Massoud v SITEL Corporation Australia Pty. Limited

Industrial Relations Commission (NSW)|2001-04-18|Before: Grayson DP

CITATION : Massoud v SITEL Corporation Australia Pty. Limited [2001] NSWIRComm 218 PARTIES : Mary-Rose Massoud v SITEL Corporation Australia Pty. Limited FILE NUMBER: 2915 of 2000 CORAM: Grayson DP Termination of employment - serious and wilful misconduct - knowing invovlement in receipt of embezzled funds - ex post facto reasons - accessing and sending sexually explicit material - improper use of employer telecommunication system - knowledge of meaning and intent of respondent policy if not specific details - procedural fairness CATCHWORDS : Held, allegation of knowing invovlement in receipt of embezzled funds not proved to reasonable satisfaction of tribunal - ex post facto reasons for dismissal estabilshed to the required standard - dismissal not harsh, unreasonable or unjust - intervention not warranted - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Bigg v NSW Police Service (1998) 80 IR 434 Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No.3] (1990) 35 IR 70 Raap v Wauchope RSL Club Ltd (1995) 81 IR 116 Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949] AR (NSW) 868 Homebush Abbatoir [1966] AR (NSW) 386 WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 North v Television Corporation Ltd [1976] 11 ALR 599 CASES CITED : Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 Williams v Printers Trade Services (1984) 7 IR 82 Wallace v Deering Auto Electrics (1985) 12 IR 34 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Bringinshaw v Briginshaw (1938) 60 CLR 336 Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Lane v Arrowcrest Group t/as Roh Alloy Wheels (1990) 27 FCR 427 Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 M v M (1988) 63 ALJR 108 HEARING DATES: 04/18/2001; 04/19/2001; 04/20/2001; 06/05/2001; 06/06/2001; 06/26/2001; 08/21/2001 DATE OF JUDGMENT: 09/21/2001

Ms.M.Tzannes of counsel instructed by L.Capolupo & Co LEGAL REPRESENTATIVES: RESPONDENT:

Mr.P.R.McGuire of counsel instructed by Freehills

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: GRAYSON DP DATE: 21 September 2001 Matter No. 2915 of 2000

MARY-ROSE MASSOUD v SITEL CORPORATION AUSTRALIA PTY LIMITED

Application by Mary-Rose Massoud pursuant to section 84 of the Industrial Relations Act re unfair dismissal _____________________________________________________________________________ DECISION

1 The applicant in these proceedings, Mary-Rose Massoud, seeks relief under Part 6 of Chapter 2 of the Industrial Relations Act 1996 from alleged unfair dismissal by the respondent, SITEL Corporation Australia Pty Limited on 5 June 2000.

2 Following unsuccessful conciliation and after delays on both sides caused by either illness or overseas travel which necessitated a number of alterations to timetabling, the matter ultimately proceeded to hearing on 18,19 and 20 April 2001 and 5,6 and 26 June 2000.

3 On the last hearing date, the matter went over for submissions and was adjourned on 21 August 2001 pending the Commission's reserved decision.

4 Throughout the proceedings, Ms.M.Tzannes of counsel instructed by L.Capolupo & Co, solicitors appeared for the applicant and Mr.P.McGuire of counsel instructed by Freehills, solicitors appeared for the respondent.

5 Evidence was taken in oral and/or affidavit form from: · the applicant who at the time of her dismissal on 5 June 2000 was employed as a client services co-ordinator · Ms Helen Armao, the applicant's aunt on her father's side · Mr Mathew Doepel, a colleague of the applicant's until his resignation on 31 December 1999 · Mr Joe Khalil, the applicant's father · Mr Glen Cameron, an investigator in the Corporate Security Department at American Express International Inc · Ms Leonie Muldoon, the respondent's Chief Executive Officer · Ms Helen Smirniotis, the respondent's Human Resources Director.

6 Additionally, there were numerous documents admitted into evidence going to the transactions on or in relation to the applicant's personal American Express card, various personnel records, computer diaries and e-mail records, reimbursement records for out of pocket expenses, extracts from human resources and training manuals and so on.

7 Notwithstanding the terms in which the application is pleaded, the applicant announced through her counsel on the first hearing day that she did not press her claim for reinstatement or re-employment confining herself instead to a claim for relief in the form of monetary compensation to the maximum amount allowed (ie, an amount not exceeding the amount which would have been earned in the six months preceding the dismissal).

8 It is alleged by the respondent that the applicant knowingly received an amount of $1000 which was stolen from company funds and paid into her personal American Express account on 15 June 1999.

9 The amount of $1000 was said by the respondent to be part of the proceeds of a large-scale embezzlement of company funds by two ex-employees (Aloe and Vickery), the details of which emerged or began to emerge in or about September 1999, three months or so after the departure of Messrs. Aloe and Vickery from the respondent's employ.

10 Prior to their departure, Mr.Aloe had been employed by the respondent as the Financial Account and Mr.Vickery as the Assistant Account.

11 Since their departure, both have been charged and convicted in relation to the embezzlement of money from the respondent.

12 The manner in which the funds were embezzled by Messrs Aloe and Vickery is not necessary or desirable to set out in detail for the purposes of these proceedings other than to say that it involved the illegal transfer of such funds into their own personal American Express accounts on numerous occasions and on one occasion, at or about the time of their departure from the respondent's employ, into the applicant's personal Amex account.

13 It would seem from the evidence that the respondent conducted its own enquires into the embezzlement between September 1999 and December 1999 at which time, and in the light of the substantial amount of money thought to be missing, it was decided to involve the police.

14 On police advice, it was decided not to approach the applicant until the investigations had progressed further.

15 On 30 May 2000, investigating police contacted Ms.Muldoon, the respondent's CEO and Ms.Smirniotis, the director of human resources and asked that arrangements be made for them to interview the applicant the following day.

16 On 31 May 2000, Ms.Muldoon showed the police into the respondent's boardroom and Ms.Smirniotis brought the applicant in and introduced her to the police.

17 The evidence was that the applicant then accompanied the police to Surry Hills police station where she was interviewed and allowed to leave.

18 Police later informed Ms.Muldoon that Mr.Aloe had admitted embezzling funds and in so doing, had implicated the applicant as someone who was aware of his criminal activities and who knowingly received $1000 in her American Express account as part of the proceeds of those activities.

19 Ms.Muldoon was also informed by police that, in the absence of a confession from the applicant and in the absence of her willingness (on legal advice) to co-operate further with them, it had been decided, given her relatively small role not to charge her on the word of Mr.Aloe as that would be considered unreliable in any subsequent criminal proceedings. For its part, the respondent sought an explanation from the applicant as to her knowledge of the circumstances in which the $1000 came to be deposited in her American Express account.

20 It did so initially on 31 May 2000 after she returned from the police station and again on 1 June 2000.

21 Although there may be a certain amount of controversy as to the manner in which those meetings were conducted especially the first one, it is fair to say, I think, that the applicant evinced no knowledge then or since of the money being credited to her account in June 1999 or as the evidence disclosed, how it was expended virtually to the cent in the period immediately following its deposit.

22 The evidence further disclosed that the same account lay dormant for the period January 1999 to May 1999 being activated by the amount credited to it in June 1999 and immediately thereafter by debits ultimately to the value of the amount credited.

23 Events moved from there to 5 June 2000 when the applicant, again accompanied police to Surry Hills police station, was again interviewed and again allowed to leave.

24 Later that same day, the applicant was asked to attend a third meeting with Ms.Muldoon. On this occasion, Ms.Smirniotis attended as did Ms.Viney who took notes.

25 At this meeting, the applicant was informed that, in the absence of an explanation from her as to circumstances in which the money came to be credited to her AMEX account and expended, there would be no choice but to dismiss her.

26 The applicant declined to offer any assistance in that regard indicating that she was acting on legal advice.

27 She was then handed a termination letter in the following terms: Mary Massoud 1/53 Lucerne Street Belmore NSW 2192

This letter is issued to you as a notice of termination of your employment.

Circumstances of mis-appropriation of funds have been discussed with you in several meetings held with Leonie Muldoon - CEO, myself and yourself present. As a result of our and police investigations, we are concerned that you have been involved in the mis-appropriation of the company's funds.

While we have provided you with several opportunities, you have not been able or willing to provide any plausible explanation or indeed any explanation as to how funds from SITEL Australia came to be deposited in your personal American Express Account. Further, your involvement has been confirmed to the police by one of the perpetrators of fraud against SITEL Australia.

As per SITEL's policies and procedures " Parachute ", this action constitutes serious misconduct and this offence results in immediate termination. "Group 3 Actions/Behaviour - Fraud - An offence in this group would in most cases constitute immediate termination..." pg 17 of 18 Disciplinary Action and Termination Policy.

Due to the seriousness of the matters at hand and your inability or unwillingness to proved a satisfactory explanation, we have no choice but to terminate your employment effective immediately with SITEL Australia Pty Ltd and without notice, in accordance with the termination paragraph of your contract of employment.

Helen Smirniotis Manager, Human Resources (Exhibit A, Annexure E)

28 Shortly after her dismissal the applicant instructed her solicitors to commence these proceedings and in the usual way, the matter came on for preliminary hearing during which the Commission explored with the parties avenues of conciliation.

29 In the result, the parties could find no common ground and the process of establishing a timetable for the filing and exchange of evidence and the fixing of hearing dates was commenced.

30 In the course of conciliation, however, solicitors acting for the respondent revealed that other matters had come to light since the applicant's dismissal which would, if satisfactorily established form a basis for dismissal in their own right.

31 Those matters were to do with the downloading, storage and transmission by email of sexually explicit material and have, since they were first raised, become part of the respondent's case in justification of it's decision to dismiss the applicant.

32 Those matters were also to do with irregularities with respect to the payment of annual leave entitlements by which the applicant was found to have received $1588 in excess of her contractual entitlements.

33 The annual leave overpayments issue is not in the strict sense relied upon by the respondent in justification of it's decision to dismiss the applicant. It is more, as I understood it, a matter to which the Commission is asked to have regard in forming a view with respect to the primary issue - that is, the applicant's alleged involvement in the criminal activities of Aloe and Vickery.

34 It might usefully be observed in that regard, that the overpayment occurred as a result of errors made by Mr.Vickery intentionally or otherwise in the administration of the respondent's payroll system (Micropay) and on the face of it, by annual leave payments being thereby made to the applicant without the prerequisite authorisation of her immediate supervisor and in some cases, without the leave actually being taken.

35 Whilst the evidence clearly demonstrates that such things occurred, the applicant argues with some persuasive force that blame should be laid where it belongs and that is, at the feet of the person who made the erroneous payment and not with her.

36 As to the allegedly improper use of the respondent's e-mail system, the applicant essentially denied storing or sending the majority of the material said by the respondent to have been retrieved from her email records and her personal folder.

37 She did, however, admit sending by way of a text message as distinct from picture messages, material which as the respondent rightly submits, contains verbal references to sexual acts including references to non-consensual sex.

38 It is not to the point, as I am disposed, to argue as the applicant's counsel does, that some distinction ought be drawn in terms of offensiveness between sexually explicit text messages to which some comfortable notion of it being "a joke" can be attached and the various picture messages said to have been stored and/or sent by the applicant.

39 It is the Commission's function not to grade the levels of offensiveness of such material but rather to discover whether on the evidence, it was material in which the applicant trafficked in direct contravention of the respondent's reasonable and lawful direction.

40 In that regard, the respondent's policy about which there was ample evidence, expressly prohibits employees from downloading, retrieving or sending material of a sexually explicit nature and warns of the consequences in the event of failure to adhere to the policy.

41 As may be apparent from the duration of the hearing, each and every one of the issues raised against the applicant was the subject of the most comprehensive evidentiary canvass and the matrix of factual and legal matters which are raised in the proceedings have received careful consideration in the submissions of opposing counsel, and by the Commission.

42 It is well settled at law that whilst the applicant in proceedings such as this bears the onus of establishing that the intervention of the Commission is warranted (see Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273; Bigg v NSW Police Service (1998) 80 IR 434; Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565 for example), there is a subtle shift of onus to the respondent where, as here, there are allegations of serious and wilful misconduct raised against the dismissed employee.

43 In Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No.3] (1990) 35 IR 70 at 83-84, Hungerford, J. expressed it this way: "It is undoubted, in my view, and as Mr.Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital Crown Street [1947] AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949] AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 and Homebush Abbatoir [1966] AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidenciary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 at 552, 553; North v Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35."

44 Further and whilst the standard of proof in unfair dismissal cases requires that matters be proved on the balance of probablilities it is necessary in cases where, as here, the conduct initially grounding the dismissal is criminal in nature, that the balance must weigh more heavily in favour of the allegation of misconduct than would otherwise be the case.

45 In Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-4, a Full Bench of the Commission said this: "The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court on M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299. We should further observe that the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement."

46 It is also well settled and not contended otherwise that facts which come to light after a dismissal may be relied upon in defending the decision to terminate (Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Lane v Arrowcrest Group t/as Roh Alloy Wheels (1990) 27 FCR 427).

47 Coming then to the question whether, on the evidence as it stands, the Commission can be reasonably satisfied that the applicant was guilty of the misconduct alleged at the time of her dismissal, it is convenient to further distil from the evidence and to set out in brief terms the sequence of events leading up to her dismissal:

· the respondent first became aware of some "irregular payments" in about September 1999 (Exhibit 3 - par 4);

· the respondent discovered in about December 1999 that Anthony Aloe and John Vickery had received substantial payments of SITEL money into their personal American Express accounts and that the applicant had received a payment into her personal American Express account (Exhibit 3 - par 5); · in about December 1999 the respondent obtained a schedule from American Express evidencing the payments of the embezzled funds (Exhibit 3 - Annexure LM13) · on 17 December 1999 Ms Muldoon informed Surry Hills police of the suspected embezzlement and thereafter she provided the police with documents and assistance (Exhibit 3 - par 7 to 9)

· in about 17 December 1999 Detectives Watt and Flaherty informed Ms Muldoon that the respondent should not approach or question anyone until the police had completed their investigations (Exhibit 3 - par 9)

· the police conducted an investigation from 17 December 1999 to 30 May 2000, during which period Detectives Watt and Flaherty regularly updated Ms.Muldoon on their investigations (Exhibit 3 - par 10 and 11) · the police told Ms.Muldoon and Ms.Smirniotis on about 30 May 2000 that they were ready to interview the applicant, but told them not to alert the applicant (Exhibit 3 - par 10, 11; Exhibit 9 - par 5); · Ms.Muldoon arranged for the applicant to be interviewed by the police at the respondent's offices on 31 May 2000, but on the evidence of both Ms.Muldoon and Ms.Smirniotis the police did not allow them to attend the interview (Exhibit 3 - par 13-16 and 51; transcript 196.35; Exhibit 9 - par 6-13); · the police conducted a further interview of the applicant at the police station on 31 May 2000, no representatives of the respondent were present (Exhibit 3 - par 16; Exhibit 9 - par 14-15);

· Ms.Muldoon and Ms.Smirniotis interviewed the applicant on 31 May 2000 upon her return from the police station; this interview initially was conducted in the respondent's boardroom and reconvened in Ms.Muldoon's office (Exhibit 3 - par 17-29; LM1 and LM2; Exhibit 9 - par 16-23 and HS1); · on 31 May 2000, after the respondent's interview of the applicant, Ms.Muldoon had a telephone conversation with the police, during which Detective Watts said "Look, I think she was involved she hasn't provided any explanation" (Exhibit 3 - par 3); · on 1 June 2000 the police telephoned Ms.Muldoon and informed her that they had interviewed Anthony Aloe, that he had admitted his involvement in embezzling the SITEL money and had been charged (Exhibit 3 - par 34-35) · on 1 June 2000 Ms.Smirniotis conducted a further interview with the applicant, during which Ms.Smirniotis told the applicant that Mr.Aloe had confessed to embezzling the money and had been charged (Exhibit 9 - par 24-33); · the police had a further telephone conversation with Ms.Muldoon on 1 June 2000 during which they informed her "Anthony says that Mary was aware that she was getting the money and that she knew where it was coming from. Apparently, she found out about the scheme towards the end. We will be coming to your offices on Monday and Tuesday to arrest and charge Mary" (Exhibit 3 - par 36); · on 5 June 2000 Detectives Watts and Flaherty met with Ms.Muldoon, Ms.Smirniotis and the applicant and then escorted the applicant to the police station (Exhibit 3 - par 38) · the police telephoned Ms.Muldoon on 5 June 2000 and told her "We've been advised by the police prosecutor not to charge Mary. Apparently, it won't be worth trying to prosecute her, given her small role, unless she actually confesses. She has not confessed. She will not talk to us about it….She refuses to cooperate. The prosecution division say the evidence of a co-accused alone would be considered unreliable so we have not charged her." (Exhibit 3 - par 39 & LM4; transcript 177.35-45); · Ms.Muldoon and Ms.Smirniotis held a further interview with the applicant on 5 June 2000 during which the applicant said that she had received legal advice from her solicitor not to answer any questions (Exhibit 3 - par 41 to 44 and LM5; Exhibit 9 -par 39 to 44 and HS3); · in late May early June 2000 Anthony Aloe and John Vickery were convicted, upon pleas of guilty, and each received three year good behaviour bonds (transcript 160.20-25).

48 Now, the applicant has maintained throughout the disciplinary process and these proceedings that she did not know that money had been deposited into her American Express account nor did she know until told by the police, that it was money embezzled from company funds.

49 She further maintains that she was denied procedural fairness when confronted with the matter by the respondent on the various occasions leading up to her dismissal.

50 I am bound to say as to the latter proposition that it is difficult to imagine how she could have been treated more fairly in all the circumstances. In saying that, I cannot in good conscience and in spite of the valiant efforts of her counsel conclude that she was harassed, intimidated, humiliated or denied visual and audible privacy by the respondent in the course of it's enquiries and it's meetings with her, or that she was not made sufficiently aware of allegations against her before being questioned or that she was denied an opportunity to be legally represented.

51 The better view of the evidence, I think, is that the respondent did its best to manage what was a difficult process for all concerned and at the end of the day, was simply unable to accept the applicant's assertion that she was not knowingly involved in the receipt of embezzled company funds.

52 In any event and depending on the seriousness of the misconduct, failure to afford procedural fairness will not necessarily be fatal to the decision to dismiss (see for example Rapp v Wauchope RSL Club Ltd (1995) 81 IR 116).

53 The real issue, I think is whether the proof of the allegation against the applicant, having regard to its seriousness and the gravity of the consequences, is of the necessary standard.

54 In the course of the debate, the Commission was taken to the decision of the Full Commission of the South Australian Industrial Relations Commission in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 at 229 where the approach to be taken in cases of alleged misconduct was summarised in this way: "Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigations into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable."

55 Again in spite of the efforts of the applicant's counsel to characterise it otherwise, it seems to me that the tests prescribed above have been met in ample measure.

56 The respondent as I am disposed, did all that could be reasonably expected of it in conjunction with the police, in fully investigating the matter.

57 The applicant was afforded a number of opportunities in the week or so preceeding her dismissal, to respond to the allegations that she was knowingly involved in the receipt if embezzled company funds and virtually from the outset, she was in the hands of legal advisers who guided her in the approach she should take in her dealings with the police and the employer.

58 It cannot be said on any reasonable view that she did not understand the nature of the allegations and it cannot be said that she was not made aware that the termination of her employment was being considered as a consequence in the absence of an explanation which would either exculpate her or at least put reasonable doubt in the respondent's mind such that the ultimate conclusion might be avoided.

59 In that regard, I have no hesitation in accepting Ms.Muldoon's repeated assertions that she kept an open mind in relation to the applicant's guilt and that she had at all times expected that the applicant would offer an explanation consistent with her innocence.

60 As it was, the applicant maintained at the outset (and thereafter on legal advice declined to say more) that she was unaware until told by police almost a year later that money had been deposited into her American Express account.

61 This position was maintained notwithstanding that the account was for months a dormant account until the money was deposited, notwithstanding that the money was expended virtually to the cent in the period immediately following the deposit and notwithstanding that it again lapsed into inactivity in the months following the expenditure of the money.

62 When taken in cross examination to her pattern of use of the American Express card, her awareness at any given time of the account balance and how the account may have been managed by her father, I found her evidence to be unconvincing and in spite of her attempts to describe it otherwise (transcript 26.43 to 28.34; 74.5 to 77.30 and elsewhere) the clear inference to be drawn from the fact that the applicant began to use a previously inactive account at the time and to the extent she did is that it was more than just coincidence.

63 For all of that, however, and whilst the respondent may have had good reason to doubt the applicant's assertion that she did not know the money was in her account, it seems to me that its grounds for forming the ultimate view that the applicant not only knew the money was in her account but also knew it came from Anthony Aloe and that it was money embezzled from the company are somewhat more tenuous.

64 To form that view, the respondent is reliant if not entirely then in very large measure on the statement made by Anthony Aloe to Detectives Watts and Flaherty in course of police investigations.

65 It will be recalled that the police then communicated that statement to the respondent.

66 The applicant's counsel submits that "whilst evidence of this nature is admissible in hearings in the Commission" that little or no weight should be attached to it given the applicant's consistent and steadfast denials which were thoroughly tested in cross examination, given its inherent hearsay character and given the absence of Mr.Aloe in the proceedings in order that his statement may be tested in the usual way.

67 The respondent's counsel argues that the notion of hearsay attaching to Mr.Aloe's statement coming in, as it did, through the evidence of Ms.Muldoon should not distract the Commission's attention from the perfectly admissable evidence of Ms.Muldoon going directly, as it did, to what she had been told by the investigating police as distinct from the truth of it and in turn, as to her reliance on what she had been told by the police in forming a reasonable basis for her belief that the applicant misconducted herself.

68 Further, it is argued that "the respondent does not need to prove the applicant's guilt, only that the respondent honestly and genuinely believed and had reasonable grounds for believing on the information available at the time that the applicant was guilty of the misconduct alleged (per Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224)". Ms.Muldoon's evidence thereafter is direct evidence going centrally to the basis of her belief and the information available to her at the time of forming her belief.

69 With every respect, that is a submission which if accepted would bring the Commission into conflict with its own principle in Wang v Crestell which requires that the employer prove allegations such as apply here to a standard which enables a positive finding that the misconduct occurred.

70 It is not as I would understand it, that the employer alleging misconduct may simply form a belief, however earnestly, which renders it immune from intervention by the Commission in such matters and, to the extent that the decision of the Full Commission of the South Australian Industrial Relations Commission in Bi-Lo Pty. Ltd. v Hooper (1992) 53 IR 224 is relied upon as authority for that proposition, it is at odds with the more recent decision in Wang v Crestell and therefore not open to me to follow.

71 In this case, there must be a significant discounting of the probative value of the statement made by Mr.Aloe to the police not only for the reasons advanced by the applicant's counsel but also for the reason given by the police for not proceeding to charge the applicant and that is, the unlikelihood of obtaining a conviction on the word of the a co-accused.

72 Even allowing that the onus to be discharged here is civil and not criminal, when one takes into account the seriousness of the misconduct alleged and the gravity of the consequences and, even allowing for some of the unsatisfactory aspects of the applicant's evidence to which I have referred, I could not be satisfied to the extent that a positive finding could be made that she was knowingly involved in the receipt of money stolen from the respondent. There are too many doubts.

73 I turn now to the issue of allegedly improper use by the applicant of the respondent's electronic mail system.

74 As earlier observed, it is the applicant's position that whilst she admits sending the text message which appears at p.51 of Exhibit 3 in the proceedings, she denies storing or sending any of the picture messages appearing at pp.52-60 of Exhibit 3.

75 On the respondent's side, Ms.Muldoon said in evidence that, on her instructions, the company's computer network manager retrieved from storage on the company's back up network server, the so-called "personal folders" and "email boxes" of company employees for the period late May 1999 to early July 1999 (essentially a June 1999 snapshot).

76 She then stood with the manager whilst he extracted from the restored file, information contained in the applicant's personal folder and e-mail box.

77 The information thus extracted was then forwarded electronically to Ms.Muldoon's personal computer where she reviewed it and upon review, discovered the sexually explicit material now relied upon to ground the allegation of misconduct.

78 There can be no question that the material relied upon by the respondent variously contains photographic depictions of nudity, verbal references to sexual acts including references to non-consensual sex, graphic depictions of nudity and reference to sexual acts.

79 Similarly, it is not disputed that the applicant was at work when the material was stored or sent. It is just, as she would have it, that apart from the text message which she admits sending, she had never seen let alone stored or sent the material in question.

80 Indeed as the transcript records, the applicant was content to accept when taken to it in cross examination, that she may have sent and received e-mail messages of a non-offensive nature both work related and non-work related, at a time or times proximate to the sending of the offensive material: Q: You were there on 17 June 1999? A: I can't say I wasn't Q: And you were using your computer at the time this email was sent? A: Possibly, I can't be certain where I was.

Q: If I was to suggest on 17 June 1999 you had a meeting at 10 o'clock and was interviewed for account co-ordinator in the harbourside room, that is in the Sitel building, is it not? A: That's right.

Q: Do you recall going to the interview on that day? A: I don't.

Q: You do recall having an interview for the account co-ordinator role? A: Yes, I do.

Q: I suggest to you that at about 10.39am on 17 June your computer records that you received an unrelated email but an email you received on your computer was from Rachael Abbot? A: I can't recall what was the email.

Q: It is possible? A: It is possible. She is part of my department.

Q: I suggest that your computer records show that at about 11.36am on 26 June you received a email from Ms.Skilata?

Q: You have no reason to believe or disagree that your computer might show at 10.50am on Thursday 17 June you received an agenda from Judy McCarta? A: I don't know for certain but if it is work related - -

Q: Indeed work related? A: Yes.

Q: In relation to cancelling a meeting tomorrow? A: Possibly.

Q: That was in response to an email you sent at 9.46am on 26 June to all staff? A: Possibly.

Q: With: Would you like to add anything to the meeting agenda? A: Yes

Q: You had no reason to suggest you did not send that? A: We would have client service meetings on Fridays and the day before when the agenda for the Friday meeting would need to be made up we had our normal action points every week and I would have to send an email every week asking if there was anything further they would like to add to the meeting and then I would add that to the agenda.

Q: The last email from you on 17 June is recorded as having been sent out on 9.36 and I suggest that is three minutes before sending the email with the pierced penis and testicles? A: I am sorry?

Q: You were at your desk three minutes before you sent the offensive email? A: I have never sent this email. I have never seen this email.

Q: But to do accept you were at your desk three minutes before? A: yes, if that is your records. (Transcript 89.17 - 90.33)

81 Now, much has been said by the applicant's counsel about the integrity of the process by which Ms.Muldoon was given information said to be from the applicant's e-mail box and personal folder and in turn, about the probative value of Ms.Muldoon's evidence or lack of it as the case may be, given that the respondent did not call the person who retrieved the information from the back-up server.

82 The applicant's counsel further submits that the Commission should approach Ms.Muldoon's evidence with caution given that the CD Rom said to have contained the personal folders and email boxes of the company employees including the applicant's was not "produced to allow for independent testing for authenticity and integrity". Those submissions, with every respect, have little to commend them as I am disposed.

83 Firstly, there is nothing to suggest that Ms.Muldoon was anything but truthful in the evidence she gave.

84 Secondly, the person asked by Ms.Muldoon to retrieve the information is hardly "an unnamed person still in the employ of the respondent's company" as the applicant's counsel submits. He is as Ms.Muldoon's evidence reveals, the respondent's "network manager who is responsible for our network systems at SITEL Australia". (Transcript 188.30)

85 As such he is a person who can be safely assumed to have expertise in such matters and to impute to him or to Ms.Muldoon some intentional or inadvertent corruption in the information retrieval process is, I think, more than the evidence permits.

86 I consider on the evidence as it stands that the retrieval process was reliable and of sufficient integrity as to satisfactorily establish that the material said to have been contained in the applicant's personal folder and e-mail box was so contained.

87 I further consider the applicant's acceptance of the fact that she sent the sexually explicit text message which was discovered in that way to be at odds with her denial that she either stored or sent the sexually explicit picture messages. I did not find her evidence in that respect to be convincing.

88 There is a high degree of probability, as I am disposed, that notwithstanding her denials the applicant did store and/or send sexually explicit material as alleged.

89 Now, the applicant went to great lengths to portray herself as being less than fully aware of the respondent's policy regarding improper use of the email and internet facilities and as being untrained in that regard in notions of what the respondent considers to be pornographic.

90 However, in my view, her evidence on a proper analysis clearly demonstrates that she was sufficiently aware of the policy to know that it precluded the trafficking in sexually explicit material.

91 For example, she recalled when it was shown to her in cross examination, a memorandum forwarded to all staff by the then chief executive officer in late 1998 advising that dismissal action had been taken and would be taken in the future in respect of any employee found to have stored or sent such material.

92 The memorandum to be found at p.33 of Exhibit 9 made express reference to such action as constituting serious and wilful misconduct under the company's policy and to the consequences of termination without notice which would follow its detection.

93 The applicant said she recalled the summary dismissal action taking place and she described the persons dismissed at the time as "friends of mine" (transcript 79.25) and I am bound to say in those circumstances that I found her evidence as to lack of awareness of and formal training in company policy to be unconvincing.

94 It is in my opinion, a pettifogging approach on the evidence as it stands, to then seek to rely upon lack of knowledge of the precise wording of the company policy when its meaning and intent was obvious and I find nothing in such an approach to commend it in the circumstances of this case.

95 Moreover, as the applicant concedes (transcript 58-86) the recipients of the offending material were employed in the same department as she was and were persons known to her both as work colleagues and friends.

96 To my mind, this lends weight to the proposition for which the respondent contends or conversely, makes it more rather than less likely that the applicant was the purveyor of the material.

97 I am of the view and find on a comfortable balance of probabilities that the applicant stored and sent sexually explicit material in breach of the respondent's policy and as such engaged in serious and wilful misconduct which of itself justified her dismissal.

98 I do not find dismissal in those circumstances to be harsh, unreasonable or unjust.

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Judgment (131 paragraphs)

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Cases Cited (14)

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