet contains a lot of information that is irrelevant to the Investigation Report so it is not separately attached or identified.
35 In reexamination, Mr Whitney gave the following evidence:
(a) During Ms Auzins’ call, she said it was a stressful situation. He cannot say that she sounded stressed or upset as people handle stress in different ways.
(b) He records all telephone contact in a matter in his running sheet.
(c) He would describe Ms Auzins, in her telephone call to him, as certain. It was ‘I was not there and I’ve got proof’.
36 In response to a clarifying question from the Board, Mr Whitney gave the following evidence:
(a) All telephone contact is recorded in his running sheet. If the contents of a call provided any evidence it would feature in the Investigation Report.
(b) If something was said during a call that was relevant or pertinent to the investigation, it would feature in the Investigation Report.
37 Ms Kamalanathan gave the following evidenceinchief:
(a) When she was working at KSHS, her personal phone was an iPhone 13 Pro. She did not use this inside KSHS. Inside KSHS, she used the work-phone issued to her by Ms Date, a Samsung A30.
(b) Ms Date said she could use the workphone for both personal and work purposes as it was a dual SIM phone. However, Ms Auzins, the head of ICT who she worked under, told her that she could not put a password on the workphone, she could not take it home, and she needed to store it in Room 1.
(c) Ms Auzins told her she could not put any password on the workphone so it was not password protected.
(d) She provided the workphone’s number to her husband so he could call her if there was an emergency. Other than that, the workphone was only used for KSHS purposes: for teachers to call if they were having ICT related issues – ‘that’s the only purpose of the phone’. ‘Other than that’, she did not use the workphone for anything else.
(e) When she was on school grounds, she kept the workphone with her. When she left school grounds, she kept the workphone in Room 1.
(f) The only email inbox on the workphone was her Departmental emails. Access to this was not password protected.
(g) She also accessed her Departmental emails on her personal mobile and from her laptop.
(h) For access to her Departmental emails, she would need to enter her Department credentials (her Department email) and her password. No one else was privy to her password in Term 2, 2023 (24 April 2023–30 June 2023).
(i) On 22 May 2023, she was at Jandakot Primary School, undertaking a handover for the Network Support Officer role. She was there the whole day. The workphone was in Room 1.
(j) She sent the Agreed Document 1 email to Ms Date on 18 May 2023. She did not send it to anyone else. She did not intend for Ms Auzins to see it. There is no circumstance in which she would have been okay with Ms Auzins seeing it.
(k) She became aware that her email to Ms Date had been forwarded to Ms Auzins when Ms Date called her to ask if she sent the email to Ms Auzins. She does not remember the date of this call, but says she received the call at a time after she had commenced working at another school after leaving KSHS. During this call, Ms Date asked her to ‘dig a little bit deeper’ to look for the Email.
(l) She moved her email to Ms Date to the Archive folder because she was nervous that Ms Auzins could view it if left in the Sent folder. After the call from Ms Date, she located the Email in the Archive folder.
(m) She knows the Email was forwarded from the workphone because it states on the bottom, ‘Sent from Outlook Mobile’.
(n) Emails forwarded from her laptop would show her Departmental signature and emails forwarded from her personal phone would show ‘Get Outlook for IOS’.
38 Under crossexamination, Ms Kamalanathan gave the following evidence:
(a) She never took the workphone home.
(b) Even though Ms Date had informed her that she could use the workphone for personal use, she did not use it for personal use.
(c) When Ms Date issued her with the workphone, she showed it to Ms Auzins as the head in ICT under whom she technically works under and who needs to know what she is doing as the supervisor. Ms Auzins told her that she could not put any passwords on the workphone, she could not take it home, and it has to stay in the school.
(d) Ms Auzins told her to keep the phone at the school. She denies that when this conversation took place it was because she had taken the phone away from the school. She says that she showed the work-phone to Ms Auzins after being issued it by Ms Date, and it was at this time that the conversation about not having a password on the workphone took place.
(e) She never had a password on the workphone.
(f) In her last month at KSHS, her ordinary workspace was either the Service Desk or she spent most of her time in Room 1.
(g) During the day, the Service Desk is accessible to students. She may have left her laptop and workphone at the Service Desk for a minute or so if she was working on something, but most of the time she would not leave them unattended at the Service Desk. If she wanted to secure the laptop or workphone, she would put it in Room 1.
(h) The work-phone was not accessible to students. This is because, if she was storing it, she would keep it in Room 1. 99% of the time, only her and Ms Auzins accessed Room 1.
(i) On 22 May 2023, she was at Jandakot Primary School, and was using her personal phone. 22 May 2023 was a Monday. On the preceding Friday, she left the workphone on one of the two desks in Room 1. Specifically, on the big desk near the entrance. There were no lockable cabinets in Room 1, but they used to lock Room 1 itself.
(j) She does not recall where she was on 23 May 2023. She says that Ms Date did not call her on 23 May 2023. Ms Date called her after she had left KSHS. She thinks she was at Campbell Primary School at the time.
(k) Ms Date called and asked her to let her know if she could find the Email. When she found the Email she let Ms Date know via email. She did not call Ms Date. She found the Email using a computer.
(l) The Email says, ‘Sent from Outlook Mobile’ so she knows it was not sent from an IOS device. It was also not sent from her laptop, otherwise it would contain her Departmental signature.
(m) From the Library, she would walk into a ‘tea and other preparation area’, namely a ‘first room’, before getting access to Room 1.
(n) During the day, the door to Room 1 (from Room 3) was kept open, to allow the retrieval of relief devices and other items.
(o) She moved the email she sent to Ms Date to the Archive folder. There are two ways someone could find it. Accessing the Archive folder. Or conducting a search of the contents of the email, such as a search for ‘Kerry Date’, which would return all emails sent to and received from Ms Date.
39 In reexamination, Ms Kamalanathan gave the following evidence:
(a) She never took the workphone home.
(b) She did not move the Email.
(c) She found the Email in the Archive folder.
(d) She moved the email she sent to Ms Date to the Archive folder. The email is visible in the Archive folder and can be forwarded from the Archive folder.
40 In response to some clarifying questions from the Board, Ms Kamalanathan gave the following evidence:
(a) On Friday 19 May 2023, she left her workphone on one of the two desks in Room 1. Both desks are next to the wall. The desk that she left her workphone on was the one ‘in the entrance side of the room’.
(b) The three main devices she used at KSHS were the laptop (which she used every day for resolving IT issues), the workphone, and her personal mobile (which she used if she wanted to notify of taking leave, or other application, remotely).
(c) To access her emails on the laptop, she is required to enter a password. However, on the workphone and her personal mobile, she had her password entered in the Outlook app and therefore did not have to enter a password to open Outlook.
(d) She did not create the Archive folder; it is a default Outlook folder, like Inbox, Drafts, Sent Items, Deleted Items. At KSHS, she did not have any Outlook sub-folders; she just had the Outlook default folders.
Question 1: Where was Ms Kamalanathan’s work-phone on Monday 22 May 2023, 3:34pm when the Email was sent?
41 Ms Auzins gave evidence that it was KSHS policy for work phones to be left on school grounds if the employee was not working from home ([26(e)] above), and there is no suggestion that Ms Kamalanathan was required to, or ever did, work from home.
42 There is no dispute that Ms Auzins told Ms Kamalanathan that she was to keep her workphone at work and not take it home: [26(f)], [29(j)], and [37(b)] above.
43 Ms Kamalanathan gave evidence that Ms Auzins told her she could not password protect the workphone, it could not be taken home and should be stored in Room 1; and that she adhered to this instruction at all times, including on 22 May 2023: [37(b)–(e), (i)] and [39(a)] above.
44 Ms Kamalanathan’s evidence at [43] above, was not disturbed under crossexamination: [38‍(a)–‍(e), (g)–(i)] above.
45 Ms Kamalanathan’s evidence at [43] above, is consistent with:
(a) Ms Date’s evidence that during her telephone discussion with Ms Kamalanathan on 23 May 2023 Ms Kamalanathan told her the workphone had been left in Room 1 on 22 May 2023 ([29(f)] and [31(f)] above); and
(b) Ms Kamalanathan’s email to Ms Date sent on 31 May 2023, 1:27pm (Attachment 2 of the Investigation Report), stating (emphasis added):
On 22nd [May] I was not in Kelmscott School; I was in Jandakot School. … It is definitely sent to Karen through my work phone which I kept in back room by Karen. Usually, I don’t take my work mobile to home.
46 Ms Auzins gave evidence that Ms Kamalanathan was the first port of call for IT issues: [26(g)] above. This is supported by:
(a) Ms Date’s evidence that Ms Kamalanathan’s workphone was the IT helpdesk phone, and therefore, Ms Auzins had insisted that it was to be left at work, unlocked, and in Room 1: [29(j)] and [31(g)–(i)] above.
(b) Ms Date’s evidence that as Ms Kamalanathan was absent on 22 May 2023, Ms Auzins would have been checking Ms Kamalanathan’s workphone throughout the day pursuant to ‘the agreement’ that it was the IT helpdesk phone: [31(j)] above.
(c) Ms Kamalanathan’s evidence that the purpose of the workphone was for teachers to call if they were having ICT related issues: [37(d)] above.
47 Ms Auzins denied the rationale for requiring Ms Kamalanathan to keep her workphone at work was to allow it to be accessed if necessary, such as if Ms Kamalanathan was absent on sick leave, and someone had sent an email to Ms Kamalanathan as the first port of call for IT issues. Ms Auzins said that if Ms Kamalanathan was absent that she would not know ‘what was needed to be done’: [26(g)] above.
48 The Board finds Ms Auzins’ evidence at [47] above is implausible and inconsistent with the phone being used as the helpdesk phone. It is also inconsistent with the evidence at [41]–‍[46] above.
49 Considering the consistency of the evidence at [41]–[46] above, and the implausibility of the evidence at [47] above, the Board finds that Ms Kamalanathan left her workphone in Room 1 on Friday 19 May 2023. Accordingly, the Board finds that on 22 May 2023, 3:34pm, Ms Kamalanathan’s workphone was in or near Room 1.
Question 2: Was the Email sent from Ms Kamalanathan’s work-phone?
50 In the Initial Response, Ms Auzins says that she was dumbfounded ‘that [Ms Kamalanathan] would forward me the email’ and the Email ‘was originally sent to me by [Ms Kamalanathan] herself’: [17] above.
51 There is no dispute that during their discussion on 23 May 2023, Ms Date asked Ms Auzins how she knew about Ms Kamalanathan’s email of 18 May 2023, 10:06pm and Ms Auzins said that Ms Kamalanathan had sent it to her: [25(o)], [26(l)], [29(a)–(b)] above.
52 As outlined at [50]–[51] above, it is agreed that Ms Kamalanathan’s email of 18 May 2023, 10:06pm was forwarded to Ms Auzins’ Departmental email on 22 May 2023, 3:34pm. It is also agreed that the Email was forwarded from Ms Kamalanathan’s Departmental email account to Ms Auzins’ Departmental email account. The only issue for determination under Question 2 is whether the Email was forwarded from Ms Kamalanathan’s Departmental email account using her workphone. The issue of who forwarded the Email will be addressed in the section addressing Question 3.
53 Ms Kamalanathan gave evidence that she mainly used three devices to access her Departmental emails: her laptop, personal mobile, and the workphone: [37(f)–(g)] and [40(b)] above.
54 Ms Kamalanathan testified that if an email was forwarded from her laptop, it would contain her Departmental signature block, and if an email was forwarded from her personal mobile, it would display ‘Get Outlook for IOS’. As the Email states, ‘Sent from Outlook Mobile’, she knows it was sent from her workphone: [37(m)–(n)] above. Her evidence on this point was not disturbed on crossexamination: [38(l)] above.
55 Ms Kamalanathan’s evidence at [54] above, that the Email was sent from her workphone was further corroborated by Ms Date’s testimony, that when Ms Kamalanathan returned the call on 23 May 2023, Ms Kamalanathan mentioned that the Email had been sent from her workphone because it displayed ‘Outlook Mobile’ on it: [31(f)] above.
56 In light of the consistency of the evidence presented in [54]–[55] above, the Board finds that the Email was sent from Ms Kamalanathan’s workphone.
Question 3: Can the CCTV footage be relied upon to substantiate the allegation that Ms Auzins accessed Ms Kamalanathan’s work-phone when the Email was sent?
57 As outlined at [49] and [56] above, the Board has found that the Email was sent from Ms Kamalanathan’s workphone, which was in or near Room 1 on 22 May 2023, 3:34pm.
58 There is no dispute that Room 1 can be accessed via an external door (Door 8) and via Room 3: Respondent’s Document 1.
59 Ms Date’s evidence, which was not challenged, was that she had downloaded and reviewed the CCTV footage of Door 8 for 22 May 2023, and while she observed a contractor exit via Door 8 around 3:00pm, she did not see anyone enter via Door 8 on that day: [31(e)] and [32(a)] above.
60 Consequently, this only leaves open the possibility of access to Room 1 via Room 3.
61 Ms Date’s evidence was that she had accessed the CCTV footage for the entrance to Room 3, reviewed it for the relevant period, and was satisfied that no one other than Ms Auzins was in Room 1 and Room 3 as a combined area when the Email was sent: [31(e)] and [32(a)] above.
Access to Room 1 from Room 3
62 The CCTV footage is consistent in showing Ms Auzins entering Room 3 at 3:28pm and exiting at 3:37pm, as recorded in the Statement of Agreed Facts [5]–[6].
63 There is no dispute that Room 1 is not visible from the CCTV footage: [30(i)] and [34(a)] above.
64 Ms Date stated that entry to Room 1 is straight ahead of the entry to Room 3: [31(b)] above. However, this contradicts the evidence of Ms Auzins, Mr Whitney, the still photos, and the CCTV footage.
65 Ms Auzins stated that upon entering Room 3, she had to ‘turn right’ to lead to the ‘doorway to the IT office’: [25(j)] above. This is consistent with Mr Whitney’s evidence that upon entering Room 3, the doorway to Room 1 is ‘slightly to the right’: [34(b)] above.
66 The Board notes that the still photos and CCTV footage appear to indicate that directly opposite the doorway to Room 3 is a redbrick wall, not a doorway.
67 The Board notes Ms Date’s evidence that she works in a different building to the Library, where Ms Auzins and Ms Kamalanathan worked. Therefore, the Board prefers the evidence of Ms Auzins, which is consistent with Mr Whitney’s evidence and with the still photos and CCTV footage, concerning the position of the door to Room 1 from Room 3.
68 Consequently, given the consistency of the evidence at [65]–[66] above, the Board finds that after entering Room 3, the entry to Room 1 involves a slight turn to the right.
69 It is not disputed that an apt description of the door between Room 3 and Room 1 are a fourpanel barndoor: [25(j)] and [31(c)] above.
70 At the hearing, Ms Auzins stated that the doors leading to and from Room 3 are ‘always locked’: [25(j)] and [26(w)] above.
71 However, the statement that the doors are ‘always locked’ is inconsistent with Ms Auzins’ earlier evidence, which included:
(a) The Initial Response, stating that Room 1 ‘was not locked during the day’ and was ‘unlocked and accessible from the library’s internal kitchen area’ ‘so again if her phone was left unattended it would have been open slather to anyone in that area’ and ‘Access to her workspace where she says her devices were kept, was freely accessible to anyone (internal/external access)’: [18] above.
(b) An email to Mr Whitney, at [20(d)] above, where Ms Auzins stated that there was ‘open access to the said workspace and phone from anyone within the school’.
(c) The CSA Letter stating that Room 3 is a ‘thoroughfare to the kitchen for staff and for staff to access other IT rooms and amenities. If the phone was in fact in the IT storeroom there any number of people who could have picked it up’: [23] above.
72 The doors being locked is also inconsistent with Ms Kamalanathan’s evidence that the door between Room 3 and Room 1 are kept open during the day: [38(n)] above.
73 In light of the consistency of the evidence presented in [71]–[72] above, the Board finds that the door between Room 3 and Room 1 was kept open during the day.
Could Ms Auzins have accessed Ms Kamalanathan’s workphone?
74 As outlined at [68] and [73] above, the Board has found that after entering Room 3, one must turn slightly to the right to enter Room 1, passing directly through an open doorway.
75 There is no dispute that the CCTV footage shows:
(a) Ms Auzins entering Room 3 and then turning to the right: [34(c)] above.
(b) Ms Auzins exiting via the Room 3 doorway nine minutes after entering: Statement of Agreed Facts [5]–[6].
(c) A contractor entering Room 3 at the same time as Ms Auzins and exiting 13 seconds after entering: Statement of Agreed Facts [5].
(d) Mr Walther entering Room 3 at 3:30pm and exiting 25 seconds after entering: Statement of Agreed Facts [6].
(e) Ms Auzins was the sole individual present in the area encompassing Room 3 and Room 1 at 3:34pm, the time when the Email was sent.
76 Ms Kamalanathan’s evidence was that her workphone was not password protected: [37(c)] above. Her evidence on this point was not disturbed during crossexamination: [38(e)] above.
77 Ms Kamalanathan’s evidence was that the Outlook app on her workphone was not password protected: [37(f)] and [40(c)] above.
78 Ms Kamalanathan testified that she moved her email to Ms Date to the Archive folder. She only had the default Outlook folders, comprising Inbox, Drafts, Sent Items, Deleted Items, Archive, etc. She explained that there were two ways the email could be found, either by accessing the Archive folder itself, or by using a search function to find an email containing a key term, such as the addressee’s name: [37(l)], [38(o)], [39(d)] and [40(d)] above.
79 Ms Date testified that since Ms Kamalanathan was absent on 22 May 2023, Ms Auzins would monitor Ms Kamalanathan’s workphone throughout the day: [31(j)] above. Given this agreement, it is not improbable that Ms Auzins may have come across the email during her monitoring of Ms Kamalanathan’s workphone, and the Board accepts that this is a plausible explanation.
80 In light of the evidence at [76]–[79] above, that:
(a) Ms Auzins was authorised to check Ms Kamalanathan’s workphone;
(b) the Outlook app on Ms Kamalanathan’s workphone was not password protected; and
(c) Ms Auzins was inside the area comprising Room 3 and Room 1 for a sufficient period of time (nine minutes),
the Board considers that it is not improbable that Ms Auzins accessed and sent the Email.
81 Ms Auzins has consistently denied sending the Email. In her Initial Response, she explicitly stated that she did not send the Email, and instead claimed that it was sent to her by Ms Kamalanathan: [17]–[18] above.
82 Ms Kamalanathan’s evidence indicated that she had not forwarded her email to anyone else, and did not intend for Ms Auzins to see it. In fact, Ms Kamalanathan claimed that there were no circumstances under which she would have wanted Ms Auzins to be aware of the email: [37(j)] above. This is consistent with Ms Date’s evidence that Ms Kamalanathan became ‘immediately … very upset’ when she called to ask if she had sent the email to Ms Auzins: [29(e)] above. Furthermore, the sentiments expressed in Ms Kamalanathan’s email to Ms Date, dated 31 May 2023, 1:27pm (Attachment 2 of the Investigation Report), support her account of not intending for Ms Auzins to see the email:
When I heard this, [it] was so frustrating for me. How could I like that someone look into my personal email. Definitely it is privacy breach. I feel like I want to cry loudly because I cannot work peacefully even though I left the school and stay away from her. It is so stressful.
83 In G v H (1994) 181 CLR 387 (G v H), 402, Deane, Dawson and Gaudron JJ stated:
[I]t is well settled that, in the course of the ordinary processes of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party’s case. And there may sometimes be an inference in criminal cases of ‘guilty knowledge’, in the sense of knowledge that the evidence cannot be explained in a way that is consistent with innocence. They are inferences that are to be drawn, if at all, in accordance with strict legal reasoning. In other cases, the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence. (footnotes omitted) (emphasis added)
84 Ms Auzins gave evidence that she first became aware of the Email upon returning from Room 3 to her office (Room 6) which she shared with the Media Officer. She said she discussed the contents of the Email with the Media Officer:
And what did you do when you became aware of the email?I was actually gobsmacked, because I didn’t even know that Ms Kamalanathan had resigned. Um, and I turned and asked the media officer, did she know if Ms Kamalanathan had resigned. Um, and she said, ‘No’. So I was basically – I was just absolutely gobsmacked, um, because we just – we had no idea that – that she was even leaving. So, um, we’d basically closed up, um, shut down the computers, went home …
85 After receiving the Email, Ms Auzins stated that she went home and spoke with her husband about the matter: [25(n)] above. According to her account, she did not speak with Ms Date about the Email that afternoon because Ms Date was scheduled to attend a regular Monday afternoon meeting, and in any case, Ms Auzins was feeling ‘gobsmacked’, and therefore wanted to go home and speak with her husband first: [27(c)] above.
86 The Board notes that, despite the onus of proof being on Ms Auzins at [5(b)] above, she did not call the Media Officer or her husband to corroborate her account of the matters at [84]–‍[85] above. In light of this, the Board considers that it is entitled to infer that their evidence would not have assisted Ms Auzins’ case, in accordance with the principles set out in G v H, 402 at [83] above.
87 Ms Auzins claims that she did not enter Room 1 at 3:34pm, because, according to her, it would be necessary to turn on the lights to see inside the room, and that if she had entered the room, the CCTV footage would have shown the room to be illuminated through the windows above Rooms 2 and 3: [25(l)] above.
88 The Board makes the following observations regarding the CCTV footage. Firstly, the footage captures the Room 3 doorway for the period 3:25:18pm–3:39:57pm. While the Board cannot discern a change in the windows above Rooms 2 and 3 on the CCTV footage in this period of time, there are several possible reasons for this.
89 One possible explanation is that, given it was undisputed that Room 1 was not visible in the CCTV footage, whether the lights in Room 1 are turned on is not something that is visible from outside of Room 1 including from the windows above Rooms 2 and 3.
90 Another possible explanation is that, contrary to Ms Auzins’ claim that the lights in Room 1 were not turned on, the lack of a change in the windows about Rooms 2 and 3 does not necessarily mean that the lights in Room 1 were not turned on.
91 Another possible explanation is that the lights in Room 1 do not need to be turned on for Ms Auzins to access Ms Kamalanathan’s workphone, particularly given Ms Kamalanathan’s evidence about the desk that she left her workphone on top of on Friday 19 May 2023, which was described as being ‘in the entrance side of the room’: [38(i)] and [40(a)] above. The Board interprets this to mean that Ms Kamalanathan was referring to a desk located at the ‘entrance’ to Room 1 from Room 3, for the following reasons:
(a) There is no dispute that Room 1 runs the length of Room 3: [26(w)] and [31(d)] above.
(b) Attachments 4–5 to the Investigation Report are photos taken of the inside of Room 1: [34(d)] above. Attachments 4–5 are lengthwise photos of Room 1, both taken facing Door 8.
(c) Given the finding at [68] above that the doorway to Room 1 is slightly to the right as you enter from the Room 3 doorway, and that Attachments 4–5 are lengthwise photos of Room 1, it is likely that both photos are taken near the doorway to Room 1 from Room 3.
(d) During the hearing, Ms Kamalanathan was taken to the Attachments 4–5 photos. Her evidence was that the desk depicted in the photos, that is against the wall, is the second desk she referred to as being in Room 1, but not the desk on which she left her workphone on 19 May 2023: [38(i)] and [40(a)] above.
(e) Ms Kamalanathan’s evidence was that the desk she left her workphone on is not captured in either of the Attachments 4–5 photos.
(f) Attachment 5 is a widershot of Room 1 than Attachment 4. While both Attachments 4 and 5 face Door 8, Attachment 4 only partially captures the righthalf of Door 8. Conversely, Attachment 5 captures what appears the whole inside wall of Room 1, including the whole of Door 8 and the wall immediately to the left of Door 8.
(g) There is no desk against the wall that is to the left of Door 8.
92 In any event, given the Board’s finding at [49] above, that Ms Kamalanathan’s workphone was in or near Room 1 on 22 May 2023, 3:34pm, the Board does not consider it is necessary to make any findings about the lighting in Room 1 at that time.
Credibility issues
93 The respondent submits that Ms Auzins’ dishonesty during the investigation and during these proceedings should be taken into account when assessing the Board’s acceptance of her testimony. Specifically, the respondent argues that Ms Auzins was dishonest in submitting a false timesheet to Mr Whitney to support her claim that she could not have sent the Email as she was not at KSHS at the time, and also in making representations to the Board that she had an unblemished work record.
94 The Board will address the alleged dishonesty concerning the submitted timesheet in this section, and the alleged dishonesty concerning Ms Auzins’ work record when addressing Question 4.
95 Ms Auzins says that after the Principal handed her the Complaint Letter on 16 August 2023 at about 2:00pm–2:30pm, she returned to her office and made a phone call to Mr Whitney: [25(p)] above. Under cross-examination, Mr Whitney’s evidence was that although he could not specify the exact time the Complaint Letter was served, he testified that he received a call from Ms Auzins ‘pretty soon afterwards’: (ts 80). Based on this consistent evidence, the Board finds that Ms Auzins was at KSHS when she telephoned Mr Whitney on 16 August 2023.
96 The finding at [95] above has significant consequences. It establishes that on 16 August 2023, when Ms Auzins telephoned Mr Whitney, she would have had access to her timesheet for 22 May 2023 saved on the S drive, as well as a separate copy of her timesheet which she had claimed was to track her TOIL: [26(p)] above. This means that Ms Auzins would have had the opportunity to readily verify her whereabouts on 22 May 2023, prior to her phone call to Mr Whitney, in which she denied being at KSHS, and prior to submitting a timesheet to support her claimed absence.
97 An examination of the timesheet provided by Ms Auzins reveals an internal inconsistency. Specifically, the timesheet spans a 5-week period during which, apart from 27 April 2023 when she left work early to visit her father, Ms Auzins consistently took her lunchbreak at the same time every day, namely 12:45pm–‍1:15pm. However, on 22 May 2023, the timesheet she submitted recorded her lunchbreak as occurring at a different time, specifically 12:45pm–‍1:30pm. Under cross-examination, Ms Auzins was unable to provide a satisfactory explanation for this anomaly: [26(s)(i)] above.
98 Notably, the timesheet provided by Ms Auzins is identical to the KSHS timesheet in all respects, apart from a single entry for 22 May 2023, which records her lunchbreak at a different time and records her finishing work at 4:00pm. Under cross-examination, Ms Auzins was unable to provide a satisfactory explanation for this anomaly: [26(t)] above.
99 Ms Auzins claims that she kept a personal copy of the KSHS timesheet to keep track of her TOIL: [26(p)] above. However, this claim does not provide any plausible explanation for the discrepancy in the entry for 22 May 2023, as there is no record of her accruing or taking TOIL on that day.
100 In the Initial Response, Ms Auzins says she was ‘dumbfounded’ by the Email, and that the ‘the context of the email was extremely defaming towards myself’: [17] above. She says the only reason she did not speak with Ms Date on 22 May 2023 was because Ms Date was in a senior staff meeting: [25(n)] above. She says she was ‘gobsmacked’ by the Email, and that while she had contemplated making a complaint about Ms Kamalanathan to SID for some time, that thought became stronger after receiving the Email: [26(k)] above. Further, it was only after speaking with Ms Date on 23 May 2023, who advised her not to worry about the Email, that she ‘let go’ of the idea of making a complaint against Ms Kamalanathan to SID: [27(b)] above.
101 Ms Auzins’ evidence contradicts her own assertions. She claimed that the Email had a profound impact on her, leading her to speak with the Media Officer and her husband about it on the day she received the Email, and with Ms Date about it the following day. Furthermore, she stated that she had intended to lodge a formal complaint against Ms Kamalanathan with SID, but later decided not to pursue the matter after speaking with Ms Date. In light of this, it is inexplicable that Ms Auzins would later claim to Mr Whitney that she was not at work on the day she received the Email, given that on her own assertions she had discussed the Email with the Media Officer near the time of its receipt while they were both in Room 6 and had discussed the Email with her husband upon returning home from work on the day of receiving the Email, and had discussed the matter with Ms Date the following day.
102 The matters at [96]–[101] above:
(a) Call into question the veracity of Ms Auzins’ statement to Mr Whitney on 16 August 2023 that she was not at work on 22 May 2023 and could prove it. Mr Whitney describes Ms Auzins as being certain in her call to him; that she was clearly communicating that she was not at KSHS on 20 May 2023 and had proof: [35(c)] above.
(b) Lends weight to the respondent’s submission that Ms Auzins fabricated a timesheet to demonstrate her absence on 22 May 2023.
103 The respondent says that Ms Auzins only resiled from her reliance on the timesheet submitted to Mr Whitney on 17 August 2023 as proof of her absence on 22 May 2023, through the CSA Letter sent 17 November 2023.
104 Ms Auzins says she clarified the timesheet issue with Mr Whitney during a subsequent telephone call, prior to the CSA Letter: [25(q)] and [26(u)] above. However, there is no record of this telephone call in either the CSA Letter or Ms Auzins’ outline of evidence filed on 16 May 2024. To the contrary, the outline of evidence states that Ms Auzins will provide the following evidence at the hearing (emphasis added):
g. Description of her responses provided in the disciplinary process.
…
vii. That she did not seek to correct the discrepancy within the timesheets nor why she initially believed she may have been absent on the afternoon of 22 May 2023.
viii. That this information was corrected on 17 November 2023 in the response to proposed outcomes letter which was issued on her behalf by the Civil Service Association.
ix. That she had not acted with an intent to deceive at any point.
x. That her initial responses were influenced by significant stress the complaints letter had caused her and a genuine attempt to provide all relevant information as quickly as possible, leading to an oversight in this occurrence.
105 Mr Whitney does not recall a second telephone call. He believes all contact with Ms Auzins after their first call was via email, until he received the CSA Letter: [33(d)–(e)] and [34(h)] above. Mr Whitney says that all telephone calls are recorded by him, and if the contents of the call are relevant to the investigation, it would end up in the Investigation Report: [34(h)], [35(b)] and [36(a)–(b)] above. The Board notes that Mr Whitney’s evidence on relevant telephone calls being referenced in the Investigation Report is supported by the following statement in the Investigation Report (emphasis added):
On 16 Augst 2023, Ms Auzins was issued with a Complaint Letter and responded immediately by phone to SID and subsequently via email. (Attachments 7 and 8).
106 Applying the principles established in Briginshaw at [9] above, the Board has carefully considered the evidence presented at [95]–[105] above, and finds, after a detailed examination, that the more probable explanation of all the evidence is that Ms Auzins ‘did not seek to correct the discrepancy within the timesheets nor why she initially believed she may have been absent on the afternoon of 22 May 2023’ ([104] above) until the CSA Letter, and was dishonest when she told Mr Whitney that she could not have sent the Email because she was not at work on 22 May 2023 and could prove it with a timesheet. The Board also finds that the more probable explanation of the unexplained differences in the timesheets is that Ms Auzins fabricated a timesheet to support her claim that she was not at work on 22 May 2023.
Conflicting witness accounts
107 Ms Auzins says when she mentioned the Email to Ms Date on 23 May 2023 that Ms Date said she had not read Ms Kamalanathan’s email. She says she asked Ms Date if there was anything in the Email that she needed to be worried about and Ms Date said no: [25(o)] above. She denies that she mentioned the Support Services position during this discussion: [26(i)] above.
108 Ms Date says that during the discussion on 23 May 2023, that Ms Auzins mentioned the Email and the Support Services role as a solution that would make everyone happy: [29(a)] above. According to Ms Date, Ms Auzins displayed a calm demeanour and did not express any concerns or worry about the Email, nor did she ask about taking any action in relation to the Email: [29(b)–‍‍(c)] above. Notably, Ms Date denied ever advising Ms Auzins not to worry about the Email, contrary to Ms Auzins’ claim, because Ms Kamalanathan was leaving KSHS: [29(d)] above. Ms Date explained that, having previously read Ms Kamalanathan’s email to her, after Ms Auzins left her office she remained in her office, opened it again to verify, and then made a phone call to Ms Kamalanathan to confirm whether Ms Kamalanathan had forwarded the email to Ms Auzins: [29(e)] above.
109 Ms Date’s evidence remained undisturbed under cross-examination: [30(f)–(g)] above.
110 The Board has given more weight to the evidence provided by Ms Date at [108] above. Ms Date’s evidence was presented in a straightforward and consistent manner, providing a clear and credible account of the events surrounding the Email and her discussion with Ms Auzins’ about it.
111 Ms Auzins maintains that Mr Whitney did not tell her to contact her union for advice: [25(p)] and [26(o)] above.
112 Mr Whitney says when Ms Auzins called and said she could prove she was not at school on the day the Email was sent, he became instantly suspicious because he had already obtained the CCTV footage, which showed that she was, in fact, at school that day. In response, he advised her to seek advice from the union: [33(a)–(b)] above.
113 Mr Whitney’s evidence was not disturbed under crossexamination: [34(g)] above.
114 As outlined at [5(a)] above, the appeal is a de novo hearing. Given this, the Board is unclear of the import of Ms Auzins’ assertions that Mr Whitney did not tell her to seek advice from the union. Nevertheless, the Board notes that Ms Auzins’ email to Mr Whitney at [20(d)] above mentions that she was serving as a union delegate. Therefore, the Board considers it highly improbable that Ms Auzins would be unaware of her rights to contact her union for advice.
115 In light of these circumstances, the Board has given more weight to the evidence provided by Mr Whitney at [112] above. The Board considers Mr Whitney’s account of the discussion to be the more probable account of events, and thus prefers his testimony over Ms Auzins’.
116 Taking into account the consistent evidence provided by Ms Date, Mr Whitney and Ms Kamalanathan, as well as the credibility findings at [106] above, the Board finds that Ms Auzins’ claim that Ms Kamalanathan sent the Email is highly improbable. The lack of corroboration for this assertion, combined with the credibility findings, means that Ms Auzins’ assertion cannot be accepted without additional supporting evidence.
Findings in relation to Queston 3
117 In the circumstances, the Board finds Ms Auzins’ denial that she sent the Email to be highly improbable. Consequently, the Board draws the following conclusions:
(a) On 22 May 2023, 3:34pm, Ms Kamalanathan’s workphone was in or near Room 1: [49] above.
(b) The Email was sent from Ms Kamalanathan’s workphone: [56] above.
(c) Neither Ms Kamalanathan’s workphone, nor her Departmental email account on the workphone, were password protected: [76]–[77] above.
(d) Given the agreement that Ms Kamalanathan’s workphone was to be used as the IT helpdesk phone, it is not improbable for Ms Auzins to have found the email during the course of the day: [79] above.
(e) In any event, given the door to Room 1 is slightly to the right of the Room 3 entry and the door to Room 1 is kept open during the day, and given the CCTV footage shows Ms Auzins entering Room 3 and heading towards the right and remaining inside that area for nine minutes, there was sufficient time for Ms Auzins to access and forward the email: [68], [74], [75(a)–(b)] and [80] above.
118 For the reasons at [117] above, the Board finds that Ms Auzins accessed Ms Kamalanathan’s workphone on 22 May 2023 and sent the Email.
119 This means Complaint 1 and Complaint 2 outlined in the Complaint Letter (Statement of Agreed Facts [8] at [11] above) are found to be substantiated.
Question 4: Do Ms Auzins’ personal circumstances and employment history render her dismissal disproportionate in the circumstances?
Ms Auzins’ work record
120 Ms Auzins asserts in the Form 8B that she ‘has not previously been the subject of disciplinary or performance processes’, and in her legal submissions that she ‘has provided 17 years of good service to the Respondent, without any documented performance concerns.’
121 However, the Investigation Report refers to Ms Auzins’ prior disciplinary matters: [22] above.
122 Under cross-examination, Ms Auzins agreed she was the subject of Improvement Action in relation to the first of the two prior disciplinary matters noted in the Investigation Report: [26(b)] above.
123 Under cross-examination, Ms Auzins suggested that the second of the two prior disciplinary matters noted in the Investigation Report was not treated as a disciplinary matter by the Principal and Ms Date: [26(c)] above.
124 In relation to the second of the two prior disciplinary matters noted in the Investigation Report, Ms Date says she received complaints from various staff members regarding Ms Auzins conduct. While Ms Auzins denied the conduct, Ms Date had three witnesses corroborating the conduct, and she and the Principal relayed to Ms Auzins their expectations of not intimidating colleagues: [29(k)–(l)] above. Ms Date’s evidence was not disturbed under cross-examination: [30(e)] above.
125 The Board finds Ms Date’s account of the second of the two prior disciplinary matters to be more probable than Ms Auzins’ account.
126 In the circumstances of the matters at [121]–[125] above, the Board agrees with the respondent’s submission that it cannot place any weight on Ms Auzins’ claims at [120] above that she has no prior disciplinary record and therefore her conduct on 22 May 2023 does not justify her dismissal. Furthermore, the Board considers that the two prior disciplinary matters, when assessed alongside the issues at [106] above, lead the Board to conclude that Ms Auzins’ misconduct on 22 May 2023 justify her dismissal.
Other grounds of misconduct
127 In Byrne v Australian Airlines Limited (1995) 185 CLR 410 (Byrne), Brennan CJ, Dawson and Toohey JJ, 430 said:
And facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable: see Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456.
128 On 31 May 2024, the respondent filed their outlines of evidence, stating that Ms Date would give the following evidence at the hearing:
When Ms Auzins was asked to hand in her phone and keys at the time of her dismissal, she did not hand in the iPhone that the school had purchased, and instead handed in an old iPhone which the school’s asset software shows is registered to another staff member. Ms Date will refer to the tax invoice and purchase order form (Respondent’s Document 2) which shows that the phone’s serial number does not match the serial number of the phone that was returned. Ms Date is not aware that Ms Auzins has otherwise handed the phone back.
129 Ms Auzins gave evidence that she returned the Departmentissued phone in 2021, and since that time, was using the Departmentissued SIM in her personal phone: [26(v)] above. She says that Ms Date knew she did not have a Departmentissued phone and was using her own: [26(v)] above. She also gave evidence that Ms Lindley and Mr Horton could corroborate her account: [28(a)] above. Further, that she could corroborate her account that she did not have a Departmentissued phone from her Telstra records: (ts 47).
130 Ms Date says she is satisfied from her discussions with Ms Auzins about her phone, and from her investigations resulting in the production of Respondent’s Document 2 and enquiries of other staff members, that the phone referenced in Respondent’s Document 2 was issued to Ms Auzins. Ms Date says that Ms Auzins was responsible for recording the serial number in KSHS’ records, and that the phone is not recorded and is not in KSHS’ possession: [29(g)–(i)] above.
131 By the respondent’s outline of evidence at [128] above, Ms Auzins was put on notice that Ms Date intended to give evidence that Ms Auzins remained in possession of KSHS property. However, despite this, and in light of the documentary evidence and testimonial accounts Ms Auzins says she could call in support, she failed to present any corroborating evidence to support her account of having returned the Departmental phone and using her personal phone. Moreover, Ms Auzins had a reasonable opportunity to produce such evidence between receiving the respondent’s outline of evidence and the commencement of the hearing, yet she chose not to do so.
132 Applying the principle established in G v H, 402 at [83] above, the Board finds it is entitled to infer that the supposed corroborating evidence would not assist Ms Auzins in any way.
133 Furthermore, applying the principle established in G v H, 402 at [83] above, the Board finds a ‘more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence’. As a result, the Board finds that Ms Auzins has failed to return the Department’s iPhone 12 Pro Max.
134 The conduct attributed to Ms Auzins at [133] above came to light after her dismissal, and constitutes conduct that could have justified her dismissal, as noted in Byrne at [127] above.
Findings in relation to mitigating circumstances
135 Given the findings at [118]–[119], [126] and [134] above, the Board does not consider that the decision to dismiss Ms Auzins was harsh, oppressive or unjust. It was not an abuse of the employer’s right to dismiss in the sense discussed in Miles v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.
136 After considering Ms Auzins’ misconduct in the context of her 17 years of service and employment history, the Board finds that there are no sufficient mitigating factors to justify adjusting the dismissal in light of all the circumstances.
Conclusion
137 For the preceding reasons, the Board concludes that Ms Auzins has failed to discharge the onus on her to demonstrate to the Board that the decision to dismiss her should be adjusted.
138 Accordingly, the Board will order that PSAB 25 of 2023 be dismissed.