Mawkes v DHS [2001] VCAT 1758

"The allegation that Ms Mawkes threatened Ms Trickey by telephone on 19/9/97 was found not substantiated upon investigation by Ms Ann Henderson in her report dated 17/12/97.

The conduct referred to in the report is alleged conduct".

For the Respondent: Ms S Cohen instructed by the Victorian Government Solicitor

1. Section 39 of the Freedom of Information Act 1982 (the Act) is as follows :

"Where a document containing information relating to the personal affairs of a person (including a deceased person) is released to the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) that person shall be entitled to request the correction or amendment of any part of that information where it is inaccurate, incomplete, out of date, or where it would give a misleading impression".

2. In G v Health Commission of Victoria (County Court 13 September 1984, unreported) at p.10 Judge Rendit said of the measure :

"(W)hat s.39 is about is ensuring that personal information concerning an applicant and read by third persons, does not unfairly harm the applicant or misrepresent personal facts about the applicant. It is concerned that the third persons reading the personal information do not get the wrong impression. It is to safeguard against this occurring, that rights are given to an applicant under s.39, to correct his personal record".

3. The applicant in this case is of the view that three documents in the possession of the respondent contain information which warrants placement on the relevant file of a notation correcting certain statements. The respondent has agreed to place a brief notation on one of the disputed documents but the applicant requires a more extensive notation on each of such documents. It is necessary to have regard to the background to the application.

4. It is alleged by the respondent that, on 13 September 1997, it was reported that the applicant (an employee of the respondent) had arrived at her place of employment smelling of alcohol and had spent the period of her work shift on a couch or in a "sleepover bed". The respondent also alleges that, on 19 September 1997, it was reported that the applicant had been making abusive and threatening telephone calls to a colleague, one Eve Trickey (Trickey).

5. In relation to the second matter, it would appear that Trickey was a sub-tenant of a property of which the applicant was the head tenant. There was a dispute between them in regard to the arrangement which had no connection with their employment. It was alleged that the applicant telephoned Trickey at her place of work and made angry threats to her by telephone. There was evidence given to the Tribunal by one David McLeod (McLeod), the defacto partner of the applicant that, in fact, it was he who had made a threatening telephone call to Trickey and it was the applicant's evidence that she herself made no such threat nor the telephone calls complained of. The alleged basis of the respondent's involvement in the matter was the perceived impropriety of such a telephone call to Trickey at her place of employment.

6. The notation which the respondent agrees to place upon the applicant's file in regard to the last mentioned allegation is as follows :

"The allegation that Ms Mawkes threatened Ms Trickey by telephone on 19/9/97 was found not substantiated upon investigation by Ms Ann Henderson in her report dated 17/12/97".

7. In December 1997, after a discipline investigation conducted by the respondent, it was found that the allegations of the applicant having failed to perform her duties diligently and responsibly on 11 May 1997 and failing to treat a colleague with courtesy and sensitivity were substantiated and it was recommended that the applicant receive "warning counselling" in regard to such matters. No further action was contemplated. The applicant subsequently lodged a grievance with the respondent seeking an apology and reimbursement of financial loss. A grievance review upheld the recommendation which followed the investigation. The applicant then lodged a grievance with the Office of the Public Service Commissioner. Upon review, it was recommended that mediation be embarked upon to resolve matters. However, the applicant declined to participate in mediation. The respondent decided to appoint an independent professional investigator to conduct an investigation into the matter. It commenced in September 1998. The applicant was unprepared to participate in the investigation. The investigation report concluded that there was no evidence supporting any allegation that the incident reports relating to the alleged misconduct had been falsified, that the discipline investigation and subsequent grievance review were not prejudiced either by the manner of preparation of the incident reports or the timing or circumstances of their release to the applicant, that based upon the information collected, it was open to be found that the misconduct allegations were substantiated and that there was no evidence to substantiate a claim that there is a common practice of altering, omitting or falsifying legal documents within the relevant office of the respondent. The investigator did, however, note that additional information concerning the alleged incident of 11 May 1997 relating to transport arrangements on that day had come to light which was inconsistent with other information previously provided to the discipline hearing in relation to the allegation that the applicant failed to perform her duties diligently on that day. In a letter to the applicant dated 26 October 1998, the Director of Corporate Services of the respondent stated that if the information was to be formally corroborated, the relevant Regional Director would be prepared to discontinue the disciplinary action in relation to that particular matter. The letter went on to request that the applicant and McLeod provide the respondent with a statutory declaration in regard to the matter. However, no such declarations were provided. The investigator concluded that the remaining disciplinary decision relating to the treatment of Trickey stood and that formal counselling would be undertaken.

8. The three relevant documents relate to these alleged events and consist firstly of an incident report form dated 13 September 1997 referring to an incident on 11 May 1997 in which it is stated that it was reported to one Kate Littlewood (Littlewood) on 25 May 1997 by one Armistead that the applicant reported to duty on 11 May 1997 at 9.00 am "smelling of alcohol". The report goes on to state that Armistead further stated that the applicant lay on the "sleepover bed for the majority of the shift" and that the applicant drove a client home to the home of the client's parents and upon returning, was then seen lying on a bed stating that she was ill and making frequent visits to the toilet. It is also alleged that Armistead said that the applicant left work at 6.00 pm - normal shift hours being 9.00 am to 10.00 pm.

9. On the second page of the incident report form, there are a number of statements including a statement that the "House Supervisor" had spoken to the applicant on 5 September 1997 "at which J Mawkes denied" (sic). However, it is not stipulated in the document what was denied.

10. On the third page of the incident report, there is a notation purporting that the report was checked by one Kim Cowell (now Michael Stone) and bearing date 15 September 1997. However, above that notation, there is also a notation that another officer had been informed on 4 September 1997.

11. The applicant submitted in respect of this document that the date 13 September 1997 does not reflect the time the report was "written" or "registered" nor is it the correct date. Certainly it bears a date almost four months after the report it records was made (viz 25 May 1997). The applicant requests that the following notation be placed upon the file in regard to this document :

"The date on this report does not reflect the date when it was written.

The contents of this report are inaccurate and untrue".

12. The applicant failed to establish on the balance of probabilities that the report, the subject of this document was made on some day, other than 13 September 1997. It was Stone's evidence that the incident report was written on the date it bears viz 13 September 1997. The first date referred to on the third page (viz 4 September 1997) is difficult to reconcile with the date of the report being stated on the first page as 13 September 1997. A possible explanation is error in the statement of the date the 4 September 1997, although it nevertheless remains a matter of uncertainty as to what the correct date should be. The appropriate course in my opinion is for the respondent to attach to the document an acknowledgment that the date the 4 September 1997 is possibly erroneous. The second date on the third page is not inconsistent with the date of the report shown on the first page. An appropriate notation would be as follows :

"The date the 4 September 1997 appearing on the third page of this document, is possibly erroneous".

13. Since the report does not record any conclusion as to the correctness or otherwise of the allegations to which it refers, there is no justification for the notation requested by the applicant that the content be stated to be untrue and incorrect. The applicant has not established that the incident referred to in the document was not in fact reported or that the allegations referred to were not in fact made. The document is clearly described in its first line as "Alleged Staff Misconduct".

14. The applicant has submitted that the respondent has failed to prove that the alleged events were reported. However, it is the applicant who bears the onus of establishing the basis for correction or amendment.

15. The second document involved is a file note made by Littlewood bearing date 25 May 1997 which records similar allegations to those contained in the first document. It is not clear from the evidence as to when it was attached to the last mentioned document. It is however, stated at the foot of the first page of the incident report dated 13 September 1997 that a file note from Littlewood is attached. Littlewood told the Tribunal that she could not recall if she was on duty on 25 May 1997 (a Sunday). She said that the information in the note was given to her by Armistead and that she reported what she was told. It was Stone's evidence that the note was attached on the day it was written. However, that contention is inconsistent with the date of the incident report viz 13 September 1997.

16. The applicant requests that the following notation be attached to this document:

"The date on this file note does not reflect the date when it was written.

The contents of the file note are inaccurate and untrue".

17. The applicant has not established that the date on the file note is incorrect. The incident report dated 13 September 1997 refers to the file note and mentions a report to which it relates as having been made on 25 May 1997.

18. The evidence failed to clarify when the file note was attached to the incident report. In the circumstances, the appropriate approach would be for the respondent to attach to the file note a notation in the following terms :

"It is unclear as to when this file note was attached to the incident report dated the 13 September 1997".

19. For the same reason as I have expressed in regard to the last mentioned document, a notation that the contents are inaccurate and untrue is inappropriate.

20. The third document is a further incident report dated 19 September 1997 (a Friday) which refers to alleged threatening telephone calls received by Trickey from the applicant. On the second page it is stated inter alia that Trickey "reported Ms Mawkes & boyfriend `David' to the Coburg Police". It goes on to detail certain action planned to prevent recurrence of what was alleged. Apparently this document was not signed on the third page by Cowell (now Stone) as having checked the report until 3 September 1998 and after the applicant had drawn attention to the fact that it had not been signed.

The reporting officer was Littlewood who in evidence to the Tribunal conceded that she did not usually work on Fridays. However, she also said that sometimes she did. She could not recall if she worked on 19 September 1997. Her evidence was that Trickey had reported the alleged incident to her.

21. The applicant asks that the following notation be placed upon the document :

"The date in the top left of the first page of the report does not reflect the date when it was written.

The contents of this report are inaccurate and untrue".

22. The document bears the date on which the alleged incident is said to have occurred.

23. Whilst it is apparent that Stone (then Cowell) did not sign the report as having been checked until almost a year after it has alleged to have been made, the evidence did not establish that it was not made on the day it bears nor that Stone did not check it on the later date. Again, the applicant has submitted that the respondent has failed to prove the correctness of the date the document bears. However, as earlier stated, the respondent does not bear the onus.

24. For the same reasons I have given in regard to the two foregoing documents the notation as to the contents being inaccurate and untrue is inappropriate. The Tribunal is however, prepared to order that the respondent place upon the report the notation it has agreed to place thereon and earlier referred to in these reasons for decision. Furthermore, in the interests of clarification of the true nature of the document and for the purposes of maintaining consistency with the first mentioned report, I consider that it would be appropriate for the respondent to place upon the file a notation to the effect that the misconduct referred to in the report is alleged misconduct.

25. On their face, the documents support the conclusion that the incident reports are nothing more than their description suggests and that they are not conclusive of any of the allegations referred to in them. That is reasonably apparent to anyone reading them. The same may be said of the file note. It has not been established by the applicant that the recorded allegations were not made.

26. Save for the matters mentioned above, the evidence did not disclose any inaccuracy in the documents or establish that they are incomplete or out of date or would give a misleading impression. They do not purport to accept or in any way endorse the truth or otherwise of the allegations recorded. Clearly, they are an early part of an ongoing investigative process. It is not the role of this Tribunal to conduct a further investigation. It appears to me that placement on the relevant documents of the notations earlier referred to in these reasons for decision should adequately address any concerns which the applicant may have. I make no further order in this matter.