Schokman v RTA

[12]

The Misconduct Incident of 10 December 2008 7 At some time shortly after 1.00 pm on 10 December 2008, the applicant commenced his "lunch hour". At this time he noticed that he had received numerous missed calls on his mobile telephone which were identified as coming from his wife. He telephoned his wife who informed him that she had been involved in a car accident earlier that morning. The circumstances of the car accident were discussed between the applicant and his wife. Although sometime had elapsed since the accident had occurred, the applicant and his wife gave evidence that she was still in a highly anxious state at the time of the telephone conversation. 8 The applicant's wife was not injured in the motor vehicle collision and it appeared that the other driver was at fault. However, the applicant's wife had only obtained the mobile telephone number of the other driver involved in the collision. The applicant took the telephone details of the other driver and told his wife that he would contact the other driver and obtain the further details regarding the motor vehicle accident. 9 The applicant then telephoned the driver of the other vehicle, a Mr Fatiaki. Mr Fatiaki confirmed that he had been the driver of the other vehicle involved in the collision earlier that day. Mr Fatiaki gave further details to the applicant including his full name and address, his driver's licence number and the registration number of the motor vehicle. The applicant then asked Mr Fatiaki about the make and model of the motor vehicle. Mr Fatiaki said that he did not know the details of the motor vehicle and that as the car was parked some distance away he would have to go to the vehicle in order to provide the further information that had been sought by the applicant. 10 The applicant was under some time pressure as his "lunch hour" was to conclude at 2.00 p.m. at which time he had a driving test booked for an RTA customer. At this point the applicant advised Mr Fatiaki that he worked for the RTA and that he could, if Mr Fatiaki approved, look up the details of the motor vehicle on the RTA computer system (DRIVES). Mr Fatiaki apparently indicated no objection to this and the applicant then made the unauthorised access to the DRIVES system. This access to DRIVES was clearly for a non-work related purpose, and solely for the personal purpose relating to the motor vehicle accident involving the applicant's wife. 11 The applicant obtained the relevant details of the motor vehicle via access to the DRIVES system. In the course of obtaining this information the applicant noticed that the motor vehicle was not registered in Mr Fatiaki's name. The applicant confirmed with Mr Fatiaki that he was not the owner of the vehicle that he was driving when the collision occurred. Mr Fatiaki confirmed the name and relevant details of the owner of the vehicle. The applicant made further access to the DRIVES system in respect to information concerning Mr Fatiaki's driver's licence number and any linked information that the DRIVES system may have contained. The DRIVES system did not provide any further linked information to Mr Fatiaki's licence number and during the course of the ongoing telephone conversation Mr Fatiaki confirmed the details of the motor vehicle as sought by the applicant. 12 The telephone conversation between the applicant and Mr Fatiaki concluded and the applicant exited the DRIVES system and conducted the driving test as scheduled for 2.00 p.m. The applicant did not make any report of the unauthorised use of the DRIVES system for a non-work related matter.

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37 Mr Gibian identified that the applicant had acted completely in the heat of the moment and his misconduct was in no way premeditated or planned. Mr Gibian also mentioned that the applicant had sought and obtained permission from Mr Fatiaki before he actually accessed the records on the DRIVES system. Further, Mr Gibian said that the applicant had obtained no real financial advantage from his misconduct. Mr Gibian submitted that the applicant was merely seeking to establish details which unfortunately, his wife had not obtained at the time of the motor vehicle collision. Finally, Mr Gibian mentioned that the matter had come to the attention of the RTA via the observations and report of another RTA employee, rather than by way of external public or customer complaint. 38 Mr Gibian made a further submission which related to the inconsistency that he said existed between the summary dismissal and the nature of the single incident of misconduct. Mr Gibian said that the RTA had approached the matter without recognising that the actual misconduct of the applicant was at the "lower end of the scale" and should have been compared and contrasted with unauthorised access to DRIVES that would have been premeditated, and specifically, in pursuit of financial gain. Mr Gibian said that these matters which mitigated again a decision to summarily dismiss were paid scant regard by the RTA. 39 Similarly, Mr Gibian said that the RTA appeared to have little or no regard for the exemplary employment record of the applicant. In this regard Mr Gibian said that the evidence revealed that the applicant didn't have just an unblemished employment record, but that he had a demonstrated record of high commitment, enthusiasm and dedication to his work with the RTA. According to Mr Gibian the RTA appeared to have given no consideration for any mitigation in respect to the outstanding performance record of the applicant. 40 In conclusion Mr Gibian submitted that there was no impracticality to reinstatement, and that given the nature of the circumstances, particularly involving the applicant's exemplary work record, reinstatement should be the appropriate remedy for the applicant's unfair dismissal. THE CASE FOR THE RTA 41 At the Hearing the RTA was represented by Mr D Davies, solicitor. Mr Davies made submissions which were directed at five principle issues that he said which were relevant to the applicant's case. 42 Firstly, Mr Davies said that the reason for the dismissal was "crystal clear". Mr Davies said that the misconduct of the applicant involved a breach of the code of conduct, and that there was no evidence to suggest that there was any ambiguity or confusion about the stringent requirements that the RTA insisted upon in respect to the access of the DRIVES computer system.

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45 Mr Davies made further submissions which asserted that there had been an irretrievable breakdown in the employment relationship. Mr Davies said that the employer had lost trust and confidence in the applicant as a result of the misconduct that had occurred on 10 December 2008. In this respect Mr Davies said that it should be recognised that the applicant was not a junior employee who made some silly mistake but, he was a more senior member of the RTA staff who from time to time acted in Assistant Manager positions. Mr Davies submitted that this more senior status of the applicant created significant difficulties in respect of the breakdown of trust and confidence issue. 46 Mr Davies made further submissions which challenged some aspects of the submissions made on behalf of the applicant. Mr Davies submitted that the matters which were said to mitigate in respect of the applicant's misconduct could be discounted. Mr Davies said that the issue of consent from the customer was irrelevant, and that the applicant himself would have been aware that any consent did not necessarily permit a breach of the RTA code of conduct in respect to access to DRIVES. Further Mr Davies said that the benefit that the applicant obtained involved the provision of information which assisted in his insurance claim in respect of the accident that his wife had been involved. In this regard Mr Davies said that the applicant had acted so that "the wheels were appropriately greased toward the insurance claim". 47 Mr Davies made further submissions which related to the summary or instant dismissal of the applicant. Mr Davies said that there had been established strong law to ensure that there was no fixed or defined rule that established the degree of misconduct that could justify summary dismissal. Mr Davies said that it was clear that one act of disobedience or misconduct could justify summary dismissal, if that act went to the heart of the employment contract. 48 Mr Davies then made further submissions which involved reference to a number of other decided cases which involved circumstances of employees obtaining or accessing confidential information in various employment circumstances. Mr Davies said that it was important that the actions of the applicant needed to be considered in the context of the RTA's sacrosanct treatment of access to the DRIVES system. Consequently, according to the submissions made by Mr Davies, the actions of the applicant in accessing the DRIVES system for a personal matter went to the very heart of the employment contract and thereby justified the summary dismissal. 49 Mr Davies made further submissions which rejected the notion that the applicant had not been provided with a proper procedure involving natural justice. Mr Davies said that the applicant had attended at two disciplinary interviews and his Union had provided a written submission before Ms King made the decision to dismiss. Mr Davies further submitted that Ms King had not acted in a manner which was akin to an automatic rubber stamp dismissal but, had carefully considered the circumstances that were involved and the uncontested evidence of the applicant's misconduct.

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51 Mr Davies made a further alternative submission which noted that if it was held that the punishment did not fit the crime in this case, the employer's loss of trust and confidence in the applicant meant that reinstatement would be impractical. In conclusion Mr Davies submitted that the level of punishment in this case was appropriate as the applicant had made a most serious breach of the RTA code of conduct, and that breach went to the heart of the employment contract. Therefore, according to the submissions made by Mr Davies the dismissal should be found to be appropriate in the circumstances and the application dismissed. CONSIDERATION 52 The consideration of this matter can commence with the issue of the nature of the dismissal. This was a case where the applicant was summarily dismissed, no notice was provided, nor payment given in lieu of notice. Summary dismissal, as opposed to dismissal with notice, is the most severe form of disciplinary action that an employer could take against an employee. Much of the considerable case law that has developed in the area of summary dismissal has related to the evidentiary onus that must be discharged in respect to any gross and wilful misconduct that the employer relies upon as the basis for summary dismissal. In this instance there was no evidentiary contest at all, instead, the summary dismissal was said to be inappropriate or disproportionate to the nature of the misconduct that was not in question. 53 Essentially the issue involves the nature of any misconduct that could justify summary dismissal as opposed to dismissal with the required notice. Much of the more recent case law on this particular question has developed a line of authority that for present purposes can be conveniently traced back to the case of Laws v. London Chronicle (Indicator Newspapers) Limited 1 WLR [1959] @ 698. . Although this was an English case from 1959, it established that a prerequisite to any misconduct which is said to provide basis for summary dismissal must "... have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions." Ibid @ 701. 54 Consequently if the decision of the RTA to summarily dismiss the applicant because of his misconduct on 10 December 2008, satisfied this established basis, the RTA must have concluded that the applicant's actions were a deliberate and wilful act that was aimed at the heart of the employment contract. 55 It was advanced on behalf of the RTA that the actions of the applicant did represent a deliberate and wilful breach of a code of conduct, and that as such, it represented proper basis for summary dismissal. In this regard there was great emphasis placed upon what was said to be the sacrosanct way in which the RTA dealt with the DRIVES computer system. The evidence revealed that the RTA does treat the DRIVES computer system with great importance and is clearly concerned about any breach of policy or protocol regarding access to the information that is contained within the DRIVES system.

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56 An employer is entitled to establish stringent requirements in respect to particular aspects of its operations, such that a single breach of a particular requirement could be justifiable basis for summary dismissal. This can lead to differing standards applying in different workplaces such that, for example, in one workplace misconduct involving unauthorised access to a computer data base might result in a warning or some other minor disciplinary action as opposed to the situation said to be relevant in the RTA, whereby unauthorised access to DRIVES constitutes gross and wilful misconduct that provides basis for summary dismissal. 57 In circumstances where an employer establishes some stringent requirement that is said to provide basis for summary dismissal, it is important to ensure that such stringency is genuine, and not something that has been elevated beyond the gravity which the employer in practice applies to the misconduct. It would be plainly unjust if an employer promulgated a level of stringency attached to certain misconduct, but in reality acted either inconsistently in respect of the application of such stringency or generally without application of that level of stringency. 58 When an employer becomes aware of misconduct which it says by way of application of its stringent requirements could justify summary dismissal it must in fairness, act consistently by treating the misconduct with that level of stringency. In effect an employer will condone the misconduct if, having been made aware of the alleged nature of the misconduct, it does not treat that misconduct with the seriousness that it subsequently imposes by way of penalty of summary dismissal. In effect the employer's failure to act as soon as practically possible after it becomes aware of the alleged severity of misconduct creates a waiver that does not permit the employer to subsequently rely upon the misconduct as establishing basis for summary dismissal. 59 Senior Officers of the RTA were aware of the applicant's misconduct, albeit as untested allegations, as early as 19 December 2008. The applicant's access to the DRIVES computer system was not removed until more than a month later. The applicant continued to work for the RTA albeit without access to the DRIVES system, up until his dismissal on 28 August 2009. The dismissal on the 28 August was then summary in nature. That summary dismissal was plainly inconsistent with the way that the RTA had continued the applicant at work both firstly with access, and then subsequently without access to DRIVES for the preceding nine months.

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61 It must be recognised that this difficulty arises because the dismissal was summary, as opposed to dismissal with notice. It has been difficult to understand why the applicant was summarily terminated, rather than terminated either with notice, or payment in lieu of notice. The applicant had been working as normal, other than without access to DRIVES, for the preceding 8 months while the RTA investigation procedures slowly progressed. How could it be that suddenly on the 25 August the applicant could not remain for a minute longer as an employee? The somewhat unusual leap to summary dismissal may be in part, explained by the disciplinary guidelines documents. 62 As mentioned earlier, the RTA evidence initially supplied version 6 of the discipline guidelines as being relevant to the applicant's circumstances. Subsequently during the Hearing of the matter, the RTA provided the earlier version 5 of the discipline guidelines which was said to be that version actually used in the applicant's case. Strangely however version 6 refers to termination of employment and excludes any termination other than immediate termination on receipt of notification of termination. In the earlier version 5 document under the heading Termination Of Services, there is mention of termination without notice in certain circumstances, and then it states, that in all other instances termination of services will be given with the minimum period of notice. 63 Consequently it would seem that Ms King's dismissal of the applicant might have more likely been made in accordance with the provisions of version 6 of the discipline guidelines, rather than version 5. However it was the case put by the RTA that version 5 was applicable to the applicant's case and not version 6. 64 Whatever may have been the underlying basis for the decision to summarily dismiss, as opposed to dismissal with notice, the circumstances of the single act of misconduct, and the subsequent manner that the RTA treated the matter could not provide for proper basis for summary dismissal. Unfortunately the summary nature of the termination of the applicant's employment was not the only erroneous feature of the dismissal. 65 Regrettably the procedure that the RTA adopted when dealing with the misconduct of the applicant that occurred on 10 December 2008, did not follow either version 5 or version 6 of the discipline guidelines. It was the RTA's case that version 5 of the discipline guidelines was applicable to the applicant's circumstances. On page 8 of 10 of discipline guidelines, version 5, under the heading "Principles of Natural Justice", there is mention that a person's interests who will be adversely affected by a decision, must be given an opportunity to be heard. There is also a sub-heading of the word "Timeliness". Regrettably the evidence in this instance does not confirm that those matters mentioned as part of the paragraph headed "Principles of Natural Justice" in the RTA discipline guidelines were applied. 66 On the question of timeliness there was no evidence to establish any particular complexity or sensitivity about the allegations of misconduct made against the applicant, and which he openly admitted on 21 January 2009. There was no evidence provided to establish an explanation for the delay that occurred between 21 January when the applicant in recorded interview, made admissions about the nature and extent of misconduct which remained unaltered, and which then provided the basis for the dismissal some seven months later. 67 Perhaps the most disturbing aspect of the procedure that was adopted in this instance involved the absence of any face to face contact between the applicant and any members of the two disciplinary panels and the ultimate decision maker Ms King. Perhaps it was unfortunate that the version 5 discipline guidelines made mention of "Principles of Natural Justice" on page 8 of 10, almost at the end of the process that is set out therein. Further I note that the version 6 discipline guidelines have dispensed with the disciplinary panel process and apparently that has been replaced with the Ethical Standards Committee. Hopefully this change may represent an improvement. Certainly the evidence in this instance reflects poorly upon the disciplinary panel process. 68 It is difficult to comprehend how there could be any semblance of natural justice when a disciplinary panel meets and takes submissions which lead to a recommendation to dismiss the applicant without giving the applicant any opportunity to appear before the disciplinary panel. Although the applicant was given an opportunity to provide written submissions (and did via the PSA), before the final decision was made by Ms King, neither Ms King, nor any of the disciplinary panels as variously constituted, provided an opportunity for the applicant to plead his case in person. This represents an absence of an essential component of natural justice.

[38]

73 An inadvertent mistake with the dating of a document is an understandable human error. However it must be acknowledged that these documents relate to the very serious matter of termination of employment of an individual. Regrettably when Ms King was asked further about her consideration of the final decision to dismiss, she gave evidence which when considered in the context that she had never met the person that she was dismissing, provided serious concern. This concern, when carefully reflected upon, and with the benefit of observations of Ms King as a witness, has established the unfortunate conclusion that her approach to this matter was detached and perfunctory. 74 These concerns were further exacerbated when Ms King confirmed that at no stage did she contemplate any penalty other than dismissal. Consequently the process that led to the decision and the decision to dismiss the applicant itself, failed to include essential elements of natural justice. 75 The final aspect of consideration of this claim has involved the alleged harshness of the decision to dismiss. This aspect of the matter was submitted as the primary basis for the applicant's claim. In many respects the assessment of harshness in any unfair dismissal claim involves a contextual analysis. This contextual analysis is a well established principle for consideration of any claim for unfair dismissal. Indeed, Justice Boland, President, conveniently summarised this aspect of consideration in Alexander v Commissioner of Police wherein his Honour stated: "…what has become a fundamental guiding principle that even if there are grounds for terminating a contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal and to intervene where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence:" Alexander v Commissioner of Police [2009] NSW IRC Com3 @ paragraph 39. 76 In this instance there were a variety of matters which represented relevant contextual considerations in relation to the issue of alleged harshness. 77 The applicant had more than a good work record. There were numerous examples of the applicant's exemplary work record and his dedication and commitment to the RTA. In particular, it is a reflection upon his general work conduct and commitment that even after he had been dismissed he continued to arrange for the Christmas party for the RTA staff at the Hornsby Motor Registry.

Schokman v RTA - [2010] NSWIRComm 1011 - NSWIRComm 2009 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

Parties

Cited By (2)