Industrial Relations Commission New South Wales Medium Neutral Citation: Bellenger v Mid North Coast Local Health District [2017] NSWIRComm 1019 Hearing dates: 5 and 6 October 2016 Date of orders: 24 April 2017 Decision date: 24 April 2017 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: The Commission orders that respondent, Mid North Local Health District to pay the applicant 8 weeks pay at the ordinary rate of pay applicable to the applicant at the time her employment ceased within 21 days of today's date. Any disagreement as to the calculation of the applicant's earnings shall be referred to the Commission for final determination. Liberty to apply is available in those circumstances. Catchwords: Unfair Dismissal - inappropriate use of workplace email system - alleged breach of Code of Conduct and Communications Policy - serious misconduct proven - mitigating factors - dismissal harsh but not unreasonable or unjust compensation awarded Legislation Cited: Industrial Relations Act 1996 Cases Cited: Australian Industrial Relations Commission in Wake v Queensland Rail 156 IR 393 B C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 Blyth Chemicals Limited v Bushnell [1933] HCA 8; (1933) 49 CLR 66 Byrne & Anor v Australian Airlines Ltd [1995] HCA 24 [1995] 61 IR 32 North v Television Corporation Limited (1976) 11 ALR 599 Perkins v Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at [191] Peter Bates v Commonwealth of Australia (Department of Defence) [2009] AIRC 899 Shoukry v The Star Pty Ltd T/A The Star [2012] FWA 9435 Category: Principal judgment Parties: Ms J Bellenger (Applicant) Mid North Coast Local Health District (Respondent) Representation: Mr K Byrnes, solicitor, Byrnes Lawyers Mr M Sullivan, solicitor Lander and Rogers File Number(s): 2016/36405 Judgment 1. The applicant in this matter, Ms Jodie Bellenger, commenced work with the respondent, Mid North Coast Local Health District on 27 September 2004. At the time of her dismissal on 15 January 2016, her position with the respondent was Assistant to the District Manager - Mental Health Services. 2. In short, the applicant's dismissal followed a finding that she had used the respondent's email system inappropriately. A review of the applicant's work email directory found she had received, stored and sent significant quantities of emails "which are considered pornographic, graphic (violence), and generally inappropriate in nature". Some 1256 emails had been stored in a specific folder named "funny emails". A number of similar emails were found elsewhere with the applicant's email directory. 3. The applicant was suspended on 9 September 2015 pending an investigation into allegations that: Over a prolonged period since 2011 you received stored and transmitted significant volumes of sexually explicit and otherwise inappropriate material utilising the MNCLHD's email system. 1. In correspondence dated 13 October 2015, three specific allegations were put to the applicant for her consideration prior to a formal investigation interview scheduled on 19 October 2015. Allegation one Between March 2006 and August 2014 you received and stored emails (approximately 1,256) which are considered pornographic, graphic (violence) and generally inappropriate in nature. Such conduct, if proven is considered a breach of NSW Ministry of Health Code of Conduct Policy Directive PD2012 018 Section 4: 4.4 Use official resources lawfully, efficiently and only as authorised. Staff must: 4.41 Use work resources efficiently; 4.4.2 Use all equipment, goods, resources and materials provided for work-related purposes only; and, 4.4.4 Not use NSW Health Internet and email resources for accessing, transmitting, storing or downloading pornographic, sexually explicit or otherwise inappropriate material. Communications - Use and Management of Misuse of NSW Health Communications Systems - PD2009 _ 076 Sections 2 and 3: 2. Permissible use of NSW Health Communications Systems 2.1 Work Use 2.2 Permissible Personal Use 3. Prohibited use of NSW Health Communications Systems and Devices 3.1 Inappropriate use 3.2 Pornographic, sexually explicit or offensive material Allegation Two Between March 2006 and August 2014 you transmitted (sent) a significant quantity of emails which are considered pornographic, graphic (violence) and generally inappropriate in nature. Such conduct, if proven is considered a breach of the NSW Ministry of Health Code of Conduct Policy Directive PD 2012_018 Section 4: 4.4 Use of official resources lawfully, efficiently and only as authorised. Staff must: 4.41 Use work resources efficiently; 4.4.2 Use all equipment, goods, resources and materials provided for work-related purposes only; and, 4.4.4 Not use NSW Health Internet and email resources for accessing, transmitting, storing or downloading pornographic, sexually explicit or otherwise inappropriate material. Communications - Use and Management of Misuse of NSW Health Communications systems - PD2009 - 076 Sections 2 and 3: 2. Permissible use of NSW Health Communications Systems 2.1 Work Use 2.2 Permissible Personal Use 3. Prohibited use of NSW Health Communications Systems and Devices 3.1 Inappropriate use 3.2 Pornographic, sexually explicit or offensive material Allegation Three That during the majority of occasions you accessed, stored, received and transmitted the pornographic/inappropriate emails which you were on duty and receiving remuneration as an employee of the MNCLHD. Such conduct, if proven is considered a breach of the NSW Ministry of Health Code of Conduct Policy Directive PD2012 018 Section 4: 4.4 Use of official resources lawfully, efficiently and only as authorised. Staff must: 4.41 Use work resources efficiently' 4.4.2 Use all equipment, goods, resources and materials provided for work-related purposes only; and, 4.4.4 Not use NSW Health Internet and email resources for accessing, transmitting, storing or downloading pornographic, sexually explicit or otherwise inappropriate material. Communications - Use and Management of Misuse of NSW Health Communications Systems _ PD2009 - 076 Sections 2 and 3: 2. Permissible use of NSW Health Communications Systems 2.1 Work Use 2.2 Permissible Personal Use 3. Prohibited use of NSW Health Communications Systems and Devices 3.1 Inappropriate use 3.2 Pornographic, sexually explicit or offensive material 1. The applicant was advised on 3 December 2015 that the allegations had been substantiated. The investigation determined: The degree of evidence relating to Ms Bellenger's misconduct is overwhelming owing to the data (documentary evidence) discovery and the partial admissions. 1. In her subsequent show cause response, the applicant considered that she had been an exemplary employee with an impeccable work history. The applicant contended the respondent's email system should have prevented unwarranted unwelcome and inappropriate emails to infiltrate the system. The applicant considered the respondent's IT system had failed and had appropriate filtering systems been in place, "the folder and its contents may well have been removed". 2. The applicant accepted there was a condition of access "log in" screen on her computer. However she considered few read the conditions of access because it was set out over three screen pages. The applicant urged the respondent to give consideration to the fact the prohibition on "storing and transmitting inappropriate and/or pornographic images" set out on the second screen was only drawn to her attention after the investigation interview. 3. The applicant stated she moved non-work related emails to her funny emails folder so as not to impede her ordinary work. Further, she was unaware of the content nor the volume of stored emails until the investigation interview. 4. The applicant claimed she was unaware of the Communications - Use and Management of Misuse of NSW Health Communications - PD 2009 - 076 (the Communications Policy) prior to the allegations being put to her. 5. The applicant contented she had kept a "hardcover book" containing her computer access passwords within close proximity of her work station and she did not always "log off" overnight. Against that backdrop, she considered her workspace and computer "were vulnerable". 6. There was no specific defence mounted by the applicant in response to NSW Ministry of Health Code of Conduct Policy Directive PD 2012_018 (the Code of Conduct) allegations. 7. The applicant contended a personal journal identified by the respondent contained "some of the details of what I was experiencing in life to brighten the lives of colleagues and friends that were experiencing a less than desirable time" and files related to the Paint Horse Association fell within the reasonable personal use section of the Communications Policy. 8. The respondent's case was that the applicant was advised in early December 2015 that the allegations had been substantiated and disciplinary action, including dismissal, was being considered. 9. The applicant's conduct was serious and related to an extraordinary number of inappropriate emails received, stored and transmitted by her between March 2006 and August 2014 in breach of the respondent's Code of Conduct and Communications policy. 10. The respondent contended some of the 1256 contentions emails had been classified as pornographic. 11. The respondent also alleged that a significant number of inappropriate and personal, non-work related emails had been stored in the applicant's "sent" email folder and a number of other sub-folders including a lengthy 23 page personal journal. A large number of emails had also been sent and stored related to the East Coast Appaloosa Paint Western Performance Association. 12. The respondent's analysis of the applicant's work email account revealed email traffic to current and former employees of the respondent, third parties and family members. 13. The applicant was dismissed with notice. EVIDENCE 1. I have given consideration to the totality of the evidence filed by the parties and adduced in cross examination. 2. The applicant filed an affidavit on 2 May 2016 and an affidavit in reply on 22 July 2016. The respondent relied on affidavit filed on 23 May 2016 by Mr John Greville, District Manager, Investigations and Mr Stephen Rodwell, Executive Director Nursing, Ministry and Workforce. Applicant 1. The applicant could not recall being provided with information, advice or policies concerning the use of emails whilst at work prior to the introduction of the 2012 Code of Conduct. 2. The applicant acknowledged that during 2012, a change occurred whereby staff were now required to acknowledge the acceptance of the Code of Conduct at log in. The applicant also acknowledged that she became aware of the respondent's policy in relation to email use at that time. Prior to that date, the applicant conceded she had received a number of non-work related emails from staff members, family and friends. 3. The applicant claimed that she had not read the majority of the inappropriate emails received and had simply "dragged them" into the funny emails folder. Nor had she received any complaints from her email recipients. 4. In or around 2012, the applicant contended that she advised family members, work colleagues and others to refrain from sending her "non- work related emails" 5. The applicant contended only 7 emails were sent or received between 15 December 2011 and the date of her dismissal on 15 January 2016. 6. In relation to the allegations concerning her personal journal, the applicant's defence was that she regularly worked beyond her standard hours of work, took work home and carried out work related tasks at home on weekends. 7. In relation to her investigation interview with Mr Greville, the applicant stated she considered the exercise stressful and felt pressured. She did not have the benefit of legal advice prior to the investigation interview. 8. In her reply affidavit, the applicant confirmed Mr Coquillon, an official of the Health Services Union was present during the investigation interview. 9. In relation to Mr Greville's Statement filed in these proceedings, the applicant denied that she had been provided with information concerning the initial 2005 Code of Conduct on or around 8 December 2004. It was her evidence that she was only provided with the updated Code of Conduct during the course of 2012. 10. The applicant stated she had been unable to secure employment since her dismissal other than a short period of work associated with the 2016 federal election (and later with TAFE). She identified a number of personal and dire financial issues that had arisen following her dismissal. 11. In cross examination, the applicant confirmed that her position with the respondent immediately prior to her dismissal was Network Support Officer effective on or about 30 October 2013. She acknowledged the position description contained in the relevant acceptance of offer of employment signed by her on 31 October 2013 had stated that she was required to maintain knowledge and understanding of current and emerging MNCLHD activities, policies and procedures. She was also required to exercise initiative, judgement and discretion in dealing with issues as they arose in a timely manner. 12. The applicant agreed that part of her job description required her to maintain and manage her immediate manager's diary and appointments and deal with complex, confidential and sensitive issues on a day-to-day basis. 13. The applicant recalled that from 2012, the conditions of access screen which appeared at log in required a computer user to acknowledge their acceptance of the Code of Conduct prior to 2012, a user had the choice of "accepting, rejecting or reading the policy". However, it was applicant's evidence she did not read the policy but rather simply accepted it "so I could get into my work" 14. The applicant agreed that non-compliance with the conditions of access policy that operated from 2012 could lead to withdrawal of privileges or disciplinary action in the case of a serious breach. She acknowledged a condition of use was that the computer system would be used for work purposes during work hours and would not be used to access, store or transmit inappropriate or objectionable material. 15. In relation to the computer access log in requirements that existed prior to 2012 whereby non-compliance could lead to disciplinary action and a withdrawal of privileges, the following exchange ensued: Q. Do you recall reading any of that when you sought to log on? A. After 2012? Q. Between 2008 and 2012 when this logon screen was effected? A. I can say that I possibly did read that. 1. The applicant agreed that under the computer access policy which existed between 2008 and 2012, a user's decision not to agree with the computer access requirements would automatically log them out of the system. The applicant conceded that she must have ticked the "yes" box between 2008 and 2012 to obtain computer access She also agreed that the then existing access policy contained a prohibition on users: Seeking out access in storing or transmitting inappropriate or objectionable material that is pornographic or sexual explicit material or material that depicts, expresses or deals with matters of nudity, cruelty or violence in a way that a reasonable adult would generally regard as offensive. 1. The applicant recalled that in or around 2012, the Code of Conduct appeared on the computer screen at log in and it was only from that time onwards that she became aware of the respondent's policies concerning computer use. 2. Prior to 2012, the applicant did not consider there was any restriction on the type and content of emails that might be stored by her on her work computer. The following exchanges ensued: Q. Prior to 2012, what restriction, if any, did you think there was on the content of emails that might be stored by you on the work system? A. None. Q. No restriction at all? A. No restriction. There was nothing ‑ we never had any education around how ‑ any storing of emails whatsoever or deleting. Q. Was there any restriction, to your mind, on the content of emails that might be sent by you using your work computer? A. Anything that I deemed that was inappropriate and ‑ yeah ‑ absolutely. Q. Why did you think there was such a restriction? A. If I felt that it was going to be of derogative nature or ‑ to the person that was receiving it. Q. Was that a matter of the employer's policy or something that you thought should occur? A. I used my own ‑ I used my initiative. As long as I didn't feel that the other person was ‑ the people that were receiving, felt that it was untoward. Q. If you received any email content that you considered to be inappropriate, what do you believe you ought to have done with that email? A. When I did receive inappropriate emails, based on the subject heading, I dragged them into a folder called, "Funnies Folder". Q. You dragged emails to the funny folder when you thought the content of that email was inappropriate, I think you just said? A. Based on the subject heading Q. Based on the subject heading? A. Yeah. Q. How would you tell from the subject heading whether the email was inappropriate or not? A. Depending. If it didn't say wildlife pictures or something like that I could ‑ I could just tell; use your initiative. Q. If you thought to the content of the email was inappropriate, why wouldn't you delete the email? A. I just stored it. They were just stored there. I didn't ‑ didn't think twice about it. That's why they've dormant in my emails for nine years. Q. If you considered the email content to be inappropriate, you didn't consider telling the person who sent you the email to stop sending them? A. No. No, I didn't. It was only after 2012 when culture started to change that that became apparent, that it wasn't acceptable. 1. The applicant recalled attending a Workplace Area Orientation and Code of Conduct training course on about 8 December 2004. However it was her recollection that this training session dealt with matters such as the payroll system and there was no training given with respect to the Code of Conduct. The following exchange ensued: Q. But you also don't recall having Code of Conduct training that day; that's your position? A. Not in entirety, no. As I say, we had somebody from HR there. We had child protection training. It was a full day training of many different people there from the Health District. 1. It was the applicant's evidence that she had not opened all of the emails deemed inappropriate and in the event that she had discovered an inappropriate email she would have reported the matter instantly. The following exchange ensued: If I could just take you back again to your affidavit of 2 April, Ms Bellenger. You say at paragraph 33 you asked people who would have been sending you emails to stop sending them you say that that's because at that time you became aware of the respondent's policy in relation to emails? A. Yes. Q. Why didn't you delete the emails contained in the funny folder at that time? A. Because I didn't. Q. You appreciate at this point in time that the policy extends to storing inappropriate material? A. I do. I appreciate that. 1. The applicant stated that she believed that she had dragged the majority, if not all of the emails deemed inappropriate to her funny emails folder. She also considered someone may have had access to her password and forwarded number of inappropriate emails from her computer. 2. The applicant conceded that work on her journal may have encroached work time. She also agreed that the Journal had been emailed to a number of persons employed by the respondent. 3. The applicant conceded that she signed off sending a number of inappropriate emails with her name, job title, hospital name and Local Health District details. She agreed with the proposition that the audit report which identified some 311 emails inappropriate represented a sample of emails taken from her funny emails folder. 4. The applicant stated that she had applied for approximately 50 positions within the Port Macquarie area subsequent to her dismissal. The fact that the respondent had placed her name on the service check register effectively meant that she was unable to apply any positions within New South Wales Health. 5. The applicant acknowledged that during course of the investigation interview she was afforded time out to confer with her Union representative. Mr Rodwell 1. Mr Rodwell commenced employment with NSW Health in 1980. He reviewed the investigation report which determined the applicant's conduct was in breach of both the 2005 and 2012 Code of Conduct and the Communications Policy. 2. Mr Rodwell deposed he was required to advise the Chief Executive whether to accept or reject the findings made by the investigator, Mr Greville in his report and what appropriate disciplinary action, if any, should be taken against the applicant. 3. Mr Rodwell subsequently recommended that the applicant be dismissed having regard to the following considerations: (i) The seriousness of the misconduct and the extent to which it constituted a breach of the Code of Conduct and the relevant policies; (ii) The penalties prescribed by the relevant policy directives including the Communications Policy; (iii) Whether the misconduct involved a pattern of behaviour or was an isolated incident; (iv) The applicant's length of service and previous work history; (v) Any factors affecting the applicant's behaviour; (vi) Any matters raised by the applicant about the findings or the penalty or action should be taken in response to the misconduct; (vii) The impact of the conduct on the organisation and other staff; and (viii) The potential impact that any action may have on the staff members' personal circumstances and professional reputation. 1. It was Mr Rodwell's evidence that the Chief Executive accepted his recommendation to dismiss the applicant on or about 14 January 2016. 2. A letter of termination was provided to the applicant on 15 January 2016. That correspondence informed the applicant the Chief Executive had considered her show cause response and was satisfied that the allegations had been substantiated on the balance of probabilities. 3. In cross examination, Mr Rodwell explained that his role was to review the investigation report and make a recommendation concerning appropriate discipline to the Chief Executive. 4. Mr Rodwell agreed with the proposition that in preparing his recommendation to the Chief Executive, he took into consideration various policies in place during the applicant's period of employment, the level of knowledge she may have had at the time in relation to those policies, the frequency of the alleged policy breaches and the reduction of inappropriate email traffic from 2012 onwards. 5. Mr Rodwell agreed that the respondent sent memoranda concerning the Code of Conduct to employees in May 2012 so as to ensure they fully understood their obligations and were familiar with its contents. 6. Mr Rodwell conceded there was no correspondence or material before the Commission to show the applicant was made aware of the 2005 Code of Conduct and the 2009 Communications Policy. He contended the fact that employees were required to "tick" a box on log in as a condition of computer use and acknowledge their acceptance of those policies was a sufficient reminder that they were required to comply with them. 7. Mr Rodwell confirmed that in making the recommendation to the Chief Executive, he took into consideration the applicant's employment history with the respondent and the adverse impact on her professional reputation. He subsequently explained the reasons for and the implications of the applicant being placed on the service check register. Mr Greville 1. Mr Greville joined the respondent in March 2015 and is responsible for risk assessment and the management of serious and complex investigations. Prior to his current appointment Mr Greville, was an external investigator for the respondent. He is also a former detective with NSW police. 2. In or around 20 July 2015, Mr Greville conducted an investigation into allegations against the then Manager, Mental Inpatient Unit, Mr Ian Dennis concerning alleged inappropriate email and computer use. Mr Dennis was subsequently terminated. 3. During investigation concerning the conduct of Mr Dennis, Mr Greville found evidence of potential inappropriate email and computer use by other employees including the applicant. 4. A copy of the investigation report was attached to Mr Greville's statement together with four large folders containing the alleged offensive and inappropriate emails. 5. Mr Greville confirmed that an internal audit report had identified 1256 email documents contained in the applicant's funny emails folder dated between 14 March 2006 and 20 August 2014. The audit report identified those emails considered to be inappropriate, personal and horse, dancing and journal related. 6. The audit report categorised the alleged inappropriate emails as follows: 1. genitals (31); 2. images depicting naked children (4); 3. partial nudity (30); 4. cartoon - sexual depictions (11); 5. sexually suggestive (11); 6. profanity (32); 7. graphic (18); and 8. chain emails (73). 1. The audit report also estimated the applicant's 23 page personal journal took more than five hours to compile. 2. Mr Greville interviewed the applicant on 20 October 2015 and subsequently determined each the allegations put against her had been substantiated. 3. It was Mr Greville's evidence that the applicant had explained to him that she had received a large number of non-work related emails and the funny emails folder was created for the purpose of retaining them in a fixed place. 4. In cross examination, Mr Greville agreed with the proposition that the respondent had taken steps to ensure employees were aware of the 2012 Code of Conduct and in that regard memoranda had been sent to employees requiring them to knowledge its receipt and the fact that they had read and agreed with the Code. He conceded there was no similar advice sent to employees concerning the existence of the 2005 Code of Conduct. 5. In relation to the 2009 Communications Policy, Mr Greville stated there was evidence that at the time employees were required to accept, read or decline the application of both the Code of Conduct and the Communications Policy as a condition of log in. 6. Mr Greville agreed that the majority of emails detected "were sent or received in the period leading up to 2011" with only one entry in 2012 and 2013, and four in 2014. 7. Mr Greville agreed that the emails deemed inappropriate did not contain any images depicting children in a sexually suggestive manner. 8. Mr Greville stated approximately 12 staff were investigated as part of the overall investigation with 8 to 10, including the applicant and her manager found to have breached the respondent's policies.. He agreed with the proposition that "there was a fairly endemic misuse … of the relevant policies in relation to emails". SUBMISSIONS 1. The applicant submitted that while some of her email traffic could be categorised as being offensive and inappropriate, she considered there was no hard-core pornography or strong depictions of any sexual activity. There were however a number of emails depicting nudity and others that could also be categorised as a coarse attempts at humour. Moreover, the applicant did not view all of the emails that led to her dismissal and was unaware of their content. 2. The offending email traffic virtually ceased from end of 2011 and there was no breach of the respondent's policies through 2012, 2013 and 2014.It was open to the applicant to simply press the "delete button" but unfortunately she did not do so. There had been a culture of acceptance within the respondent's workplace of sending and receiving inappropriate emails. 3. The applicant's work record with the respondent was otherwise exemplary. 4. The offending emails were circulated amongst a group of people who willingly participated in this activity and there is no evidence before the Commission that any of the recipients had made a complaint concerning those emails to the respondent. 5. There is no evidence that the offending emails had caused the respondent reputational damage. 6. The applicant does not take issue with the investigation process and was afforded procedural fairness. However, she was given no warnings. There was also a significant time lapse between the receipt of offending emails and the investigation that led to her dismissal. 7. The applicant conceded that she was broadly aware of the 2005 Code of Conduct. However, there was no evidence that the 2005 Code of Conduct and the 2009 Communications policy had been circulated in the same manner as the 2012 Code of Conduct or, there was any requirement for employees to sign off that they had read and understood their contents. 8. The applicant referred to the decision in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [63] to support the proposition that many employees, including those of the respondent, regard conditions of use log in screens similar to those in use by the respondent as "wallpaper": … Many if not most employers require employees to familiarise themselves with the employer's policies. Many if not most employers have logon notices reminding employees using the employer's IT system that they are bound by the employer's policies. Common experience dictates that such policy training often does not result in enduring employee familiarity with the policies and that logon reminders become, as it were, part of the wallpaper. 1. The applicant also considered there was a threshold of inappropriate behaviour or inappropriate emails which the respondent should ordinarily tolerate. 2. The applicant's dismissal has had a significant impact on her personal and financial circumstances. 3. The applicant sought to rely on the decision of the Full Bench in B, C and D at [60] to suggest that in the applicant's case, dismissal was a disproportionate response to her conduct: It needs to be stated clearly that a determination of whether a given dismissal for the sending or receipt and storage of pornography is disproportionate to the misconduct such as to be "harsh, unjust or unreasonable" involves a consideration of all of the circumstances and a weighing of the gravity of the misconduct against the various factors that mitigate against dismissal as a proportionate (fair) response to the misconduct, including, of course, factors subjective to the particular employee (such as age, length of service, service record etc) to determine whether those matters in combination rendered dismissal a disproportionate penalty for the misconduct such that it ought properly be characterised as "harsh" notwithstanding the existence of a "valid reason". 1. The applicant acknowledged that the Full Bench had observed the formulation, implementation, dissemination and enforcement of polices falls within the prerogative of management and there was great variability in employer approaches to the form and content of policies, the way in which employees are educated as to the content of those polices and the way in which such policies are enforced. 2. A failure by an employer to monitor compliance or enforce a policy can be a relevant factor that weighs against a finding that a dismissal for breach of the policy was not harsh, unjust or unreasonable. Where widespread breaches of a policy occur without an employer response, the employer's inaction, according to the Full Bench in B, C and D weighs against a decision that the dismissal was justified and not harsh, unjust or unreasonable. If an employer seeks to rely on a policy, the notions of "a fair go all round" dictate adequate steps have been taken to ensure employees are aware that a breach may lead to dismissal. 3. The similarities between this matter and the Full Bench decision in B, C and D support a finding that the applicant's dismissal was harsh, unreasonable and unjust. There was no impediment to her reinstatement. RESPONDENT 1. The applicant's dismissal followed an investigation that flowed from an inquiry into inappropriate email use by her immediate manager. A subsequent internal audit report identified approximately 1256 emails had been placed by the applicant into a specific folder named funny emails. There was also a number of inappropriate emails in her sent email directory. 2. In cross-examination, the applicant stated she had moved emails into the funny emails folder that she considered were inappropriate. It was also her evidence that she had not read the majority of those emails. 3. The applicant's evidence was also that she was unsure as to whether she opened any or all of the offending emails. In the event that she had discovered any inappropriate emails, the applicant stated in cross examination that she would have reported them instantly. However, on her own admission, she had not done so. Accordingly, the applicant was aware of the fact that inappropriate emails should be reported. 4. The respondent drew the Commission's attention to examples of graphic and otherwise inappropriate emails sent by the applicant to recipients she considered would not be offended by their content. 5. The serious and offensive nature of the email material stored by the applicant over a number of years was a breach of the Codes of Conduct and the Communications Policy. 6. The applicant continued to store offensive and inappropriate emails from 2012 onwards in circumstances where she asserts she was aware of her obligations under the 2012 Code of Conduct. However, she was unable to explain why she did not delete her funny emails folder. Despite that conduct, the applicant suggests the respondent should have sufficient trust and confidence in her to warrant reinstatement. 7. In relation to reputational damage, the applicant had no control whatsoever of any inappropriate or offensive email once sent. 8. From 2012, email access required a user to tick a screen based box stating they had "read the Policy" and agreed to comply with the conditions of computer access which included compliance with the Code of Conduct and the Communications Policy together with an undertaking not to seek out, access, store or transmit inappropriate or objectionable material. The conditions of access conditions make it clear that disciplinary action or a withdrawal of privileges may follow any breach. The applicant agreed that she understood those conditions. 9. The applicant expressed a lack of contrition throughout the investigation suggesting that she was not at fault but rather other employees had accessed her email account. In any event, the applicant contended the respondent's IT system should have prevented her from sending or receiving inappropriate emails. The Commission should place weight on the significance of the computer use log in procedures, particularly after 2012. 10. During the investigation, the applicant maintained that she did not knowingly engage in any practice deemed inappropriate to access, transmit, store and download pornographic sexually explicit or otherwise inappropriate material. Recognising the policy change following the 2012 Code of Conduct, the applicant continued to store the offending emails. 11. The respondent sought to rely on the decisions in Shoukry v The Star Pty Ltd T/A The Star [2012] FWA 9435 and Peter Bates v Commonwealth of Australia (Department of Defence) [2009] AIRC 899 to support the proposition that on balance, the respondent had a valid reason to dismiss the applicant and in all the circumstances of the case, her dismissal was not harsh, unjust or unreasonable. 12. The respondent opposed reinstatement and considered the employment relationship could not be restored. CONSIDERATION 1. At the outset I am satisfied that perhaps more generally from 2005 and specifically from at least 2009 and 2012, the respondent had implemented a series of workplace policies which made it abundantly clear to employees there was a prohibition on the sending and receipt of inappropriate emails in the workplace. Those policies were reinforced and in my view "triggered" at the point of user login which required their mandatory acceptance by "ticking" a pop-up box. Certainly, there can be no argument that this procedure was in place from 2012. 2. Despite the applicant's recollection, I am satisfied the respondent arranged Workplace Area Orientation Course and Code of Conduct training on about 8 December 2004 and that she was present when that training was conducted. 3. I am comfortably satisfied respondent took steps to inform employees about the 2012 Code of Conduct to employees in May 2012 so as to ensure they fully understood their obligations, were familiar with its contents and the hierarchy of disciplinary action that may be taken in the event of a breach. 4. I am also satisfied that the applicant breached the respondent's policies as alleged by sending, receiving and storing inappropriate and other offensive emails on her work computer in breach of the respondent's Code of Conduct and Communications Policy. 5. The applicant was a credible witness and on balance, her dismissal follows the cavalier attitude she adopted in relation to email use. A plea was made on her behalf that a particular culture existed in the mental health section where she worked immediately prior to her dismissal. 6. Employees have to be accountable for their actions and should they decide to embark upon a blissful exercise in breach of those standards, they cannot then seek to extricate themselves from the obvious disciplinary consequences. 7. The applicant has argued that her long and exemplary service should mitigate against the ultimate sanction of dismissal. On the other hand, the respondent was entitled to expect employee conformance particularly given her length of service. 8. Given the respondent's computer use log in requirements, it is plain common sense that an employee does not seek to breach the policy. 9. The approach of the Commission in cases involving use of an employer's electronic communication system to store and transmit inappropriate images was set out by a Full Bench of the then Australian Industrial Relations Commission Commission in Wake v Queensland Rail 156 IR 393 In that case, the Full Bench made the following observations: [3]…It cannot be doubted that electronic traffic in sexually-related, pornographic and violent images is of legitimate and growing concern to employers. Such images, apart from being offensive to many, can undermine acceptable standards of behaviour in the workplace and create an environment conducive to harassment and discrimination. It is possible, even likely, that an employer which does not take active steps to eliminate traffic of this kind on its email and other electronic communication systems may incur legal liability, under anti-discrimination legislation for example. It is reasonable and, arguably, necessary that employers take what steps they can to eradicate traffic in such images. … [17] As we indicated earlier, control of email traffic in inappropriate material is a matter of legitimate concern to employers. The Commissioner's approach might well be interpreted to mean that employees with long service ought to be immune from termination of employment unless guilty of breaches of the policy involving large amounts of "hard core" pornography. We think that an employer is entitled to take a firmer line than that. In this case the appellant went to great lengths to alert employees to the policy and to warn them that breaches would lead to dismissal. Despite this the employee breached the policy on a number of occasions in a substantial way. 1. The Full Bench concluded that it is in the public interest, subject to considerations of fairness, that the Commission's decisions should support employers who are striving to stop inappropriate email traffic: [22]...The use of company electronic communications systems for storage and transmission of images containing sexually-related, pornographic and violent material is a serious and socially important issue. The appellant, rightly in our view, made sustained efforts over a number of years to make employees aware of its policy and the consequences of breaching the policy. Despite those efforts and repeated warnings the employee breached the policy in a substantial way and on a number of occasions. While appreciating that loss of employment is a bitter blow, we see no proper basis on which the Commission might properly intervene to reverse the employer's decision in this case. 1. I am satisfied the conduct relied upon by the respondent to dismiss the applicant occurred, the applicant was afforded procedural fairness and the investigation concerning the allegations was properly conducted. I am also satisfied that that the allegations put against the applicant were proven to the requisite standard. Was the dismissal of the respondent harsh, unreasonable or unjust? 1. The exercise of the Commission's powers in relation to an unfair dismissal requires a determination as to whether a particular dismissal was harsh, unreasonable or unjust. Section 88 of the Act relevantly provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. Was the dismissal unreasonable or unjust? 1. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employees may be subject to obligations that require them to conduct themselves in the workplace in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, requiring mandatory compliance at all times. 2. Employees need to be squarely on notice that non-compliance with employer policies may lead to dismissal. On the material before the Commission, that was the case as far as the respondent was concerned and was most certainly the case following the introduction of the 2012 Code of Conduct. 3. In Byrne & Anor v Australian Airlines Ltd [1995] HCA 24; (1995) 61 IR 32, the High Court considered a federal award provision that prohibited "harsh, unreasonable or unjust dismissal". McHugh and Gummow JJ observed at 72: ... one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 1. I have considered each limb of the tripartite test. Having determined that the conduct alleged against the applicant proven, I have formed the view having regard to all the material before the Commission that the applicant's dismissal was neither unreasonable nor unjust in all the circumstances the case. 2. The respondent had a valid reason to dismiss the applicant. Having regard to the nature of the allegations put against the applicant, the decision to dismiss was both sound and defensible. Was the dismissal of the respondent harsh? 1. The Commission is also required to determine whether or not the applicant's dismissal was harsh. The Full Bench decision in Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 is authority for the proposition that it is open to the Commission to determine whether the sanction of dismissal was, in all the circumstances of the case, too severe. At 302-303, the Full Bench stated: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances -even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (Our italics) 1. In Corrective Services NSW v Danwer [2013] NSWIRComm 61, the Full Bench observed at [21]: The Industrial Relations Act 1996 (IR Act) provides for certain remedies where the Commission finds that the dismissal of an employee from employment was "harsh, unreasonable or unjust": see s 89. It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24;(1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. (See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25] - [32]). 1. I have given consideration to the mitigating factors concerning the applicant's difficulty in obtaining alternative employment in the general Port Macquarie area, her personal, family and dire financial circumstances that were canvassed during proceedings. I have also taken into consideration that she had not previously been warned for misconduct. Against that backdrop, I have determined that the applicant's dismissal was harsh in the circumstances of this case. 2. I have not considered the applicant's service as a mitigating factor. In my view, with some service of some 12 years' service, the respondent was entitled to expect a high level of conformance with it policies. There is no doubt that the impact of her dismissal has been significant for the applicant. 3. I have also determined that reinstatement is impracticable. Given the gravity of the misconduct, the employment relationship has irretrievably broken down and the respondent's contentions that there has been a loss of trust and confidence is soundly and rationally based as determined by the Full Bench of the then Industrial Relations Court in Perkins v Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at [191]: …trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause. . . The implication is not confined to employers; it extends to employees: see for example Blyth Chemicals Limited v. Bushnell [1933] HCA 8; (1933) 49 CLR 66 at pp.81 and 82 and North v Television Corporation Limited (1976) 11 ALR 599 at p.609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based… Orders 1. The orders that I make in relation to this matter are these: 1. The Commission orders that respondent, Mid North Coast Local Health District to pay the applicant 8 weeks pay at the ordinary "black" rate of pay applicable to the applicant at the time her employment ceased within 21 days of today's date. 2. Any disagreement as to the calculation of the applicant's earnings shall be referred to the Commission for final determination. Liberty to apply is available in those circumstances. J D Stanton 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: 24 April 2017