[2010] FWAFB 2664 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT LAWLER |
SYDNEY, 10 MAY 2010 |
Appeal against decision [2009] AIRC 703 and order PR987958 of Deputy President Ives at Melbourne on 21 July 2009 in matter number U2008/7047.
[1] This is an application for leave to appeal and, if leave is granted, an appeal by Mr Ziogas against a decision by Deputy President Ives dismissing Mr Ziogas’ application for relief against termination of employment. That decision was made by Ives DP as a member of the Australia Industrial Relations Commission. Pursuant to transitional provisions this appeal is determined by a full bench of Fair Work Australia albeit on the basis of the provisions of the Workplace Relations Act 1996 (WR Act) as it applied on the date Mr Ziogas’ employment was terminated. 1
[2] The employment of Mr Ziogas was terminated by Telstra on 23 October 2008 for serious misconduct, namely:
(i) the disclosure of confidential information to a third party, namely the CEPU (Union), in breach of policy; and
(ii) dishonesty in answering questions during the disciplinary investigation undertaken in relation to the disclosure.
[3] Telstra maintains a database of documents, accessible to employees on its intranet, known as the Document Management Exchange (DME). On 2 August 2008 Mr Ziogas accessed two documents entitled “Employment Strategy - Update” (Ex DZ37) and “Employment Strategy GMD Update” (Ex DZ38). He viewed those documents for less than two minutes before downloading them to a USB stick. He did not read the documents but, rather, on 4 August 2008 he provided copies of those documents to officials of the CEPU who described them as “interesting and very important”. He returned to the CEPU office later that day but had no recollection of what was discussed.
[4] On 5 August 2008 Mr Ziogas accessed a further document on the DME entitled “Employment Strategy” (Ex DZ39) and, again, after viewing it for less than 2 minutes downloaded it to a USB stick. Mr Ziogas did not show DZ39 to anybody else at that time.
[5] The three documents were each marked as confidential. Telstra has a Code of Conduct and an ‘Acceptable Use Policy’ in relation to its IT system, each of which oblige employees to ensure that confidential information was used only for authorised purposes and to protect confidential information from unauthorised disclosure or inappropriate use. The documents contained material that was publicised by the CEPU and used as a basis for publicly questioning Telstra’s good faith in relation to collective bargaining.
[6] Mr Ziogas proceeded on leave on 12 August 2008 and returned to work on 18 August 2008. On that day he was interviewed by Mr Cheeseman, a senior manager, and was suspended with pay pending an investigation regarding “allegations that you accessed confidential Telstra information that you had no legitimate business reason to access and that you have disclosed this information to a third party external to Telstra.”
[7] Later on 18 August 2008 Mr Ziogas provided the third document, DZ39, to the Union. That is, he provided a document clearly marked as confidential within a day of being interviewed for misconduct in providing confidential information to a third party.
[8] After further investigation and a further interview (in which Telstra alleges Mr Ziogas gave false answers to questions), Mr Cheeseman determined that Mr Ziogas’ employment should be terminated.
[9] The Deputy President found that there was a valid reason for the termination of the applicant’s employment:
“[20] The relevant issues requiring determination by the Commission in this matter are not complex. In essence the matter, in my view, largely turns upon a determination as to whether, in the circumstances, the Applicant’s conceded passing of particular documents to the CEPU constitutes, considered alone or along with other conduct of the Applicant during the investigation stage, a sufficient basis, according to the requirements of the Act, for the termination of his employment.
[21] Based upon the materials before me I am unable to accept that, whether considered each on its own or together, the accessing and downloading of material such as that accessed and downloaded by the Applicant, by an employee of the Respondent granted intranet access necessarily involves misconduct, serious or otherwise. However the Applicant did not stop at either accessing or downloading the material. He proceeded to provide it to the CEPU – a party the Respondent clearly intended, if on no other basis than the material was obviously marked ‘Telstra In-Confidence’, should not be given access.
[22] I find that the Applicant knew or should reasonably have known that in passing the initial material to the CEPU on 4 August 2008 he was perpetuating a serious breach of the Respondent’s policies. The uncontested evidence of Mr Cheeseman regarding the Applicant’s prior training and exposure to relevant policies, procedures and advice of the Respondent is a sufficient basis for this finding. 3
[23] The Applicant passed further and similar material to the CEPU on 18 August 2008. This material was marked, similarly to the initial material, ‘Telstra In-Confidence’. On the same day and prior to providing the material to the CEPU, the Applicant had been suspended from his employment for, inter alia, disclosing confidential information to a third party external to the Respondent.
[24] The Applicant’s denial in his oral evidence 4 of contemporary knowledge that his suspension related to his passing of materials to the CEPU I do not find to be credible. The issue of the Applicant’s credibility as a witness is the subject of comment later in this decision.
[25] The Applicant’s explanation to the effect that as, in his view, the material that he passed to the CEPU concerned or affected him and that he was, as a consequence, somehow relieved of any obligations relating to the maintenance of confidentiality is, at the least, misconceived and in no measure does it mitigate liability for his actions.
[26] It is unnecessary to address arguments about whether the documents the Applicant provided to the CEPU had the necessary character of being confidential in a strictly legal sense. They were held by Telstra to be confidential. So much is clear from their marking. The Respondent’s policies are clear in respect of the provision of documentary materials to third parties external to the Respondent. As an example, the ‘Acceptable use of Telstra provided services and information systems’ policy relevantly provides as follows:
“4. Consistent with the requirement of paragraph 3 above, you must not use Telstra provided services to:
…
…
If you do not comply with this Company Policy, you may face disciplinary action under Telstra’s Performance Improvement and Conduct Management (PICM) process. This disciplinary action may involve a verbal or written warning or, in serious cases, termination of your employment or engagement with Telstra.”
[27] It is clear from the marking of ‘Telstra In-Confidence’ on the documents passed to the CEPU that the Respondent’s policies applied to these documents. Further I consider it axiomatic that the Respondent retained the right to determine, by policy, the basis upon which its documents might be accessed and disseminated by its employees.
[28] I have already found that the Applicant was aware or should reasonably have been aware of these policies.
[29] The relevant policies are both lawful and reasonable and the Respondent has a right to expect compliance. Subject to its obligation to consider all of the relevant circumstances surrounding any non-compliance, the Respondent is justified in implementing those actions for breach foreshadowed in its policies.
[30] I find that there was a valid reason for the termination of the Applicant’s employment. That valid reason was the Applicant’s serious and wilful misconduct in providing to the CEPU, on both 4 and 18 August 2008, documentary materials in electronic form in breach of the Respondent’s policies, including and in particular ‘Telstra’s Code of Conduct’ and ‘Acceptable use of Telstra provided services and information systems’ policy.”
[10] We note that the documents were placed on parts of Telstra’s intranet where they were accessible to all employees. While there was no direct evidence on how the documents came to be placed where they were, it may readily be inferred from the content of the documents that this was an accident or error. Be that as it may, the fact that the documents were accessible by all employees does not, of itself, prevent those documents from being confidential such that Telstra was entitled to expect employees to treat them as confidential: just because all employees of an employer have access to a confidential document does not mean that the employer loses the right to insist upon such confidentiality such that disclosure to a third party would constitute misconduct.
[11] Mr Cheeseman was the only witness called by Telstra. On appeal, counsel for Mr Ziogas placed particular reliance on certain admissions made by Mr Cheeseman and criticised the Deputy President for not addressing arguments based on those admissions. It is convenient to deal with admissions in groups.
[12] Mr Cheeseman that: 2
[13] These admissions are of little relevance because the documents in question were prominently marked as confidential. We can find no error in the Deputy President’s finding that Mr Ziogas knew that the documents in question were confidential. That finding was well open.
[14] The admissions on which counsel for Mr Ziogas placed greatest emphasis were admissions that: 3
[15] At the end of the passage of evidence in which Mr Cheeseman made these admissions he was asked the following question: 4
“And employees when they come across a document the subject of which we've just discussed are entirely at liberty to seek advice about that from their union?
---Yes.”
[16] Counsel for Mr Ziogas submitted in effect that in light of these admissions by the manager who made the decision to terminate Mr Ziogas’ employment and the only witness to give evidence on behalf of Telstra, the disclosure of the documents in this case could not constitute misconduct.
[17] The difficulty with this argument is that Mr Cheeseman was not asked to agree that all of the matters dealt with in the documents were matters which Telstra would expect its employees to regularly keep up to date with and about which he would have no objection to employees seeking from their union and at no time did counsel put the actual documents to the witness and have him acknowledge that, in light of what had been admitted, he could have no objection to the disclosure of those documents to the Union by Mr Ziogas.
[18] The documents contain matters of obvious sensitivity that go beyond Telstra’s bargaining position and the other matters put as matters of generality to Mr Cheeseman as appropriate for disclosure. In particular, the documents contain material going to matters that any reasonable person in the position of Mr Ziogas would have realised were matters of sensitivity. Mr Ziogas claimed not to have read the documents. This does not assist his case.
[19] The deliberate but unauthorised disclosure by an employee of confidential information of the employer is a well recognised category of misconduct constituting a valid reason for termination of employment. Moreover, an employer is entitled to determine which of its information is confidential. While marking of a document as confidential is not determinative of whether its contents are in fact confidential, such a marking puts an employee on notice that the employer regards the document as confidential and an employee would ordinarily be expected to treat such a document a confidential unless authorised to do otherwise. Certainly, an employee is not entitled to blithely disregard a confidential classification assigned to a document by their employer.
[20] In this case the disclosure of 18 August 2008 has a particular significance. It occurred almost immediately after Mr Ziogas had been subjected to a disciplinary interview on the basis that his earlier provision of documents was regarded by Telstra as a serious matter of misconduct. The disclosure of 18 August 2008 demonstrated a considered disregard on the part of Mr Ziogas of the document’s confidentiality. In all the circumstances of the case, that conduct alone justified a conclusion that termination of Mr Ziogas’ employment was not harsh, unjust or unreasonable.
[21] We note that counsel for Mr Ziogas expressly disclaimed any case based on an appreciation of the significance of the documents such that his disclosure of the documents to the Union could be characterised as an act of “whistle blowing”: It was Mr Ziogas’ case that he did not appreciate the significance of the documents in terms of the use subsequently made of them by the Union. Accordingly, this decision does not address the extent to which the fact that a disclosure of confidential information amounts to an act of “whistle blowing” may be an exculpatory factor in determining whether a termination for such disclosure is harsh, unjust or unreasonable.
[22] We are not satisfied that this appeal raises matters of such importance that, in the public interest, leave to appeal should be granted. Accordingly, a grant of leave to appeal is discretionary and falls to be determined under s.120(1) of the WR Act in accordance with the usual principles. For the reasons we have given we are satisfied that the Deputy President was correct in concluding that Mr Ziogas engaged in misconduct when he provided the documents in question to the Union and the termination was not harsh, unjust or unreasonable. For this reason, in the exercise of our discretion we refuse leave to appeal.
VICE PRESIDENT
Appearances:
Mr E White of Counsel for the appellant.
Mr M McDonald of Counsel and Mr Follett of Counsel for the respondent.
Hearing details:
2009.
Melbourne:
15 September.
1 Items 11(1) and 12(1)(b) of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
2 PN705ff**.
3 At various points in the transcript between PN701 and PN733.
4 PN733.
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