Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union... | Case summary

WEDNESDAY, 13 AUGUST 2025, THURSDAY, 14 AUGUST 2025

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union... | Case summary | Zoe

[26]

In the course of his employment with the respondent, [Mr Burns] was able to access documents on the Department's document management system called TRIM.
On 15 May 2024, in accordance with Regulation 8 of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (Regulations), five staff in the Risk and Assurance Directorate within the Department, including [Mr Burns], were sent letters advising that as a result of a Form and Function review (Review), organisational restructure may occur that could include changes to roles and responsibilities, creation of new positions and abolishment of positions no longer required. A copy of the Regulation 8 letter send to [Mr Burns] on 14 May 2024 is found at Agreed Document 7.
That letter was later rescinded and a new Regulation 8 letter was given to [Mr Burns] on around 4 September 2024: Agreed Document 8.
A meeting of all staff from the Risk and Assurance Directorate was held on 15 May 2024. [Mr Burns] attended that meeting. At the meeting, a formal presentation was provided to staff in attendance with respect to the progress of the Review, including intended next steps. Amongst other things staff were advised that future actions included preparing Job Description Forms (JDFs) for new positions, undertaking Classification Assessments, and seeking feedback from staff and unions on the revised or new JDFs. Copies of JDFs were not provided to staff at the meeting.
A copy of the powerpoint presentation presented to staff at the 15 May 2024 meeting is found at Agreed Document 9. A copy of this presentation was sent to [Mr Burns] on 15 May 2024.
On 2 July 2024 another meeting was held and presentation was delivered to staff. [Mr Burns] attended that meeting. At that meeting, staff were advised that JDFs for the proposed new positions were still being finalised and amendments were being made to current JDFs. Staff in attendance were also advised a handout of potential changes and Functional Responsibilities would be provided to them at the end of the meeting, in lieu of the JDFs themselves. Staff were informed that JDFs still needed to be endorsed by the Executive Director Professional Standards and Conduct [Mary Brown (Ms Brown)] and then reviewed by the Department's Classification Committee.
A copy of the powerpoint presentation presented to staff at the 2 July 2024 meeting is found at Agreed Document 10.
A copy of the two handouts provided to staff at the 2 July 2024 meeting is found at Agreed Document 11 and 12.
On 18 July 2024, [Mr Burns] accessed documents, related to the [Review], in [the TRIM Folder].
[The TRIM Folder] was titled 'Strategic management-Reviewing (other), Risk and Assurance Directorate Form and Function Review.'

[47]

Mr Burns gave evidence-in-chief that:
- (a) He is 62 years old and at the time of his dismissal he had been employed with the respondent for about 26 years.
- (b) He holds a Diploma in Computer Programming, a Graduate Diploma in Public Sector Management, and a Certificate of Internal Auditing.
- (c) He has not previously been the subject of any disciplinary matters.
- (d) After a restructure of the Financial Services team in 2014, his position (Systems Support Officer) was made redundant, and he commenced working for the Audit & Risk Management team as a Consultant Risk and Audit.
- (e) At the time, he had experience with IT projects working as a systems analyst under the IT branch, doing systems analysis and design. However, he had no experience undertaking risk assessments.
- (f) In the period from 2014, he was seconded to the Financial Services team several times on 6-monthly contracts.
- (g) As a Consultant Risk and Audit, he 'looked after the risk registers the principals would send in.' There was a mandatory first term report, and he was responsible for telephoning people and ensuring they provided the necessary documents. He was also involved in both the census and annual audit.
- (h) His tasks were largely administrative, such as collecting and adjusting spreadsheets. This involved telephoning or sending emails to collect data, recording the data received on the S drive and hyper-linking it to the software, until all responses were received, and then reaching a conclusion about each of the students.
- (i) When his manager, Eric Fleming (Mr Fleming), commenced, there was a push for documents to no longer be stored on the S drive, but on TRIM.
- (j) Various departments would send them a list of documents, which were stored in TRIM. The documents were in response to audit findings, so he would check the responses to ensure they addressed the audit findings.
- (k) In terms of TRIM, his job involved filing documents to TRIM and finding documents on TRIM. He found documents on TRIM by using the TRIM number, or by using search terms. If he received an email with an attachment, he would file the email and the attachment separately in TRIM, and within TRIM he would put a link in between the records so the email would have a 'contains' link which would link to the item that it contained, and a 'contained in' link that points back to the item filed.
- (l) If a document in TRIM or a TRIM folder was restricted, he would not have access to it; 'you wouldn't even see it existed. It wouldn't be there for you to look at.'
- (m) He found working in the Risk and Assurance Directorate 'a bit boring', as they 'didn't really have enough work to keep me busy.'
- (n) He does not believe the work he was doing matches his Job Description (JDF). The JDF says he is a Risk Consultant, but he was doing administrative tasks surrounding the work of the Audit Review Committee (ARC).
- (o) He was unhappy working in the Risk and Assurance Directorate and wanted to leave. The restructure of the Directorate commenced in 2022, and as part of the restructure he was told he would receive a regulation 9 redeployment letter.
- (p) He attended the Review meetings. In attendance were the Finance, Risk and Audit teams. The meetings were structured to discuss matters affecting the Finance team first, the Risk team second, and the Audit team last. Consequently, he found two-thirds of the meetings 'meaningless as far as I was concerned.'
- (q) At the meetings, there was a presentation by way of slideshow, and attendees were given an opportunity to ask questions which were answered.
- (r) He only remembers attending the last two meetings.
- (s) From the meetings, he felt hopeful that he was going to receive a regulation 9 letter, informing him that he was to be redeployed. He has previously been redeployed three times.
- (t) He recalls that following each meeting, he received an email attaching a copy of the presentation given at that meeting. He would drag the attachment out of the email 'to a folder and just stop and leave it there [for] looking at it when I had a moment.'
- (u) In terms of the restructure information and the process, while he missed the first two meetings, he was aware that 'someone had to approve [the] JDFs, and they were waiting for that.'
- (v) He was issued with a regulation 8 letter, which informed him that his position was going to be abolished.
- (w) He received a regulation 9 letter when he was on leave without pay.
- (x) He came across the TRIM Folder when he was doing a search through TRIM. He cannot recall what he was searching for, but a document came up in a list of documents. When he clicked on that document, it showed the cataloguing data for the document, which included the title of the document, its author, the person who deposited the document in TRIM, and the folder that the document was contained in. He clicked on the link in the cataloguing data that took him to the folder itself.
- (y) He does not remember why he opened the TRIM Folder. He said, 'I mean, it was there. I wondered what else was in it, I guess, [what] else was available that might be related to that document.'
- (z) He 'clicked the link that was on the screen in front of me. That opened the folder up in front of me, and then I just saw a number of documents there that looked like they'd update me on what was going on with the review.'
- (aa) When he opened the TRIM Folder, he saw a list of approximately two dozen files.
- (bb) When he was in the TRIM Folder, he 'just had a look at some of the documents.' '[O]ne of them looked like it was relevant to the new position they were creating, and I was working on the document to do a handover for that.' 'I just figured I'd use the role statement from that to decide what I needed to put in and leave out of that document.'
- (cc) He thought the handover document was saved to his desktop, but it was not found there. So, it could be in the S drive, or it could be in a subfolder, or even in his mailbox.
- (dd) The handover document was initially a process document for the Department listing the steps required for ARC and Audit Findings Register (AFR) reporting, which he edited to replace the references to storing documents on the S drive to storing documents on TRIM, including the TRIM folder names and numbers. The role statement for the new position was helpful for his handover document because the role statement outlined the role's main tasks, and 'I was just using the role [statement] to decide what I wanted to keep in and chuck out [of the handover document]. There was no point in me giving them instructions on tasks they wouldn't be performing.'
- (ee) He looked at the other documents in the TRIM Folder, because 'they were just there', and he was hoping he might find 'attachments I might have missed, [because] I didn't think I'd gone to all of the meetings. But beyond that, it was just looking at them, really. They're there. They were in front of me. I'm a systems analyst. I investigate things. It's just part of who I am.'
- (ff) He believes he was in the TRIM Folder for about 27 minutes.
- (gg) He only downloaded one document, twice, which was the JDF. The first time he downloaded the JDF, it went to a temporary folder that was 18 folders deep and he did not know it was there, so he re-downloaded the JDF to his desktop to make it easy to find.
- (hh) After having accessed the TRIM Folder, and downloaded the JDF twice, he did not think he had done anything wrong, because 'there were no locks on the folder. I wasn't trying to break into anything. It was just there in front of me. It was relevant to my day-to-day kind of stuff. They told us it was an open, accountable process. I didn't see any reason why it would need to be locked unless they were hiding something, so why would I expect it to be hidden?'
- (ii) The TRIM Folder was not restricted. 'I didn't see anything in there that [was] critical. I was a bit concerned they had the reg 8 letters in there. I only looked at mine. I didn't look at anybody else's.' 'I think from that point, I probably decided I probably shouldn't be continuing to rummage through it because it had documents in there that either should have been protected or shouldn't have been in that folder.'
- (jj) He did not raise the issue of the TRIM Folder being unrestricted because '20 minutes after I'd touched that folder, I'd completely forgotten about it. I just moved on.'
- (kk) His line manager, Mr Fleming has produced a document which refers to him telling Mr Fleming that he 'could access the JDFs', but he does not 'remember the meeting I had with Eric at all', 'I have no recollection what I spoke to [Mr Fleming] about. I don't remember that meeting at all.'
- (ll) He believes he completed the Accountable and Ethical Decision-making training (AEDM Training) more than a year before he accessed the TRIM Folder, and the Recordkeeping Awareness Training (RA Training) two years before he accessed the TRIM Folder.
- (mm) The disciplinary process began when someone from Standards and Integrity (SID) took him into an office and informed him that he would be investigated but would remain at work during the investigation. He is aware that others (Sean De Souza, Eric Fleming and Claude Benomi) accessed the TRIM Folder without authorisation because 'we were all basically told at the same time.' 'We were at work. They said, "You're having a meeting downstairs". [I] went first, [Eric] went next, I believe. Sean didn't get a meeting that day because he wasn't at work. He had a meeting when he came back. So when I got back to the office, I was talking to the other people in the office and asking [them] if they'd looked in the folder as well. Eric said he had, he'd seen a [file]. I heard about other people on other times.'
- (nn) Mr Benomi is a level 7 Risk Manager and has been in that position for 10 years. Mr De Souza is a level 6 Principal Auditor and has been in that position for some years. Compared to them, he has less experience in dealing with risk.
- (oo) Only him and Mr De Souza have been dismissed. Mr Benomi and Mr Fleming remain employed.
- (pp) The dismissal has had a devastating impact on him. While he is receiving a transition to retirement pension and it is a source of income, it is only a small amount of money each month. This has left him fairly housebound as he does not have the means to 'go out or do anything.' 'It's been depressing, obviously, without any work to do.' The dismissal has also 'hammered my self-esteem.'
- (qq) Getting another job is impossible because:

[52]

(b) He agrees that part of his job when Mr Fleming was his manager, involved him sending out requests to parts of the Department. They would provide returns, and he would enter the data into the system. However, he denies that this constitutes '[maintaining] the data management system.' He denies that this forms part of maintaining the 'reporting requirements' for the Department. He also denies that this constitutes assisting his manager 'in the development, application and monitoring of the Risk and Audit frameworks and strategies across the Department.' He said that he was assisting his manager by doing clerical duties, he was not assisting in the development, application or monitoring of the Risk and Audit frameworks or strategies.

(c) He agrees that in his role, he assisted Mr Fleming with the AFR. If the Auditor General issued recommendations to the Department, they would be recorded in the AFR. He agrees that for the ARC, every three months, he would send out a list of their existing items. When they responded, he would file the responses and update the AFR.

(d) He agrees that part of his role working under Mr Fleming, 'was to drill down to make sure that the relevant area's response answered what they were asked.' The relevant area would respond with a spreadsheet. He would review the spreadsheet to ensure that there was a response to each line item. If there was none, he would follow up for a response. He would also take the spreadsheet and save it in TRIM.

(e) Every six months, the Department closes outstanding tasks. He would contact the relevant area to seek evidence, and he would review the evidence to ensure its veracity. The evidence would be sent to him as a soft copy, a TRIM reference or an IKON reference. If he was provided with a TRIM reference, he would type the reference number in to TRIM and call up the document. If he was unable to call up the document, he would contact the sender to advise.

(f) He agrees that part of his job requires him accessing TRIM. He also agrees that part of his job involves him looking up a specific email that he had been asked to locate in TRIM.

(g) He disagrees that it was a part of his job to interrogate departmental databases. While he wrote tools to help interrogate the asset manager system, to look for red flags which would identify high risk transactions, he disagrees that part of his job involves him writing the queries to interrogate the databases.

(h) While he agrees that he has conducted audits, he disagrees the JDF (at [7 (a)] above) relates to the duties he was performing when he was working with Mr Fleming.

(i) He agrees that it was a requirement of his job to complete the AEDM Training, and that he completed it.

(j) While he does not recall completing the AEDM Training more than once, he agrees that the most recent time he completed the AEDM Training was in June 2022. While he agrees the AEDM Training likely identifies the existence of the Code of Conduct, he does not recall the AEDM Training including training with respect to the Code of Conduct.

(k) Despite the AEDM Training slides being Document 10 of the Appellant's Bundle of Documents filed on 8 August 2025 (Appellant's Bundle), he said that he did not look at them before the hearing. On being shown the slides, he said that he does not remember the slides at all, he does not remember the pictures, he does not remember the faces on the slides, and he does not remember the actual slides themselves.

(l) The slide on page 118 of the Appellant's Bundle, states:

[79]

In relation to the documents in the TRIM Folder that were accessed (at [5] above), Mr Burns gave evidence under cross-examination that:
- (a) In relation to the title of document 2, he does not agree that he has no business opening a document that is correspondence which he is not a sender, recipient, or copied into. He said that all correspondence between the CSA and the Department would have been sent to him by the CSA. Looking at the title, he would not have been concerned with opening the document, because he would have already seen all the correspondence from the CSA in respect of the Review. When put to him, that if he had been provided with all correspondence from the CSA, he would not need to click on, and open, document 2 to see what is happening with the Review, he said, 'it's right there in front of me. I just looked at it.'
- (b) In relation to document 2, he agrees that he was clicking on an email from his manager to the CSA. He said that he was 'just looking for any attachments or anything that might be relevant to the progress and stuff that's going on, or what they're deciding to do. I did think I was missing some documents.' While he agrees he received an email from Ms Brown two days prior updating him on the Review (at [7 (nn)] above), he disagrees that he had all the information he needed regarding the Review and did not need to look in the TRIM Folder.
- (c) When taken to document 2 (on page 45 of the Respondent's Bundle) which is the first document that he opened, he said that he does not remember the document; he said, 'I don't remember the contents of most of these things. I only looked at them for a minute.'
- (d) When taken to document 3 (on pages 47-‍48 of the Respondent's Bundle) which is the second document that he opened, he said that he does not recall seeing the document; nor that he opened the document twice, once at 10:39am and once at 10:51am.
- (e) In relation to the title of document 4, he agrees that by looking at the title, that the document is a draft document. He agrees that he had no business looking at a draft document, either of Acumen's or the Department's, in relation to functional responsibilities, but disagrees that it would have been clear from looking at the title of the document. He said, 'I didn't bother to even think about that.'
- (f) When taken to document 4 (on page 49 of the Respondent's Bundle) which is the third document that he opened, he said that he does not remember accessing the document. He does not remember seeing that the bottom lefthand corner on page 49 states 'CONFIDENTIAL - UPDATED 11.5.24'. He agrees that on the face of the document, that the document is confidential. He does not remember seeing that the rest of the document (such as page 54) was in tracked changes, and he does not 'remember any of this tracked changes stuff.'
- (g) In relation to document 5, he agrees that the title of the document indicates that it is a plan for consulting in respect of the Risk and Assurance Directorate. He does not agree that the consulting plan was developed by his superiors. He does not know who was running the consultation. While he agrees that Ms Brown is the Executive Director and that Ms Brown was sending him emails about the Review, he does not know whether Ms Brown was running the consultation or whether it was somebody else. He agrees that he has no business looking at Ms Brown's planning documents.
- (h) When taken to document 5 (on page 57 of the Respondent's Bundle) which is the fourth document that he opened, he said, 'I just spent, like, a minute looking at this stuff.'
- (i) He disagrees that by the time he opened these four documents it would have been absolutely clear to him that he had no business accessing these documents.
- (j) Page 57 states:

[82]

(k) When taken to page 57 and asked if he agrees he has no business accessing the document, he said, 'I don't know anything about this document.'; 'I don't understand anything about this. I don't remember anything about this document, and I probably shouldn't have looked at a document like this. It doesn't look like something I [would] have needed.' When put to him that it would have been obvious that he should not be looking at the document, he said, 'I don't remember this document.'; 'But it's entirely possible I opened it up, saw the first page and closed it again.'

(l) In relation to document 6, he agrees that he would have seen the title to the document before opening it and agrees that he has no business opening a document that appears to be an agenda for a meeting with Acumen.

(m) When taken to document 6 (on page 67 of the Respondent's Bundle) which is the fifth document that he opened, he agrees that he opened it but does not remember the document. When asked if he agrees he has no business looking at the document, he said, 'I do now, yeah.' When put to him, that it would have been obvious when he opened the document that he had no business looking at the document, he said that it 'doesn't look important.' When it was put to him that if he has no business looking at a document that it does not matter if it is important, he said, 'Ah, yeah, I don't know.' When pressed further that document 6 is the agenda of his Executive Director to meet with the contractor that he knew was engaged to conduct a review of the area he worked in, which he had no business looking at, he said that he agrees. When put to him that it would have been clear on the day when he opened the document that he had no business looking at the document, he said that he disagrees. He said, 'I didn't pay attention to a lot of this stuff. I was just clicking through it. I don't remember what even - what it was. I certainly don't remember ever even seeing this document.'

(n) He disagrees that, by the time he opened the fifth document, it should have been clear to him that he had no business opening any documents from this folder. He also disagrees that by the time he opened the fifth document, that he should not have gone any further in opening documents in the folder.

(o) In relation to document 7, he agrees that there is nothing in the title to suggest that he was a recipient of the email. At the time, the Director was Rowena Williams, who his manager (Eric Fleming) reported to. Prior to Mr Fleming's arrival, he reported to Ms Williams directly. At this time, he was aware that the JDFs had not been classified. While he agrees that one of the reasons he clicked on documents was to look at the JDFs, he 'didn't know they weren't classified, [because] they're available to me in front of me.' 'Why wouldn't they be locked up if they were [still] waiting to be classified?' When it was put to him that two days earlier he was sent an email that made it very clear that the JDFs had not been classified, he said, 'Okay. I didn't necessarily read it.' He agrees that he has no business opening an email from his manager where there is no basis for him to think he was a recipient of that email.

(p) When taken to document 7 (on page 68 of the Respondent's Bundle) which is the sixth document that he opened, an email between his Director and the Executive Director, attaching a JDF, he agrees that he opened the document at a time when he knew that the JDFs had not been classified, and he had not been given the JDFs. He agrees that he has no business accessing this document.

(q) When taken to page 70 of the Respondent's Bundle, which is the JDF attachment in tracked changes to document 7, he said 'This is an attached document. I don't know whether I looked at it or not.' He agrees that the JDF is a draft document.

(r) When asked if he agrees it is likely he looked at the JDF because one of his purported purposes for accessing the folder was to look at JDFs, he said:

[90]

(s) He further said that the JDF on page 70, was for a Level 7 or 8 position, and he was only interested in the Level 5.

(t) When taken to document 8 (on page 73 of the Respondent's Bundle) which is the seventh document that he opened, he said that he does not remember this document.

(u) In relation to document 9, he does not know who Selena Aziz is, nor did he know that Ms Aziz is Ms Brown's executive assistant. He agrees that there is nothing in the title to the document to suggest that he is the recipient of the email. He agrees that he has no business opening an email between his Executive Director and a person who he does not know who they are.

(v) When taken to document 9 (on page 75 of the Respondent's Bundle) which is the eighth document that he opened, he said that he does not remember this email. When taken to page 76, he said that he does not remember seeing this document nor does he recall opening attachments to the email.

(w) When asked if he had seen the document on page 76 that he would have understood that he was not entitled to access the document, he said, 'I don't know what I would have understood at the time.' He agrees that from the face of the document that it does not look like a document he has any business accessing.

(x) In relation to document 10, he does not know who Richard Lobb and Aaron Silver are. He agrees that there is nothing in the title to the document to suggest that he is the recipient of the email. When it was put to him that he has no business opening document 10 when he did not know who Richard Lobb and Aaron Silver are, he said, 'Well, only in terms of quickly looking through what I said to find out what was going on and then move on.' When asked why he was opening up a document about regulation 8 letters, he said, 'I don't know. I don't remember half of this stuff.' When put to him that this document is not going to tell him what is happening with the Review, he said, 'I don't know. I don't remember even looking at half of this stuff.'

(y) When taken to document 10 (on page 107 of the Respondent's Bundle) which is the ninth document that he opened, he said that he does not remember accessing this document. He agrees it is an email with four regulation 8 letters attached but said that he does not remember looking at it. He said that if he did open up the regulation 8 letters, that he only opened up the one that was addressed to him. He said, 'I do know I saw my own reg 8 letter in the - in the emails as we were processing them, but I didn't look at anybody else's.' When put to him that it would have been clear to him from seeing what is listed as the attachments to the email, that he had no business accessing the email, he said, 'If I'd investigated them, that's probably true.' He said:

[118]

(ff) When taken to document 13 (on page 162 of the Respondent's Bundle) which is the twelfth document that he opened, correspondence from the CSA to his Executive Director and the Director General, with consultation with respect of the restructure or proposed restructure, and put to him that he has no business looking at this document, he said that it is communication between the CSA that directly affects him, so the CSA probably sent him a copy themselves.

(gg) When taken to document 14 (on page 183 of the Respondent's Bundle) which is the thirteenth document that he opened, he said that he does not remember accessing this document. It is an email from Tonya Lamatoa, of the CSA, to Ms Brown and others. He does not recall seeing it, but if it is correspondence from the CSA, it is quite possible that he already has a copy.

(hh) In relation to document 15, he does not know who Zoe Johnston is. He agrees that there is nothing in the title to the document that suggests that he was a sender or recipient to the email. He agrees that he has no business opening a document that was an email from a person he did not know who they were. He did not know that Ms Johnston is in the Labour Relations Directorate, and that she was providing industrial relations advice.

(ii) When taken to document 15 (on page 186 of the Respondent's Bundle) which is the fourteenth document that he opened, he said that he does not remember seeing this email. He agrees that, looking at the sender and the recipients of the email, that he has no business accessing this document. When put to him that it should have been obvious to him when he opened the TRIM Folder that he had no business accessing this email, he said that it was not. When pressed that it should have been obvious to him that an email from Labour Relations to his Executive Director, to which he was not copied in, and which has the subject line 'RE: CONFIDENTIAL - Reg 8 Letters', was not for his eyes, he said, 'Ah, I suppose. I would have closed it and moved on.

(jj) When taken to document 16 (on page 201 of the Respondent's Bundle), which is the fifteenth document that he opened, which is a letter from Ms Brown to Rikki Hendon (General Secretary of the CSA), he said that he does not recall seeing this document.

(kk) He was then taken to document 1 (on page 42 of the Respondent's Bundle) which is the sixteenth document that he opened and the JDF that he extracted. The JDF states that the position reports to a Level 8, and the Classification 'Level TBD.' When asked if this was the document he extracted, he said that he does not remember. He agrees that from the document you cannot tell that the position is a Level 5. He said that on reading the document, he knows this was the position that the handout stated was going to be Level 5.

(ll) He said that he knows this because, after the Director General contended that he was trying to sneak into a Level 7 position by downloading the JDF, he reviewed the documentation because he recalls the JDF was for a Level 5 position, and he found the 'PowerPoint presentation from the 2 July 2024 meeting' (on page 53 of the Agreed Bundle) of an organisation chart with the position of 'Business Support Officer (Level 5).' He said that while he did not locate the reference to the position being Level 5 until later, he recalled being informed at the meeting that the position was to be a Level 5 position.

(mm) In relation to document 17, he agrees that he saw the title before he clicked on the document. He does not accept that it was clear from the word 'highlighted' in the title of the document that the JDF was not finalised. He said that 'doesn't mean anything to me. "Highlighted". Yeah, good luck.' When asked if he agrees that the reference to 'Policy and Program Officer JDF' means it has nothing to do with his stream within Risk and Assurance, he said, 'I don't remember.' He agrees he was not the Policy and Program Officer. When asked if he agrees that the Policy and Program Officer JDF has nothing to do with any of the functions of his role, he said that the role was taking over his. When it was put to him that no one was taking over his role as his role was being abolished, he said, 'somebody has to do the work. It wasn't going away. Somebody still has to update the AFR. Someone still needed to make sure that the people had things and stuff to do.' When put to him that he did not know what job was going to be taking over the tasks that he was doing, he said that his understanding from the handout he received at the third meeting with an organisation chart identifying a new Level 5 position, was that it would be the new Level 5 position. He said that there 'was only one level 5 position. They would have had to take taken over the work that I was doing. It couldn't have been ignored or they wouldn't have dragged me back to do it. I was doing all the AFR work. Somebody new that was coming in to replace - to do that and whatever else they needed done.'

(nn) When taken to document 17 (on page 203 of the Respondent's Bundle) which is the seventeenth document that he opened, he said that he does not remember this JDF. He said that he does not remember opening up a JDF that had yellow highlighting on it.

(oo) When taken to document 18 (on page 206 of the Respondent's Bundle) which is the eighteenth document that he opened, he said that he does not remember opening this document.

[119]

In relation to the disciplinary process, Mr Burns gave evidence under cross-examination that:
- (a) When he was given the letter of allegations dated 17 September 2024 (Agreed Document 2), he went straightaway to the CSA, who assisted him with the response (Agreed Document 3).
- (b) When taken to the first page of Agreed Document 3 and his statement, 'I was probably checking to see if I had already been handed some of these documents' and it was put to him that he had been emailed the documents from each of the meetings after the meeting, he said that he does not remember. He said that he does not remember the first two meetings or getting emails from them. He remembers that he had some of the documents that were emailed to him following the meetings saved to his desktop. When put to him that he could have looked at the documents on his desktop if he wanted to look at them, he said that he did not know. He agrees that he does not typically delete the emails he receives. He said that he does not remember whether he had a folder in his emails related to the Review, but he might have done. He agrees that he could have looked through the emails to check what he had been sent but said that that would only have told him what he had received, it would not show him what he had not received. He said that his statement that he 'was checking to see if I had already been handed some of these documents' was misworded as he was checking to see if he had not been handed some of these documents.
- (c) He disagrees that if he had not been handed a document that it stands to reason that he was probably not entitled to it. When asked if he was worried he had missed something, why he did not check with his manager, Ms Brown, or with Ms Williams, he said that his manager was useless, Ms Brown was 'too far out of my league', and it 'never occurred to me that I would bother [Ms Williams] for something like that.'
- (d) When put to him that he instead went looking around in the TRIM Folder, he said:

[144]

Ms Brown gave evidence-in-chief that:
- (a) She is the Executive Director of Professional Standards and Conduct and has been in the position since September 2022. She reports directly to the Director General and is responsible for five business units:
  - (i) Risk and Assurance. The Director of Risk and Assurance reports to her. Inderbir Grewal is the current Director. Mr Fleming is the Manager of the audit team and reports to Mr Grewal.
  - (ii) Standards and Integrity, who are essentially responsible for the assessment and investigation of discipline or conduct matters.
  - (iii) Screening, who are responsible for criminal history screening checks.
  - (iv) Parent Liaison.
  - (v) Legal and Legislative Services.
- (b) Previously, she was an Executive member of the Corruption and Crime Commission, and before that, she served as a sworn police officer for about 30 years in the WA Police (rising to the rank of Detective Superintendent).
- (c) Agreed Document 1 is the JDF that applied to Mr Burns when he was employed, before his position (a Level 5 Risk and Audit position) was abolished.
- (d) Document 1 of the Respondent's Bundle are the training records for Mr Burns that she arranged to have extracted for the proceedings. These show that Mr Burns completed the RA Training (an OPL course, which stands for online professional learning) on 14 February 2024, and the AEDM Training (an OPL course) on 22 June 2022.
- (e) Document 2 of the Respondent's Bundle (at [4] above), is the statement of service prepared by payroll services, outlining the start and finish dates of the various positions Mr Burns has held during his employment.
- (f) Employees in the broader Department are required to undergo criminal history screening prior to commencement of employment, or if they have a break in service of more than six months. From about 2018, in recognition that employees within the Professional Standards and Conduct division hold positions of trust and privilege, all members of the division are required to undergo criminal history screening every three years.
- (g) The Review was a form and function review of the Risk and Assurance Directorate undertaken by independent consultants (Acumen Alliance). It arose after another area within the Department (System Response and Transformation) had undertaken a similar type of review, and as a result were taking some of the Risk and Assurance team which was being removed out of her Directorate. This presented an opportunity for her to undertake a form and function review to understand whether there was alignment between current Department business requirements against strategic objectives.
- (h) While Acumen were engaged in around September 2023, the review got underway in the early part of 2024, and was completed by the end of 2024.
- (i) Throughout the review, Mr Burns occupied the Consultant Risk and Audit position.
- (j) Document 3 of the Respondent's Bundle is an extract from her daybook (her handwritten notes of significance, made as contemporaneously as possible to when the incident occurred and before she moves onto the next task) from 23 July 2024 and 24 July 2024:

[146]

(k) She was initially dismissive of the information from Mr Fleming because the JDFs had not been provided to staff and she believed them to be restricted to the external review team and three persons within the Department, being herself, her Executive Assistant (Ms Aziz), and Principal Consultant, Brent Saraceni.

(l) The following day, Mr Saraceni informed her that the TRIM Folder had not been locked down as instructed. She had instructed Ms Aziz to restrict the TRIM Folder to her, Ms Aziz and Mr Saraceni. She subsequently discovered that instead of restricting the folder to the Professional Standards and Conduct workgroup (which would have limited access to herself, Ms Aziz and Mr Saraceni), Ms Aziz inadvertently restricted the folder to the Professional Standards and Conduct business unit, which included all of the subordinates in the business unit.

(m) She had been asking Ms Aziz to save to the folder any documents associated with the Review including all the working documents, correspondence to and from the consultants and with the CSA, JDFs, PowerPoint presentations, functional responsibility documents, and drafts of documents.

(n) Upon being informed that the folder had not been locked down, Mr Saraceni informed her that multiple people had accessed the folder and that they had accessed multiple documents within the folder. She instructed Mr Saraceni to report the matter to SID using the complaint notification form. Given SID reports to her, she explicitly instructed Mr Saraceni to make the notification and advised that she would be keeping at arm's length, so that she would continue to manage the Review, and SID would separately investigate the unauthorised access.

(o) There were four Review meetings, facilitated by Acumen, with her assistance. She attended all four meetings.

(p) Document 4 of the Respondent's Bundle are her handwritten notes from the first meeting on 19 March 2024. Her notes record the attendees (which includes Mr Burns) and the questions asked during the meeting (which includes a question asked by Mr Burns).

(q) Document 5 of the Respondent's Bundle are her handwritten notes from the second meeting on 24 April 2024. Her notes record the attendees (which includes Mr Burns).

(r) Document 6 of the Respondent's Bundle are her notes from the third meeting on 15 May 2024. Her notes record the attendees (which includes Mr Burns).

(s) For each meeting, Acumen prepared a PowerPoint presentation, which they essentially worked through throughout each meeting.

(t) The PowerPoint presentation for the third meeting on 15 May 2024, commences on page 20 of the Agreed Bundle. Towards the end of each meeting, Acumen provided a 'Next Steps' to inform the team what they could expect next. Page 31 of the Agreed Bundle, states:

Next Steps

[154]

(y) Paragraph 3.b. above states 'Potential changes to JDF's.' This is because, rather than providing the JDFs in their entirety, the staff were given a summary of what, at that point in time, some of the proposed changes were looking to be. Paragraph 2 above refers to 'August', however, the JDFs were ultimately classified in November 2024.

(z) Document 9 of the Respondent's Bundle is her email dated 2 July 2024; 2:59pm, sent following the meeting to all staff within the Risk and Assurance Directorate, containing the documents from the meeting. The attachments to the email are:

(i) DoE R & A Functional Responsibilities HAND OUT FINAL 2.7.24.docx

(ii) DoE R & A Meeting #4 HANDOUT Changes to JDFs FINAL 1.7.24.docx

(iii) DoE R & A Review Executive Summary 27.6.24 HAND OUT FINAL 1.7.24.docx

(iv) DoE Risk & Assurance_Presentation 4.pptx

(v) DoE R A Meeting 3 Feedback and Responses HAND OUT FINAL 1.7.24 (002).docx

(aa) Document 10 of the Agreed Bundle is the PowerPoint presentation prepared by Acumen, for the fourth meeting on 2 July 2024. Page 43 of the Agreed Bundle (at [7 (ii)] above), refers to Acumen informing the team that the JDFs were being progressed and that Acumen were hoping to have them finalised shortly, and that following the meeting the team would be provided a handout of the potential changes with respect to the JDFs.

(bb) This is because the team had been asking for Acumen's final report, and were informed that they would not be provided the report in its entirety due to confidentiality reasons, particularly because a lot of people had participated in the review believing that their information would remain anonymous and confidential, so providing the full document was considered as potentially exposing people and their comments. Therefore, as a compromise, it was agreed that only an executive summary of the report would be provided to staff. Hence the reference to 'Executive Summary' on page 43 of the Agreed Bundle.

(cc) Page 57 of the Agreed Bundle is the potential changes to the JDF document that was spoken about in the fourth meeting, and promised to the team, and ultimately provided to them via email. It outlines the various changes to the relevant JDFs.

(dd) Prior to commencing the fourth meeting, John Rossi (union advocate/delegate) handed her a typed document with a series of questions. She did not have time to read it prior to the fourth meeting, so asked Mr Rossi to email the document to her. Document 10 of the Respondent's Bundle is Mr Rossi's email, dated 3 July 2024; 11:14am, and page 24 of the Respondent's Bundle is the document with question 5 stating:

Provide the date that the new and revised JDFs will be made available for feedback, given all JDFs, and most reporting lines, are affected by the proposed restructure.

(ee) Document 11 of the Respondent's Bundle is her email to the Risk and Assurance Directorate, dated 16 July 2024; 4:15pm. The staff had not been given the JDFs at this stage. Towards the end of her email, she states:

[159]

(ii) She had asked Mr Saraceni to prepare a simplified table depicting Mr Burns' access to the documents in the TRIM Folder. Page 39 of the Respondent's Bundle (at [5] above) is the document prepared by Mr Saraceni. In the 'Comments' column:

(i) 'Document extracted' (in red font) refers to the document being removed from the TRIM system and put somewhere else; it refers to the document being extracted out of the system.

(ii) 'Document modified' (in blue font) refers to an action taken against the record. It includes viewing the record. It is the record that is modified, and not necessarily the underlying document.

(jj) The first document that Mr Burns accessed, is an email to Tamara Findlay. Ms Findlay is the former Director of Risk and Assurance. She resigned in September/October 2023. This was around the time she engaged Acumen but before the review got underway. The email attaches the letter she sent to the CSA's General Secretary, Rikki Hendon, informing Ms Hendon that she intended to undertake a strategic form and function review of Risk and Assurance.

(kk) The second document that Mr Burns accessed, is the initial email with the same attachment as the first document that Mr Burns accessed.

(ll) The third document that Mr Burns accessed, is a document prepared by Acumen, talking about the form and function review and the Directorate functions. This particular document has been updated to May 2024 and is marked confidential. It is not a final document and is a 'work in progress.' This is evident from the tracked changes noting the formatting changes.

(mm) The fourth document that Mr Burns accessed, is a document she prepared. It is her run sheet for keeping track of her correspondence and meetings with staff. It records anything of relevance, in a chronological order, for her to use as her reference point. She did not share this run sheet with anyone until right at the end of the review, when she provided a copy to the CSA. The version provided to the CSA may not be the document included in the Respondent's Bundle, as the version in the Respondent's Bundle looks like an ongoing version of her run sheet. At a point towards the end of the review, she finalised the run sheet before providing it to the CSA. The run sheet was her working document and she did not expect subordinates to be looking at her working documents if she had not given it to them.

(nn) The fifth document that Mr Burns accessed, is the agenda she prepared ahead of a planning meeting with Acumen on 20 June 2024, ahead of the fourth meeting on 2 July 2024. The attendees are herself, Rowena Williams, Robyn Davis and Angela Flood. Ms Davis and Ms Flood are the Acumen independent consultants that worked on the review. The page contains redactions of information that is confidential between herself and Acumen.

(oo) The sixth document that Mr Burns accessed, is an email that Rowena Williams sent to her, attaching the JDF that Ms Williams reviewed and marked up with track changes. Ms Williams was seconded into the Risk and Assurance Directorate as the Acting Director of the Risk and Assurance Directorate and was there for most of 2024 assisting her in the review process. Page 70 of the Respondent's Bundle is the JDF. There had been much debate about the title to the position, and there are multiple tracked changes throughout the document, indicating it is a working draft, that was going back and forth between her, the Director that sits below her (Ms Williams), and Acumen (the reviewers).

(pp) The seventh document that Mr Burns accessed, is an email she sent to Mr Burns, dated 20 June 2024; 7:23am. At the conclusion of the third meeting on 15 May 2024, once the meeting had dispersed, she hand delivered a regulation 8 letter to four members of the Risk and Assurance team. The CSA subsequently brought to her attention that the employees did not consider that she had handed the letters to them in a considered and private way. So, she issued a personal apology to each of the four recipients, and this document is her apology to Mr Burns. She also retracted the regulation 8 letter, and re-issued it.

(qq) The eighth document that Mr Burns accessed, is her email to Ms Aziz, requesting 'Can you please send the letter D24/0340036 with the attachments as attached and cc [Piers] McCarney.' She provided the TRIM reference number for Ms Aziz to access the letter and included with the email the attachments that are to accompany the letter. The attachments are:

(i) At pages 76-‍93 of the Respondent's Bundle: the workforce composition data which depicts the Departmental positions currently held by staff on fixed term or casual contracts, which she is required pursuant to the industrial agreement to provide to the CSA when undertaking a change process that is likely to result in surplus employees. The data is specifically held by Workforce, and therefore, only available to certain people.

(ii) At pages 94-106 of the Respondent's Bundle: the PowerPoint presentation from the third meeting.

(rr) The ninth document that Mr Burns accessed, is an email that Ms Aziz sent on her behalf to Richard Lobb and Aaron Silver. Mr Lobb and Mr Silver are from the Staff Recruitment and Employment Services team and manage the process that results from someone being issued with a regulation 8 letter. Pages 109-‍117 of the Respondent's Bundle is the regulation 8 letter issued to Mr Burns, signed by her, and dated 15 May 2024 and the attachment titled 'Redeployment & Redundancy Frequently Asked Questions'. Pages 119-‍127 of the Respondent's Bundle is the regulation 8 letter and attachment she issued to Sean De Souza. Pages 129-‍137 of the Respondent's Bundle is the regulation 8 letter and attachment she issued to Maria Buttsworth. Pages 139-‍147 of the Respondent's Bundle is the regulation 8 letter and attachment she issued to Peter Edwards.

(ss) The tenth document that Mr Burns accessed, is an email from Brent Saraceni (her Principal Consultant) to her, attaching the running timeline of organisation charts that Mr Saraceni had prepared. Page 149 of the Respondent's Bundle is an approved organisation chart of the Risk and Assurance Directorate at a point in time (2023). Page 150 of the Respondent's Bundle is the 'PROPOSED FINAL 2024' organisation chart of what the organisation structure may look like. At that point in time, it was not finalised or endorsed and was still a work in progress. Pages 151-‍154 of the Respondent's Bundle are different iterations of what the organisation structure may look like. Page 151 is a working document of what the structure could be if there were 16 FTE (after some positions move to the System Response and Transformation team), and page 153 is another possible configuration if there were 13 FTE.

(tt) The eleventh document that Mr Burns accessed, is an email that Ms Davis (the lead consultant from Acumen) sent to her and Ms Williams, with two draft JDFs. The JDFs contain multiple yellow highlighting, which indicates that they are not finalised.

(uu) The twelfth document that Mr Burns accessed, is titled 'Email from Rhiannon Grosse/Warwick Claydon.' Like Ms Grosse, Mr Claydon is an employee of the CSA. The document is the CSA's response in respect of consultation about the change to the Risk and Assurance Directorate. The attachments to the email are:

(i) 11062024 CPSUCSA Response Letter.pdf

(ii) Attachment A - Risk and Assurance Directorate Feedback 7th June 2024.pdf

(iii) Attachment B - Audit and Compliance WHS Psychosocial Risk Consultation and findings.pdf

(iv) Attachment C - Consultation Plan.docx

(vv) The thirteenth document that Mr Burns accessed, is an email from Tonya Lamatoa (CSA's Member Support Officer), requesting an extension of time on behalf of her members to the feedback period that she had proposed in her letter to the CSA (attached to the email) to commence the consultation on the proposal for change.

(ww) The fourteenth document that Mr Burns accessed, is an email from Zoe Johnston to her, copied to Piers McCarney. Ms Johnston is the Graduate Labour Relations Officer, assisting Mr McCarney, the Labour Relations Officer, who she regularly sought advice from with respect to labour relations matters throughout the review process. The email is in response to her request for advice, from the Labour Relations team, about confidential labour relation matters specific to the review.

(xx) The fifteenth document that Mr Burns accessed, is her letter to Rikki Hendon of the CSA, on the consultation and proposal for change. The Department, when consulting with the CSA, would not send these documents to the staff who are affected by the change.

(yy) The sixteenth document that Mr Burns accessed, is the JDF for the Business Support Officer, Audit and Analytics position. This is a draft JDF and has not been through the classification process because the Classification is stated as 'Level TBD.' She knows, having been part of the review, that the position was proposed to be a Level 5 position supporting the Audit team. At the time that Mr Burns accessed these documents on 18 July 2024, the JDF was a draft and had not been released to staff.

(zz) The seventeenth document that Mr Burns accessed, is a JDF for a Level 5, Policy and Program Officer, which is a draft JDF, as indicated by the yellow highlighting.

(aaa) The eighteenth document that Mr Burns accessed, is a document prepared by Acumen in relation to Directorate Functions in June 2024. It is marked 'CONFIDENTIAL - UPDATED 11.5.24.'

(bbb) Mr Burns did not have authority to access the documents in the folder. He could practically access the documents in the folder because they were not properly locked down. She did not give Mr Burns authority to access the documents in the folder and did not instruct Mr Burns to create a handover document.

[160]

Ms Brown gave evidence under cross-examination that:
- (a) The list of documents that Mr Burns accessed, does not record whether Mr Burns opened attachments to emails. Given Mr Burns told Mr Fleming that he had accessed the JDF and was not going to apply for the position, she knows that he opened at least one document that is an attachment to an email, being the JDF.
- (b) If Mr Burns had not disclosed to Mr Fleming that he had accessed the JDFs, she would not have known at that time that the TRIM Folder was not restricted.
- (c) She expects that if any one of the Department's 60,000 employees came across a document or a TRIM Folder, because the responsibility is on the individual employee, to report to an appropriate person, such as a manager, that they have inadvertently come across something that they perhaps ought not to have access to.
- (d) She does not recall if the AEDM Training informs an employee how to work out if a TRIM Folder is supposed to be restricted or not. From her recollection, the AEDM Training does not go to that level of detail.
- (e) She does not recall if the RA Training would tell Mr Burns what to do if he came across a TRIM folder that was not restricted but was meant to be. She also does not recall what the RA Training says about how to identify whether or not a TRIM folder is supposed to be restricted or not.
- (f) As the Executive Director, an important part of her role is to ensure that confidential documents are kept confidential.
- (g) Given she had instructed (in May 2024) that the TRIM folder in which the documents were to be saved was to be restricted, she did not consider it necessary to mark each and every document subsequently saved to the folder as confidential.
- (h) The TRIM Folder was not marked confidential.
- (i) The TRIM Folder contained documents that had been sent to staff, PowerPoints that staff had seen, and emails that she had sent out to staff regarding the review, including the attachments to the emails she had sent.
- (j) She agrees that the TRIM Folder contained a mix of documents, some of which were already circulating amongst employees, and some of which were meant to be kept confidential.
- (k) As the Executive Director, it was her responsibility to ensure that the TRIM Folder was restricted. She had instructed her Executive Assistant to restrict the TRIM Folder to three persons only, herself, her Executive Assistant, and Mr Saraceni.
- (l) The TRIM Folder contained sensitive and confidential information, which was not intended to be shared with employees at that time.
- (m) She instructed her Executive Assistant to restrict the TRIM Folder. She did not place any documents in the folder herself but instructed her Executive Assistant to save the relevant documents to the folder.
- (n) She told the employees that the JDFs were in draft form and that they were still under review. She did not tell employees at any time that the draft JDFs were confidential, or that they were restricted; but she did tell employees on numerous occasions that the JDFs would not be made available until such time as they had been through the Classification Review Committee.
Ms Brown gave evidence in re-examination that:
- (a) Her daybook records that Mr Fleming had told her that Mr Burns had seen the new Level 5 JDF.
- (b) Page 118 of the Appellant's Bundle (at [7 (l)] above), is a slide from the AEDM Training. It notes that the AEDM Training is based on the Department's Code of Conduct and informs staff that official information should only be accessed when they have a work related requirement to do so in their official capacity; which she thinks correlates with standard 6 of the Code of Conduct. The Code of Conduct is available on the Department's intranet (IKON).
- (c) Page 234 of the Appellant's Bundle (at [7 (q)] above), is a slide from the RA Training. It makes the same point as the slide on page 118 of the Appellant's Bundle.
Mr Fleming gave evidence-in-chief that:
- (a) He is the Manager, Audit Assurance (Level 8) at the Department. He has held the position since March 2024 and has been with the Department of Education and Training since the merger in 2003, in various roles. He is a qualified accountant, holds a Bachelor of Business from Curtin University, and has a Graduate Certificate in Internal Audit through the Institute of Internal Auditors.
- (b) As the Manager, he is responsible for the formation and delivery of the internal audit plan, and reports to the Audit and Risk Committee on a quarterly basis. He reports to the Director, Risk and Assurance, who reports to the Executive Director of Professional Standards and Conduct (Ms Brown). As the Chief Audit Executive, he reports directly to the Audit and Risk Committee.
- (c) Currently, three Principal Consultants Level 7, and one Administrative Officer Level 5, report to him. Last year, he had one Level 6, and three Level 5, Officers report to him. One of the Level 5 Officers that reported to him was Mr Burns.
- (d) He has worked with Mr Burns in various roles since 2003.
- (e) While Mr Burns has stated that the JDF that he had been operating under did not align with the actual duties he was performing, he does not believe that to be true, because Mr Burns has been involved in developing a number of systems, and that involves a comprehensive or detailed risk assessment process and reporting that occurs as part of the system development. Mr Burns' main duties involved the AFR: actioning or remediating the review recommendations from the Office of the Auditor General or the Public Service Commission. When the report was issued by those review bodies, a recommendation would be tendered, and there would be a due date for an action. Mr Burns was involved in managing that whole process in terms of communicating with stakeholders within the Department, getting the responses, and collating the information for presentation to the Audit Committee. In the latter period, Mr Burns would drill down into the responses received and make an assessment on the adequacy of the evidence, making comments, or going back to the respective stakeholder concerned and asking them for more information. In performing this task, Mr Burns would not generally need to go searching for documents on TRIM, because the stakeholders would normally provide the TRIM reference. Mr Burns might go searching on TRIM to see whether he could access the document via the TRIM reference, but if he was not given access to the document, he would go back to the stakeholder concerned to ask them to either give him access or alternatively provide him with a local copy of the document. Mr Burns' duties did not involve him searching around TRIM for any other documents apart from specifically what he was tasked to do with regard to the AFR process.
- (f) He came onboard in March 2024, at which point the Review was underway. His understanding is that the Directorate was doing work which was operational and transactional, so the intention of the Review was to look at the function and see whether the Directorate could be more strategic and add more value to the Department, which involved reviewing the organisational structure for the best configuration of staffing to deliver on the new remit.
Mr Fleming gave evidence under cross-examination that:
- (a) He did not feel that Mr Burns really wanted to work in the Risk and Assurance Directorate.
- (b) Mr Burns undertook a number of secondments that took him out of the Risk and Assurance Directorate.
- (c) He agrees that Mr Burns did not really fit in with the Risk and Assurance Directorate.
- (d) Mr Burns comes from an IT background. He agrees that Mr Burns initially started in IT and then performed a whole number of different roles since then.
- (e) He agrees that he has more knowledge and experience in risk assessment and risk management than Mr Burns. He also agrees that Mr Benomi and Mr De Souza have more experience in risk assessment and risk management than Mr Burns.
- (f) He notified Ms Brown that Mr Burns had seen the JDF in the TRIM Folder on 24 July 2024. He notified Ms Brown of what Mr Burns told him during a team meeting, that he had accessed the TRIM Folder and the JDF.
- (g) When asked whether, as Mr Burns' manager, when Mr Burns told him he had accessed a folder that he was not supposed to access he considered it was his duty to counsel Mr Burns, he said, 'not necessarily, no.' He said:

[187]

Mr Burns submitted that: (footnotes omitted)
1. [He] did not try to conceal his conduct like Mr Portilla and Ms Sandland. Nor did he repeatedly access or disclose information to third parties or use it to further his interest in personal matters like Ms Tolmie did.
2. Unlike Mr Portilla, [he] did not have the benefit of a formal warning.
3. Similar to the circumstances considered in Sandland, [he] and his colleagues were in the midst of an extensive review process, with information overload, mixed messages, and volleys of documents being sent around. The respondent failed to provide clear guidance, partly because it was at pains to emphasise the openness and transparency of the restructure process, and partly because it did not anticipate, and therefore could not forewarn, that confidential documents related to the restructure would be made available for all to see.
4. This case has its own special circumstances, as set out above, and not least the respondent's extraordinary error in making available troves of documents it meant to restrict.
5. [He] otherwise has an unblemished record of 26 years, far in excess of Ms Tolmie's.
6. The respondent treated [him] disparately in dismissing him and it is 'apples and apples' like Portilla.
7. It is open to the Board to find [his] dismissal was harsh, oppressive or unfair.
Mr Burns relies upon Minister for Corrective Services v Fagan [2023] WAIRC 00984 [97], for the proposition that Portilla is the leading case regarding unfairness through inconsistent treatment in this jurisdiction. Looking at all the circumstances, Mr Burns was a more junior employee and had less experience in risk and risk management than Mr Fleming, Mr Benomi and Mr De Souza.
Mr Burns' agent submitted by way of closing submissions that:
- (a) While Mr Burns does not dispute accessing the documents, there is no evidence that he opened all of the attachments to the emails.
- (b) It would not make sense for Mr Burns to direct the respondent to his desktop if the handover document was not saved there, as it would reflect badly on him when it was not found to be on his desktop.
- (c) There is also no evidence that Mr Burns accessed the folder or looked at the documents for an advantage or to cause anyone a detriment.
- (d) There are many cases involving employees accessing documents; this is because curiosity is something that everyone has.
- (e) However, given Mr Burns' 26 years of good service, his dismissal is unfair in circumstances where, apart from curiosity, there is no evidence of him accessing the documents in order to obtain an advantage.
- (f) Mr Fleming's evidence was that when an employee accesses documents that they should not, that they should inform their supervisor. Mr Burns informed Mr Fleming within three business days.
- (g) Mr Burns' access should be understood in the context of his experience of the workplace; that he was bored in his job, and that he found it was an unpleasant place to work, with a problematic culture.
- (h) Mr Burns' access should also be understood in the context of the example set by his supervisor, Mr Fleming. Mr Fleming did not counsel Mr Burns when Mr Burns disclosed his access. Furthermore, Mr Fleming accessed the documents not knowing they were restricted. Likewise, Mr Burns accessed the documents no knowing they were restricted.
- (i) Contrary to the respondent's submission that Mr Burns lacks remorse, Mr Burns expressed strongly that he had learned from the ordeal and would be careful should the situation arise again.
- (j) Mr Burns' conduct was a once-off event in his 26 years of good service. Mr Burns could be trained to ensure that there is no repeat of his misconduct.

[188]

On 2 July 2025, the respondent filed an outline of written submissions, noting Mr Burns' reliance on Tolmie, Sandland and UWU, and submitting: (footnotes omitted)
1. [Tolmie] is of little relevance because the question of proportionality turns upon the facts and circumstances of each and every case. [Tolmie] is very different to the present case. In that case, the Board accepted that there were 'distressing circumstances' relating to her marriage breakdown and 'physical and emotional abuse' which was the context in which [Ms Tolmie] came to access information that she was not authorised to access. Other significant and serious personal circumstances affected her and her judgment at the time of the conduct. During the investigation, [Ms Tomlie] was honest and open in her responses she 'admitted her error and [was] contrite.'
2. Those were significant mitigating features established a basis to think [Ms Tolmie] would be unlikely to engage in similar conduct again (due to the serious and unique circumstances arising at the time affecting her judgment and due to her insight and contrition).
3. Even despite those significant mitigating circumstances, it is apparent from the face of the decision that the Board was only just satisfied that in those exceptional circumstances dismissal was harsh, given [the] serious nature of the wrongdoing.
4. Another distinguishing feature of [Tolmie] is that [Ms Tolmie] was a much more junior officer than [Mr Burns], being a level 2 officer.
5. Far from assisting [Mr Burns'] case, Tolmie supports the respondent's case that in the absence of such significant mitigating features, and in the absence of honesty, contrition and insight, dismissal follows for such conduct.
6. As for the federal case relied upon by [Mr Burns], [Sandland], the starting point is the Fair Work Commission found that the unauthorised disclosures and storage of personal information and personal health information constituted a valid reason for dismissal. While the dismissal was ultimately found to be unfair, this was not because the conduct did not warrant dismissal, rather, the reason for finding unfairness is exclaimed at [170] and [171]:

[191]

Reinstatement was ultimately considered inappropriate on the basis that it was 'difficult to see how [the employer] could have the necessary confidence in [Ms Sandland's] commitment to patient privacy' in accordance with her obligations in the future, which underscores the point that the conduct warranted dismissal, but there were procedural deficiencies in the way the employer proceeded with haste.
Again, while accepting every case needs to be considered on its own merits, far from supporting [Mr Burns'] case, [Sandland] supports the respondent's case that dismissal is fair and justified for conduct the subject of these proceedings.
[Mr Burns] also identifies [UWU] as another case involving employees' unauthorised dealings with confidential information. That decision involved an application for interim orders in the context of an application for a bargaining order under the Fair Work Act, and it does not speak to the question of whether dismissal for conduct the same or similar to that engaged in by [Mr Burns] could justify a fair dismissal.
There are written submissions made to the effect of [Mr Burns] having reflected on his conduct and in hindsight regretting what he did, notwithstanding that he maintains he did not 'at the time' knowingly misconduct himself. There is no proposed evidence to that effect. It is therefore difficult to understand why it is a feature of the written submissions. In any event, the submission is inconsistent with the way [Mr Burns] responded to the disciplinary process and should not be accepted as a truthful reflection of [Mr Burns' state] of mind at the time of the misconduct or now.
The appeal should be dismissed.
The respondent relies upon their written submissions, except to submit in closing submissions that UWU is unhelpful as a precedence because it concerns an interlocutory injunction, heard urgently within four or five days after the application was filed, without reference to the evidence the parties would file at a final hearing. Furthermore, the orders made involved interim bargaining orders, such that the case does not involve a finding of unfairness in an unfair dismissal context. While the Deputy President in UWU [90] said that 'In all the circumstances, Mr Hutchison's and Mr Stolk's action in sending the emails to the UWU does not justify termination of their employment', the Deputy President also said in UWU [96] that 'Further evidence may be adduced at the final hearing that causes me to cease to be satisfied as to these matters, which will determine whether final orders are made.'
In relation to Tolmie, the respondent submits that it was not just Ms Tolmie's prior good service; but the combination of Ms Tolmie's prior good service, the exceptional circumstances for Ms Tolmie accessing the material that she should not have, and Ms Tolmie's immediate honesty, contrition and insight, that cumulatively weighed against the suggestion that Ms Tolmie would engage in the misconduct again. By contrast, while Mr Burns has a longer period of good service, Mr Burns demonstrated no insight into his misconduct, and there are no exceptional circumstances which led to Mr Burns accessing the documents.
The respondent submits that Mr Burns had no legitimate work-related purpose for accessing the TRIM Folder, for the reasons that follow.
- (a) Firstly, the documents did not relate to the work that Mr Burns was required to do for the Department.
- (b) Secondly, where Mr Burns asserts that he had a work-related purpose (of using the JDF to prepare a handover document), that assertion is contrived, for the reasons that follow.
  - (i) In cross-examination, Mr Burns accepted he was not tasked to prepare a handover document.
  - (ii) In evidence-in-chief, Mr Burns generally suggested that he did not do much work at all other than clerical or procedural work, so it is difficult to comprehend the purpose of preparing a handover document
  - (iii) The respondent's proposed finding and proposed disciplinary action letter dated 26 November 2024 (page 9 of the Agreed Bundle), states: (emphasis added)

[198]

The respondent submits that Mr Burns had no business at all accessing the documents in the folder, for the following reasons.
- (a) Firstly, the table summarising the documents accessed by Mr Burns (at [5] above) sets out the titles of the documents accessed, and apart from document 8 (where he is identified as the recipient to an email), there is nothing that would suggest Mr Burns has any business opening the documents.
- (b) Secondly, it would have been very clear to Mr Burns from attending the Review meetings that staff were intentionally not given every document that had been created in respect of the Review, as is the employer's right. Mr Burns' suggestion in evidence that he was looking to see if there were any documents arising from the Review that he had not been given should be rejected. Where it was clear to him that the documents were intentionally not being given to staff, to then search for documents that have not been given to him, is to essentially search for documents that intentionally have not been given to him, or at least, creates a real possibility that his search would throw up documents that are intentionally not for his eyes.
- (c) Even if it is accepted that Mr Burns accidentally came across the folder not looking at the titles of the documents, after opening up the second or third document it should have been clear to him that he had no business opening those documents at all, and he ought to have stopped and told his superiors. Instead, Mr Burns continued opening documents. Mr Burns had no business purpose for accessing the documents, yet he knowingly accessed those documents.
- (d) Mr Burns had actual knowledge that the JDFs had not been classified yet and were not going to be released to staff until they were classified, and he knowingly accessed the JDFs in circumstances where he knew he should not be accessing them. Therefore, Mr Burns engaged in a knowing and intentional contravention in accessing and downloading the JDF.
In the above circumstances, the respondent submits that there are sufficient factual findings to establish that Mr Burns engaged in misconduct, and that dismissal is proportionate.
Firstly, the conduct is gravely serious in the public sector. The respondent relies upon the following key facts to demonstrate the very grave nature of the contraventions:
- (a) Mr Burns did not accidentally or mistakenly access one document. He continuously accessed more and more documents in the folder despite the fact it would have been plain it was none of his business to be there.
- (b) Mr Burns knew the JDFs were not available to him or to staff, yet he looked at the JDFs and even downloaded one JDF.
- (c) Mr Burns knew that the Department was deliberately not giving each staff member every document that was created during the Review, yet he searched the folder in any event.
The respondent submits, given these key facts, Mr Burns was acting intentionally and knowingly; arguably, dishonestly. Mr Burns was accessing documents he would have known he had no business accessing. That conduct in and of itself warrants dismissal.
In response to Mr Burns' submission that his accessing the folder for 27 minutes should be considered in light of his 26 years of prior good service, the respondent says, firstly, 27 minutes is a significant period of time, during which Mr Burns snooped around documents that were plainly not his business.
Secondly, Mr Burns' conduct was not a spur of the moment incident that was over in a flash, and which he did not have time to think about. It is not akin to a prison officer dealing with a difficult prisoner and in the spur of the moment potentially using more force than they should. Mr Burns' conduct was intentional, knowing conduct in the quiet of his workstation. Mr Burns had a number of chances to abandon his endeavour but continued to click on the documents.
Thirdly, and as observed by Matthews C (in Barnett v The Western Australian Education Department [2019] WAIRC 00028), employees are paid for good service. Good service does not assist Mr Burns when coupled with his serious and intentional wrongdoing for which he lacks insight and contrition even with retrospect and in hindsight.
While Mr Burns said in evidence-in-chief that he would not make the same mistake again, his evidence under cross-examination demonstrated that he lacks insight into why it was wrong to access the documents. He said that he was not concerned about looking at some of the documents, and that there was no harm caused by him looking at documents. When asked whether his superiors were entitled to have the space to do their jobs without subordinates sticky-beaking into their business, he did not think there was a problem.
Given Mr Burns' demonstrated lack of insight, the respondent was right to have lost trust and confidence in him. Given Mr Burns' 26 years in the public service, his lack of understanding that there are documents that, even though he might be able to physically access them, he has no authority to do so, works against him.
Mr Burns' submission that there was a lack of training about the required standards of conduct should also be rejected. The AEDM Training, RA Training and Code of Conduct make it clear that it is wrong to access documents without a proper business purpose.
It is immaterial whether Mr Burns obtained a benefit from his conduct. The gravamen of wrongdoing in improperly accessing documents is not the improper use of documents. While obtaining a benefit from looking at the documents would be an aggravating circumstance, the seriousness of the wrongdoing with improper access attaches to the mere access itself. This is because an employer can never be sure what an employee has done with the information they have improperly obtained. In any event, Mr Burns did, in fact, obtain a benefit in this particular case, which is also an aggravating circumstance. The benefit that Mr Burns obtained was the satiation of his curiosity, which he was not entitled to satiate. Mr Burns' evidence-in-chief was to the effect that once he was in the folder, because he is a systems analyst and what he does is investigate, he decided to go investigating around.
Finally, Mr Burns' dishonesty in his response to the disciplinary process would be sufficient to have warranted his dismissal in any event, particularly when taken together with the wrongdoing: Pantovic v Public Transport Authority of Western Australia [2011] WAIRC 00876 (Pantovic).
Mr Burns' dishonesty arises from his response to the allegation that: (emphasis added)

[201]

At the hearing, Mr Burns' evidence was that it was only the JDF out of everything in the folder that was relevant to his handover document. Accordingly, Mr Burns' assertions in his response was materially misleading in giving the impression that his work-related purpose of preparing his handover document related to all of the documents he accessed. While Mr Burns' evidence under cross-examination was that this part of his response was poorly drafted, the respondent submits that Mr Burns' explanation cannot be accepted and the Board can be satisfied that he was dishonest for the following reasons:
- (a) Firstly, Mr Burns' assertion that his access to the documents being relevant to his handover document appears twice in his response.
- (b) Secondly, in the response, Mr Burns refers to 'viewing these documents'; he does not refer to the one document (the JDF) that he extracted.
- (c) Thirdly, in the response, Mr Burns refers to the 'title of the folder and the documents contained within it' indicated to him that the folder may contain information he needed to prepare handover documents. However, the title of the folder and the title of the documents within it cannot support his contention that he only intended to refer to the preparation of a handover document as the work-related purpose for accessing the JDF, not all of the documents.
- (d) Mr Burns' intent was to attempt to convey that all of the documents, based on the title of the folder and the title of the documents, were relevant to a handover document that he was creating. Mr Burns gave a dishonest response to the allegation; he lied to the respondent in an attempt to cover up the fact that he had improperly accessed the documents.
The respondent relies upon the references to the authorities dealing with disparity in unfair dismissal matters in Fagan v Minister for Corrective Services [2023] WAIRC 00324 [70], [74]-‍[75]:
1. Inconsistent treatment of employees can render a dismissal unfair, even if dismissal might otherwise be justified or warranted. The dismissal of an employee may be unfair if another employee guilty of similar or the same misconduct, and without other mitigating features to differentiate, is not dismissed: Portilla at [166] citing The Construction, Forestry, Mining and Energy Union of Workers v BHP Billiton Iron Ore Pty Ltd [2004] WAIRC 13424; Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506 [(Sexton)] at [33].

[218]

Standard 6 is reinforced by the AEDM Training and RA Training, which Mr Burns completed in June 2022 and February 2024 respectively. The AEDM Training explicitly states 'Only access, or allow others to access, official records, information, data and systems for purposes related to our, or their, function', and the RA Training emphasises individual responsibility for maintaining confidentiality and accessing information only for authorised purposes: [7 (j)-(s)] above.
Mr Burns does not dispute accessing the TRIM Folder, for about 27 minutes, and downloading one document (the JDF) twice: [6 (ff)-(gg)] above.
Mr Burns' evidence-in-chief was that he stumbled upon the TRIM Folder inadvertently while conducting a search in TRIM (the purpose of which he could not recall), clicked on the link to the TRIM Folder, and proceeded to browse through the folder because 'it was there' and he 'wondered what else was in it': [6 (x)-(y)] above.
Mr Burns' evidence was that when he opened the TRIM Folder, he saw a list of approximately two dozen files, which 'looked like they'd update me on what was going on with the review'; he 'just had a look at some of the documents', and 'one of them looked like it was relevant to the new position they were creating, and I was working on the document to do a handover for that': [6 (z)-(bb)] above.
Mr Burns' evidence was that he looked at the other documents in the TRIM Folder because 'they were just there'; he was just looking at them because 'They're there. They were in front of me. I'm a systems analyst. I investigate things. It's just part of who I am': [6 (ee)] above.
Relevantly, Mr Burns' evidence-in-chief was that he was concerned the TRIM Folder contained the regulation 8 letters, and while he only looked at the regulation 8 letter that was issued to him, his evidence was that 'I think from that point, I probably decided I probably shouldn't be continuing to rummage through it because it had documents in there that either should have been protected or shouldn't have been in that folder': [6 (ii)] above.
This evidence is relevant because:
- (a) Mr Burns accessed document 10 (the email containing the regulation 8 letters) at 10:49am. The TRIM title of document 10 is: 'Email to Richard Lobb and Aaron Silver - Signed Reg 8 letters served on 15 May 2024'.
- (b) Document 10 states:

[221]

Under cross-examination, Mr Burns agreed that his understanding from attending the Review meetings was that the Department would not be providing the employees with Acumen's report, and only an executive summary will be provided. He also understood from attending the Review meetings that the JDFs were to be classified before they were to be provided to the employees, and that as at 16 July 2024, 4:15pm (pertinently, one-and-a-half days prior to his accessing the TRIM Folder on 18 July 2024), that the JDFs had not been classified: [7 (dd), (hh)-(oo)] above.
Under cross-examination, Mr Burns agreed that he was not tasked with preparing a handover document, could not locate any such document despite directing the respondent to his desktop, and stated that his initial intent was not to seek JDFs but rather 'attachment documents that I would have missed from the emails that were distributed out to people' from Review meetings: [9 (i), (n)] and [8 (r)] above.
Mr Burns conceded under cross-examination that he had no business:
- (a) Looking at document 5: [8 (g), (k)] above.
- (b) Opening or looking at document 6: [8 (l)-(m)] above.
- (c) Opening or accessing document 7: [8 (o)-(p)] above.
- (d) Opening or accessing document 9: [8 (u), (w)] above.
- (e) Accessing document 10: [8 (y)] above.
- (f) Clicking on document 12: [8 (cc)] above.
- (g) Opening or accessing document 15: [8 (hh)-(ii)] above.
The Board has closely reviewed the evidence, including the responses given by Mr Burns during the disciplinary proceedings and in the witness box, and does not accept Mr Burns' explanation of having a legitimate work-related purpose for accessing the documents.
The Board finds that Mr Burns' JDF (Agreed Document 1) required him to maintain the data management system and reporting requirements and integrity for the collection of risk and audit data. While this involved him accessing TRIM, his role involved him looking up a specific document that he has been tasked to locate in TRIM: [7 (a)-(f)] above. The duties of his role did not extend to browsing through TRIM folders and accessing documents that were unrelated to his immediate duties.
Mr Burns' characterisation of his conduct as that of a 'systems analyst' who 'investigates things' misses the point. His role did not authorise him to investigate the internal workings of the Executive Director's Review.
The Board does not accept Mr Burns' assertion of accessing the documents for a legitimate work-related purpose of preparing a handover document, for the reasons that follow.
- (a) Mr Burns admitted under cross-examination that he was never tasked to prepare a handover document: [9 (i)] above.
- (b) No handover document was located on his desktop, despite his specific direction to the respondent to search his desktop for it. Mr Burns' subsequent suggestion that the document might exist on the S drive or in a subfolder is speculative and unsupported by any evidence.
- (c) Mr Burns' written response to the allegations (Agreed Document 3) claimed that his 'work-related purpose for viewing these documents' related to preparing 'handover documents for the people coming in', and that 'the title of the folder and the documents contained within it' indicated they may contain information he needed for that purpose.
- (d) Under cross-examination, Mr Burns conceded that some of the documents he accessed were not relevant to writing a handover document and that some were 'plainly not relevant': [9 (k)] above.
- (e) Mr Burns also conceded that, other than the JDFs which he maintained were useful for a handover, that a handover would not have given him a basis to open any other document in the TRIM Folder: [9 (m)] above.
- (f) Mr Burns conceded under cross-examination that the statements made at [60 (c)] above, were 'misleading': [9 (m)] above.
- (g) The JDF that Mr Burns downloaded was the sixteenth document that he accessed. His evidence that he accessed the folder to find 'attachments' or 'handouts' he may have missed from Review meetings is inconsistent with his assertion that his purpose was to locate a JDF for a handover document.
- (h) As outlined at [53 (f)-(h)] above, by the time Mr Burns accessed document 10, he had recognised that the TRIM Folder contained protected material he should not access. Having formed this view, a reasonable employee (even one self-motivated to prepare a handover), would not continue to access documents in the TRIM Folder.
- (i) If Mr Burns had refrained from continuing to access documents in the TRIM Folder, he would not have accessed and downloaded the JDF (the sixteenth document accessed). In which case, he could not claim to have a work-related purpose of accessing the documents in order to create a handover document.
The Board accepts that Mr Burns may have stumbled across the TRIM Folder.
It is not in dispute that the TRIM Folder was intended to be restricted to Ms Brown, her executive assistant (Ms Aziz) and Mr Saraceni, pursuant to Ms Brown's instructions, but due to an administrative error, it was not properly secured. Therefore, the Board also considers that Mr Burns could be excused for his initial access to the TRIM Folder, particularly if, as he contends, he 'did not really look' at the TRIM Folder title before accessing the documents in the folder: [7 (pp)] above.
However, by Mr Burns' own admission (at [56] above), he had no business accessing documents 5, 6, 7, 9, 10, 12 and 15, which were the fourth, fifth, sixth, eighth, ninth, eleventh and fourteenth documents that he accessed.
By Mr Burns' own admission (at [6 (ii)] above), by the time he accessed the regulation 8 letters (document 10, the ninth document accessed), it was clear to him that the TRIM Folder contained documents that should have been, but were not, protected.
Mr Burns disagrees that by the time he opened document 5, the fourth document accessed, that it should have been clear to him that he had no business accessing the documents (at [8 (i)] above), and disagrees that by the time he opened document 6, the fifth document accessed, that it should have been clear that he had no business opening the documents (at [8 (n)] above).
Despite Mr Burns' denials, given his concessions at [63] above, the Board considers that it should have been clear to him by the time he opened document 5, the fourth document accessed (Ms Brown's run sheet: [11 (mm)] above) that the TRIM Folder contained documents that he should not be accessing.
Accordingly, the Board accepts the respondent's submissions that Mr Burns had no legitimate work purpose for accessing the documents; rather, the purpose of Mr Burns' access was his personal curiosity.
The Board also accepts that this is not an authorised purpose under the Code of Conduct, as reinforced by the AEDM Training and the RA Training, which Mr Burns recalled completing (albeit vaguely), which imposes a positive obligation on him to only access documents for purposes related to his job function.
By his own admission, Mr Burns knew from the 2 July 2024 meeting (Agreed Documents 10, 11, 12) and Ms Brown's email of 16 July 2024 (Respondent's Bundle, page 26) that draft JDFs were unclassified and therefore not finalised, and would not be released until endorsed by the Classification Committee. Despite this, Mr Burns accessed and downloaded a draft JDF marked 'Level TBD', knowing staff were not entitled to them.
Mr Burns' evidence (at [6 (hh)] above) that 'there were no locks on the folder' and 'they told us it was an open, accountable process' mischaracterises the Review communications, which repeatedly emphasised staged, and limited, disclosure: [7 (w), (z), (dd), (hh), (jj), (ll), (oo)] and [11 (u), (x)-(y), (aa)-(bb)] above.
The absence of a 'lock' does not constitute authorisation for Mr Burns to access the documents in the TRIM Folder.
A reasonable employee with 26 years of experience would understand that an 'unlocked' folder containing documents that, on his own evidence should have been 'locked', does not constitute an invitation to rummage through confidential files for nearly half an hour.
The seriousness of the breach is further compounded by Mr Burns' subsequent conduct.
Firstly, despite Mr Burns accessing the TRIM Folder on 18 July 2024 and realising that it contained documents that should have been restricted but were not restricted, he did not mention this to anyone until 24 July 2024, when he mentioned his access to the JDFs to Mr Fleming and Mr De Souza during their weekly team meeting.
In relation to the date of this meeting, the Board notes a minor discrepancy in Ms Brown's daybook (at [11 (j)] above), which records the conversation with Mr Fleming as occurring at 11:20am under the heading '23/07', immediately followed by the heading '24/07' and the entry: 'Brent discovered TRIM file was not locked down.'
However, the following evidence supports a finding that the meeting between Mr Burns, Mr Fleming and Mr De Souza occurred on 24 July 2024:
- (a) Mr Fleming gave unequivocal evidence that he had a weekly meeting with Mr Burns and Mr De Souza on 24 July 2024, and that he informed Ms Brown 'on that afternoon': [14 (k)-(l)] and [15 (f), (h)] above.
- (b) SID's Assessment Report dated 13 August 2024 (Appellant's Further Bundle, page 13) records the following: (emphasis added)

[232]

Accordingly, the Board is satisfied that the reference to '23/07' in Ms Brown's daybook is likely a simple clerical error, and that the meeting occurred on 24 July 2024.
In relation to Mr Burns' conduct during this meeting:
- (a) Mr Burns evidence is that he does not remember this meeting at all: [6 (kk)] above.
- (b) Mr Fleming's evidence concerning this meeting is that Mr Burns stated that he had accessed all of the JDFs, including a Level 5 JDF that he could potentially apply for, but given the duties were largely administrative in nature that he was not going to apply: [14 (k)] above.
- (c) Mr De Souza states, in his letter dated 30 September 2024 (at [76 (d)] above), that during this meeting Mr Burns stated that 'the new draft JDFs were on TRIM and were available for everyone to view'.
- (d) Ms Brown's daybook records that Mr Fleming informed her that during the meeting, Mr Burns had mentioned that he had seen the new Level 5 JDF and stated that he would not be applying for the role.
Secondly, in Mr Burns' response to the allegations letter (Agreed Document 3), Mr Burns asserted a broad work-related purpose tied to 'these documents' and the 'title of the folder and the documents contained within it', implying all 18 accesses related to handover preparation.
As outlined at [60 (e)] above, Mr Burns admitted under cross-examination that only the JDF was relevant (if at all), rendering his response materially misleading.
As observed in Pantovic [91]-‍[92], dishonesty in responding to disciplinary allegations erodes trust and confidence. Furthermore, conduct in the investigation process, in attempting to mislead and obfuscate, of itself, is sufficient to justify dismissal.
The Board considers Mr Burns' purported reasons for accessing the Trim Folder to constitute an attempt by him to minimise his culpability by misleading the respondent.
For the reasons outlined at [44]-[82] above, the Board is satisfied that Mr Burns' access to the Trim Folder amounted to a serious breach of discipline. His access was unauthorised, prolonged, knowing (after the initial documents), and involved misleading conduct in the form of his responses during the disciplinary process.

[234]

The proportionality of dismissal is assessed in light of all circumstances, including the reason for the dismissal and the consequence of the dismissal overall: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch v John Holland Construction & Engineering Pty Ltd (1999) 79 WAIG 1302 (John Holland), 1311.
Every case must be judged on its own facts, and the question whether a dismissal is harsh, unjust or unreasonable is determined having regard to the circumstances at the time of dismissal. Regard is to be had to all the relevant circumstances relating to the particular employee, including matters specifically relating to the employee's work record, whether the employee will be able to find alternative employment, and the financial and social consequences of dismissal: John Holland, 1312.
Mr Burns had 26 years' unblemished service, commencing in IT and transitioning to risk and audit roles, with no prior discipline. He was 62 years old at the time of his dismissal and was facing redeployment amid a restructure of a workplace he found 'boring' and culturally unsatisfying. The dismissal has caused him financial and emotional hardship. These factors weigh in his favour.
However, Mr Burns' breach occurred in a high-trust public sector context, where, in recognition that employees within the Professional Standards and Conduct division hold such positions of trust and privilege that they are required to undergo criminal history screening every three years: [11 (f)] above.
Mr Burns' access across 27 minutes, was not a 'spur of the moment' error, but deliberate persistence despite the red flags raised in his own mind about his access while he was accessing the documents: [52]-‍[53] above.
As observed in Millward v North Metropolitan Health Services [2022] WAIRC 00776 [289], a public sector employee's insistence that their conduct is in good faith and without fault may cause a Public Service Appeal Board to have real concerns about the employee's lack of insight and awareness about why their conduct is serious and problematic, and to raise concerns about the officer's suitability for continued employment:
Mr Burns' characterisation of his conduct as that of a 'systems analyst' who 'investigates things' reveals a troubling attitude towards information security and his obligations under the Code of Conduct. It suggests a belief that his personal curiosity or professional habits override the respondent's protocols regarding confidential information.
In a compliance-focused role within the Risk and Assurance Directorate, such an attitude is untenable. His evidence that he was 'just looking' and 'not touching anything' ignores the fundamental principle that unauthorised access itself is the breach under Standard 6 of the Code of Conduct, regardless of whether the data is subsequently altered or disseminated.
Mr Burns' lack of insight was demonstrated during cross-examination, where he minimised the wrongfulness ('it was there', 'I'm just looking at a document'), and evaded questions on superiors' entitlement to privacy ('stickybeaking' is 'vague'; 'I don't believe it would interfere with them doing their job. I'm just looking at a document. I'm not editing or converting anything. I'm not touching anything').
This contrasts markedly with cases such as Tolmie, where Ms Tolmie expressed immediate contrition for her access: Tolmie [8], [12].
In UWU, Mr Hutchinson forwarded an email sent to him by the WA Terminal Manager containing a Month End Report to a bargaining representative to obtain guidance on how to read and interpret the information in the report. In response to a show cause notice, Mr Hutchinson expressed regret for sending the email and stated that he was genuinely surprised to learn the report was confidential: UWU [41].
Mr Burns expressed regret only prospectively ('I'd be much more careful if I ever went near TRIM again'). In his response to the proposed finding and proposed disciplinary action letter (Agreed Document 5), Mr Burns stated:

[239]

Mr Burns relies on Portilla, for the test of disparate treatment, and contends that his dismissal was unfair when compared to the treatment of Mr Fleming and Mr Benomi, who received improvement actions, and argues his conduct was less severe than Mr De Souza, who was also dismissed.
The Board does not accept this contention.
As Vice President Lawler observed in Sexton [36] cited with approval in Portilla [231] and Fagan (at [39] above), the Board must be satisfied that cases advanced as comparable are in truth properly comparable, and must be conscious that there may be considerations subjective to the circumstances of an individual that cause an employer to take a more lenient approach in an allegedly comparable case. The Board must ensure that it is comparing 'apples with apples'.
The Board finds that the circumstances of Mr Fleming are materially different and do not support a claim of disparate treatment.
Mr Fleming (Level 8 Manager) was actively assisting Ms Brown with the Review. He was part of the leadership team to whom Review documents were being legitimately distributed for the purpose of facilitating meetings with staff. While Mr Fleming's access to the TRIM Folder was technically unauthorised due to the permissions Ms Brown intended to place on the folder, Mr Fleming possessed a functional connection to the subject matter of the Review that Mr Burns did not. Furthermore, Mr Fleming accessed only two documents for a total of one minute and did not extract any documents. Critically, Mr Fleming immediately acknowledged his error as a 'genuine mistake', apologised, and demonstrated insight: Appellant's Further Bundle, page 43.
This stands in stark contrast to Mr Burns who had no functional role in the Review, accessed 18 documents over 27 minutes, extracted a document, and attempted to justify his conduct with a contrived explanation; all of which are material distinguishing features.
Mr Benomi (Level 7) accessed three documents for three minutes. He was sanctioned for failing to report the access once he became aware it was unauthorised, but he too showed remorse.
Importantly, the substantiated allegation against Mr Benomi was different in character: it was that while he did not know his initial access was unauthorised, once he did access the documents, he should have known that he was not authorised and should have raised the issue with his superior. This is a qualitatively different breach to that of Mr Burns, who knowingly continued to access documents after forming the view that the folder contained protected material.
Furthermore, unlike Mr Fleming or Mr Benomi, Mr Burns provided a misleading response during the disciplinary investigation regarding the 'handover document', attempting to legitimise his access with a misleading statement.
The closest comparator is Mr De Souza (Level 6), who was dismissed. Mr De Souza accessed and extracted four JDFs over the course of a few minutes.
In contrast, Mr Burns accessed 18 documents over 27 minutes, including JDFs, and sensitive correspondence. This was not a fleeting error but a sustained interrogation of files he knew, or ought to have known, and on his own admission by the ninth document accessed did know, were confidential. He downloaded a document (the JDF) and then shared the ability to access the JDFs with Mr De Souza.
Mr Burns' conduct was objectively more serious than Mr De Souza's in terms of the volume of material accessed, the duration of the access, and the nature of the documents viewed.
Additionally, Mr Burns' dishonesty during the investigation, in providing a misleading justification for his access, distinguishes his case further.
In circumstances where Mr De Souza was dismissed for his conduct, Mr Burns cannot establish disparate treatment when his own conduct was more egregious. Indeed, the comparison with Mr De Souza supports the respondent's position that dismissal was an appropriate and proportionate response.
Overall, Mr Burns' relatively more junior status (Level 5) and longer service do not equate to his colleagues' brevity in access to the TRIM Folder, candour during the investigation, and insight into their conduct.
Consequently, the Board finds that there is no unfair disparate treatment.
Given these findings, the Board does not consider that the decision to dismiss Mr Burns on 13 December 2024 was harsh, oppressive or unjust.

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers -Western Australian Branch v John Holland Construction & Engineering Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (240 paragraphs)

Stephen Bruce Burns -v- Director General, Department of Education [2025] WAIRC 1024; (23 December 2025)

Parties

Legislation Cited (3)