Bedran v Gold Coast City Council [2013] QIRC 3

CITATION: Natalia Bedran AND Gold Coast City Council (TD/2011/61) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Natalia Bedran AND Gold Coast City Council (TD/2011/61) DEPUTY PRESIDENT SWAN 11 January 2013 DECISION [1] This application is made by Ms Natalia Bedran [the applicant] pursuant to s.74 of the Industrial Relations Act 1999 [the Act]. [2] Ms Bedran claims to have been unfairly dismissed by the Gold Coast City Council [the respondent]. This application seeks relief from the respondent's decision. [3] The specifics of that relief are: • Reinstatement to her former position; • Lost remuneration from the day of the dismissal to the date of reinstatement; • Compensation; • Costs of and incidental to the application, and • Such other order as the Commission considers appropriate. Relevant Legislation [4] Section 73 of the Act provides as follows: "73 When is a dismissal unfair (1) A dismissal is unfair if it is - (a) harsh, unjust or unreasonable; or (b) for an invalid reason.". [5] Section 77 of the Act provides as follows: "77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider - (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to - (i) the operational requirements of the employer's undertaking, establishment or service; or (ii) the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance - (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant.". [6] Section 79(1) of the Act provides as follows: "79 Remedies - compensation (1) If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission.". -- 1 of 8 -- 2 Background [7] The applicant commenced employment with the respondent on 7 July 2008. Prior to that, she had worked as a contractor for five months. [8] Counsel for the applicant explained that English was not the applicant's first language. [9] At the time of her dismissal, the applicant was employed by the respondent as a Level 4 Data Officer in a full- time capacity. The respondent says the duties "were primarily to manage incoming client data, and to ensure that it was appropriately managed in accordance with the requirements of the respondent" [Respondent's submissions – point 6]. [10] The applicant holds a Australian Bachelors Degree and a Masters qualification in Computer and Information Science. Respondent's reasons for dismissal [11] The applicant was dismissed by the respondent on 30 September 2011 for the following reasons: - " (a) a wilful disregard for the directions of the Respondent; (b) a lack of honesty and forthrightness in her communications with the Respondent and an express intention to disregard the Respondent's direction and control in the manner in which she conducted herself as a representative of the Respondent; (c) failure to comply with the policies of the Respondent, including and in particular the information and communication technology (ICT) resourced usage policy. Appendix C "Conditions of Use" says Council's ICT resources are provided to conduct official business and for professional development and limited personal use. Authorised official use is to assist in carrying out the work of Council and authorised professional use includes work to support professional development with authority from the relevant director or manager. The Applicant was directed to use iSPOT only for work purposes and continued to do otherwise. The Applicant's activities constituted unauthorised use outside the limits of an official or professional use and were not also within the definition of use for limited purposes; (d) a mis-statement of her rights pursuant to relevant legislation and policy to access the documentation of the Respondent; (e) a fundamental destruction and abdication of responsibility for her actions as an employee of the Respondent; (f) a misuse of confidential information in breach of the LG Act; and (g) a failure to act appropriately and bring concerns in relation to document access to the immediate attention of the Respondent and provide the Respondent with an opportunity to address and rectify the issue." [Respondent's submissions - point 52]. [12] A more succinct summary of the respondent's reasons for the dismissal of the applicant are as follows: "She was dismissed, my client says, as a result of her accessing a range of documents in breach of the direction that she was given in February 2011 and the earlier letter that was provided back to her in – back in 2010. There is a raft, on my case, of examples of her breaching that direction" [T5 - 68]. [13] The respondent also states that the applicant was notified of the reasons for her dismissal. She was also aware that the dismissal related to her conduct in the course of her duties with the respondent and she was provided with more than one opportunity to respond to the allegations about her conduct, and also able to respond to the proposed penalty [Respondent's submissions - point 53] . Brief overview of applicant's claim [14] While the respondent clearly relies upon its detailed reasons for dismissing the applicant [and these relate to events prior to and after 19 October 2010 meeting] the applicant also upon what she terms her "pre-September 2010 claims" and these include: • she was bullied by her workplace coordinator Wayne Mackey and given insufficient training to complete tasks; • she was asked to perform tasks beyond her role and level of employment; • she was presented with unrealistic expectations in regard to her workload; • she was not paid at the correct pay grade for the work she was required to perform; -- 2 of 8 -- 3 • she was denied unfairly another position within the corporate structure, though this claim did not arise until late in 2010 after September. [Applicant's submissions - point 3] [15] Relative to these pre-September 2010 issues, the applicant claims that there is a nexus between those issues and the post-September 2010 claims. Issues concerning D/2010/136 [a dispute lodged by the applicant] [16] It was noted, at the commencement of this hearing, that the applicant had previously lodged a dispute [D/2010/136] before the Queensland Industrial Relations Commission (QIRC). [17] On 4 November 2011, the legal firm representing the respondent wrote to the applicant's solicitor stating, inter alia, "Please note that as your client has now raised the same issues as part of a reinstatement application our client will seek the discontinuance of this industrial dispute on the basis that it's incorporated into TD/61/2011, and as your client is no longer an employee of Council it cannot be properly maintained." [18] The applicant believed the wages claim contained in the dispute notification and in this reinstatement application should be considered for the purpose of ensuring that all matters pertaining to the applicant could be determined expeditiously. [19] The applicant said that the wages component of the claim should be viewed as a 'separate issue' "because if reinstatement is not made but an order for compensation is made, that's limited to six months, as you know. So this would need to be a separate application heard distinct from compensation and the reinstatement claim". [T4 -7] [20] The respondent raised jurisdictional issues if the applicant's request was to be granted. D/2012/136 had not been referred to arbitration and as the applicant was no longer an employee of the respondent, then the question as to whether the applicant could do anything with the dispute [with the exception of the wages claim] was now negated. I accept the respondent's submissions on this point. [21] To this end the Registrar of the QIRC wrote to the applicant on 12 April 2012, stating inter alia, "…Section 229 of the Industrial Relations Act 1999 provides that a dispute can only exist between an employee and an employer. As you are no longer employed by the Gold Coast City Council it is not possible to re-open D/2010/136." [22] It is clear that a claim for unpaid wages could still be pursued by the applicant if she wished, but this would require a separate application pursuant to s.278 of the Act. [23] It was determined at this point that the wages component of the applicant's claim would not be heard in this reinstatement application. Matters to be considered in this application [24] The applicant has raised issues in her affidavit which she believes to be relevant to the reinstatement claim and those matters will be duly addressed by the Commission. The applicant's pre-September 2010 claims [25] The applicant's evidence references a number of grievances against respondent management over some time prior to the termination of her employment. [26] Counsel for the applicant says that a reference to these grievances is necessary as in the warning letter sent by the respondent to the applicant on 22 August 2011 it was stated: "Your employment history with the Council….. In considering the appropriate disciplinary action, including whether there is any mitigation against termination of employment, council will consider your employment history". [27] While working for Mr Mackey (Ms Bedran's manager, Level 8), the applicant said that she was required to investigate missing council assets within the AM system. The applicant said she brought her findings to Mr Mackey and other managers, and in particular Mr Michael Glaser. Mr Glaser was head of the Spatial Information Services Department. At that time, the applicant acknowledged that if she was confused about which documents on the iSpot system could be accessed by her, then she could ask Mr Glaser. [T5 - 10] -- 3 of 8 -- 4 [28] The applicant acknowledged that her work was as a data officer within Spatial Information Services. She accepted that she was not employed in Human Resources, or in the respondent's legal services department and that the direction given to her was that access to documents could only be made to matters which directly related to her work in relation to physical respondent assets. [29] The applicant said that she was required to perform her Level 4 work as well as this extra work. The extra work to be performed was, in the applicant's view, work which should be performed at a higher level. [30] When raising these issues with Mr Mackey, the applicant claims that Mr Mackey shouted at her "It's your job". The applicant said she was stressed by this altercation with Mr Mackey and on 14 July 2010 she took stress leave and returned to work on 18 August 2010. [31] Upon her return to work, the applicant lodged a formal Grievance Complaint with the respondent about Mr Mackey. [32] In pursuing this complaint, the applicant met with Ms Karrin Leishman [Human Resources Officer] and Ms Karen Vought [Chief Information Officer]. [33] During the course of discussions with both Officers, the applicant was questioned about her access to two "improperly secured documents in September 2010". The applicant said she was the one who had told the Officers about finding the documents. One document was titled "Notification of Expectation" and it related to a letter written by Mr Glaser to Mr David Bell. The respondent says that the document makes no reference to iSpot and the applicant's claims with regard to security matters should be disregarded. [34] The applicant admitted that she had accessed these documents. She said that the Council's independent investigator, who had been engaged by the respondent to investigate the applicant's complaint about Mr Mackay, had advised her to find material to support her claim. The applicant believed that she was doing no more than that. [35] The respondent says that when the applicant's actions had been brought to its attention (i.e. that she had obtained copies of confidential information which related to other employees of the Respondent), the applicant was directed in writing to confine her access to the Respondent's documents that directly related to the performance of her work, and that she was not to access private and confidential documents. [GW Affidavit – para 8 and 9 and Annexure D] [36] On 23 September 2010 and 19 October 2010 the applicant was awaiting an outcome regarding her grievance against Mr Mackey. This investigation had been undertaken by Mr Bill Davis. The applicant had requested a copy of Mr Davis' report and this had been denied by the Council. The applicant sought to find the report on the respondent's computer system. The applicant searched the invoices tendered by Mr Davis to the respondent. The applicant viewed this course of action as relevant to her work because "It's Council's library and as a Council employee, according to the Council policy, I can access all documents that Council has in its possession." [T5 - 80] [37] The applicant was informed by Ms Vought that her alleged document breach had been reported to the Council's Fraud Prevention Adviser, Mr Martens. [38] The respondent says this occurred because it viewed the applicant's actions as being sufficiently serious as to commence disciplinary proceedings against her. After fully considering its position, the respondent determined to issue a first and final warning to the applicant directing her "not to access documents which had no relevance to her employment, that impact on other employees or are not necessary for the completion of the applicant's role." [Respondent's submissions, point 27] [39] Mr Martens reported the applicant's access to confidential documents to the Crime and Misconduct Commission (CMC). [40] The respondent stated that ultimately it had sought to close the CMC complaint. The applicant found it surprising that there appeared to be no resolution of the CMC matter, but believed it was because the respondent felt it was in a difficult position as it was not ensuring the security of its own documents on its own computer system. [41] In October 2010, the applicant was advised that Mr Martens' report had found no evidence to support the applicant's claims against Mr Mackey. [42] The applicant disputed the outcome of Mr Martens' report. Ms Vought sent a letter entitled "Request for Explanation" to the applicant in October 2010. -- 4 of 8 -- 5 [43] On 19 October 2010, the applicant had a meeting with Ms Vought. The applicant's version of events is that Ms Vought told her that she had no other choice but to terminate her employment. Ms Vought's evidence was that she had not terminated the applicant's employment, but that she may have advised the applicant that termination of employment could occur after all matters were investigated. This version of events was corroborated by a Union representative present at the meeting. [Exhibit 38] [44] Ms Vought's evidence was that she had no authority to terminate the services of the applicant and, in any event, the applicant continued working beyond that date. [T7 - 19] [45] On the following day, the applicant was absent from work on stress leave. [46] The applicant returned to work on 20 November 2010 and on 23 November 2010 she lodged an industrial dispute with the QIRC against the respondent. [47] On 17 February 2011, the respondent wrote to the applicant and attempted, in that correspondence, to deal with a range of issues concerning the applicant. Those issues included the applicant's conduct during investigation, the management of her complaints, and specifically the identification of the issue of her inappropriate access to the iSpot system. [48] Significantly, in that letter the respondent states that it has given the applicant a 'clean slate' in relation to prior matters. The only qualification was that the applicant was on notice that if she continued to access confidential information, then disciplinary action would be taken against her and that this could result in termination of employment. [49] I have accepted the respondent's submissions that its 'clean slate' comments brought to an end those prior matters. [50] Direct questions put to the applicant by Counsel for the respondent highlight that the applicant was aware that any further accessing of inappropriate documentation could lead to her dismissal. These questions were …. Counsel – as at 17 February 2011 you were aware that you were directed not to access documentation that had no relevance to your employment? Applicant - Yes Counsel – You were aware that you were directed not to access documentation which impacted on other employees? Applicant - Yes Counsel – You were directed, weren't you? Applicant - Yes Counsel – And you were aware of that? Applicant – Yes Counsel – You were aware that you were not to access documentation that wasn't necessary for the completion of your role? Applicant – Yes Counsel – And you were aware that you were not to access irrelevant, private and confidential information? Applicant – Yes [T5 - 17, 18] [51] In response to a further question from the respondent that the embargo on accessing documents included those entitled "Private and Confidential", the applicant responded by claiming that the mere reference that something was "private and confidential" did not necessarily reflect the document's true nature. For example, the direction, in her view, only applied to documents that were in their nature private and confidential. [52] The applicant was shown by the respondent a number of documents which had a covering page which recorded the access history for that document. On that page were the dates and times of access by the applicant and other employees. The applicant admitted accessing Exhibit 4 on two occasions. That document was entitled "Private and Confidential – Bedran – Legally Privileged Advice". -- 5 of 8 -- 6 [53] The applicant acknowledged that the document was one which should be secured, (in effect, not accessible by employees) but she in fact saved it onto a pen drive and then printed the document. [54] Similarly, for Exhibit 5. The applicant accessed this document which was entitled "Private and Confidential". [55] Exhibit 6 was a document entitled "Private and Confidential" as was Exhibit 8. The applicant was aware that this document related to communication from the respondent's solicitors and continued to open the document. [56] Rather than traverse through all the documents accessed, there were occasions when the applicant denied opening a particular document, but generally the applicant accepted that she had opened documents in the course of searching for and collating materials for her industrial dispute and her Q-Comp application. [T5 - 84] [57] The applicant had also accessed documents which related to other employees – e.g. Ms Rossi. The applicant claimed that Ms Rossi had complained about her to management and in return was somehow awarded higher duties by the respondent. Within that context, the applicant believed that she could access Mrs Rossi's higher duties form as it was work related. [58] There were a bundle of 16 pages of documents over which the respondent had claimed legal professional privilege. The applicant had saved those documents on a USB and then printed and provided the bundle to the Commission on 17 September 2012. The applicant had stated that they were the only documents of that nature which had been printed and filed with the Commission. [59] Counsel for the respondent then showed the applicant a further bundle of documents which it says were legally privileged documents which had been filed in the Commission. The applicant said she had destroyed those documents because her previous legal adviser was involved in an argument with the respondent's solicitors and there had been mention of a Supreme Court action by the respondent's solicitors against her. [60] In all, the applicant admitted that she had saved and printed 55 pages of documents which, to the respondent, were classified as confidential documents, under various headings, which were the property of the respondent. [61] The applicant had stated that the file part number system for various folders on the iSpot system entitled her to access those files as the number on the files was her personnel file number. However, Mr Wicks in his evidence stated that the part file number for the applicant's personnel file was not the same sequence of numbering which appeared on any of the documents history sheets covering exhibits 4-15 and that each division within the Council, such as legal services, had its own files, such as litigation, grievance files and discrimination matters. [Respondent's submissions - point 141] [62] The respondent states that it was the continuation of inappropriate accessing of confidential information on its iSpot system which caused the termination of the applicant's employment.. Issues surrounding applicant's access of confidential documentation [63] The iSpot is a Document Management System used by the respondent. [64] The applicant's role was to deal with spatial information involving two programs, Map Info and Asset Manager. [T4 - 23] [65] It is not contested that the applicant retrieved information from the iSpot system. It is not contested that many documents accessed were entitled "Private and Confidential", "Privileged", "Private and Confidential – Bedran – Q Comp amongst other headings. [66] It is conceded by the respondent that there was a problem with its iSpot system at that time. Notwithstanding that, the applicant was directed not to access such documents. Many of the documents related to dealings the respondent was having with its solicitors concerning the applicant and in its view were documents which had legal professional privilege attached. [67] The applicant says the respondent had waived its legal privilege over those documents as they were available for any employee to see on its iSpot program. [68] The applicant had submitted that she accessed the range of documents to check if the documents were appropriately secured in the iSpot system. The difficulty with that submission is that the applicant then proceeded to save the material on a USB, print the material and retain the printed documents for her own use. [69] The respondent says that there was no implied waiver of the respondent's material. What had occurred was inadvertent because of a system flaw. -- 6 of 8 -- 7 [70] In its view, the respondent says that the number, nature and content of the documents would have shown to a reasonable person that accessing the material would not be condoned by the respondent. [71] The applicant viewed the immediate failure of the respondent to fix the computer flaw as a form of entrapment on its part to lure her into accessing the documents so that it could proceed to dismiss her. I have found that submission to be fanciful. I accept that the Respondent's iSpot system has flaws and it is taking appropriate steps to have the flaws fixed. [72] The difficulty for the applicant around this issue is that she was given a clear and direct order not to pursue documents which had no connection to her actual work with the respondent. The order was not ambiguous and I accept that the applicant knew exactly what the order meant. [73] The applicant accepted that there were rules and regulations with regard to her employment with the respondent and she was obliged to comply with them. These were encapsulated within the respondent's Code of Conduct. [T5 - 5] [74] The applicant also agreed that she was required to adhere to directives made by management. [T5 - 5] [75] The applicant agreed that she was required to comply with Council's Information and Communication Technology Resource Usage Policy and the applicant agreed that she was aware that personal use of the ICT resources should not violate Council policy or related State or Federal legislation." [Respondent's submissions – point 63] [76] Notwithstanding these concessions, the applicant believed all the documents she had accessed were 'work related'. [T5 - 7] [77] The applicant believed that any document held by Council is a work related document to which she should have access. [T5 - 8] Conclusion [78] I have not accepted any part of the applicant's submission around the question of accessing private and confidential and legally privileged documents. [79] I have accepted the respondent's submission that documents "do not lose their confidential status by being available for use within an organisation." [Respondent submissions - point 45] [80] I have also rejected the claim that the respondent sought to pursue a process of entrapment with the applicant. [81] The reality was that the computer system in place had some flaws. In saying that, it was clear that the documents accessed by the applicant were primarily entitled "Private and Confidential" and did not relate to the work she was performing for the respondent. [82] In my view, because the applicant opened files, stored them on a USB and then printed the files with the full knowledge that she had no right to have those files, there was no question that the opening of such files was harmless or inadvertent. It was a deliberate act on the applicant's part and constituted serious misconduct. [83] No legal professional privilege had been waived by the respondent. When the respondent first became aware that the applicant was accessing inappropriate files, she was given a very clear warning that if she continued to do so, she could face dismissal. The applicant was advised that if she was confused about the nature of a particular document, then she should seek advice from Mr Glaser. This never occurred. [84] The applicant said she fully understood the warning, but then proceeded to seek out any file that she wished to see, notwithstanding that those files were marked "Private and Confidential or legally privileged". If it wasn't originally clear to the applicant that she could not access such files, then the warning given to her on 17 September 2010 made it perfectly clear. I am unable to understand how the applicant could claim that the legally privileged documents somehow lost that privilege because she could trawl the iSpot system until she discovered them. [85] The process undertaken by the respondent in determining to take disciplinary action against the applicant was in my view fair and reasonable. No element of S77 of the Act was infringed by the respondent. [86] In my view the applicant was given more than a 'fair go'. -- 7 of 8 -- 8 [87] The respondent states that in determining whether the termination of the applicant's employment was the most appropriate sanction to impose, it took into account a number of factors, including: • The nature and seriousness of the misconduct; • The level of co-operation provided by the applicant during the investigation, including the nature of any admissions or explanations provided; • What, if any contrition was demonstrated by the applicant during the course of the investigations; and • The applicant's employment history, including her length of service and disciplinary record. [Respondent's submissions – point 176] [88] In my view, those considerations were appropriate in the circumstances. [89] Notwithstanding that the respondent believed that the dismissal was for serious misconduct, it determined to afford the applicant appropriate payment in lieu of notice. [90] I dismiss the application. Order accordingly. D.A. SWAN, Deputy President. Hearing Details: 2012 15-18 October Released: 11 January 2013 Appearances: Mr M. G. Bassett, Counsel instructed by Redmond & Redmond, Solicitors for the Applicant. Mr C. Murdoch, Counsel instructed by Clayton Utz Lawyers for the Respondent. -- 8 of 8 --