DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Prosser
v
Ziegam Pty Ltd
(U2018/11239)

Application for an unfair dismissal remedy – applicant terminated for misconduct – application dismissed.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Daniel Prosser who alleges that the termination of his employment with Ziegam Pty Ltd (Ziegam) was unfair.

[2] Mr Prosser commenced employment with Ziegam on 2 January 2018 as an ICT Technician until his employment ended on 11 October 2018, a period of approximately 10 months. There is no dispute Mr Prosser is eligible to bring an unfair dismissal application.

[3] Mr Prosser submitted he was terminated for misconduct on the basis that he brought illicit drugs on the premises and accessed the “dark web” to obtain the drugs. Mr Prosser said his termination was unfair because he was not given any details of the allegations and that the details given to him were false. Mr Prosser also submitted he was dismissed without being given a chance to respond to the allegations.

[4] Ziegam submitted Mr Prosser was terminated for distributing drugs in the workplace and because he was in breach of company policy in relation to security of information. Ziegam submitted Mr Prosser abused his role in the company to obtain and distribute confidential information outside of the organisation. Ziegam submitted that after thorough investigation of both issues, the decision was made to summarily dismiss Mr Prosser on the basis he had engaged in serious misconduct.

[5] The matter was listed for Hearing on 6 February 2019 in Brisbane with the parties appearing by video-link in Darwin. Mr Prosser represented himself and Ms Wendy McKenzie represented Ziegam.

Background

[6] On 5 October 2018 the Applicant received a text from his manager Mr Lee Sutton that stated he was not to come into work that day and that they would have a meeting the following Monday. Ziegam submitted this was in relation to a performance issue, and that Mr Sutton advised Mr Prosser he would be on full pay.

[7] Ziegam submitted that in the meantime, a separate issue was raised at 9am on 5 October 2019 by Kelly Matthews, Sales Manager, to Mr Darren Gamston, Operations Manager, about information she had received from a staff member, Mr Ricky Borg at 1pm the day before, that Mr Prosser had given him tablets of an unknown origin on two separate occasions over the previous three to four weeks.

[8] Ziegam submitted Mr Borg had not taken the drugs, however Mr Prosser had been encouraging Mr Borg to do so. Ziegam submitted that Mr Borg was feeling intimidated by Mr Prosser, and had experienced issues with Mr Prosser in the past in relation to sexual harassment which had been resolved after the intervention of a sales manager.

[9] Ziegam submitted that Mr Darren Gamston immediately began interviewing staff in the building about rumours of illegal drugs on the premises. It submitted each staff member was interviewed separately and were not asked leading questions as to who was being investigated. Ziegam submitted that “all roads led back to Daniel.” Ziegam submitted in-depth notes were taken of each interview.

[10] Ziegam submitted that interviews on that day and further interviews on the Monday revealed that Daniel had spoken to four staff members over a period to either procure drugs for himself or supply them with drugs. Other staff had also relayed information regarding conversations and situations they had witnessed that backed up this information.

[11] Ziegam submitted that despite being told not to, Mr Prosser turned up to work during the afternoon of 5 October 2018. Ziegam submitted the suspension took place at that time, and Mr Prosser was advised of the reasons and that he was to attend the office the following Thursday at 9:00am. Ziegam submitted Mr Prosser was advised he may bring a support person to the meeting.

[12] Mr Prosser submitted that the verbal notification of suspension was unfair because he had fronted up to the office out of good faith to see what the issue was, but instead was pulled into an impromptu meeting resulting in him being stood down. Mr Prosser also submitted it was unfair because he was not provided with written notice outlining that an investigation was taking place and that whilst this occurred he would be required to stay away from the workplace.

[13] Mr Prosser denied he was given the opportunity to bring a support person and submitted that the investigator of the allegations should have been neutral. He submitted that Mr Gamston was not objective in his approach and did not give him an opportunity to respond or even a moment to process the very serious allegations that were made. Mr Prosser said he was not presented with the facts and/or evidence substantial enough to be stood down. He also said nothing was provided in writing.

[14] Mr Prosser said he was not provided any written notice about the next meeting that was to be held on Thursday the 11th October, and that despite advising the company that he wanted the Police to be involved, they were not. Ziegam disputed Mr Prosser was not given written notice.

[15] Ziegam submitted that on Friday 5 October, Mr Sutton also discovered that despite Mr Prosser’s password being changed so he could not remote access the network, he had used Ms McKenzie’s administration user name and password to get into the systems. Ziegam submitted Mr Prosser had made changes so that nobody in the company had access to their own network. Ziegam submitted it had to go direct to Telstra to gain access and further change passwords to deny Mr Prosser access.

[16] Ziegam submitted the network was physically unplugged from internet access at close of business, until the following morning when an external IT company came to conduct an audit. Ziegam submitted that it was at this point that the company discovered various other issues which were a serious breach of security. It submitted some of those issues were highlighted in Mr Prosser’s dismissal letter.

[17] Ziegam submitted that Mr Prosser’s role in the company was a critical and highly sensitive one involving the highest integrity and security awareness. It submitted Mr Prosser breached that trust and their own security on so many levels in so many ways that there is no rehabilitation possible that would convert this type of ingrained behaviour.

[18] Ziegam submitted that one of these reasons is enough for to justify dismissal due to misconduct. It submitted that as there were two reasons this meant there was no chance of Mr Prosser being kept on as an employee in this business. Ziegam submitted his ongoing conduct since dismissal also reflects the lengths he is prepared to go to infiltrate the company network for either malicious or personal revenge against being dismissed.

Legislation

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Evidence

[19] Ziegam submitted Mr Prosser was terminated for serious misconduct on the basis he attempted to supply and/or procure illicit drugs into the workforce, and because of serious breaches of the company’s internal computer network. 1

Drug possession/distribution

[20] Ziegam submitted that based on an investigation including interviews with several staff members, it believed the complaint from Mr Borg was based on truth, and that Mr Prosser had attempted to supply or procure drugs in the workplace.

[21] Ziegam submitted that from its investigations, it appeared that Mr Prosser had been sussing out who in the company may be interested in the drugs he was willing to supply, from his first few weeks of employment until he was terminated. It said that Mr Gamson’s interviews with staff gave an impression that many staff knew about or suspected Daniel of dealing drugs.

[22] Mr Darren Gamston, Operations Manager for Ziegam, gave evidence that he began an investigation into Mr Prosser on 5 October 2018 after receiving information regarding a complaint from a staff member that Mr Prosser had given him drugs. Mr Gamston said he immediately started interviewing as many people in the shortest time possible so that other staff did not have time to start talking to each other and comparing notes. Mr Gamston said he started every interview by asking “what do you know about Drugs in the building”[sic]. 2

[23] Mr Gamston said every staff member that he spoke to added to the case that Mr Prosser was offering as well as at times seeking drugs. 3

[24] Mr Gamston then detailed some conversations that staff members said they had with Mr Prosser where he had either offered to sell or buy drugs. He did not name any of these staff members in his evidence. Mr Prosser said he could not recall any of the conversations he allegedly had with staff members about drugs as outlined by Mr Gamston’s evidence.

[25] Mr Gamston said based on this evidence he decided it was enough to suspend Mr Prosser so that a more in depth investigation could take place.

[26] Mr Gamston said there were also rumours that Mr Prosser was accessing the drugs via the dark web however, he was unable to find any substantial evidence to support this and subsequently was not part of the dismissal.

[27] Mr Gamston said he filed a police report the following week.

[28] Mr Ricky Borg gave evidence that on 4 October 2018 he spoke with his manager Kelly Matthews and told her Mr Prosser had been giving him prescription drugs. Mr Borg said he knew they were prescription because of the packaging.

[29] Mr Borg said Mr Prosser gave him the drugs on two occasions. Mr Borg said the first occasion was on August 15^th where he was sitting at his desk when Mr Prosser gave them to him saying “there’s more where that came from”. Mr Borg said he asked what they were, and Mr Prosser said that they will keep him awake and added that he “got them off the dark web”.

[30] Mr Borg said over the next few weeks Mr Prosser asked a couple of times what Mr Borg thought of them and if he wanted any more. Mr Borg said he told Mr Prosser that he hadn’t tried them and that he did not want any more on each occasion.

[31] Mr Borg said that around a month after Mr Prosser gave him the first lot, Mr Prosser then gave him more and said “I’m being nice”. Mr Borg said Mr Prosser then left them on Mr Borg’s desk and walked away so Mr Borg wasn’t able to refuse them. Mr Borg said he put them in his drawer with the intention of returning them.

[32] Mr Borg said he unfriended Mr Prosser from Facebook around the middle of last year as Mr Prosser would often post transphobic material which Mr Borg found very offensive. Mr Borg said Mr Prosser messaged him on January 20^th 2018 on Facebook messenger about whether he could obtain the drug ice for him. Mr Prosser provided some screen shots of these messages as part of his evidence.

[33] Mr Prosser denied that he ever supplied Mr Borg with drugs. Mr Prosser said Mr Borg often helped himself to the Panadol and Ibuprofen that was kept in a drawer in his desk. Mr Prosser said Mr Borg also approached him on a number of occasions asking if Mr Prosser had Benzodiazepines, (Valium). Mr Prosser said he ignored these requests. 4

[34] Mr Prosser further gave evidence saying “I have never condoned or used illicit drugs”. 5

[35] During cross examination, Mr Prosser put it to Mr Gamston that in the meeting where he was suspended Mr Gamston said the allegations were that Mr Prosser had illicit or illegal drugs. Mr Gamston said he couldn’t remember what he said, but that he likely said illicit that’s what he believed at that time. Mr Prosser put it to Mr Gamston that he said at this meeting that Mr Prosser accessed the drugs from the dark web. Mr Gamston said he had heard rumours from three staff members and at the time that’s what he thought.

[36] Mr Prosser questioned Mr Gamston about the fact that he put things on the Police Report that were entirely false. Specifically Mr Prosser asked why Mr Gamston mentioned that Mr Prosser had been attending a meth clinic, when this was untrue. Mr Gamston said that he believed it to be true. Mr Prosser questioned why Mr Gamston did not confirm this information before putting it on the police report, to which Mr Gamston replied that it was private, and that he thought it was meth because he thought he heard about injections, but couldn’t really remember.

[37] Mr Prosser put it to Mr Gamston that by stating Mr Prosser was going to a meth clinic three times a week on the police report, this was vexatious and was intended to cause Mr Prosser harm. Mr Gamston denied this.

[38] Mr Prosser put it to Mr Borg that he unfriended him on Facebook on 1 October 2018. Mr Borg said that was possible but he couldn’t recall the exact date. Mr Prosser put it to Mr Borg that the reason he went to see Ms Matthews on 4 October, was because Mr Prosser’s Facebook page had made Mr Borg feel uncomfortable. Mr Borg said this was a contributing factor but it wasn’t the only factor.

[39] Mr Prosser asked Mr Borg why it took so long to speak to the manager before telling her about the drugs. Mr Borg said he was scared and didn’t know how to approach the situation. Mr Prosser asked Mr Borg whether it was possible he went to the manager because he was unhappy that Mr Prosser didn’t share his own views, and asked whether he would do the same to others. Mr Borg replied “yes”.

[40] Under re-examination Mr Borg said the main reason he left it so long before telling the manager about the drugs was because he built up the courage and was starting to feel uncomfortable in Daniel’s presence. Mr Borg said Mr Prosser would get in his personal space and come looking for food and he felt uncomfortable.

Security/data breaches

[41] Ms McKenzie said that on 5 October after Mr Prosser was suspended, she was advised that Mr Prosser had accessed the company’s network remotely and removed all other authorised employees from gaining access to the network. She said the Tech Manager managed to recover some access and then secured as much as possible of the network from outside access as possible.

[42] Mr Prosser said he did access the network but it was before he was suspended to complete a job Lee Sutton asked him to complete. Mr Prosser said after he was suspended he did not make any attempt to log onto the systems.

[43] Ms McKenzie said an external IT company, Ategra, secured the network on Saturday morning 6^th of Oct. She said in the course of doing this, two major security issues were raised.

[44] Ms McKenzie said a personal One Drive account (cloud based storage) was found on Mr Prosser’s PC that was active under his personal email address. Ms McKenzie said that within that folder were many company documents, including multiple documents that were commercial in confidence that Ms McKenzie says could only have been removed directly from her PC. Ms McKenzie said the company’s “Keepass” system which held all company passwords was also in this account.

[45] Ms McKenzie said that on Mr Prosser’s PC and within this One Drive account, were Porn site URL’s and movies and evidence that Mr Prosser had accessed these from work. Ms McKenzie said in one instance there was evidence of Mr Prosser sending a Porn URL from his work email address at work to his personal email account. Ms McKenzie said Ategra copied the full account onto Mr Prosser’s desktop and disabled the active One Drive account.

[46] Ms MzKenzie said the second server which was supposed to have been decommissioned had been set up with Unattended Team Viewer access under Mr Prosser’s personal account. She said this allowed Mr Prosser to access the network from anywhere at any time on his personal devices. Ms McKenzie said this was how Mr Prosser was able to get into the network the previous day when passwords had been changed.

[47] Mr Prosser conceded this was true but said it was known about. He said he had access to log in remotely in case of a storm.

[48] Ms McKenzie said information on an Expression of Interest document was passed on to Mr Prosser’s wife who subsequently congratulated her Sales Manager on her promotion to General Manager. Ms McKenzie said this document had not been distributed nor discussed with any staff member including fellow directors and managers. Ms McKenzie said this was a commercial in confidence document, and she was the only person with knowledge of it in the business.

[49] Ms McKenzie said her investigation revealed that numerous emails of an internal company nature were forwarded on to Mr Prosser’s wife. She said some of those emails breached the privacy of our staff members and others breached the confidentiality of his position in this company.

[50] Mr Prosser conceded that this was “somewhat true” but there was only one email not numerous.

[51] Ms McKenzie also said the Telstra 2018 Strategy Update was located on Mr Prosser’s account, which was commercial in confidence and only distributed to Licensees and internal senior management before the public announcements of Telstra T22 Strategy went to market. Ms McKenzie said this was on her email only.

[52] Mr Prosser said his computer was tampered with before the third party was able to go through and have a look. Mr Prosser submitted the investigators were not neutral that he believed this was planted on his computer.

[53] Mr Lee Sutton’s evidence was consistent with Ms McKenzie’s who said that after an investigation into Mr Prosser’s company computer done by himself he discovered breaches of company policy including pornography, unauthorised emails with company documents attached, confidential company documentation, company password file on Mr Prosser’s private One Drive account, Mr Prosser’s personal phone synced to company office 365 accounts.

[54] Mr Sutton said this was on top of accessing the company’s Office 365 system and disabling his direct manager’s admin rights.

[55] Mr Sutton said he investigated further and found other significant breaches. Mr Sutton said Mr Prosser had given himself full delegate rights to several senior managers and key staff which meant he had full access to all incoming and outgoing emails from those addresses without those managers knowing. Mr Sutton said Mr Prosser could do this remotely without any flags to management.

[56] Mr Prosser said this was misleading. He said Ms McKenzie often asked him to bring up other employees’ email accounts. Mr Prosser said to do that he had to add levels of privilege to his own email account so he could do that.

[57] Mr Gamston also gave evidence supporting the evidence of Ms McKenzie and Mr Sutton. 6

[58] Mr Prosser denied that documents were found on his computer that were to do with disciplinary actions about other current and previous staff members that were only on Ms McKenzie’s computer. He also denied that he emailed out confidential company documents to a private email address.

[59] Mr Prosser said that in relation to the pornography issue, he said nothing was on his computer. He said it was in a shop computer and on his one drive. Mr Prosser said he meant to bring it to Ms McKenzie’s attention that it was on the computer at the shop. Mr Prosser said that he looked after the computers at both the business centre and the shop. He said there was a computer at the shop where the pornographic file was, and that he put it on his cloud so he could show Ms McKenzie, because he was not allowed to send emails from his phone.

[60] Mr Prosser conceded he remotely wiped his company iPhone after it was taken from him at the time of suspension, but said he wasn’t aware of the company policies so was not in breach.

[61] I asked Mr Prosser why he put his phone back to factory settings. Mr Prosser said it was taken as a measure to protect himself. He said the phone did not have anything work related, and contained personal information that he didn’t want the company to see.

[62] During cross examination Ms McKenzie asked Mr Prosser if he could provide an explanation as to how his wife knew Kelly was to become GM. Mr Prosser replied “because you told me”. Ms McKenzie said she had not told other directors at this stage so she certainly wouldn’t have told Mr Prosser. Mr Prosser said his wife found out when he was told by management. Ms McKenzie put it to Mr Prosser that the information was contained in a draft document that hadn’t been submitted to management, and that there was no one else who knew about it.

[63] Ms McKenzie asked Mr Prosser how he got that document onto his personal One Drive account. Mr Prosser responded “I have no idea you could have planted it.” Mr McKenzie put it to Mr Prosser that if it wasn’t there, how did his wife know about that document? Mr Prosser said his wife didn’t know, that that she only knew when he was told about it. Mr Prosser said “I don’t know what you’re talking about.” He said he didn’t know which documents Ms McKenzie was talking about or how they got there. He said he knew Mr Gamston needed help with an EOI application, but he had “no idea.”

[64] Ms McKenzie asked Mr Prosser how the warning letter and documents from the FWC that were also on her desktop got into his personal One Drive. Mr Prosser said he didn’t know. Mr Prosser said that Mr Sutton would also have access to Ms McKenzie’s shared drive and this was just around the time Mr Prosser was asking for a different manager.

[65] In relation to the pornography, Ms McKenzie asked Mr Prosser why he did not provide the explanation that the pornographic material came from the shop computer at the meeting on 11 October, after he was asked several times to provide information why those documents were on his computer. Mr Prosser said no excuse was needed for this because the pornography was legal and because it was found on the cloud and not on the computer.

[66] Ms McKenzie asked Mr Prosser to explain how the company key pass which held all company passwords was on his One Drive account on his company computer. Mr Prosser said he didn’t know. He said that Mr Sutton or Mr Gamston could have put them there as they both didn’t like him and wanted him gone. Mr Prosser said they had his computer and password before the Ategra report. Mr Prosser said he was never shown a policy about not being allowed to have a personal One Drive account.

[67] Mr McKenzie asked Mr Prosser what he believed his responsibilities were in relation to security of the network and equipment provided to staff. Mr Prosser said his responsibility was to ensure your system stayed safe. Ms McKenzie asked Mr Prosser whether he believed this security included himself. Mr Prosser said yes, it did. Ms McKenzie asked Mr Prosser how having a One Drive account that contained company material was not in breach of company policy. Mr Prosser said these were accusations.

[68] Mr Prosser conceded to breaching security on two occasions. He conceded that he did send the resume of a potential employee to his wife from his company email and made fun of this person. 7 He also admitted he registered the domain name of “TBTCNT.COM.AU” on the 8th October 2018.8

[69] Ms McKenzie also gave evidence that on one occasion Mr Prosser logged into a computer at the Darwin store remotely using “team viewer”. Ms McKenzie said that computer was being used with a customer by a team member that Mr Prosser did not get along with. Ms McKenzie said Mr Prosser was not meant to have active team viewer on a computer without permission.

[70] Mr Prosser said that he didn’t know there was a customer there, the computer needed maintenance. Ms McKenzie disputed the computer needed maintenance.

[71] Mr Prosser said that when you access a computer you don’t know if it is being active or being used. I put it to Mr Prosser myself that common sense would suggest he should have made sure nobody was using it before logging on. Mr Prosser replied that he logged on and “used it for three seconds and then logged off”. Ms McKenzie said this differed from the version of events given by the staff member, who said his computer had been taken over.

Meeting 11 October 2018

[72] Mr Prosser said he attended the meeting on October 11, where he was told that he was offering prescription drugs to a number of staff members, and that the evidence against him was overwhelming, and that his employment was being terminated effective immediately. 9 Mr Prosser said he was “so confused, I was speechless I could not open my mouth even to talk.”

[73] Mr Prosser said that in regard to evidence of the allegations, “all I can recall was that Darren had a bag containing some of my Ritalin. There was no other material or evidence provided to me or shown me at this meeting or at all.” 10

[74] Mr Prosser said at no time before either of the meetings, or during either of the meetings or at any time was he provided with detail of the allegations or with a proper opportunity to address the allegations.

[75] Ms McKenzie put it to Mr Prosser that this was not correct, and said that paperwork was put into the middle of the table and that Mr Prosser picked it up. Mr Prosser said that he didn’t recall. Ms McKenzie put it to Mr Prosser that there were three other people in that meeting who remembered this. Mr Prosser said “that’s ok, I could be wrong.”
[76] Ms McKenzie put it to Mr Prosser that at the 11 October meeting he refused to answer questions and pushed away the evidence that was placed in the middle of the table that included a screenshot from Mr Borg’s Facebook regarding him looking for ice, the pornographic material and the URL with the porn movie. Ms McKenzie put it to Mr Prosser that he pushed it away saying it was none of their business and had nothing to do with the company. Mr Prosser said that he didn’t recall. He said the meeting went very fast and having ASD meant he needs to process information and it takes a little longer and the meeting was paced very quickly so he didn’t recall.”

[77] Ms McKenzie asked Mr Prosser whether he stands by his statement that he wasn’t provided with the allegations or an opportunity to respond. Mr Prosser said he didn’t recall but that he definitely wasn’t given an opportunity to respond to them.

[78] Mr Prosser said in his statement that he was not offered a support person at the meeting dated 11 October 2018. 11 Ms McKenzie put it to Mr Prosser that he was asked to bring a support person to the meeting being held on Thursday 11^th. Mr Prosser said he was not given notice in writing and forgot he was told due to the stress of the situation.

Consideration

Valid reason – drug possession/distribution

[79] It is clear from Mr Gamston’s evidence that there is not sufficient evidence to demonstrate Mr Prosser was in possession of, or was distributing illicit drugs in the workplace.

[80] It is not contested that Mr Prosser had ADHD medication in the office. Ziegam relies on the fact Mr Prosser was allegedly supplying prescription drugs to other staff members at work during work hours as a basis for dismissing him.

[81] Aside from Mr Borg, I am not satisfied there is sufficient evidence to demonstrate Mr Prosser was distributing prescription drugs to other staff members in the workplace.

[82] Mr Gamston’s evidence that he interviewed various staff members who said they had had conversations with Mr Prosser about drugs is not strong. These employees, aside from Mr Borg, were not named nor did they attend the hearing themselves to give a first-hand account of what happened. Mr Prosser denied these conversations ever took place and I am not satisfied there is sufficient evidence to demonstrate the contrary.

[83] Mr Prosser argued that Mr Borg’s evidence is weakened by the fact he waited some two months after the event to report it to Ms Matthews, which just so happened to be a few days after viewing Mr Prosser’s social media page.

[84] I accept that Mr Prosser likely made Mr Borg uncomfortable at work, and that a contributing factor was the views shared by Mr Prosser on social media. However, I am of the view that whatever it was that prompted Mr Borg to speak to Ms Matthews about the drugs is not really relevant. It is possible Mr Borg was supplied with drugs by Mr Prosser in August, and Mr Borg did not feel uncomfortable with it at the time. However, the point in which Mr Borg became uncomfortable with Mr Prosser is not the determination I must make. It is whether Mr Prosser did in fact supply the drugs, or whether he did not.

[85] Throughout the course of giving his evidence, Mr Borg gave specific recollections of the events that took place between himself and Mr Prosser. Mr Borg recalled specific times, dates and specific conversations that occurred between him and Mr Prosser.

[86] Mr Prosser simply denied any of these conversations took place.

[87] For reasons I will elaborate on later in this decision, I did not find Mr Prosser to be a reliable witness. I found him to often be evasive and had a tendency to either provide answers that appeared to best suit his position, or not provide answers at all.

[88] Throughout the hearing, there were multiple occasions where Ms McKenzie put detailed descriptions of events that took place to Mr Prosser that were inconsistent with his version of events. Ms McKenzie’s versions of events were often supported by several other witnesses. When asked for an explanation, Mr Prosser would often avoid answering the questions directly or say he could not recall.

[89] Given this, I think it is less likely Mr Borg completely fabricated these conversations with such level of detail, all because he was offended by Mr Prosser’s Facebook page, and more likely that these conversations did take place, and Mr Prosser denied this to support his own case.

[90] It should also be noted that Mr Prosser did not seek to cross examine Mr Borg on his evidence that Mr Prosser had approached Mr Borg on Facebook to purchase the drug ice. Further Mr Prosser did not seek to explain the screenshots provided by Mr Borg that appears to show proof this conversation occurred. Whilst there is no evidence that this conversation occurred at the workplace during work hours, this does go to the credibility of Mr Prosser. Mr Prosser gave evidence on oath that he never condoned or used illicit drugs, when the uncontested evidence of Mr Borg suggests it is likely that he did.

[91] I therefore accept Mr Borg’s version of events, and on the balance of probabilities I find it is likely Mr Prosser was supplying Mr Borg with prescription drugs in the workplace. On that basis, this would warrant a valid reason for dismissal.

Valid reason - security/data breaches

[92] I will now consider whether Mr Prosser’s conduct resulted in a breach of the company’s network security and privacy policies, and whether that formed a basis for dismissal.

[93] Ms McKenzie gave detailed examples of multiple occasions where Mr Prosser had allegedly breached the company’s security policies. I found that when put to Mr Prosser, he again had a tendency to either provide answers that seemed to suit his position, or said he could not recall.

[94] In relation to the confidential content found on Mr Prosser’s One Drive account, Mr Prosser’s explanation was that he had no recollection of how that got there, and suggested that he was set up by Mr Gamston and Mr Sutton. I do not accept this. I find it is less likely Mr Gamston and Mr Sutton planted this material on Mr Prosser’s One Drive, and it more likely that Mr Prosser has provided this explanation as it suits his case.

[95] I also note, that despite the fact Mr Sutton had access to Mr Prosser’s PC password, there is no evidence that Mr Sutton had access to the password of Mr Prosser’s One Drive account, which on Mr Prosser’s own evidence is an entirely separate account. It is therefore even less plausible that the material was ‘planted’ by Mr Sutton or by Mr Gamston.

[96] In relation to the confidential documents being sent to Mr Prosser’s wife, I do not find that Mr Prosser was able to offer a plausible explanation. When Ms McKenzie asked Mr Prosser how confidential documents that only she knew about ended up on his computer and One Drive, he said he didn’t know. When asked how his wife knew about Ms Matthew’s promotion before she had told other directors, Mr Prosser said it was because Ms McKenzie told him about it. I do not accept this. I accept Ms McKenzie’s evidence that she had not told directors and senior managers, and therefore had not told Mr Prosser.

[97] Again, I find it is more likely that Mr Prosser did obtain the documents from Ms McKenzie’s desktop to forward to his wife, and was formulating answers that best suited his position.

[98] I do not accept that Mr Prosser had pornography on his One Drive to show Ms McKenzie after finding it on the shop computer. Had this been the case, there is no reason why this could not be brought to the attention of Ms McKenzie without the need for Mr Prosser to upload the URL to his own personal One Drive.

[99] I therefore accept that Mr Prosser was in breach of the company’s security policies on more than one occasion. The severity of these breaches, such as obtaining confidential documents from the director’s desktop, without that director’s knowledge, and forwarding that information to persons outside of the company is a complete violation of the company’s trust and an abuse of Mr Prosser’s position as an IT officer.

[100] I accept that these breaches provide a valid reason for dismissal.

Notified of reasons

[101] I prefer the evidence of Ms McKenzie, Mr Sutton and Mr Gamston that Mr Prosser was notified of the reasons for his dismissal at the meeting on 11 October. On Mr Prosser’s own evidence, he was told at the meeting he had been made aware that one of the reasons was for supplying prescription drugs in the workplace. I also accept Ziegam’s evidence that Mr Prosser was notified of the reason relating to his security breaches.

Opportunity to respond

[102] I prefer the company’s evidence that Mr Prosser was given ample opportunity to respond to the allegations during the meeting of 11 October. Ms McKenzie was quite clear that Mr Prosser was asked multiple times to provide explanations for why company documents were on his computer, and Mr Prosser simply refused to answer. This was supported by other staff members present in the meeting. When this was put directly to Mr Prosser he said he did not recall.

[103] There is not sufficient evidence for me to be satisfied that Mr Prosser was unable to comprehend what was said in the October 11 meeting due to his ASD. Mr Prosser did not provide any medical evidence to the Commission that his condition affected his ability to process information. I found throughout the hearing he was able to process information and respond without difficulty.

[104] I therefore find Mr Prosser was given an opportunity to respond.

Support person

[105] There is no evidence that Mr Prosser was refused a support person.

Warned about that unsatisfactory performance

[106] Mr Prosser was not terminated for unsatisfactory performance so this is a neutral consideration.

Size of enterprise

[107] There was no evidence to suggest the size of the Employer’s enterprise impacted on the procedures following the dismissal. This is a neutral consideration.

Absence of human resources

[108] Ziegam submitted that the company was not in a financial position to hire a full time HR specialist. Ziegam conceded that in hindsight it would have arranged for a HR consultant to be present at the meeting on 11 October 2018. I am of the view that this may have allowed the meeting to run more smoothly, however it is unlikely it would have had an impact on the outcome.

[109] For reasons outlined above I am satisfied that Mr Prosser was adequately notified of the reasons for his dismissal and was offered an opportunity to respond to the allegations.

Other matters

[110] There are no other matters I consider to be relevant.

[111] After the hearing the parties sent correspondence to my chambers. The correspondence was disclosed to all parties to the matter. This correspondence does not impact on any of the findings made in this decision.

Conclusion

[112] I have taken into account all of the matters that I am required to in accordance with s.387. After weighing all the evidence and for reasons set out above, I have concluded that Mr Prosser’s dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed.

COMMISSIONER

Appearances:

Mr Daniel Prosser appearing on his own behalf

Ms Wendy McKenzie appearing for Ziegam

Hearing details:

2019,

Brisbane:

February 6.

Final written submissions:

Printed by authority of the Commonwealth Government Printer

<PR704569>

 1   Respondent’s Outline of Argument at 3d paragraphs 9-10.

 2   Respondent’s Statement of Evidence – Statement of Darren Gamston at paragraph 5.

 3   Respondent’s Statement of Evidence – Statement of Darren Gamston at paragraph 6.

 4   Applicant’s Statement of Evidence at paragraph 56.

 5   Applicant’s Statement of Evidence at paragraph 57.

 6   Respondent’s Statement of Evidence – Statement of Darren Gamston at paragraphs 13-17.

 7   Applicant’s Statement of Evidence at paragraph 50.

 8   Applicant’s Statement of Evidence at paragraph 51.

 9   Applicant’s Statement of Evidence at paragraph 31.

 10   Applicant’s Statement of Evidence at paragraph 39.

 11   Applicant’s Statement of Evidence at paragraph 37.