Raeburne v Attorney General's Department

Raeburne v Attorney General's Department - [2010] NSWIRComm 130 - NSWIRComm 2010 case summary — Zoe

[17]

The investigation by Ms Wendy Klaassen was conducted in accordance with the Procedural Guidelines for Dealing with Misconduct as a disciplinary matter. Ms Klaassen submitted a comprehensive report on the results of the investigation. In the report Ms Klaassen made the following (summarised) findings: (a) Mr Raeburne provided to the Registrar of the NSW Industrial Relations Commission a 21 page document purporting to be a response to a memorandum prepared by Ms Sue Hogan, Manager Compensation Services dated 28 August 2008. (b) Included, as attachments to Mr Raeburne's submission dated 27 November 2008, were data downloads from the NSW Attorney General's Department CARES system, correspondence and other materials that contained sensitive client information. The documents appear to have been attached for the purpose of providing evidence to support a case against Ms Mary Phillips, Mr Raeburne's Supervisor, in particular to demonstrate the alleged incompetence of Ms Phillips claimed by Mr Raeburne. (c) Mr Raeburne has breached the Department's Code of Conduct and Ethics, the Charter of Victims Rights and sections 17 and 18 of the Privacy and Personal Information Protection Act 1998, which relate to limits on use and disclosure of personal information. (d) Mr Raeburne has breached the Department's Dignity and Respect Policy in that he has failed to respect and value Ms Phillips, or attempted to communicate effectively and resolve differences. (e) Mr Raeburne has continued to engage in inappropriate conduct and behaviour for which he has been previously disciplined which includes: i. unwillingness to cooperate in discussions and meetings regarding conduct and performance issues; ii. disrespect to supervisors; iii. inappropriate communication style; iv. refusal to obey instructions; and v. failure to act ethically, professionally and with propriety in his dealings with others. (f) Mr Raeburne has breached the Code of Conduct and Ethics, which, inter alia, requires staff to act with propriety at all times in all dealings with others. (g) Mr Raeburne has failed to treat his supervisors with dignity and respect as required under the Department's Dignity and Respect Policy.

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Laurie Glanfield Director General 3 The matter was initially allocated to his Honour Sams DP who attempted conciliation without success. Upon the exercise by the applicant of his rights under s 173 of the Industrial Relations Act 1996, the matter came to me and was programmed for arbitration. It thereafter proceeded to hearing in June 2010 with final submissions being received and decision reserved in mid-July 2010. 4 In the course of hearing the applicant was called and cross-examined on written statements he had prepared and filed. In the respondent's case and in addition to the documentary material tendered and relied upon, evidence was taken from the following witnesses: · Michael BALDI, Assistant Director Employee Relations, Attorney General's Department · Mary PHILLIPS, Operations Support Officer, Forum Sentencing, Attorney General's Department and the applicant's line supervisor between March 2008 and September 2008 · Sue HOGAN, Manager, Victims Services Unit, Attorney General's Department 5 The matter presently before the Commission is the fourth unfair dismissal application prosecuted by the applicant against the respondent in as many years. The first such application (IRC 2006/3467) was filed in November 2006 in circumstances where the applicant was resisting the respondent's direction that he submit to a Performance Development Plan. The plan was proposed by the respondent after a complaint against the applicant by a fellow employee (Caroline Van Waeyenberghe). The complainant alleged that she had been spoken to by the applicant in an abrupt and condescending way and that his conduct towards her was in the nature of intimidation and bullying. The applicant disputed the allegations and took issue both with the manner in which the respondent investigated the complaint and also with the conclusion it reached that remedial action be taken against him in relation to the conduct complained of. The complaint, I note, was made in August 2005 and the respondent's decision to take remedial action was communicated to the applicant in December 2005. 6 In June 2006, in the light of the applicant's continuing refusal to undertake the remedial action proposed by the respondent, the respondent commenced disciplinary action against him. The commencement of disciplinary action led to the applicant bringing the proceedings in IRC 2006/3467 which ultimately settled at conciliation before me upon the basis that the applicant consented to undertake, by way of remedial action, certain training courses in conflict resolution, workplace discrimination and harassment and so on. At no time in the course of those proceedings was there actual or threatened dismissal evident. 7 The second application (IRC 2008/854) was filed in June 2008 in circumstances where the applicant again alleged that his employment was at risk, on this occasion because of disputation with his line supervisor Mary Phillips. Those proceedings were concluded by Sams DP in September 2008 again during the conciliation phase upon the basis that the applicant had accepted a long term secondment to the position of Registry Services Officer, Consumer, Trader and Tenancy Tribunal thus it may be assumed, presenting him with certain difficulties in demonstrating in the face of the respondent's denial, that he was being threatened with dismissal. 8 In late November 2008, notwithstanding that the proceedings had concluded, the applicant sought to have a lengthy written submission and numerous attachments placed on the Commission file which by then had been returned to the registry in the normal way for archiving. He was advised in writing by the Registrar that as the proceedings were concluded, there was no provision to accept further documentation in relation to the matter and the material was returned to him. Undaunted, he again proffered the material in early December 2008 this time with a covering letter requesting that it not be drawn to the Registrar's notice. It is the dissemination of that material containing as it did highly sensitive and confidential information relating to victims of crime, which later became a ground upon which the applicant was dismissed. 9 The third application (IRC 2009/243) was filed in February 2009 after the applicant had sought, unsuccessfully, to revive the proceedings earlier concluded. The third application was filed in circumstances where the respondent had written to the applicant informing him as follows: Dear Mr Raeburne, Advice of a Disciplinary Investigation I write to advise that I have determined to commence a disciplinary investigation in relation to allegations that you may have engaged in misconduct. The allegations include, but are not limited to the following: i. Investigate the circumstances surrounding the provision of a memorandum to the Registrar, Industrial Relations Commission, dated 27 November 2008 containing personal, private and/or confidential client information relating to victims of crime; ii. As a result of these actions, determine whether you have breached the Department's Code of Conduct and Ethics and relevant policies and legislation, including the Charter and Victims Rights and sections 17 and 18 of the Privacy and Personal Information Protection Act 1998 relating to the limits on use and disclosure of personal information. iii. Determine whether you have continued to engage in inappropriate conduct and behaviour for which you have been previously disciplined; including: - unwillingness to cooperate in discussions and meetings regarding conduct and performance issues; - disrespect to supervisors; - inappropriate communication style; - refusal to obey instructions; and - failure to act ethically, professionally and with propriety in your dealings with others. 10 The respondent then went on to inform the applicant that Ms Wendy Klaassen, GVK Consulting, had been appointed to conduct the investigation and that if he was found to have engaged in misconduct, that the respondent may consider a range of disciplinary sanctions against him including dismissal. 11 The matter came on for conciliation in mid-March 2009 at which time it was stood over pending the outcome of the 'Klaassen' investigation with the respondent undertaking that it would better particularise the allegations to be investigated. This was done shortly afterwards and the investigation proceeded with the result being termination of the applicant's employment on 11 August 2009. 12 For reasons best described as oversight a fourth application was filed on 21 August 2009 which then became the means by which the applicant now prosecutes his case. 13 I have taken the time to briefly summarise the above sequence because an issue, among others, which divides the parties in the present matter, is whether the events which gave rise to the first application in 2006 can be taken to be of the same or a similar character to the events giving rise to the present matter and hence, to justify the respondent's allegation of a history of similar misconduct. For his part, the applicant submits that the disciplinary action threatened against him in 2006 was to do with his refusal to follow the respondent's direction that he submit to a Performance Development Plan and as such was conduct of a different character to that which allegedly occurred in 2008 against Ms Phillips. 14 Whilst that may be technically correct it ignores the obvious fact that the respondent directed the applicant to undertake the Performance Development Plan in 2006 because it formed the view that he had misconducted himself in his dealings with fellow employee Caroline Van Waeyenberghe and I have little hesitation in concluding that the respondent was within its rights in taking those earlier events into account. 15 Moreover, it is as the respondent submits, a relevant matter for the Commission to consider that disciplinary action was commenced against the applicant in 2006 for failure on his part to follow a reasonable and lawful direction namely, that he undergo performance management. Such remedial action is of course, available to the respondent under the relevant guidelines for management of conduct and performance and as an alternative to more severe disciplinary action. 16 Turning then to the applicant's conduct towards Ms Phillips, it seems the initial period of her supervision between March and May 2008 was relevantly uneventful save for the fact they were required to work as a two person team (Team A) rather than, as was contemplated by the establishment structure within the Victims Compensation Unit, as a three person team. This led to a greater workload for both Ms Phillips as the team leader and for the applicant as the remaining team member. 17 Towards the end of April 2008 the applicant was absent on sick leave for approximately seven days. Upon his return there was a backlog of work in his in-tray. He felt that Ms Phillips should have ensured the work was completed in his absence. He approached Ms Phillips to discuss the matter and it seems reasonably clear that notwithstanding his dissatisfaction with the state of affairs, they agreed that he should dispose of the backlog giving priority to older matters over newer matters. 18 The next day, 6 May 2008, the applicant sent Ms Phillips who occupied the workstation immediately adjacent to him, an email communication setting out ostensibly by way of confirmation, his understanding of their agreement and finishing with what could only be described as a provocative form of words as follows: Your reluctance to action complex corro, case manage files, listings, assessors adjournments and in particular police and court proceedings has been noted. Accordingly you are requested not to delegate and dump work in my tray whenever my back is turned. As a supervisor you are to communicate directly with me prior to the allocation of any work. Team A has a reputation for quality in work produced largely due to my efforts. 19 It may be taken on any reasonable view of those words firstly that the applicant was critical of Ms Phillips and secondly, that he reserved to himself the right to dictate to his supervisor the terms upon which she could allocate him work. The above email was not only sent by the applicant to Ms Phillips as his team supervisor but was also copied to her superior, Ms S Hogan, Manager Compensation Services. 20 On 7 May 2008, Ms Phillips sent the applicant what could only be described as a conciliatory message seeking to clarify the issues he raised and seeking expressly "to foster a better working relationship" with him. She sought to explain what had been done in his absence, to explain how she did her best to allocate to him work of the type that he personally preferred and she complimented him on his efficiency in carrying out that work. 21 She also extended to the applicant an offer of support and a request (my words) that he be more co-operative in the acceptance of work allocated to him. In making that request of the applicant, Ms Phillips referred to his practice of rejecting certain types of tasks such as expenses and general correspondence and she invited him to indicate whether he wished, with appropriate training, to carry out those types of tasks. 22 Finally, she asked that he raise with her in the course of normal everyday conversation (rather than by terse email I infer) any further concerns he may have. 23 Rather than adopting the course proposed by Ms Phillips, the applicant informed Ms Hogan (Ms Phillips' superior) that he would not be meeting with Ms Phillips and that he would be providing a written response to her 7 May 2008 email in due course. This he did in the form of a 7-page memo to Ms Hogan (plus attachments) in which he complained that Ms Phillips was an incompetent supervisor who delegated all her work to him which caused him to be overworked. He claimed this was in breach of the respondent's workplace bullying policy. He further referred to and attached an email he had sent to Ms Hogan's predecessor on 12 February 2004 in which he levelled similar accusations against Ms Phillips indicating in none too subtle terms that she did not meet his expectations of her and that he would not tolerate the situation any further. 24 He further informed Ms Hogan presumably with the intention of bolstering his own position relative to that of Ms Phillips: In relation to the Diary Mary has no concept of what the Diary represents.

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and later Case managing files requires a high level of analytical and conceptual skills together with experience and a working knowledge of the departments policies and procedures. Employees like me who possess these skills are an asset in the team. 25 His memo to Ms Hogan of 12 May 2008 ended with an ultimatum that Ms Phillips: "...is to demonstrate and undertake the responsibilities of a senior clerk in compensation. Hopefully in time there is improvement. However if the situation arises again I will not hesitate referring this matter to the Industrial Relations Commission. This is in accordance with the Workplace Grievances Act (3.9). Accordingly there will be no meetings in relation to this matter." 26 Upon receipt of the applicant's memo of 12 May 2008 Ms Hogan, as Manager of the Victims Services Unit sought to meet him and discuss the situation. She proposed a time and a venue for the meeting. She received the following response: I refer to your proposed meeting for Tuesday 27 May at 2.30pm. I affirm my position in this matter as per my document dated 12 May 2008. Please refer. Accordingly there will be no meetings in relation to this matter. Any communications in this matter are to be communicated to me by email or letter. 27 Ms Hogan then advised the applicant that she would proceed to investigate his concerns about Ms Phillips without further input from him and that if he wished to reconsider his position in that regard and to meet with her, he should so inform her by 4 June 2008. The applicant did not respond and on 5 June 2008, he filed his second unfair dismissal application (IRC 2008/854) which came on for conciliation before Sams DP on 25 June 2008. At conciliation it was agreed that the investigation into the applicant's concerns about Ms Phillips should be completed and that the unfair dismissal application should await the outcome of such investigation. 28 Ms Hogan then completed her investigation into the concerns raised by the applicant and on 26 August 2008, submitted her findings, in the form of a report to Mr Baldi, Assistant Director Employee Relations. In essence, Ms Hogan found the applicant's complaints about Ms Phillips by and large (and save perhaps for her practice of putting 'post-it' notes on files) lacked substance and that he had over-reached himself by purporting to impose obligations upon Ms Phillips (see above) to "demonstrate and undertake" certain responsibilities and to improve. Ms Hogan also concluded that the applicant was less than co-operative in the process laid down by departmental policy for resolving workplace grievances. 29 Notably after statistical analysis of the workload and processing for Team A Ms Hogan found contrary to the applicant's criticism of her, that Ms Phillips carried more than her fair share of the workload. Again contrary to the applicant's criticism of her, Ms Hogan found Ms Phillips was a highly skilled staff member with a well developed awareness of the function of the unit's diary in case management and as the applicant's supervisor, with authority to delegate tasks (or in other words allocate work) to him. 30 The evidence indicates further to the applicant's overbearing email messages and on the face of it, unfounded complaints about Ms Phillips, that whilst Ms Hogan was in the process of investigating the matter, the applicant's antagonistic and unco-operative conduct towards Ms Phillips continued. 31 In that regard, Ms Phillips' affidavit sets out a number of specific examples of such conduct which was not only obstructive to her in carrying out her supervisory functions but which was also, in its rudeness and aggression, deeply humiliating for her. Ms Phillips deposed that the ongoing difficulties she was experiencing with the applicant were a major factor in her seeking a secondment out of the unit in late 2008. 32 This was the context in which, as earlier observed, the applicant commenced proceedings in IRC 2008/854 giving as his reason for so doing, that Ms Phillips' conciliatory email communication to him on 7 May 2008 was defamatory and threatening. To my mind the proposition that Ms Phillips' dealings with him constituted a threat to his employment was at the time and remains fanciful. 33 As Ms Brus submits in respect of those proceedings: His reason for lodging the claim was because of some purported threat made by Ms Phillips on 7 May 2008 (T28.20-24). The Commission will note that there is absolutely no mention of this purported threat in any email correspondence from the applicant post this date. There is no mention of the purported threat in the applicant's document dated 12 May. The reason that there is no mention is because there was no such threat. It is a complete fabrication by the applicant in some belated attempt to justify his actions in commencing frivolous proceedings in this Commission at a time when the applicant was refusing to be supervised.

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It might be usefully noted here that I do not accept the criticism levelled at the respondent for seeking to have those proceedings concluded given there was no threatened dismissal although it may not have been entirely surprising if there had been such a threat in light of the applicant's behaviour. 34 Similarly I do not accept the criticism levelled at the respondent for taking no action at the time (against the applicant) in respect of the additional matters set out in Ms Phillips' affidavit given firstly, the applicant's "no meetings" edict and hence the difficulty in getting him to engage in the process of grievance resolution and secondly, given that the matter de-escalated upon his secondment to the Consumer Trader and Tenancy Tribunal on 15 September 2008. That secondment which was to be for a twelve-month period, ended unexpectedly and the applicant returned to the Victims Services Unit a month or so afterwards and as earlier noted, it was about this time that Ms Phillips departed the unit. 35 Notwithstanding Ms Phillips' departure and the fact that proceedings in IRC 2008/854 had been concluded the applicant decided he would continue his attack on Ms Phillips by preparing and seeking to file in those proceedings a response to Ms Hogan's review findings which he had received in late August 2008. In that response was the private and confidential material relating to victims of crime which the applicant initially sought to file on 27 November 2008 and upon its return to him by the Registrar, again sought to and this time did file on 9 December 2008. 36 This in my view demonstrates a single-minded and unprincipled willingness on the applicant's part in pursuit of his own ends, to breach the confidentiality with which he was entrusted and it cannot be said without more that his conduct was in some way excusable by reason of the Industrial Relations Commission Rules which limit the extent to which access to material filed in connection with proceedings before the Commission may be granted. This is so for two reasons firstly because at the time the applicant sought to file the material, he was aware that proceedings in IRC 2008/854 had been concluded and therefore arguably, the material was knowingly filed outside any formal proceedings to which the rules may apply and secondly, in any event, because there is nothing in the evidence before me to suggest that the applicant had knowledge of or took into consideration the finer points of the Industrial Relations Commission Rules at the time he filed the material. 37 Further, I do not accept the gloss put on the applicant's conduct in that regard in seeking to understate the seriousness of disclosing that information to persons other than those with a right to know it and it is no answer to the allegation of misconduct that the respondent raised no objection to material of the same nature having been lodged by the applicant with his application for relief in those proceedings. His actions in disseminating that sensitive information without the consent or knowledge of the individuals concerned, in my opinion are to be viewed most seriously. They are actions which as alleged, brought him into conflict with the respondent's Code of Conduct and Ethics, with the relevant provisions of the Privacy and Personal Information Protection Act 1998, with the Charter of Victims Rights and with the Victims Services Confidentiality Policy. 38 To the extent that assertions of procedural unfairness are made on the applicant's behalf, it can be accepted I think that the respondent could have managed its processes of enquiry in a more prompt and timely way and as much was conceded by Mr Baldi as a matter of general principle but I am not persuaded that the outcome of Ms Hogan's review was in some way tainted by her earlier criticisms of the applicant. To the contrary Ms Hogan's review speaks to me as being balanced, objective and fair to all concerned. Similarly, I am not persuaded that the Klaassen investigation or the respondent's disciplinary procedures generally were other than fair in all the circumstances. 39 Having carefully considered the evidence and the comprehensive submissions of opposing counsel, I consider there is no warrant for the Commission's intervention in the matter. The application is therefore dismissed and the proceedings concluded.

At a glance

Court

Decision date

Before

Source

Judgment (106 paragraphs)

Parties

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