Industrial Relations Commission of New South Wales CITATION: Lane v Northern Sydney Central Coast Area Health Service [2006] NSWIRComm 176 APPLICANT Raymond George Lane PARTIES: RESPONDENTS Northern Sydney Central Coast Area Health Service NSW Department of Health FILE NUMBER(S): IRC 6282 of 2005 CORAM: Harrison DP CATCHWORDS: Application re unfair dismissal - misconduct - use of electronic messaging system contrary to policy and code of conduct - use of electronic system to transmit and store images of offensive and pornographic nature. Held - termination not harsh, unreasonable or unjust - application for relief refused. LEGISLATION CITED: Industrial Relations Act 1996 Lorenzato v Sydney Water Corporation [2002] NSWIRComm 277 Michael Harrington v Phillip Morris Limited AIRC PR915206 13/3/02 Transport Workers' Union of Australia, New South Wales Branch on behalf of Joseph Vallis v TNT Australia Pty Limited t/as TNT Express [2002] NSWIRComm 46 Franklins Ltd v Webb 1996 72 IR 257 Hill v Department of Juvenile Justice (2000) NSWIRComm 128 Pastrycook Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 CASES CITED: Byrne and Frew v Australian Airlines (1995) 61 IR 32 Police Association of New South Wales on behalf of Adam Tregonning v New South Wales Police Service [2000] NSWIRComm 14 Reed v Southstate Industrial Supplies Pty Ltd [2001] NSWIRComm 185 The Australian Workers' Union, NSW (on behalf of Robert Mason) and Incitec Limited [2004] NSWIRComm 1030 Massoud v Sitel Corporation Australia Pty Limited [2001] NSWIRComm 218 Ian Ueckert v Australian Water Technologies Pty Ltd [2000] NSWIRComm 123 Toyota Motor Corporation v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Print T4675 Bassam Darwich v Kaal Australia Pty Limited U2002/4250 Budlong and NCR Australia Pty Limited (2006) NSWIRComm 1075 HEARING DATES: 12/5/06 DATE OF JUDGMENT: 05/30/2006 APPLICANT Solicitor Mr D Nash LEGAL REPRESENTATIVES: Nash Allen Williams and Wotton RESPONDENTS Ms N Salmon JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 30 May 2006 Matter No IRC 6282 of 2005 RAYMOND GEORGE LANE AND NORTHERN SYDNEY CENTRAL COAST AREA HEALTH SERVICE Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 176 1 Mr Raymond George Lane ("the Applicant") has worked with the Central Coast Area Health Service ("the Respondent") from 1994 as a volunteer and from or about 3 April 1995 as a Forensic Technician/Post Mortem Assistant. For a brief period from March 2004 to November 2004 Mr Lane was employed as a Patient Support Assistant pending appointment to a theatre position at Wyong Hospital, which did not occur. Mr Lane returned to the position of Post Mortem Assistant at Gosford Hospital from November 2004. 2 Mr Lane's employment was terminated on 28 October 2005 on the basis of serious misconduct in use of the Respondent's email system to receive and send images contrary to policy and inconsistent with his position. 3 The application in this mater was filed on 2 December 2005 and subject to proceedings for the purpose of conciliation and directions on 16 December 2005. Those proceedings established that the matter could not be resolved by agreement between the parties. 4 Directions issued to prepare the matter for hearing by 21 February 2006. Mr D Nash, solicitor of Nash, Allen Williams and Wotton appearing on behalf of the Applicant, sought an extension of the directions timetable on the basis that, in order to mitigate his loss, the Applicant had secured casual employment as a merchant seaman which placed him beyond access for the purpose of taking instructions. 5 A revised schedule of directions was issued to bring the matter to hearing on 12 May 2006. 6 Mr Nash appeared on behalf of and brought evidence from the Applicant. In addition, Mr Nash sought to bring evidence from four witnesses in reply for whom he had not filed statements. 7 Ms N Salmon, appearing on behalf of the Respondent with Mr S Quested, objected on the basis that statements had not been filed or served in accordance with the opportunity and obligation to do so afforded by the directions issued pursuant to Practice Direction No 17. 8 Mr Nash put that the evidence he sought to bring was in reply to evidence by the Respondent in respect to the Applicant's duties, extent of responsibility for training other staff, and diligence. 9 Ms Salmon conceded that there was no issue in respect to the Applicant's diligence and capacity which is supported by several references tendered in these proceedings. 10 The application to bring the additional four witnesses was refused. 11 Ms Salmon brought evidence from Ms L Derley, employed by the Respondent as Area Director Internal Audit; Mr J Abraham, employed by the Respondent as Chief Information Officer; and Mr J Kazzi, employed by the Respondent as Senior Hospital Scientist - Anatomical Pathology, Gosford Hospital. The Evidence 12 The evidence established that Mr Lane received and sent a large number of images through the email system which are categorised by the Respondent as sexually explicit, soft pornography, and inappropriate, including graphic images depicting accident victims, suicide victims and massacres featuring body parts and dismemberment. 13 Mr Lane deposed that whilst the images may be offensive to some people they were not to him and others. 14 Mr Lane's evidence is that he found the images on the internet and forwarded them to those of his associates he thought would find them amusing or of interest, and to students considering undertaking the Certificate in Mortuary Practice. Mr Lane deposed that he assisted students in a mentoring role and some lesson preparation. 15 Mr Kazzi confirmed that Mr Lane had a limited role in the education of students, however, deposed that none of the images were appropriate for that purpose. Mr Kazzi's evidence is that the images of deceased depicted victims of violence and/or other misadventure which may be relevant to coronial matters which were not dealt with at Gosford. 16 In re-examination Mr Lane conceded that the relevant images were not the type of case dealt with in Gosford, however, were shown to students to ensure that they knew what they might encounter. 17 Ms Derley's evidence is that she was asked to conduct an investigation of email use following identification of suspicious traffic by routine surveillance of the system. Ms Derley was required to conduct all investigations in regard to a number of individuals throughout the Department of Health and the Respondent in order there be consistency in the process. 18 Individuals were categorised into first tier and second tier offenders. Individuals were identified as first tier due to the majority of images being classified as sexually explicit, graphic in nature, or of a high volume. The Applicant, together with others, was regraded from second tier to first tier during the course of the investigation. 19 Ms Derley deposed that Mr Lane's e-mails were monitored from 29 April 2005 to 18 July 2007 (the monitoring period). 20 Exhibits 4 to 18 are copies of some of those images discovered by Ms Derley during the monitoring period and confirmed by her in cross examination. 21 Ms Derley deposed that she found evidence of inappropriate use and interviewed the Applicant. The transcript of interview is tendered within exhibit 3, Ms Derley's statement of evidence. 22 Ms Derley's report describes the images found in the following terms: Body parts and dismemberment were common features of the images. There was also evidence of other material having been sent and received outside of the period reviewed. In addition Mr Lane had saved a number of images to the hard drive of his work computer. These images had been filed under a directory called Forensic Medicine/Data/Incineration. The content included sexually explicit PowerPoint files, and other images of an inappropriate, soft porn nature, Within the hard drive there were also a number of images of female genitals many of which were pierced or tattooed. One image that had been saved could be classified as sadomasochistic. 23 Further in her report Ms Derley put: It is concerning that Mr Lane holds the position of Mortuary technician and has failed to identify that there was anything wrong in the material that he was trading. In doing this he has also failed to recognise that this could be disconcerting to the public. 24 Mr Abraham's evidence is that he is responsible for development and promulgation of the electronic messaging and e-mail policy ("the Policy") and the associated code of conduct ("the Code"), found at attachment D to exhibit 19, Mr Abraham's statement of evidence. 25 Mr Abraham's evidence is that from June 2005 a "pop-up" message appeared on all of the Respondent's computers. The message (Ex 19, Attach. A) is headed "Conditions of access to the NSW Department of Health network". The pop-up message informed users that: All staff accessing E-mail and Internet are bound by the Area's policies and the conditions of use, including agreement to abide by the NSCCH Code of Conduct. Full transcripts of NSCCH Code of Conduct, E-mail, and Internet policies can be found on the Intranet Home page under IS policies. 26 An overview of the Policy is provided in the following terms: Electronic Mail (E-mail) is a corporate messaging resource provided by Northern Sydney Central Coast Health (NSCCH) and the NSW Health Department to enable staff to conduct their duties in a productive manner. This policy is to regulate use of electronic mail and messaging systems, to ensure the maximum availability and effectiveness of the service and to minimise inconvenience to other users. This policy applies throughout NSCCH. Please note that other individuals and associated agencies who use the NSCCH corporate E-mail system such as the ACHSE, PPC, affiliated organisations, approved private practitioners as well as other individuals and organisations, are also bound by conditions of this policy. 27 In order to gain access to the system the user was required to click a "Yes" button. Alternate options were available; a "Read Policy" button took the user to the Policy; a "No" button, i.e. refusal to abide by the Policy resulted in denial of entry. 28 Mr Lane's evidence is that he always selected the "yes" option but had never read the Policy. 29 Mr Lane's evidence is that he did not look at the Policy until shortly before his first disciplinary interview on 22 July 2005. Mr Lane deposed that he would not get through his day if he read everything. 30 Mr Abraham's evidence is that relevant aspects of the Policy (Ex 19, Attach. F) are: 3. WHAT IS AND WHAT IS NOT ACCEPTABLE USE OF THE INTERNET AND ELECTRONIC MESSAGING FACILITIES 3.1 General Use of CCH Internet and c-Mail facilities The Area Health Service Information Systems inclusive of the Internet and e-mail facilities are owned by Central Coast Health and access / usage is only permitted to authorised persons and for purposes which are appropriate, lawful, efficient, proper and ethical. Limited personal use is allowed and this is explained in 3. 2 below. It is stressed to employees that electronic messaging, Internet and Intranet communications are: (a) not private; (b) should not be regarded as confidential; and (c) should not be used to send any messages that you would not want viewed by an outside party. The confidentiality of messaging systems cannot be assured. Such confidentiality may be compromised by applicability of law or policy, including this policy, by unintended redistribution or because of inadequacy of current technologies to protect against unauthorised access. … … 3.7 Pornography and other Offensive material CCH's electronic messaging systems, and access to the Internet may not be used for intentionally transmitting, communicating or accessing pornographic or sexually explicit material, images, text or other unacceptable material at any time. Unacceptable content includes "sexually explicit messages, images, cartoons or jokes". If misuse is proven, staff will be subject to disciplinary action as outlined in the Appendix. It is stressed that the Area Health Service, not the employee determines what is unacceptable. 31 In cross examination by Mr Nash Mr Kazzi deposed that approximately two years earlier he had informed Mr Lane of the Policy, suggested he read it and specifically reminded Mr Lane that the e-mail and internet systems was subject to surveillance and that Mr Lane should be careful of what he used it for. SUBMISSIONS 32 Mr Nash submitted that emails sent from Mr Lane's personal computer at his residence to his work computer did not breach the policy, conceding that a small number of emails sent to colleagues would. 33 Mr Nash submitted that termination of Mr Lane's employment is inappropriate and harsh when considered against the conduct alleged and the employment history of over eleven years unblemished service. 34 Mr Nash submitted that Mr Lane had not had the benefit of training and explanation of the Policy which he put was ambiguous in its terms and in support of Mr Lane's evidence noted that the Electronic Messaging and E-mail Policy is 26 A4 pages and the Internet and Electronic Messaging Usage Policy is a further 10 A4 pages. 35 Mr Nash referred to the decision in Lorenzato v Sydney Water Corporation [2002] NSWIRComm 277 as authority that for summary dismissal for misconduct to be valid there must be an element of wilfulness in the conduct. 36 Mr Nash put that Mr Lane's conduct could not be regarded as wilful misconduct, particularly on the basis that he had not read the Policy and could not wilfully ignore something of which he had no knowledge. 37 Mr Nash put that Mr Lane had demonstrated true contrition and stated repeatedly during the interview that he was sorry and it would not happen again. 38 Mr Nash submitted that the evidence of Ms Derley established that other staff had been investigated for breach of the policy and where infraction was found disciplinary action of a lesser severity than termination of employment had been determined. Ms Salmon put that some other employees had been dismissed in line with the disciplinary policy and grading of conduct. Mr Nash put that there was no direct or admissible evidence of this. 39 Mr Nash referred to Michael Harrington v Phillip Morris Limited AIRC PR915206 13/3/02 as authority that the different treatment of Mr Lane is sufficient to support a finding that the termination of Mr Lane's employment was harsh, unreasonable and unjust. 40 Mr Nash submitted that the Respondent had erred in failing to consider alternate disciplinary action (See Transport Workers' Union of Australia, New South Wales Branch on behalf of Joseph Vallis v TNT Australia Pty Limited t/as TNT Express [2002] NSWIRComm 46) putting that having regard to Mr Lane's good record, absence of wilfulness in his conduct and assurances that it would not happen again, Mr Lane should have been counselled in respect to his behaviour not been subject to termination of employment. 41 Mr Nash put that: The employer needs to be fully satisfied that misconduct has taken place: see Franklins Ltd v Webb 1996 72 IR 257; Hill v Department of Juvenile Justice (2000) NSWIRComm 128 @para 62-63. The onus is on the employer to establish misconduct: see Pastrycook Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70. If misconduct is established the Commission must consider whether termination in the circumstances was too harsh a penalty: see Byrne and Frew v Australian Airlines (1995) 61 IR 32. The onus is on the Applicant to prove that the termination was too harsh. In all the circumstances the termination was harsh, it was unjust and unreasonable. Firstly the dismissal was disproportionate to the gravity of the conduct. Secondly it was harsh in relation to its consequences for the applicant. He is 52 years of age with very limited prospects of reemployment. Thirdly the disparity in treatment to that given to other employees. There has been an inconsistent application of the policy: see Police Association of New South Wales on behalf of Adam Tregonning v New South Wales Police Service [2000] NSWIRComm 14 and Reed v Southstate Industrial Supplies Pty Ltd [2001] NSWIRComm 185. 42 Ms Salmon submitted that Mr Lane's use of the e-mail system demonstrated he held the capacity to locate and comprehend the Policy if he so chose. 43 Ms Salmon put that Mr Lane was aware of the Policy, having acknowledged it in establishing his e-mail and internet access and daily in entering the system. 44 Ms Salmon submitted that the termination of Mr Lane's employment was not harsh, unjust or unreasonable. 45 Ms Salmon put that: The investigation was thorough, impartial and transparent and Mr Lane was afforded procedural fairness throughout the process. The investigation was conducted by professional and qualified people and the final termination was authorised by the Chief Executive of the Health Service. Summary termination was appropriate for the offence and in line with policies and guidelines and the recommendation of the auditor's report. Mr Lane was not the only termination resulting from the investigation and hence there was consistent application of the policy throughout the Area Health Service and in fact throughout the NSW State Health System. Mr Lane's behaviour is seen as a breach of trust put in him by the Health system and the general public, particularly considering the sensitivity of his position . ... ... His lack of understanding of boundaries of appropriateness and the fact that he received, stored, sought out and sent graphically and grossly offensive material which could be associated with his work to internal and external people -demonstrated a potential breach of trust in the Health System The Appendix of classifications in the Email policy outlines Mr Lane's material as failing into Category 3 of the relevant policy. Category 3 material is defined as: "publications/sites that appear to purposefully debase or abuse for the enjoyment of viewers/readers, and lack moral, artistic or other values to the extent that they offend against generally accepted standards or morality, decency and propriety fall into this category" and "Material that depicts violence with a very high degree of impact which are excessively frequent, emphasised or detailed. Cruelty or real violence which are very detailed or which have a high degree of impact". The level of disciplinary action recommended in the policy is Dismissal. 46 Mr Nash submitted that the Respondent's e-mail system was not accessible by the public and no potential existed for damage to the goodwill and expectations of the community. 47 Mr Nash submitted that Mr Lane was a particularly broadminded person who had worked for a number of years in possibly the most gruesome task and has a high tolerance to shocking or offensive material. 48 Ms Salmon referred to a number of decided cases in which termination of employment for breach of corporate electronic systems was applied. Ms Salmon relied upon The Australian Workers' Union, NSW (on behalf of Robert Mason) and Incitec Limited [2004] NSWIRComm 1030; Massoud v Sitel Corporation Australia Pty Limited [2001] NSWIRComm 218; Ian Ueckert v Australian Water Technologies Pty Ltd [2000] NSWIRComm 123; Toyota Motor Corporation v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Print T4675; Bassam Darwich v Kaal Australia Pty Limited U2002/4250; 49 Ms Salmon relied specifically upon the consideration of Murphy C in Budlong and NCR Australia Pty Limited (2006) NSWIRComm 1075 wherein, refusing remedy to the applicant, the Commissioner said: " Whilst there is an air of automaticity about his signing of the 2004 code of Conduct, he was nevertheless required to actively acknowledge the Code since 2004, and being an experienced officer of the company, must be held accountable for what he signed. … this was a case which caused some concern for the Commission, particularly where the applicant, who is a man of advancing years - being some fifty six years old, with much lower prospects of re-employment, and obvious dire financial repercussions upon him and his wife … it is lamentable that such a man with a long record with the company of thirty-one years, and who received twenty-six performance awards, and who very likely regarded his conduct as relatively harmless, and perhaps therapeutic.." CONSIDERATION 50 Mr Lane was aware that his employer had a policy and code of conduct for use of the e-mail and internet system provided to employees. Mr Lane chose not to read this policy though was not entirely unaware of its operation or requirements having been told by Mr Kazzi, his direct supervisor, that content was monitored and to be careful. 51 A review of the material transmitted by Mr Lane (Ex 4 to 18) supports the categorisation by the employer as sexually explicit, soft pornography and inappropriate. 52 It can not be supported in any way that any of the images were work related or of benefit to persons contemplating a mortuary qualification. 53 Having regard to Mr Lane's good employment record and the proposition that his duties resulted in a high tolerance to shocking and offensive material, and that Mr Lane had not transgressed in the course of his duties but ancillary thereto, there remains no scope for excuse or condonation of his conduct. 54 Each case will necessarily turn on its own circumstances and, while there is, as Mr Nash put, no direct evidence of other disciplinary action, the Applicant's conduct, considered in its own context, does not warrant the intervention of the Commission. 55 The application for intervention is refused. 56 Matter No IRC 6282 of 2005 is so concluded. oo0oo 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.