Transport Appeal Boards New South Wales Medium Neutral Citation: Andrews v RailCorp [2011] NSWTAB 4 Hearing dates: 15 February 2011 Decision date: 16 February 2011 Before: Oakman AC (Board) Decision: (1) The appeal is allowed; (2) The decision of RailCorp to suspended Mr Andrews without pay for two consecutive working weeks is set aside; (3) The following disciplinary punishments are imposed on Mr Andrews for his misconduct: (a) in relation to Allegation 1 - fined the amount of $50; (b) in relation to Allegation 2 - fined the amount of $100; (c) in relation to Allegation 3 - fined the amount of $75; and (4) Mr Andrews has 28 days from the date of this decision to pay to RailCorp the fines specified in Order (3) Catchwords: PUBLIC SERVICE - discipline and misconduct - rail employees - revealing confidential information - disciplinary decision to suspend without pay for 2 weeks - appeal to Transport Appeal Board - HELD - appeal allowed - suspension set aside - employee fined Legislation Cited: Transport Administration (Staff) Regulation 2005 Transport Appeal Boards Act 1980 Cases Cited: Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811Ziogas v Telstra Corporation Ltd [2009] AIRC 703Ziogas v Telstra Corporation Ltd [2010] FWAFB 2664 Category: Principal judgment Parties: Lindsay Andrews (Appellant) Rail Corporation of NSW (Respondent) Representation: Mr B Egdhill, RTBU (Appellant) Mr A Woods, Henry Davis York (Respondent) File Number(s): TAB 1449 of 2010 DECISION Introduction 1Mr Andrews joined RailCorp (or its predecessors) on 18 January 1976 as a Labourer. He worked in various positions, including as a Fitter's Assistant, until he was displaced in July 2005. From 19 April 2006 he worked as a Purchasing Officer in the Accounts Payable and Purchasing Section. 2On 12 April 2010 RailCorp served an allegation letter on Mr Andrews. The letter notified Mr Andrews that a disciplinary investigation was to be conducted into allegations that he had committed breaches of RailCorp's Code of Conduct and the allegations were set out in that letter as follows: Allegation One That on Tuesday 3 February 2009, you revealed confidential RailCorp information to a person not authorised to receive it. Particulars: a) At 12:49pm that day, you sent within RailCorp an email with a 5 page document (in PDF format) attached ("the document") that comprised; a copy of a submission ("the submission") made to the RailCorp Board meeting held on 10 December 2008; an extract of the RailCorp Board Minutes concerning the submission ("the extract") and a copy of the amendment to Ellipse purchase order number R61899 ("the amendment") relating to that submission. b) The submission concerns seeking Board approval to extend the contracts with key personnel within the Strategic Procurement and Supply Division. c) The extract identifies that the Board approved the additional expenditure as proposed in the submission. d) The amendment relates to the actioning of the additional expenditure approval within Ellipse. e) The submission and extract are both marked Commercial-in-Confidence. f) The email was sent to RailCorp employee Mr Malcolm Decker who was not authorised to receive the document. Allegation Two That on Friday 27 February 2009, you revealed confidential RailCorp information to a person not authorised to receive it. Particulars: a) At 4:19pm that day, you sent from RailCorp an email, with a 4 page document (in PDF format) attached ("the document") that comprised; a copy of a submission ("the submission") made to the RailCorp Board meeting held on 10 December 2008, and an extract of the RailCorp Board Minutes concerning the submission ("the extract"). b) The submission concerns seeking Board approval to extend the contracts with key personnel within the Strategic Procurement and Supply Division. c) The extract identifies that the Board approved the additional expenditure as proposed in the submission. d) The submission and extract are both marked Commercial-in-Confidence. e) The email was sent to Mr Brendan Edghill who was not authorised to receive the document. Allegation Three That on Monday 22 March 2010, you revealed confidential RailCorp information to persons not authorised to receive it. Particulars: a) At 12:52pm that day, you sent within RailCorp an email, with a 5 page document (in PDF format) attached ("the document") that comprised; a copy of a submission ("the submission") made to the RailCorp Board meeting held on 10 December 2008; an extract of the RailCorp Board Minutes concerning the submission ("the extract") and a copy of the amendment to Ellipse purchase order number R61899 ("the amendment"). b) The submission concerns seeking Board approval to extend the contracts with key personnel within the Strategic Procurement and Supply Division. c) The extract identifies that the Board approved the additional expenditure as proposed in the submission. d) The amendment relates to the actioning of the additional expenditure approval within Ellipse. e) The submission and extract are both marked Commercial-in-Confidence. f) The email was sent to RailCorp employees Mr John Stevens and Mr Mark Agiomantis, neither of whom were authorised to receive the document.' 3Mr Andrews provided the investigator with a written response to the allegations by a letter dated 30 April 2010. He declined the opportunity to be interviewed as part of the investigation. The investigation was completed on 7 June 2010, substantiating the misconduct allegations. The investigation report was sent to RailCorp's Discipline Review Panel ("DRP"). The DRP considered the matter on 17 July 2010 and made a preliminary recommendation that Mr Andrews be given a 2 weeks suspension. By letter dated 10 August 2010, Mr Beasley, General Manager, Business Services, advised Mr Andrews that the investigation had been finalised, the allegations were substantiated and the preliminary view was that a 2 weeks suspension was the appropriate disciplinary outcome. Mr Andrews was given 7 days to make a submission before a final decision on the disciplinary outcome was made. 4Mr Andrews responded by a letter dated 17 August 2010. The DRP considered the matter again on 6 September 2010 and made a final recommendation that Mr Andrews should be suspended without pay for two consecutive working weeks. By letter dated 16 September 2010, Mr Beasley advised Mr Andrews that he was to be suspended without pay for two consecutive working weeks. On 28 September 2010 he lodged a Notice of Appeal with the Board against RailCorp's decision. Issue(s) 5Mr Andrews has challenged the severity of the disciplinary action - suspended without pay for two consecutive working weeks - determined by RailCorp. Respondent's and Appellant's Cases 6In summary, the RailCorp submitted that the material before the Board supported the misconduct findings against Mr Andrews. The misconduct involved clear breaches of the relevant versions of the Code of Conduct ("the Code") applying at the time - Version 1.2 for Allegations 1 and 2 and Version 1.4 for Allegation 3. Mr Andrews had twice received training on the Code, once in 2006 (for Code Version 1.0 with relevant provisions that are essentially identical to Code Version 1.2) and again in 2010 (for Code Version 1.4). The evidence demonstrates that: Mr Andrews had no work related need to forward the documents in question to the recipients; none of the recipients of the documents had a work related need to be provided the documents; and there were various other avenues by which Mr Andrews could have raised his concerns in relation to the use of contractors etc other than by disclosing the confidential documents. In determining the penalty RailCorp had considered Mr Andrews' lengthy service, his good record and the written responses he provided during the disciplinary process. In all the circumstances the penalty of 2 weeks suspension was a moderate response to the misconduct and the appeal should be disallowed. RailCorp presented its case first in accordance with section 16(1) of the Transport Appeal Boards Act 1980 ("the TAB Act"). 7In summary, Mr Andrews does not dispute the misconduct findings in Allegations 1, 2 and 3 and accepts that the facts are not really in dispute. However, the penalty imposed by RailCorp is too severe when you consider the relative seriousness of the breaches of the Code; the context in which the breaches occurred; and the other effects of the disciplinary process on Mr Andrews in addition to the financial penalty itself. Mr Andrews did not intend to injure RailCorp by forwarding the documents, there was no malice involved, the recipients did not use the information and it is not clear how RailCorp's interests were injured by the release of the documents. Mr Andrews had genuine concerns for his job, he was concerned about the restructure and was raising concerns about a potential area for savings (contractors) as sought as part of ongoing negotiations in relation the 2010 Enterprise Bargaining Agreement. Mr Andrews was acting in a higher position at the time but that ceased as a consequence of the disciplinary process and he has been under stress throughout the disciplinary process. Mr Andrews now accepts that his actions were wrong and has apologised. A penalty of suspension without pay for 2 weeks is too severe. In all the circumstances Mr Andrews should be given a warning and counselling. Evidence 8RailCorp's tendered its written case which included: witness statement of Derek Wilson, the investigator; copy of the investigation report and its attachments; correspondence relating to the disciplinary process and penalty decision; Ellipse printouts and training records; position descriptions; various emails and file notes; witness statement of Allan Parsfield, Manager Accounts Payable and Purchasing; witness statement of Altar Kececi, Senior Employee Relations Officer; and Versions 1.0, 1.2 and 1.4 of the Code (exhibit 1). None of RailCorp's witnesses were required for cross examination. 9Mr Andrews's tendered material consists of his witness statement (exhibit 4); the witness statement of Mr Mark Agiomantis, Finance Officer in Financial Services and a delegate of the RTBU (exhibit 2); and the witness statement of Mr John Stevens, Customer Liaison Officer in Financial Services and a delegate of the RTBU and former delegate of the ASU (exhibit 3). Mr Agiomantis, Mr Stevens and Mr Andrews also gave evidence before the Board. 10The documents sent by Mr Andrews via email on 3 February 2009, 27 February 2009 and 22 March 2010 and the details of the recipients are as set out in the Allegations. 11Copies of the documents are before the Board and given that the misconduct concerns the release of documents RailCorp considers confidential, and as there is no dispute between the parties as to the identity or contents of the documents, there is no need to set out the contents of the documents in detail in this decision. However, a number of points should be noted. 12The extract of the Minute dated 10 December 2008 for Agenda Item 5.6 from the RailCorp Board and the submission to the RailCorp Board on Agenda Item 5.6 are one and three pages long respectively and both are marked by way of a header in smaller font on each page as 'Commercial in Confidence'. The submission also includes details of the names and rates of pay, payments made etc to a number of contractors. 13The extract of the Minute and the submission were sent in all three emails. The emails of 3 February 2009 and 22 March 2010 also included a third document - a one page 'amendment to ELLIPSE purchase order' setting out an adjustment due to the extension in the engagement of a named contractor and the amount of that adjustment. 14The email of 27 February 2009 also included other documents (not forming part of the misconduct allegations) as part of the email from Mr Andrews to Mr Edghill in relation to 'concerns raised in meeting of 26 Feb 2006'. The full email and attachments is at Tab D of exhibit 1. 15The Board notes that there was a third (CCed) email recipient for the email of 22 March 2010 - 'ea2010'. The receipt by 'ea2010' of the documents does not form part of the misconduct allegations against Mr Andrews. 16The 'ea2010' was an email address within RailCorp administered by Employee Relations apparently in relation to questions, concerns etc to do with the 2010 Enterprise Bargaining Agreement ("EBA") process. It was the initial receipt of the documents at the 'ea2010' email address and their perusal by staff of Employee Relations that triggered the investigation and subsequent disciplinary action against Mr Andrews - see the background at page 2 of the investigation report (Tab C, exhibit 1). 17The documents are all ones that were properly the subject of action within the Accounts Payable and Purchasing Section. The actual processing of the purchase order(s) associated with the documents was done by a Mr Pennisi on the 2 February 2009 and 26 February 2009. Mr Pasfield in his statement states that it was necessary for Mr Andrews to access extracts of Minutes and submissions in the course of his duties; the documents in question are shown in the scanner / email records of the section to have been accessed my Mr Pennisi, Mr Andrews and a Mr Pappiannou; and, as the particular documents in question were handled by Mr Pennisi and Mr Pennisi is an experienced officer, Mr Pasfield does not see why Mr Andrews should have had the need to access those documents. In his evidence Mr Andrews cannot recall how the documents first came to his attention. He thought it possible that it may have been brought to his attention as he was acting as the Supervisor, along with Mr Pappiannou, at the time because it was not signed off. Or possibly by another employee in the section who was also concerned with the use of contractors. He cannot recall whether he sent the documents to his email address from the scanner or someone else did. 18It is not disputed that Mr Decker, Mr Stevens and Mr Agiomantis, did not receive the documents as part of their normal duties as RailCorp employees. It was not disputed that Mr Decker, Mr Stevens, Mr Agiomantis and Mr Edghill had no part to play in the processing of the purchasing orders. 19Mr Andrews does not recall seeing the 'Commercial in Confidence' annotation on the extract of the Minute and the submission at the time and only became aware of it during the course of the disciplinary process. He believed at the time that confidential documents meant documents that had to be kept within RailCorp. 20Mr Andrews did not believe Mr Decker, Mr Stevens, Mr Agiomantis and Mr Edghill were unauthorised to receive the documents when he sent them. He believed they received similar material in the course of their union work. He also believed that they would not do anything inappropriate with the documents. He stated that he did not seek to damage anyone or obtain an unfair advantage over anyone by sending the documents. 21He maintained he forwarded the documents at the relevant times because he had a number of concerns such as seeking a job upgrade; losing his job as part of RailCorp restructures; that job opportunities would go to contractors; the use of contractors over full time staff; to identify cost savings as part of the EBA process with an eye to the job security of permanent employees over contractors. In his evidence to the Board he also said he wanted to show how much contractors were costing by way of supporting the review of his job grade. 22Mr Andrews does not recall speaking to any of the recipients at the time he forwarded the documents and conceded in cross examination that it was more likely that he did not have any conversations with them. 23Mr Andrews now accepts that his actions were wrong in sending the documents to Mr Decker, Mr Stevens, Mr Agiomantis and Mr Edghill. He has said he is sorry and will be more careful in dealing with documents in the future. 24Mr Andrews is substantively employed as a Purchasing Officer, at the RC 3E Grade, in the Accounts Payable and Purchasing Section. His Ellipse Records show he has acted for various periods since 2007 as a Senior Purchasing Officer. He has no previous disciplinary record. Findings 25This is an appeal to the Board under clause 43 of the Transport Administration (Staff) Regulation 2005 ("the Regulation") against the decision of RailCorp to impose the punishment of suspension from duty without pay (for a period of 2 consecutive working weeks) on Mr Andrews. Section 23(1) of the TAB Act provides that the Board may decide to allow or disallow the appeal or make such other decision as it thinks fit. 26Mr Andrews disputes the severity of the punishment but not the findings of misconduct (as set out in paragraph 2 above). The Board's function in this matter is, in effect, to determine whether the disciplinary punishment imposed by RailCorp in relation to the misconduct findings is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. 27Although there was no particular factual dispute between the parties, the Board should state its approach to the evidence of Mr Andrews before dealing with the circumstances of the case. His evidence, whether by way of his two written responses to RailCorp during the disciplinary process, his witness statement (exhibit 4) and in his evidence before the Board, has been generally consistent. His evidence is also generally consistent with that of the other evidence in this matter, including the evidence of Mr Stevens and Mr Agiomantis who also appeared before the Board. His evidence to the Board was given in a cooperative and forthright manner. The Board views Mr Andrews as a witness of truth and accepts his evidence. 28Mr Andrews misconducted himself on three occasions - on 3 February 2009, 27 February 2009 and 22 March 2010 - when he revealed confidential information to person(s) not authorised to receive it. The Code (all versions), at section 10, details the various responsibilities of RailCorp employees in relation to handling information in general and confidential information in particular. Among other things, employees must take care to keep information confidential if it is identified as such and must not use confidential information for their own purposes. 29The documents in question are clearly of a confidential nature and needed to be dealt with as such. In the Board's opinion the nature of the documents themselves - an extract of a resolution of the RailCorp Board in relation to the expenditure of money; a submission prepared for the RailCorp Board to consider when deciding the matter, including financial information concerning a number of contractors; and a purchase order containing payment details for a contractor - convey to the reader that they contain sensitive information that needed to be handled in an appropriate and confidential manner. In the case of the extract and the submission, this was reinforced by the 'Commercial in Confidence' header that appeared on each page (although Mr Andrews did not notice this at the time). 30Mr Andrews sent the documents to the recipients for a number of reasons including promoting his (and others) job security and in support of his seeking a job upgrade. He did not act out of malice and the Board accepts he did not believe forwarding the documents would cause any harm to RailCorp (and there is no evidence of any such harm before the Board) etc. However, the intended use of the information was clearly for personal rather than work purposes. 31When Mr Andrews forwarded the documents he did not believe it was inappropriate to do so and believed the recipients were authorised to receive it either by virtue of their being RailCorp employees (thus keeping the information internal and therefore confidential) and/or because of their involvement with the union (thus usual recipients of such material). However, Mr Andrews belief was entirely mistaken and he now accepts he was mistaken. 32Mr Andrews has never sought to deny that he sent the documents, and it was his action in copying the email of 22 March 2010 to 'ea2010' that first alerted RailCorp to the matter. He has also now admitted his error, offered his apologies and said he would be more careful in handling documents in the future. In a career with RailCorp (or its predecessors) spanning more than 35 years to date, this is the first and only disciplinary matter involving Mr Andrews. 33In the Board's opinion, the misuse of confidential information by an employee is a serious matter, as the decision(s) by Fair Work Australia in Ziogas v Telstra Corporation Ltd [2009] AIRC 703 and, on the appeal, Ziogas v Telstra Corporation Ltd [2010] FWAFB 2664 demonstrate. However, unlike the circumstances in Ziogas , there is no suggestion that the facts in the present matter would justify dismissal. 34Overall, the Board views Mr Andrews' misconduct in revealing confidential information as being towards the lower end of the spectrum of relative seriousness. As discussed above, Mr Andrews behaviour in this matter has been one of consistent but mistaken belief that what he was doing was basically correct and without any attempt on his part to hide or deny his actions. He has acknowledged his mistake and accepts his actions are, in hindsight, misconduct. He has apologised and undertaken not to repeat his mistake. Additionally, his lengthy and previously unblemished employment record are strongly in his favour. 35It was argued on behalf of Mr Andrews that it would be appropriate to deal with the misconduct by counselling and issuing a warning. However, the nature of the confidential information contained in the documents - see paragraph 29 above - is such that the Board believes a financial penalty must be imposed in relation to each of the incidences of misconduct contained in Allegations 1, 2 and 3. In determining the appropriate penalty for each of the Allegations the Board is also mindful that Allegation 1 involved the release of information to one person 'internal' to RailCorp; Allegation 2 involved the release of information to one person 'external' to RailCorp; and Allegation 3 involved the release of information to 2 persons 'internal' to RailCorp and occurred a couple of weeks after Mr Andrews received further training in relation to the Code. 36In the end the Board has determined that in all the circumstances the appropriate punishments under Clause 37 of the Regulation are fines of $50, $100 and $75 in relation to Allegations 1,2 and 3, respectively. Mr Andrews is to be given 28 days to pay those fines to RailCorp. Order(s) 37In relation to the appeal (TAB10/1449) the Board makes the following orders: (1) The appeal is allowed; (2) The decision of RailCorp to suspended Mr Andrews without pay for two consecutive working weeks is set aside; (3) The following disciplinary punishments are imposed on Mr Andrews for his misconduct: (a) in relation to Allegation 1 - fined the amount of $50; (b) in relation to Allegation 2 - fined the amount of $100; c) in relation to Allegation 3 - fined the amount of $75; and (4) Mr Andrews has 28 days from the date of this decision to pay to RailCorp the fines specified in Order (3). M Oakman Acting 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. Decision last updated: 08 March 2011