Industrial Relations Commission of New South Wales CITATION: PSA v RTA [2007] NSWIRComm 1091 APPLICANT: PARTIES: Ms C. Dimitriadis RESPONDENT Roads & Traffic Authority Division of the Government Services of New South Wales FILE NUMBER(S): 1280 of 2007 CORAM: Ritchie C Unfair dismissal application. Applicant long term employee terminated for illegal use of computer system In interview process applicant made certain admissions but did not give full story Further evidence found of misuse Applicant admitted to misuse Disciplinary Process commenced which resulted in termination of employee CATCHWORDS: Commission found termination harsh taking into consideration no third party involved, long term employee and previous clean record. Commission awarded compensation as accepted that employer had due to particular issues lost trust in the employee, did not believe reinstatement was appropriate. Claim for small claim. When suspended on pay, applicant working a part time arrangement as part of return to work programme. During suspension applicant believed entitled to be paid at full time rate. Employer believed paid at appropriate rate. At no time during suspension did applicant provide medical evidence altering her medical situation. Application rejected by Commission. Applicant signed document agreeing to part time arrangements. Did not produce medical evidence to change situation Industrial Relations Act 1996 LEGISLATION CITED: Privacy & Personal Information Protection Act(NSW) 1998 Transport Administration Act(nSW) 1988 HEARING DATES: 14/11/07,15/11/07, 16/11/07 DATE OF JUDGMENT: 10 December 2007 APPLICANT: Mr M Gibian of Counsel SOLICITORS W. G. Mc Nally Jones Staff LEGAL REPRESENTATIVES: RESPONDENT: Ms K Nomchong of Counsel SOLICITORS Henry Davis York DECISION: - 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 10 December 2007 Matter No IRC 1280 of 2007 IN THE MATTER OF: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Christine Dimitriadis) and Roads and Traffic Authority of New South Wales Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of its member Christine Dimitriadis re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2007] NSWIRComm 1091 Background. 1 On 7 August 2007 the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) filed an unfair dismissal application on behalf of its member Ms. Christine Dimitriadis (the applicant) with the registry of the IRCNSW against the Roads &Traffic Authority of NSW. 2 In the employer's reply it was advised that the correct name of the employer is the Roads and Traffic Authority Division of the Government Service of NSW(the RTA). 3 A conciliation was held before DP Grayson on 30 August 2007 but was unsuccessful and a timetable for the filing and serving of evidentiary material was provided to the parties. 4 A hearing of the matter was held on 14,15 and 16 November 2007. At the conclusion of the hearing I reserved my decision. 5 The PSA was represented by Mr. M. Gibian of Counsel and the RTA was represented by Ms. K. Nomchong of Counsel. Case for the PSA. 6 Ms Christine Dimitriadis (the applicant) commenced employment with the RTA on 21 May 1979. At the time of termination, 25 July 2007, she worked as a Registry Services Officer at the Campsie Motor Registry. She had been located at that registry for the last 19 years. 7 She stated that during her period of suspension she worked on a casual basis for the Australian Jockey Club over the Easter weekend in April 2007 plus a few other days. This employment was carried out without the approval of the RTA. 8 Post her termination, the applicant stated that she commenced employment working for Thrifty Car Rentals on approximately 6 August 2007 as a casual Rental Services Officer and then later as a full time employee. She admitted during cross examination that she had lied to Thrifty Car Rentals in completing the application for employment form with respect to why she left her previous job and whether she had suffered from any psychological disturbances or illnesses. 9 It was her evidence that on Wednesday 25 October 2006 whilst working at the Campsie registry she, as a consequence of a request from a friend ( Mr Frank Malis), accessed his photo through the RTA's computer system-DRIVES. 10 On 26 October 2006 again by utilising the DRIVES system, she brought up the photos of two other persons she knew, one Mr Andreas Schafer and a Mr William Perras. She stated that she did this because she was curious to see what their photos looked like. She admitted it was a silly mistake. When she was accessing the photo of Mr Perras she was observed by a fellow worker Ms Zeena Nabhan the Acting Registry Services Manager. At that point she found out that a report of such accesses was produced by the computer. 11 She stated in evidence that at lunch time that same day she met her friend Mr Malis and advised that she had been seen accessing the computer and she thought she would be in serious trouble. He was stated as saying that the RTA should give him a call. 12 That afternoon she was asked to attend a meeting attended by Ms Nabhan and Ms Gina Johnson a Liaison Officer with the RTA. At this meeting she admitted she had misused the DRIVES system on two occasions. In that interview she only spoke of the accessing of Mr Malis file. She denied that she had used her phone /camera to take pictures. She accepted that she had been offered an independent witness at the commencement of this meeting. She maintained in the meeting of 26 October that she had accessed the system on two occasions. In cross examination she agreed that she had not told Ms Johnson about her accessing the file of two other persons. 13 On 27 October 2006, the applicant received a letter entitled SUSPENSION FROM DUTY from Mr David Stuart-Watt, Director Licensing, Registration and Freight citing "serious allegations in relation to unauthorised and inappropriate access to DRIVES and the capture of images in DRIVES with the camera on your telephone." The suspension was with pay of three days a week. At the point of suspension the applicant was only working a maximum of three days a week. 14 She then received two further letters (dated 8 December 2006 & 10 January 2007) from the same Director extending her suspension with pay. The applicant stated that she made several phone calls to the RTA trying to find out what was occurring with respect to the investigation but was unsuccessful in finding out. 15 On 30 March 2007 she received correspondence from Mr Frank Partridge Registry Services Operations Manager, directing her to attend a formal disciplinary interview on 4 April 2007. The correspondence identified the following allegations. 1. 25 October 2006 you did misuse your authority when you did access the RTA DRIVES customer record #01998767 of Mr Frank Malis relating to his captured photo image details without permission or authority, and that you were not entitled to gain this information in this way. 2. 26 October 2006 you did misuse your authority when you did access the RTA DRIVES customer record #06272208 of Mr William Perras relating to his captured photo image details without permission or authority, and that you were not entitled to gain this information in this way. 3. 26 October 2006 you did misuse your authority when you did access the RTA DRIVES customer record #01805093 of Mr Andreas Hans Schafer relating to his captured photo image details without permission or authority, and that you were not entitled to gain this information in this way. 16 A record of the interview held on 4 April 2007 became an annexure to the applicant's affidavit. The applicant confirmed that it was a true record of the interview. During the interview she admitted she had accessed without authority, the files of the three named persons ( who were all acquaintances of hers) on the basis of simply to look at their photo. She acknowledged that she had breached the RTA's Code of Conduct. She stated in the interview that she had not taken any money and that there were no fraudulent activity in regards to the three transactions that she had viewed. It was a very silly mistake. She said that it happened a lot in Registries. Whilst Mr Malis knew what she had done, the other two did not. The applicant said she was emotional during this meeting which she felt did not allow her to talk about her mitigating circumstances. 17 On 8 June 2007, the applicant received another letter from her Director which stated that the allegations against her had been substantiated, that termination of her services was being considered and that she had seven days to provide a reply. The PSA responded on her behalf in correspondence dated 26 June 2007. 18 On 25 July 2007 she received by hand, correspondence from her Director terminating her services immediately. She stated that she raised the issue of at what rate would she be paid out at and was told to obtain a medical certificate as soon as possible stating that she fit for full time work. This certificate she obtained from a Dr. Hoang dated 31 October 2007. 19 The applicant gave evidence that she had been on sick leave from February 2005 until June 2006 suffering from a nervous breakdown and depression which required hospitalisation. When she returned to work she worked two days a week which increased to three days in August 2006. On both occasions she signed documentation acknowledging what her part time work arrangements were and that she accepted the conditions of employment contained in the correspondence. 20 She also stated that she had not received formal training on the use of the DRIVE system when introduced in 1990 as she was on maternity leave but had just received on the job instruction. She included this statement for completeness and not to absolve herself from not knowing how DRIVES operated. She agreed in cross examination that it was her responsibility to keep herself up to date with information released by the RTA to officers and that she was aware of the Front Line Help service that was available through her computer. She accepted that she had been told by the RTA about the degree of confidentiality of the information held by DRIVES and her obligations with respect to that information. She was aware of the Privacy & Personal Information Protection Act(1998) (PPIP Act) and its ramifications. She agreed that she had broken protocol. She was not aware of the introduction of the MIS reporting system which tracked staff accessing photo licensing images on DRIVES, as at the time of introduction, she was on sick leave. 21 In cross examination the applicant admitted that she had accessed the image of Mr Malis on two occasions, Mr Schafer on one occasion and Mr Perras on one occasion. She stated that she had accessed the image of Mr Malis on both 24 and 25 October 2006. 22 It was her evidence that many staff accessed the licensing images on DRIVES on a regular basis for reasons that are not authorised. 23 She did state in cross examination that she did attend a Code of Conduct training course but could not remember when or its contents. 24 She primarily sought reinstatement, with back pay at the RTA in her former position within the Southern Region or compensation. 25 It was her view that she would not repeat the actions that she had done in October 2006. 26 In final submissions Mr Gibian stated, in brief, that the actions of the applicant did not warrant termination. The applicant had been a long term employee of 28 years with no previous blemishes on her employment record. Her admitted breach of the RTA's Code of Conduct, on the three separate occasions provided her with no financial gain. She realised that she had made a silly mistake in carrying out these breaches and stated that it would not happen again if she was reinstated. The RTA had not raised the issue of the meeting of 26 October 2006 with respect to her failure to mention the viewing of Mr Schafer and Mr Perras until this court appearance, nor was it raised at the meeting on 4 April 2007. As it was not raised by the RTA as an allegation to be responded to, it can hardly be raised now as a reason for termination. The extensive delay in the finalisation of the investigation brought hardship and stress to the applicant. In comparison with other cases where RTA officers had misused DRIVES not all had been terminated. Small Claim Application. 27 The PSA also filed on behalf of its member an Application for Order and Particulars of Small Claim to the value of $15,381.37. The basis of this claim was that at the time when the applicant was suspended (27 October 2006), she was working three days a week in accordance with medical advice. During her period of suspension the RTA continued to pay the salary she would have received had she been working( three days pay) rather than the whole salary attaching to her position. It was the PSA's submission that she was entitled to be paid the whole of the salary attaching to her position under the Crown Employees(Public Sector-Salary 2004) Award and the Crown Employees (Public Sector-Salaries 2007) Award during the period of her suspension with pay. 28 Mr Gibian stated that the applicant was not appointed or transferred to being a part time employee. Once she was suspended she was not required to work at all so there was no requirement to provide a medical certificate stating she was fit to work four or five days a week. In his view the requirement to provide such a certificate was irrelevant. Case for the RTA. 29 The RTA provided the following witnesses: Ms Gina Johnson-Acting Operations Coordinator, Sydney Sector Mr Frank Partridge-Registry Services Operations Manager, Sydney Sector Ms Emilia Cvetkovic-Manager, Workplace Conduct. Mr Phillip Youngman-Manager, Records Access Unit. 30 Ms Johnson has worked for the RTA for approximately eight years and in her present acting position for three years. In this role she is responsible for staffing performance issues. 31 On 26 October 206 she was advised that the applicant had been observed viewing images on DRIVES whilst not serving customers and also observed holding her mobile phone in the direction of her computer screen. 32 That afternoon she attended the Campsie Motor Registry to conduct a fact finding interview with the applicant and Ms Nabhan. During the interview the applicant accepted that she had accessed the image of Mr Frank Malis on 25 and 26 October 2006. She denied accessing any further images and denied capturing images off DRIVES screen by using her mobile phone. The applicant provided her mobile phone which was checked by Ms Johnson and was found to not have any images of the person whose images had been accessed. The applicant also stated that she was unaware that she was not allowed to access the stored photo images. Also on that day Ms Johnson interviewed other employees at the registry. 33 As a result of further inquiries Ms Johnson became aware that the applicant had also accessed the images of two other persons, a Mr William Perras and Mr Andreas Schafer on 26 October 2006. She advised in re examination that to her knowledge a privacy log report for 24 October 2006 was not carried out by the RTA. 34 Ms Johnson with the assistance of a Ms Riches of the RTA, obtained computer printouts of employees at the Lidcombe, Campsie and Beverly Hills Motor Registries to investigate the claim made by the applicant that other employees were making similar accesses to DRIVES. After investigation the applicant's claim could not be substantiated. 35 She stated that on 25 July 2007 she accompanied Mr F. Partridge to the applicant's house and delivered the termination letter. When the applicant asked if she would be paid out at the full time rate, she was advised to obtain a medical certificate stating that she was fit to work full time duties and to send it to Human Resources for their determination. 36 Mr Frank Partridge stated that he had been employed with the RTA for the last 37 years. He is responsible for ensuring the delivery of registration and licensing functions within the Sydney sector which comprises 41 Motor Registries. He stated that he was aware of the meeting that took place on 26 October 2006 and the suspension on pay of the applicant. He held a meeting on 10 November 2006 at the RTA's office at Parramatta with Ms Riches, Ms Johnson and Mr Wayne McInnes from the Control Management Service. A decision was made to halt the investigation into the applicant at that point so as to investigate the applicant's allegation that other employees were inappropriately accessing the DRIVE system. An investigation took place and at the end of this investigation he was satisfied that there was not a widespread practice within the Registries of unauthorised access to DRIVES. He acknowledged that the period of time that the applicant was on paid suspension was too long but he stated that he had just taken over his present role in October 2006 and he had a number of competing priorities plus he wanted to ensure the fairest possible process to the applicant. 37 On 4 April 2007 he conducted a disciplinary interview with the applicant, a Mr Brian Turner of the PSA and a Ms Colleen Johnson a stenographer of the RTA. Also present was Ms Gina Johnson. A transcript of the meeting was annexed to his affidavit. During this interview the applicant stated that she had now read the Code of Conduct but was unaware of the photo capture being on the MIS reports. She admitted that she had misused her authority accessing DRIVES on three separate occasions and that she having now read the Code of Conduct she had breached same. She said she had accessed the system out of curiosity, there was no fraud and that it had been a very silly mistake. All three people that she looked up were acquaintances, one of them (Malis) was aware of what she had done, the other two had not been told. 38 Mr Partridge said that he disagreed with the applicant's version of that meeting in that the applicant had not been crying throughout the meeting. She had been teary from time to time, no more. He also disagreed that the applicant had not been given the opportunity to defend herself and discuss mitigating circumstances. The interview had been conducted in accordance with normal procedures. 39 Post the meeting held on 4 April 2007, Mr Partridge made a report to his manager. This report was then put before a disciplinary panel and he no longer was involved in the process. The disciplinary panel after consideration make a recommendation to the appropriate director. 40 Notwithstanding that the applicant said that she was not at work in 1990 when DRIVES was put in place and therefore did not have the introduction training, it was Mr Partridge's view that the applicant had over the next 17 years worked with DRIVES. He said in cross examination that all employees were trained in the new system when it was introduced and all new employees were trained when they joined the RTA. Between 1994 and 2005 the applicant had worked in a higher duties position on at least 345 days. 41 When an operator logs into DRIVES they are advised that information is confidential, it may constitute personal information and that unauthorised access could render the operator liable to a fine and or imprisonment. 42 He also stated that it was his understanding that due to the applicant's medical assessment by HealthQuest she could return to work on a part time basis which she did at two days per week, which was later increased to three days. Two letters countersigned by the applicant confirmed that she had accepted part time employment. He stated that at no time from 14 July 2006 until the date of her termination did the applicant provide medical evidence that she was certified fit for full time duties. He said that around 24 January 2007 he responded to the applicant via another employee that the applicant has to produce a medical certificate stating she was fit for full time employment prior to her receiving a full pay on suspension. 43 When he provided the applicant with her letter of termination on 25 July 2007 he advised the applicant about the requirement for a medical clearance and was advised by the applicant that she was going to see her doctor as soon as she can. 44 Mr Partridge stated that it was the RTA's view that accessing DRIVES without a legitimate purpose was a serious breach of their Code of Conduct. A great deal of trust is placed in its employees to exercise their authority responsibly and in accordance with their policies. 45 Ms Emilia Cvetkovic commenced employment with the RTA in or about June 2001 and was appointed to her current position in May 2004. She stated she is responsible for the organisation and monitoring of fact finding and disciplinary investigations of misconduct matters (other than fraud and corruption). She stated that the RTA has a disciplinary policy and process. The report and transcript of a disciplinary interview are directed to the Disciplinary Panel. The Panel acts as a quality control committee to ensure the disciplinary process is followed and to make recommendations to the appropriate Director. The Disciplinary Panel met on 21 and 28 May 2007 to consider the investigation into the applicant's conduct. A recommendation was made to the Director on 7 June 2007. 46 On 8 June 2007 the Director (Mr Stuart-Watt) sent a letter to the applicant advising her that he was considering terminating her employment, and providing her with the opportunity to provide any additional information that she wished to have the RTA consider. The PSA responded on behalf of the applicant and the Director placed that written response back before the Disciplinary panel. As a consequence the Disciplinary Panel met again on 2 July 2007. After consideration the Disciplinary Panel recommended in correspondence dated 11 July 2007 that the applicant be terminated. The Director raised a letter on the same date terminating the services of the applicant. He also sent the letter to the PSA with other correspondence inviting the PSA to provide further details in relation to its allegation that other employees had improperly accessed DRIVES. 47 Ms Cvetkovic stated that between August 2004 and March 2005 the RTA provided training for all its employees on the Code of Conduct. Employees attending the training were provided with a copy of the new version of the Code dated September 2003. She advised that the applicant attended the Code of Conduct training on 23 September 2004. This training covered the confidentiality of the information collected from the general public. The RTA considered dishonest or improper use of a position or information to fall within fraud and corrupt conduct and the unauthorised use of the RTA's equipment as misconduct. 48 It was her view that with the applicant's long period of employment she should have been aware of the RTA's attitude towards the protection of the information retained by it. The applicant had accessed photographic information for no valid reason. 49 She did not believe it would be appropriate for the applicant to be reinstated to her former position. She did not believe there was any basis for the RTA to re establish trust of the applicant to comply with its policy. The applicant was not wholly forthcoming about the number of times she had accessed DRIVES. The access was deliberate without any valid reason. If the applicant was returned to her former position then it would undermine the RTA's ability to protect the personal information it collects and stores and would dilute the importance the RTA attaches to its serious responsibility to protect the information of the people of New South Wales. 50 Mr Phillip Youngman has been employed with the RTA for approximately 42 years. He has been in his present position for the last seven years. His unit is responsible for managing privacy complaints received by the RTA as well as providing advice to officers of the RTA dealing with privacy issues. He stated that by virtue of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and section 46(2) of the Transport Administration Act 1988 (NSW), the RTA being a public sector agency, is obliged to comply with the PPIP Act and with the Information Privacy Principles contained within it. The RTA provides its officers through an intranet page material with respect to privacy obligations it must comply with. 51 Section 62(1) of the PPIP Act provides as follows: 62 Corrupt disclosure and use of personal information by public sector officials (1) A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions. The sector provides for a maximum penalty of $11,000 or imprisonment for 2 years or both. 52 He stated that the RTA considers a breach of section 62(1) to be a very serious quasi-criminal offence. New computers introduced into the RTA in 2004 did not allow the operator to uplift an image or to store such an image. This was done to protect the information within DRIVES from improper use. In 2006 the RTA introduced a facility so as operators could confirm the identity of a customer who claimed not to have done business with the RTA before and for other proof of identity purposes. 53 He advised that the RTA took issues relating to privacy and the protection of personal information very seriously. The RTA has in place a Privacy Management Plan (PMP) which underpins its obligations under the PPIP Act. The PMP is published on the RTA's website. It states that the definition of personal information covers photographs. It states also that every access to information in DRIVES is recorded in a privacy log, including the date, time and identity of the person making it. 54 Taking into consideration the great lengths that the RTA went to ensure that staff are aware of their responsibilities in relation to the information stored in DRIVES and that they are aware of the seriousness of breaches of privacy and confidentiality, then he believed it would be untenable for the applicant to be reinstated. 55 In her final submission Ms Nomchong stated, in brief, that the applicant had been aware of the policies of the RTA and that she had knowingly breached them. The RTA considered that the actions of the applicant were serious and the step that was taken in terminating her had been taken after the normal process had taken place. Procedural fairness had taken place. Whilst there had been no financial gain received by the applicant there had been a personal use. The reason given by the applicant to go into the files was implausible. Her story as told to Ms Johnson on 26 October 2006 and what was in her affidavit was at several points at odds. She did not call any of the three people who's files she had looked at, to give evidence on her behalf. Whilst there had been an inappropriate delay which was recognised by the RTA between the end of November 2006 and 30 March 2007, this was not fatal to the RTA's case. Ms Nomchong submitted that it would be impractical for the applicant to be reinstated to her former position. The applicant's honesty and integrity were now in question. Their trust in her had been broken. 56 At the point of her suspension the applicant was working a three day week on a part timearrangement. She signed a document stating that she was a part time employee. This was in accordance with a HealthQuest report. The applicant had previously worked on a part time basis with some time being constituted as leave without pay. At no time during her suspension did the applicant provide alternative medical evidence varying her fitness to work more than three days a week. For the applicant to now claim that she was a full time employee and should have been paid as such is mischievous. Considerations and Decision. 57 The applicant was terminated as a consequence of accessing DRIVES on 25 and 26 October 2006,totally three occasions without authority. Through the admissions of the applicant what she had been charged with she had admitted. The reasons given by the applicant to access the three files were to say the least difficult to understand. One of the applicant's friends a Mr Milas wished to know what he was wearing when his photo was taken, with the applicant accessing his file and subsequently advising him how he had dressed. The reason for the access to the other two files,( Mr Perras and Mr Schafer, acquaintances of the applicant) was one of curiosity and nothing else. I am satisfied that the applicant was aware that what she did was wrong and that she may get into trouble. In cross examination she accepted that it was contrary to the RTA's Code of Conduct and that her action was foolish and regretful. I am not as clear as to whether the applicant was aware, at the time of accessing the files, that such action could lead to her being terminated. 58 I should note and comment on the lengthy period of time that the applicant was suspended on pay prior to her being terminated. It has been accepted by Mr Partridge that the period between the end of November 2006 and end of March 2007 was his fault and apologised for this delay which as I understand was as a consequence of other matters taking his attention. The period between 4 April 2007 and 11 July 2007 was as a consequence of the RTA's disciplinary process taking place. The delay in the first period was quite inappropriate and in my view the RTA should take steps to make sure it is not repeated. The disciplinary process whilst exhaustive and time consuming does provide the balances and checks that provide the opportunity for fairness to the applicant to take place. In summary I do not find that the length of the period of investigation was fatal to the RTA's case. 59 The question that confronts this Commission is was the termination itself harsh, unjust or unreasonable ? Part of the evidence filed by the applicant (EX D) went to details of other officers who had been subject to the disciplinary process of the RTA with respect to the misuse of information gathered in most cases illegally. Whilst each employee's case was thoroughly investigated and dealt with on its individual merits, I believe I am right when I say that the officers who passed on the information gathered illegally, to a third person, were summarily terminated. These officers had entered DRIVES on multiple occasions. Some officers resigned prior to any determination and others were demoted incurring a financial penalty. 60 The applicant was never accused of passing on information to a third person and during the three day hearing no evidence pointed to such an action taking place. Prior to October 2006 the applicant had worked for the RTA for some twenty eight years without any disciplinary action and she had at times worked in a higher duty capacity. 61 It is my finding that the action of the RTA in terminating the applicant was harsh. Taking into consideration the length of the applicant's unblemished service, the very small number of accesses to the DRIVE system and that the applicant did not seek to pass any of the information onto any third person I believe a less severe determination should have been taken by the RTA. 62 The applicant has sought reinstatement to her previous role or alternatively compensation. The applicant stated that she would never repeat such an illegal action if she was reinstated. The evidence from the RTA's witnesses emphasised the degree of confidentiality and trust that the RTA must have in its officers as a consequence of the detailed information the officers have available to them. The respondent stated that they had lost trust in this officer. The applicant was asked in cross examination : Nomchong : About four lines down you have in your own affidavit GJ said, "Have you done it before today? How often have you done it ?" And you in your own evidence have said, "I have only done it twice". You'd agree with me that given the evidence that you've just given, Ms Dimitriadis, that your -what you've got down there in your affidavit is not correct, in fact you'd done it four times, is that right ? A. Yes, it is. Q. Thank you. And then a bit further down that page there's a question where you say, " I just wanted to see what he looked like "? A. Yes Q. Then Ms Johnson says, " Was there anything else in the past ?" And you say, "No, just the two accesses in the last two days. Do you see that ? (No reply) Q. And that's incorrect as well, because in fact there were four accesses, is that correct ? A. That is correct In my view the applicant was given a clear opportunity at that meeting on 26 October 2006 to give Ms Johnson the full story as to what she had done with respect to inappropriately accessing DRIVES. This she did take up and it was not until later in the RTA's investigation that they became aware of the applicant accessing the files of Mr Perras and Mr Schafer on the day of the interview. During the meeting on 4 April 2007 the applicant advised Mr Partridge that she had not attended a Code of Conduct meeting, when evidence showed to the Commission that she had attended such a course. The applicant also claimed in her affidavit that as a consequence of her emotional state at the time, she was not able to properly defend herself against the allegations and talk about her mitigating circumstances. I note that in the transcript of this meeting Mr Partridge asked the applicant at the end of the interview: Partridge: Christine, do you have any issues about the manner in which this interview was conducted ? Dimitriadis: No, I don't It is my finding that Mr Partridge conducted this difficult interview in an appropriate professional manner. Contained in the applicant's affidavit was the statement of: 55. "I understand, that as a matter of policy, that RTA staff are unable to obtain other employment whilst suspended." During her period of suspension on pay the applicant confirmed in cross examination that she took casual work with the Australian Jockey Club without seeking approval from the RTA. 63 It was raised by Mr Gibian that the RTA has the ability via their computer reports to be able to monitor the daily work of the applicant if she was reinstated by this Commission. Ms Nomchong responded that this would place an unnecessary burden on the RTA. I accept the submission of Ms Nomchong on this issue. I do not believe it is appropriate for an employer to be obligated to maintain a watch over one particular employee in comparison to other employees. You either have the necessary trust in someone or you do not. It was also confirmed by the applicant during cross examination that post her termination with the RTA she sought and gained employment with a named car rental company. She also confirmed that in completing her application form for employment with this company that she lied saying she resigned (rather than she had been terminated) and failed to insert any information about her pre existing psychiatric illness. I therefore accept the RTA's submission that it has lost the necessary degree of trust in the applicant that is a requirement for her position. In this case I find that it would be inappropriate for the Commission to reinstate the applicant to her previous position. The only other relief sought by the applicant was one of compensation which I shall based on my previous comments, award to the sum of $7,000. 64 The other issue that has to be determined is that of the Application for Order and Particulars of Small Claim. The applicant seeks an amount as set out in their claim of $15,381.37. 65 In her affidavit (EX B) the applicant stated that during her suspension with pay she was only paid as a part time employee despite having never agreed to have her employment status converted from full time to part time. Attached to the affidavit of Mr F. Partridge were two similar letters (dated 5 June 2006 and 14 July 2006) directed to the applicant signed by a Ms Marilyn Alvarez. The letters set out the applicant's part time arrangements that were formulated as part of her part time return to work arrangements which commenced on 7 June 2006. The letters set out what her part time employment would be noting that : In all other respects, your part time employment will be carried out in accordance with the requirements of Section 3.1 of the Human Manual titled "Permanent Part Time Employment". If you wish to accept the above conditions ,please sign the attached copy of this letter and return to Marilyn Alvarez, HR Advisor, PO Box K198 Haymarket NSW 1240 within 14 days from the date of this letter. Underneath Ms Alvarez's signature it states: I have read and accept the conditions of employment contained in this letter. The applicant confirmed that her signature and date appeared on both letters. It is my finding that the applicant was clearly aware that she had agreed to the contents of the letters confirming that she was to be employed as a part time employee. She also confirmed that during her employment with the RTA she had previously worked on a part time basis. 66 At the point of suspension she was working three days a week. In accordance with the Transport Administration (Staff) Regulation 2005, section 35, an RTA officer may be temporarily suspended be with or without pay. The basis of the applicant's submission was that at the point of suspension she was no longer being required to work at all, therefore her fitness to carry out duties was irrelevant. She was a full time employee, working part time as part of a return to work programme but when suspended should have received a full time wage. The respondents submission was that the applicant knowingly entered into a part time arrangement on the basis that she was unfit for full time duties and when suspended was still on that arrangement. During her period of suspension, nothing was brought before the RTA by the applicant to alter any part of that arrangement. Taking into consideration the length of service of the applicant and the various periods of her employment when she was on some kind of leave and not working full time, I believe it was well within her knowledge that the onus was on her to produce medical evidence to vary this part time arrangement. She in fact did not produce medical evidence stating that she fit for full time employment until 31 October 2007. 67 It is my finding that by signing the letters accepting the part time arrangement offered by the RTA the applicant was fully aware of what she was signing at its ramifications with respect to her reduced payment of wages and what steps she would have to take by way of supporting medical evidence to vary this arrangement. In my view no medical certificate was produced because the applicant was not in such a position to obtain one, that is she was not in a position to obtain a full medical clearance. In summary, it is my finding that on the basis of equity and good conscience I reject the applicant's claim for the payment of the monies claimed. I now make the following Order: ORDER 1. That the Roads &Traffic Authority Division of the Government Service of New South Wales pay to Ms Christine Dimitriadis the sum of seven thousands dollars ($7000) less appropriate taxation. 2. That this payment must be made within 21 days of the date of this Decision. This matter is now concluded. D W RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.