| [2014] FWC 4336 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Mining and Energy Union
v
MSS Strategic Medical and Rescue (“MSS”)
(C2014/417)
COMMISSIONER GREGORY |
MELBOURNE, 5 SEPTEMBER 2014 |
Alleged dispute concerning final written warning regarding alleged breach of Confidentially.
Introduction
[1] Mr Brett Leighton is employed as an Emergency Services Officer (“ESO”) by MSS Strategic Medical and Rescue (“MSS”) at the Loy Yang A Power Station. He has worked as an ESO for more than fourteen years and been at the Loy Yang site for the past eleven years. MSS took over the contract at the site just over two years ago and Mr Leighton has been employed by MSS since that time.
[2] Mr Leighton is also a member of the Construction, Forestry, Mining and Energy Union, Mining and Energy Division (“CFMEU”), and is the site delegate at Loy Yang. He is also the Lodge President of the Emergency Service Officers’ Lodge of the CFMEU Victorian District.
[3] In February this year Mr Leighton was given a final written warning by MSS. The matter concerned a breach of confidentiality arising from copies of correspondence he forwarded to the CFMEU, and to members of his work group in December last year. The fact that the correspondence was circulated is not disputed by Mr Leighton. However, the CFMEU submits the final written warning was “harsh and disproportionate” 1 in all the circumstances and should be removed from Mr Leighton’s employment record.
[4] It also submits the Commission has jurisdiction to make this decision given the scope of the dispute resolution procedure contained in clause 24.2 of the CFMEU MSS Enterprise Agreement 2012 2 (“the Agreement”) that covers the parties.
[5] MSS submits in response the final written warning was appropriate in all the circumstances and opposes the application.
The Issue to be Determined
[6] Was it appropriate in all the circumstances for Mr Leighton to be provided with a final written warning by MSS?
[7] If not, what action, if any, is appropriate in the circumstances?
The Evidence and Submissions
[8] Mr Leighton states that on 9 December 2013 he was asked by Mr Brian Arnold, another ESO employed at the Loy Yang site, to attend a meeting with MSS management about his recent conduct at tool box meetings. Mr Leighton said he agreed to attend as a support person for Mr Arnold. He said Mr Arnold subsequently gave him a copy of a letter he received from Mr Jason Shields, the Emergency Response and Security Site Manager for MSS at the site. Mr Leighton said he sent a response to that letter to Mr Shields. He also provided a copy of the letter, and his response, to the CFMEU and to other members of his work group at the site.
[9] On 19 December Mr Leighton said he received an email from Mr Shields alleging he had breached confidentiality in distributing the letter to the other employees, and a meeting was eventually held on 4 February to discuss this situation. Mr Leighton acknowledged he did not admit to circulating the correspondence in this meeting because he believed the allegations warranted a written response once it was a clear what they involved. He said he was then given until the end of that week to provide an explanation.
[10] On 6 February Mr Leighton sent an email to Mr Shields and Mr Matt Luddington, the HR/IR Manager Vic/Tas, explaining why he circulated copies of the correspondence. The letter stated:
“Re: alleged breach of confidentiality
The accusation of me forwarding an email is correct. There are several reasons why this occurred.
I believed Brian was being victimized by Jason, as evident by his accusations of driving whilst on the phone and his motives behind his accusations of inappropriate behavior (sic) on the same day. This bullying type behavior (sic) presented a genuine health and safety concern for the entire workgroup, and I believed it was in their best interests to be kept informed of my actions as their representative to protect their health and safety concerns.
Secondly the notion of confidentiality never entered my mind as it was already common knowledge that Brian was facing disciplinary action. The letter does not appear to contain any personally sensitive or commercial in confidence material and I was not personally instructed to keep it confidential.
I chose not to discuss this matter on Tuesday as I believe the alleged seriousness of the allegations warrants a written response, after all accusations and evidence were presented.
I have been employed as an ESO for 14 years now and have never encountered an alleged breach of confidentiality before.
I am sorry that this event has occurred, and it probably wouldn't have if I was informed that it was confidential. I did not and still don't fully understand the nature of my confidentiality obligations as it has never been explained to me and certainly wasn't aware that my forwarding the e-mail could possibly lead to any disciplinary action being taken against me or I wouldn't have done it. In hindsight, I regret my actions and I fully commit to keeping all company required confidential information fully confidential in the future.
If the company would like to discuss this matter further I am more than willing to attend another meeting at everyone's convenience” 3
[11] However, Mr Leighton said MSS did not take up the opportunity to have a further discussion and on 13 February he received a letter from Mr Luddington informing him he was being given a final written warning because of a breach of confidentiality. That letter stated in part:
“In the email dated 6 February 2014 you agree that you forwarded on the email as alleged, however state that you were not aware that you were breaching confidentiality. This is despite the fact that the letter you forwarded clearly states that the matter was confidential.
We further direct you to the Employee Standing Instructions to which you agreed to adhere; specifically section 7.5.1 which outlines an employee's responsibility to maintain confidentiality when participating in grievance or complaint resolution processes.
Having considered the various factors of this matter including your written admissions, we have made the decision to issue you with a final written warning.” 4
[12] Mr Leighton also said he had never been involved previously in any disciplinary action whilst working as an ESO at the site, and had not received any complaints from other employees as a consequence of sending the correspondence to them.
[13] The CFMEU submits the final written warning was harsh and disproportionate in all the circumstances and should be removed from Mr Leighton’s employment record. It believes there were other options that could have been considered. It also submits the Commission has jurisdiction to deal with the matter because the dispute settlement procedure in the Agreement that covers the parties extends to “...any matter arising in the course of employment...” 5
[14] It submits, in summary there are four reasons why the final written warning was not justified and is harsh and disproportionate. They concern:
[15] The following paragraphs summarise its submissions in regard to each of these reasons.
“The content of the material deemed to be confidential”
[16] Circulation of the correspondence was, firstly, confined to a small group of employees who work directly with Mr Arnold. It was sent to that group because Mr Leighton saw the disciplinary issues involving Mr Arnold as potentially impacting on that group as well.
[17] The subject matter was also common knowledge and as a consequence the question of confidentiality did not arise for Mr Leighton. In addition, the CFMEU submits the material does not contain anything that could reasonably be considered to be confidential, and was confined to an internal work-related matter. It acknowledges the letter makes reference to confidentiality but Mr Leighton was not told it was confidential. The CFMEU also notes Mr Leighton apologised for his actions and informed MSS he would not deliberately release confidential material again.
“Mr Leighton’s employment record and status.”
[18] The CFMEU submits Mr Leighton has not been the subject of disciplinary action during his long career as an ESO. It also submits his role as a union representative is a “backdrop” to all the circumstances in this matter. He is both the union site delegate and Lodge President for Emergency Service Employees in the power industry in Victoria and this led him to consider the wider implications of the issues involved, and to bring them to the attention of his colleagues. In its submission this provides a clear explanation about why he acted as he did. It also submits Mr Leighton is being singled out for different treatment because of his role as a union representative, although it also acknowledged there is no specific evidence of any such connection.
“The nature of the warning process.”
[19] The CFMEU submits MSS has a three tier disciplinary structure, but in this case it has chosen to ignore the first two stages and to instead give Mr Leighton a final written warning. In its submission the circumstances cannot be regarded as serious misconduct. It also notes the Agreement provides for a particular investigation procedure to apply in circumstances involving allegations of serious misconduct, but this process has not been followed and MSS cannot now claim the circumstances involve serious misconduct.
[20] The CFMEU also relies on the Federal Court decision in Mariam Dafallah v Fair Work Commission and Melbourne Health 6 (Dafallah) in support of the submission that in moving directly to give Mr Leighton a final written warning MSS has unfairly denied him the proper application of the tiered disciplinary system. It also notes the decision indicated “serious misconduct” could be an exception to this situation, but submits this is not relevant in the present matter as the issues to do with Mr Leighton do not amount to serious misconduct.
“Other reasons”
[21] The CFMEU acknowledges Mr Leighton did not admit at the meeting on 4 February that he distributed copies of the correspondence, but submits there were good reasons why he chose not to do so. It also notes he subsequently acknowledged his actions, expressed regret, and apologised. It also submits in circulating the material he was motivated, as the site delegate, by a desire to represent the best interests of his members and there is no evidence of malice or bad faith.
[22] It also submits the ramifications of MSS’s actions are severe when considered in the context of Mr Leighton’s job security and, in all the circumstances, the “penalty does not fit the crime...” 7
[23] The CFMEU also refers to the decision of Commissioner Cargill in Ms Jennifer Delaney v Parramatta Leagues Club Ltd 8 (Delaney) in which the Applicant, employed as the Catering Manager at the Club, forwarded copies of confidential Board papers to her husband who worked for what was described as a “competitor club” located less than ten kilometres away.
[24] The CFMEU noted Commissioner Cargill found, “the Beverage Reports which are clearly marked as Board Reports contain very sensitive financial material. This includes: profit and loss figures; stock take figures; monthly sales comparisons; and trading analyses for each of the venues within the Club” 9 It also made reference to the Commissioner’s conclusions about the nature of the breach, and the other mitigating factors which should be taken into account, when she concluded:
“[117] There are several matters which I consider to be relevant under paragraph (h) of the section. The first is the applicant’s 33 years of unblemished service with the respondent. Whilst length of service may be of less relevance in matters involving misconduct than it would be in those concerning performance, nevertheless, such a long period of unspoilt service should be taken into account.
[118] The second matter of relevance is that the applicant was summarily dismissed for serious misconduct. Although I have found that the applicant’s actions amounted to misconduct and formed a valid reason for the termination, I have some doubt as to whether in the circumstances they were serious misconduct. I have considered Regulation 1.07 of the Fair Work Regulations 2009. I accept that the applicant’s actions were deliberate and could have caused harm or risk to the respondent’s business. However, as indicated earlier, I also accept the applicant’s evidence that she was intending to assist her husband. This may have clouded her judgement. In my view this is a case where the employee failed to appreciate the potential consequences of what she was doing rather than intentionally attempting to harm her employer.” 10
[25] Commissioner Cargill concluded that on balance that the Applicant’s termination was harsh and unfair.
[26] The CFMEU submits that in the present matter Mr Leighton’s actions fall well short of those of the Catering Manager in the matter of Delaney, given there was no commercial in confidence material, or confidential information to do with the operation of the business involved at all. Mr Leighton was also motivated by a desire to assist his members, and was not seeking to damage or harm his employer. It concluded, “Given that, the conclusion can only be that there wasn't serious misconduct; that a finding that would warrant summary dismissal or a final written warning was not justified on the facts.” 11
[27] The CFMEU submits, in conclusion, that the final written warning in all the circumstances cannot be justified and should be removed from Mr Leighton’s employment record. However, in the event the Commission concludes that a final written warning is not appropriate, but some other response is warranted, it submits:
[28] It also suggests that because issues have been raised in the context of this dispute about the application of the dispute settling process in the Agreement the Commission should recommend discussions take place between the parties about how that procedure is to operate and be applied in the future.
[29] MSS does not take issue with the chronology of events in the submissions made on behalf of Mr Leighton, other than to indicate the final warning letter was provided to him on 17 February, rather than 13 February.
[30] However, it does take issue with the significance of the content of the confidential correspondence Mr Leighton circulated. In this context it refers to the decision of DP Ives in Dimitri Ziogas v Telstra Corporation Ltd 12 and cites the following extracts from the 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.” 13
[31] In its submission the fact Mr Leighton did not believe the content of the correspondence was confidential does not “...diminish the fact that the letter he forwarded was marked "confidential" and, in the company's view, contained confidential information in relation to a disciplinary process.” 14 It submits, in conclusion, Mr Leighton’s attempted justification for his action does not diminish the serious nature of his misconduct, and he should have been aware there were other ways in which he could have acted to represent the interests of his members. He could, for example, have dealt with the matter through the grievance procedure in clause 24 of the Agreement.
[32] In regard to Mr Leighton’s employment record MSS submits he was spoken to in November 2012 about alleged breaches of the Employee Standing Instructions, although the circumstances were not properly investigated at the time. However, it also acknowledges any issues to do with his employment history did not impact on the decision to issue him with a final written warning.
[33] In regard to the process that was gone through MSS notes sub clause 6.9 of the Agreement makes reference to the establishment of an investigation panel when serious misconduct is alleged. However, in the present matter Mr Leighton “...provided an admission and therefore no further investigation was required.” 15 It also notes the Employee Standing Instructions make reference to the requirement to respect confidentiality, and the letter of offer provided to each employee indicates a breach of the Employee Standing Instructions may result in disciplinary action up to and including termination.
[34] It also seeks to distinguish the decision in the matter of Dafallah in that the Agreement in that matter contained a specific disciplinary structure, unlike the Agreement that covers the parties in this matter. MSS’s internal disciplinary procedures instead contemplates a variety of action including, “Where the incident is considered serious, warranting more than a first formal warning, but not dismissal, it may be appropriate to issue the employee with a first and final warning.” 16
[35] It also seeks to distinguish the decision in Delaney on the basis that the Commissioner found in that matter there was a valid reason for termination, but considered that outcome to be harsh taking into account various matters including the Applicant’s failure to appreciate the consequences of what she did, the fact she was unfit for duty at the time, and her 33 years of unblemished service. It submits, by way of contrast, Mr Leighton has not been terminated, and the same mitigating circumstances in the matter of Delaney do not exist in this matter.
[36] MSS also acknowledges the potential ramifications of a final written warning can be significant in terms of Mr Leighton’s job security, but can also be avoided if he behaves appropriately and performs his duties in the future to the required level.
[37] It also submits Mr Leighton was on notice following the email sent to him on 19 December 2013 about the allegations of breaching confidentiality. Mr Shields said he sent an email to Mr Leighton that day outlining his concerns and seeking to arrange a meeting to discuss what had occurred. However, as Mr Leighton’s support person was on leave and unavailable the meeting did not take place until 4 February. However, Mr Shields said Mr Leighton was still not willing to discuss the allegations or explain his actions in that meeting, and a response was only forthcoming when he received an email from Mr Leighton on 6 February.
[38] Mr Luddington said he was also involved in the discussions about Mr Leighton’s actions. He said consideration was given to other examples of confidentiality breaches within the organisation, the nature of his role, and his conduct throughout the process. Consideration was also given to the fact Mr Leighton had chosen to blind copy the work group into the email. Mr Luddington said summary dismissal was considered, but given Mr Leighton’s eventual admission, it was agreed a final warning would be the appropriate response.
[39] MSS submits, in these circumstances, if Mr Leighton’s actions were the result of a genuine misunderstanding, or motivated by a desire to support his work group, it could have expected he would have acknowledged this as soon as the issue was raised, instead of waiting until MSS disclosed its understanding of what had occurred. It continues to submit any communication relating to a disciplinary action and performance issues should be treated as confidential, and given the breach of confidentiality by Mr Leighton, a final written warning was appropriate in all the circumstances. It also submits there is nothing in the Agreement that covers the parties, or the disciplinary procedure, that mandates a three step process be followed as part of an employee’s disciplinary procedure.
Consideration
[40] This matter deals with issues that are obviously of particular significance for the parties involved. On the one hand MSS seeks to emphasise the importance of the confidentiality attaching to employee disciplinary processes, and the significance of the inappropriate disclosure of documents indicated to be confidential. On the other hand the CFMEU submits the punishment, in this case, does not fit the crime and as a consequence an employee with a previously unblemished record has his job security in jeopardy after being given a final written warning.
[41] The right and entitlement of Managers to manage and make appropriate decisions about the employees they are responsible for is also another important consideration that needs to be acknowledged and respected. However, both parties appear to accept the Commission has jurisdiction deal with this dispute, and clearly the scope of the Dispute Resolution clause in the Agreement that covers the parties is broad. It states in the opening paragraph in sub clause 24.1(a), “In the event of any dispute arising as to the interpretation or application of this Agreement, or any matter arising in the course of employment the following procedure will apply.” 17 As indicated there appears to be no dispute between the parties that this extends to cover the issue in dispute in this matter, being the appropriateness or otherwise of the final written warning provided to Mr Leighton by MSS on 17 February.
[42] I now turn to determine the matter on the basis of the submissions and evidence provided by the parties. I am satisfied, firstly, that there is nothing in the Agreement, or in MSS’s disciplinary procedures, that provides clear guidance or direction as to what form of disciplinary action or procedure, if any, is appropriate in all the circumstances. The Agreement does contain a clause to do with “Confidential Information” which states:
“Employees must not disclose and must keep confidential any "confidential information" (eg: site security arrangements, medical information on patients in accordance with first-aid protocols) in regard to the Company and/or any client, customer or supplier that they may become aware of in the course of their normal duties. The Company shall be responsible for notifying employees of any information deemed confidential.” 18
[43] The Agreement also contains a sub clause entitled “Investigations” dealing with the circumstances in which an allegation of “serious misconduct or serious neglect of duty is made against an employee.” 19 However, while some evidence suggests termination of Mr Leighton’s employment was considered, it also appears his actions were viewed as falling short of “serious misconduct” for the purposes of sub clause 6.9, although it was also suggested by Mr Luddington in cross examination an investigation was not deemed necessary because Mr Leighton had eventually admitted he circulated the correspondence.
[44] In summary, there is clearly nothing in the Agreement that provides, for example, for a tiered warning process or any other particular response to disciplinary issues, apart from what is contained in sub clause 6.9.
[45] The MSS Security Disciplinary Procedure also provides limited guidance with regard to appropriate disciplinary processes. It does make some reference to the types of action that might be appropriate in responding to issues to do with behaviour or performance. It also states a verbal warning may be an appropriate first option but also indicates, as emphasised by MSS in its submissions:
“Where the incident is considered serious, warranting more than a first formal warning, but not dismissal, it may be appropriate to issue the employee with a first and final warning.” 20
[46] In summary, I am satisfied there is nothing in the Agreement, or in MSS’s internal disciplinary procedures, that mandates or provides definitive guidance or direction about what should have been the appropriate response to Mr Leighton’s actions. Therefore, in reviewing those circumstances the Commission is essentially being asked to exercise its discretion based on its broad powers to deal with matters having regard to “equity, good conscience and the merits of the matter.” 21
[47] In dealing with the matter on this basis I am satisfied, firstly, that Mr Leighton should not have circulated the correspondence in the way he did. In any case Mr Leighton has since acknowledged it was inappropriate to do so and expressed his regret, so this conclusion is hardly controversial.
[48] Mr Leighton initially became involved in the issues arising in this matter when asked by Mr Arnold to be a support person for him in the processes to do with his conduct and behaviour in recent toolbox meetings. Mr Leighton subsequently attended the meeting in December as a support person for Mr Arnold, and Mr Arnold later gave him a copy of a letter he had received from Mr Shields. That letter concluded with this paragraph:
“You are also advised that this investigation is confidential and you are directed not to discuss it with anyone in the workplace, except if they are acting as your support person through this investigation process. You are also advised that counselling and employee assistance is available to you by contacting PPC worldwide...” 22
[49] Mr Leighton then forwarded a copy of the letter to other members of his work group and to the CFMEU. As indicated, I am satisfied he should not have circulated the letter in these circumstances. I have come to this conclusion primarily because Mr Leighton was at the time first and foremost carrying out the role of support person for Mr Arnold in relation to a disciplinary investigation being carried out into his behaviour. Any person in that role of support person should understand an investigation into issues to do with an employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times.
[50] I also accept that Mr Leighton’s behaviour in circulating the letter occurred despite the letter indicating in the final paragraph the investigation was confidential, and should only be discussed with Mr Arnold’s support person. This should have been a further alert to Mr Leighton that the letter should not be on forwarded.
[51] It is also acknowledged the Employee Standing Instructions, and the letter of offer provided to employees by MSS on engagement, emphasise the importance of confidential material being kept confidential. It is also accepted that in responding to Mr Leighton’s actions MSS is not required to work its way through the disciplinary procedure, commencing with the least significant response. It is instead entitled to respond in the manner it considers appropriate, given the significance of the issues involved. In coming to a decision about how to respond I have also had regard to the fact Mr Leighton did not acknowledge his behaviour was inappropriate, or express any regret for what had occurred, until well after the event. MSS submits if it was a case of genuine mistake or misunderstanding on Mr Leighton’s part it could have expected he would have acknowledged this much sooner.
[52] MSS also acknowledges a first and final written warning response is significant, (although it also acknowledges termination was also considered), but Mr Leighton has nothing to be concerned about if there is no repetition of the behaviour.
[53] However, in considering whether a first and final written warning was appropriate I am also satisfied there are mitigating circumstances that need to be considered. Firstly, Mr Leighton is a CFMEU site delegate at Loy Yang. He also has a broader role as the Lodge President for ESO’s in the power industry. I accept that these responsibilities mean that he is likely going to be more alert and active in regard to the potential consequences of management actions for the employees at the site. However, at the same time it could also be expected his obvious experience with union and employee matters should mean he has a better understanding about what is expected of him in the role of support person for Mr Arnold.
[54] The second factor that needs to be considered in mitigation of Mr Leighton’s behaviour is the content of the correspondence distributed. The CFMEU submits it was dealing with circumstances that were well known and understood by all of the employees in the work group. This does not seem to be disputed by MSS. Secondly, the letter from Mr Shields to Mr Arnold contains little by way of confidential information. It makes brief reference to the conduct complained of, but is primarily concerned with the ongoing arrangements to do with a further meeting to discuss those issues. In this respect the significance of the confidential information disclosed falls a long way short of that disclosed by the Catering Manager in the matter of Delaney, and there appears to be nothing disclosed that represents any threat to the business interests of MSS, or to the security arrangements at the site.
[55] The issue appears instead to have more to do with the fact of Mr Leighton having circulated correspondence that indicated it was part of a confidential investigation, rather than the correspondence itself containing anything confidential. It is also noted that Mr Leighton circulated at the same time a copy of a response provided to Mr Shields to the letter. As indicated already these actions demonstrate that Mr Leighton went well beyond the role of a support person and instead took on a role that is much more akin to that of a union site delegate. If nothing else it is suggested that in the future he needs to be more aware of the differences between these roles, and the appropriate behaviour expected in each case.
[56] MSS also places emphasis on the fact there was a significant delay before Mr Leighton provided any acknowledgement or apology for his behaviour. However, it is also noted that there were delays in meetings being organised, in part because of the time of the year and issues to do with a support person being available. However, Mr Leighton also explained the delay was, in part, due to the fact he wanted to be clear about the nature of the allegations. This occurred in the discussions on 4 February and shortly afterwards he made contact with Mr Shields to express his regret at what had occurred. Clearly, it would have been preferable if this had occurred sooner. However, I am also aware that there are a number of issues impacting on the parties at the Loy Yang site at present. These circumstances provide some explanation about why Mr Leighton might have wanted to be clear about what was being alleged before providing a considered response.
[57] Mr Leighton also points to his work record at the Loy Yang site in support of his submission that the punishment in this case does not fit the crime. While he has only been employed by MSS since it took over the contract at Loy Yang, just over two years ago, he has worked at the site for more than 11 years, apparently without any disciplinary action being taken in regard to his work performance or behaviour. As MSS points out this period of service is nothing like that of the employee in the matter of Delaney. However, it is a significant period of time and, as already indicated, the nature of the confidential information disclosed in Delaney was significantly different from anything disclosed in this matter. I am accordingly satisfied it is relevant to take into account that this is a “first offence” for Mr Leighton, and the nature of any disciplinary action should be considered in that context.
[58] This has been a difficult matter to determine particularly because the Commission does not have the same detailed understanding of all that is going on in the workplace in the way that the parties do. The decision taken by MSS in regard to Mr Leighton has obviously been taken with the benefit of that knowledge and understanding. Nevertheless, I am satisfied the decision to give Mr Leighton a final written warning, in all the circumstances, was harsh and warrants review.
[59] In coming to this decision I have had particular regard to the following considerations. I have firstly considered Mr Leighton’s employment record. While he has only been employed by MSS for a relatively short period of time he has been employed at the Loy Yang site as an Emergency Services Officer for more than a decade. The evidence indicated one issue was raised with him in November last year but appears to have come to nothing. There was no other evidence indicating he has been disciplined during his time at the site for issues to do with his work performance or his behaviour. There are certainly no examples of issues to do with him breaching confidentiality.
[60] Secondly, there is no evidence Mr Leighton acted to intentionally or maliciously damage or harm his employer. The explanation that he eventually provided to Mr Shields in the email on 6 February indicated he was genuinely surprised his actions could be constituted as a breach of confidentiality, and he would not have acted in this way if he was aware this was the case. He also indicated his regret at what had occurred and his intention it would not happen again.
[61] Mr Leighton appears instead to have been motivated by a desire to support his colleagues, although as already indicated I am satisfied he needs to have regard to what is involved in acting as a support person for another employee in an individual disciplinary process, as opposed to his a broader role as the union site delegate.
[62] Thirdly, I have had particular regard to what was contained in the letter circulated by Mr Leighton. As indicated already it contained little, if anything, that was not already known to the employees in the workplace, and certainly contained nothing that appears to represent any issue for MSS if it were to be disclosed. For example, it did not deal with the type of confidential information referred to in sub clause 6.6 of the Agreement, such as site security arrangements or medical information on patients in accordance with first aid protocols. The letter of offer provided by MSS to new employees also contains examples of confidential information. It indicates that “confidential information includes but is not limited to” 23 and then goes on to make reference to matters including customer lists, sales and marketing information, product specifications, financial and accounting information and the security requirements of MSS and its customers. Again, the letter from Mr Shields does not include reference to any of these matters.
[63] However, in coming to the conclusion that the letter does not contain information that is of itself commercial in confidence, it is again emphasised that it is to be expected that parties involved in issues to do with individual employee disciplinary processes will respect the confidentiality and privacy of those processes.
[64] Having come to the conclusion that a final written warning was a harsh and unwarranted response in all the circumstances I have given further consideration to what response might instead be appropriate. I have already made reference to the CFMEU’s proposals in this regard, but consider that an appropriate response should come from the options that are part of MSS’s disciplinary procedures.
[65] The submissions indicate that MSS’s disciplinary procedure, leaving aside the option of termination of employment, contemplate three possible options being a verbal warning, secondly, a written warning, and then the option of a final written warning. I am satisfied, in all the circumstances, that it is appropriate Mr Leighton be given a written warning. I have come to this view because I do believe his behaviour was inappropriate and as an experienced union delegate he should have been aware of the processes involved in an individual’s disciplinary procedure, and his responsibilities as part of that process. The written warning should deal specifically with the behaviour involved, and the fact that in his capacity as a support person for another employee Mr Leighton has inappropriately distributed material related to that process, and any repetition of that behaviour could result in more serious action being taken.
[66] I believe it is appropriate for the parties to now reach agreement about the precise wording of this letter against the background of this decision. The Commission is, however, available if the parties require any further assistance in concluding this process.
COMMISSIONER
Appearances:
Alex Bukarica of the Construction, Forestry, Mining and Energy Union appeared on behalf of the Applicant.
Sally Pedlow appeared on behalf of the Respondent.
Hearing details:
2014.
Melbourne:
18 June.
1 Exhibit CFMEU2 at para 20
3 Exhibit MSS1 at Attachment A7
4 Ibid at Attachment A10
5 Above n.ii at cl.24
6 [2014] FCA 328
7 Transcript at PN595
9 Ibid at [104]
10 Ibid at [117]-[118]
11 Transcript at PN 608
13 Ibid at [25]-[26]
14 Transcript at PN630
15 Exhibit MSS4 at para 12
16 Ibid in para 20
17 Above n.ii at cl.21.1(a)
18 Ibid at cl.6.6
19 Ibid at cl.6.9
20 Above n.xvi
21 Fair Work Act 2009 (Cth), s.578(b)
22 Above n.iii at Attachment A1
23 Ibid at Attachment A11, page 8
Printed by authority of the Commonwealth Government Printer
<Price code C, PR552581>