AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision PR944320 issued by
Senior Deputy President O'Callaghan on 9 March 2004
Thomas Brian Potter
(C2004/1034)
s.170CE application for relief in respect of termination of employment
Thomas Brian Potter
and
WorkCover Corporation
(U2003/6751)
VICE PRESIDENT ROSS |
|
SENIOR DEPUTY PRESIDENT WILLIAMS |
|
COMMISSIONER FOGGO |
MELBOURNE, 15 JUNE 2004 |
Termination of employment - summary dismissal for disclosure of confidential information - appeal - in summary dismissal cases the issue of whether the penalty is proportionate to the conduct more appropriately dealt with under s.170CG(3)(e) than s.170CG(3)(a) - Annetta's case followed - meaning of `valid reason' not to be limited by importing a test amounting to repudiation of control - decision subject to appeal must be read as a whole and treated fairly - Full Bench may not have reached the same conclusion but that is not sufficient to warrant leave to appeal - decision reasonably open - no error warranting correction on appeal - leave refused.
DECISION
Introduction
[1] This decision deals with an appeal by Thomas Brian Potter (the appellant) under s.45 of the Workplace Relations Act 1996 (the WR Act) against a decision made by Senior Deputy President O'Callaghan on 9 March 2004. The decision subject to appeal arose out of an application for relief filed by Mr Potter in respect of the termination of his employment. Mr Potter was a former employee of the respondent, the WorkCover Corporation (WorkCover).
[2] In the decision subject to appeal [Print PR944320] his Honour found that the termination of Mr Potter's employment was not "harsh, unjust or unreasonable" and dismissed the application for relief.
Background Facts
[3] Mr Potter was employed by WorkCover from 1986 until the termination of his employment on 7 October 2003. For eight years prior to the time of the termination of his employment Mr Potter was a RISE Scheme Field Officer. The function of the RISE Scheme (Re-employment Incentive Scheme for Employers) is to expedite and facilitate work opportunities for injured workers who cannot return to their previous employment, as an alternative to continuing compensable injury time.
[4] The respondent, WorkCover, is a body corporate established and regulated by the Workers Rehabilitation and Compensation Act 1986 (SA). Central to the termination of Mr Potter's employment was the question of whether he breached the confidentiality provisions pertaining to his employment.
[5] In this regard s.112 of the Workers Rehabilitation and Compensation Act 1986 (SA) states:
"112. (1) A person must not disclose information (except as permitted by subsection (2)) if--
(a) the person obtained the information in the course of carrying out functions in, or related to, the administration, operation or enforcement of this Act; and
(b) the information is--
(i) about commercial or trading operations; or
(ii) about the physical or mental condition, or the personal circumstances or affairs, of a worker or other person; or
(iii) information provided in a return or in response to a request for information under this Act.
Penalty: $3 000.
(2) A disclosure of information is permitted if it is--
(a) a disclosure in the course of official duties; or
(b) a disclosure of statistical information; or
(c) a disclosure made with the consent of the person to whom the information relates, or who furnished the information; or
(d) a disclosure required by a court or tribunal constituted by law, or before a review authority; or
(e) a disclosure to the Corporation or an exempt employer; or
(f) a disclosure to a disabled worker's employer in accordance with this Act; or
(g) a disclosure made under the authorisation of the Minister; or
(h) a disclosure authorised by regulation.
(2a) A regulation made for the purposes of subsection (2)(h) cannot take effect unless it has been laid before both Houses of Parliament and--
(a) no motion for disallowance is moved within the time for such a motion; or
(b) every motion for disallowance of the regulation has been defeated or withdrawn, or has lapsed."
[6] The WorkCover Confidential Information Policy sets out the requirement of WorkCover employees to keep information confidential. The policy states, in part:
"Policy Aim
The WorkCover Corporation has built up considerable confidential information on all aspects of its operation. It is critical that we protect this information to ensure that the best interests of the Corporation, our stakeholders and all employees are safeguarded.
It is our policy to implement guidelines and controls to monitor and protect the use of our confidential information.
Policy Guidelines
1. The Corporation's business comprises information which must remain confidential to the Corporation. . . .
3. It is most likely that all employees will at some stage be exposed to or work with some or all of the confidential information outlined above. Every employee has a duty to maintain the confidentiality of this information. Confidential information is not to be casually discussed within the Corporation, nor disclosed to anyone outside the Corporation at any time. Employees exposed to, or working with confidential information, are authorised to use the information for proper purposes only. Also, no employee may use any such confidential information for their own personal benefit in any way.
4. All employees are reminded to observe certain safeguards with confidential information. In particular, where loss of information is detected or damage occurs, they should promptly inform their supervisor/manager. Employees accessing confidential information are to keep it in their care and custody at all times. Do not leave it unattended or exposed. Confidential information is to be securely stored away when access is not required.
5. Unless specifically required as part of their duties and responsibilities, no employee may access confidential information, nor may they divulge to anyone any information gained during the course of employment, or arising from it, about a client or customer of the Corporation or their business operations. We reinforce that this is a strict duty. The most diligent and prudent safeguards must apply to information entrusted to us by clients or customers. . . .
11. Non-compliance with this policy will result in disciplinary action, which may include termination of employment. Employees should also be aware the Corporation reserves the right to pursue legal action against an employee - current or former - for improper or prohibited disclosure or use of confidential information."1
[7] This policy is referred to in employee training sessions and is also on the WorkCover intranet, to which Mr Potter had access.2
[8] The RISE Code of Conduct for Consultants also states that confidentiality of personal information must be respected at all times.3 Mr Potter was issued with a copy of this document.4
[9] Further, during the course of his cross-examination Mr Potter recalled receiving a bulletin sent by Mr Geoff Davey, Acting CEO of WorkCover which dealt with confidentiality. The bulletin says, among other things:
"By now many of you will be aware that the Corporation has been carrying out investigations into possible breaches of confidentiality by staff inappropriately viewing workers compensation claims. In fact a small number of staff have faced disciplinary action, in some cases quite severe.
It is timely then, to remind all employees about the need to be constantly aware of our Corporation's special responsibilities as the guardian of tens of thousands of highly confidential records. A number of our staff have access to this highly confidential information in the form of workers compensation claims and employer information, but there are also personnel records, grievance and discipline records, performance information and payroll data etc., in the form of computer records or paper files.
Our policies are quite clear about the need for confidentiality. Also, it is an offence under Section 112 under the Workers Rehabilitation and Compensation Act to disclose claims information obtained in the course of our duties. Breaches may involve court proceedings and the penalty is a $3,000 fine.
Having official access to records is not an entitlement to access those records without an official purpose for doing so - in other words, there must be a "need to know". Depending on severity and extent, dismissal could follow such inappropriate access, and passing on or using confidential information without authority to do so, especially for personal gain, is almost certain to result in summary dismissal."5
[10] Mr Potter acknowledged that he would have received this document.6
[11] We also note that Mr Potter's terms and conditions of employment were governed by the WorkCover Corporation of South Australia Agreement 20017. Clause 12 of that agreement states:
"12. Employee Responsibilities
12.1 The Corporation has expectations of its employee's responsibilities and duties. All employees:
12.1.1 must follow lawful and reasonable instructions at all times;
12.1.2 are expected to become acquainted and work in accordance with all of the policies in the Workplace and Employment Policy Manual, including any changes and amendments made from time to time.
12.2 Nothing in this Agreement is intended to remove or limit an employee's or the Corporation's rights and obligations at common law."8
[12] In 2002 Mr Potter was involved in facilitating a work placement at a car dealership for an injured worker (worker 1). Mr Potter's work function necessitated some ongoing contact with management personnel at the dealership. Worker 1's employment with the dealership concluded at some time in December 2002. Mr Potter was aware of some areas of concern on the part of the dealership about worker 1's employment.
[13] On 6 December 2002 Mr Potter met with Ms Krollig, a contracted WorkCover Rehabilitation Provider, and a second injured worker (worker 2). Worker 2 was on workers compensation and was seeking suitable employment which may have been subject to the RISE Scheme. There are conflicting views as to what was said at this meeting.
[14] After the 6 December 2002 meeting worker 1 complained to Mr Cowie, the Program Manager for the RISE Scheme and Mr Potter's manager, that Mr Potter had disclosed information about him to worker 2. Mr Cowie investigated the matter at that time and concluded that Mr Potter had not disclosed worker 1's name to worker 2 and that the matter had been resolved to WorkCover's satisfaction. Worker 1 was so advised.
[15] Worker 1 pursued his complaint with his local Federal member of Parliament who wrote to WorkCover on worker 1's behalf. On the basis of this correspondence the WorkCover Fraud Investigation Unit commenced an investigation in May 2003.
[16] As a result of the investigation by the WorkCover Fraud Unit, WorkCover's General Manager Customer Service, Mr Steer, reached a preliminary conclusion that Mr Potter had breached the relevant legislative requirements regarding confidentiality. This was set out in correspondence given to Mr Potter on 23 September 2003 which identified the basis for WorkCover's concerns, as follows:
"As you are aware a complaint against you was made in January of this year. As a consequence of both this complaint and reviews held by both your immediate manager and by our internal investigation area, we believe that you may have breached the Corporation's s112 obligations.
Further, the comments would appear to be unprofessional and ill-advised.
A summary of the original complaint and our investigation which led to our preliminary conclusion are as follows:
· On 3 January 2003, a letter was received by the Corporation from a worker alleging `unprofessional conduct' concerning the worker with an employer and in front of a prospective employee.
· It is alleged that you made the following statements on 11 November 2002 in a meeting at Gawler in an office of a Ms Kollig, in the presence of an injured worker [worker 2]:
o The worker wasn't doing the right thing by the Manager at [a car dealership]
o You believe the worker was trying to rip the system off (or words to that effect).
o The worker had hurt his thumbs picking up a photocopier.
o You had spoken to the worker's doctor.
o You told the manager at [the car dealership] that he should sack the worker because the worker was going to try to shaft him. The worker was that type of person (or words to that effect).
o The worker had brought his girlfriend's car in there and done thousands of dollars of work on it and then [taken] it to another [car dealership] and had more work done to it, with the knowledge he was never going to pay for it.
My consideration of this matter is that if true it is a breach of s112 and disclosure of it was not necessary in the course of your carrying out your duties as an officer of the Corporation.
This breach if proved would amount to serious misconduct the consequences of which could include summary dismissal. The nature of the comments could also lead to the conclusion that you had acted unprofessionally. This is an aggravating feature.
Before any action is taken, the Corporation wants to both outline to you the information it has and to give you the opportunity to speak to it and put forward either alternative views or outline circumstances which mitigate your alleged views.
You are of course not obliged to talk on matters which may incriminate yourself, however I indicate to you that in the event we are unable to enter into discussions I will be obliged to move forward on the information available to me.
I have set aside this Wednesday afternoon at 4:00pm in my office to discuss this matter with you.
I will be present as well as your immediate manager. You are able to, and I suggest that you should, bring a personal representative with you.
In light of the seriousness of the matter, I further advise you that I have suspended you with pay effective immediately and until the matter has been concluded.
In the meantime, I ask that you have no conversations with other workmates on this matter unless they are in respect of personal representation."9
[17] A number of meetings then took place between Mr Potter, and his legal representative, and representatives of WorkCover.
[18] On 7 October 2003 Mr Steer wrote to Mr Potter terminating his employment. The termination letter is in the following terms:
"Dear Brian,
I refer to our interviews with you on Thursday 25th September 2003 and Thursday 2nd October 2003.
In the course of those interviews you and your lawyer were provided with (and had reasonable opportunity to consider) all the statements and other documents evidencing the allegations against you.
At the final interview on 2nd October 2003 you presented your response to the allegations and subsequently provided me with a written copy of that response.
I have considered all the available material and in particular your response to the allegations.
I have reached the following conclusions:-
1. I am satisfied that when you interviewed and counselled [worker 2] on problems you anticipated he might meet (as you asserted in your response), you referred to your experiences with [worker 1] (namely, his alleged abuse of the employer's account system, his alleged thumb injury and your contact with his doctor) in an anecdotal way, whether or not it was to make a point to [worker 2] about any anticipated problems.
2. Whether or not you referred to [worker 1] by name in that discussion, I am satisfied that you disclosed that the person to whom you were referring was a worker for the purposes of the Workers Rehabilitation and Compensation Act.
3. I am satisfied that you were culpably reckless and negligent in your dealing with the confidentiality of that information which, as it turned out, [worker 2] and his wife were able to identify as relating to [worker 1].
4. I am satisfied that the information you had in relation to [worker 1] (and which you disclosed to [worker 2]) was obtained by you in the course of carrying out your functions in, or related to, the administration or operation of the Act and that it related to the physical or mental condition, or the personal circumstances or affairs, of a worker, namely [worker 1].
5. I am satisfied that it was not necessary for or incidental to the course of your official duties in your dealings with [worker 2] to disclose to him, anecdotally or otherwise, the information about [worker 1] whether you identified [worker 1] by name or simply as a worker under the Act.
6. I am satisfied that you did not have the consent of [worker 1] or any other authority to make the disclosure.
In my view your disclosure of that confidential and restricted information may well constitute a breach of section 112 of the Act but that in any event it constitutes serious or wilful misconduct.
Your actions have placed the Corporation at risk with respect to the claims of [worker 1] and are an embarrassment to it as a statutory body.
Having regard to the seriousness of the matter I have decided that it warrants the termination of your employment with immediate effect. Consequently your employment is terminated forthwith.
Your accrued entitlements to date will be calculated and paid into your account as soon as practicable. A copy of these entitlements are attached.
In the meantime you are requested to contact Mr Ron Cowie to make arrangements to return to the Corporation any of its property which you have in your possession and to collect from the Corporation any of your personal effects.
The tool of trade vehicle in your possession should be returned to the Corporation no later than Wednesday 15th October. This is to allow you sufficient time to make alternative transport arrangements."10
[19] Mr Potter filed an application for relief in respect of the termination of his employment, pursuant to s.170CE of the WR Act. The application was heard by Senior Deputy President O'Callaghan on 23, 24, 25 and 26 February 2004. On 9 March 2004 his Honour issued a decision in which he concluded that the termination of Mr Potter's employment was not "harsh, unjust or unreasonable".
[20] The principal findings in the decision at first instance,11 in relation to whether the termination of Mr Potter's employment was not "harsh, unjust or unreasonable", are set out below by reference to each of the matters referred to in ss.170CG(3)(a) to (e) of the WR Act.
Valid Reason
[21] In the proceedings at first instance the appellant contended that the information he had provided to worker 2 was limited to material which was relevant to the possibility of worker 2's employment at the car dealership. It was argued that any information disclosed in respect to worker 1 had been in the course of Mr Potter's official duties and hence was permitted by s.112 of the Workers Rehabilitation and Compensation Act 1986. His Honour rejected this argument.
[22] WorkCover argued that the information which it had established had been provided by Mr Potter to worker 2, could only have been gained in the course of Mr Potter's WorkCover duties and that this information was provided in such detail to worker 2 that it allowed for the identification of worker 1 and was contrary to WorkCover's established policies relative to confidentiality. WorkCover argued that Mr Potter's behaviour was such that, if it did not breach s.112, it nevertheless constituted serious and wilful misconduct of a character sufficient to warrant the termination of his employment.
[23] As mentioned earlier the evidence of worker 2 conflicted with Mr Potter's recollection in a number of respects.12 In the proceedings at first instance his Honour preferred the evidence of worker 2.13 The Senior Deputy President's findings in respect of the meeting of 6 December 2002 are set out at paragraphs 40 and 41 of the decision subject to appeal, in the following terms:
"I find that at the meeting on 6 December 2002 Mr Potter disclosed information to worker 2 which enabled the ready identification of worker 1 by persons who knew worker 1, or who were required to work with him. This information included:
· the nature of the thumb injury suffered by worker 1,
· the circumstances surrounding this injury,
· actions on the part of worker 1 relative to injury claims, and
· debts incurred by worker 1 against the dealership.
These disclosures may have been motivated by a desire on Mr Potter's part to maximise the potential for the successful placement of worker 2 at the dealership but are more likely to have simply reflected Mr Potter's frustration about the behaviour of worker 1."
[24] The Senior Deputy President found that there was a "valid reason" for the termination of Mr Potter's employment relating to WorkCover's operational requirements. He considered that the second investigation was credible and that:
". . . the facts identified represented a valid reason for the termination of Mr Potter's employment in that it disclosed behaviour which could properly be described as wilful or serious misconduct. I consider that Mr Potter's behaviour is best described as serious misconduct, as I accept that he did not set out on 6 December 2002, to deliberately identify worker 1."14
[25] His Honour dealt with the link between Mr Potter's conduct and WorkCover's operational requirements in the following terms:
"I am satisfied that the termination of Mr Potter's employment related to operational requirements of the WorkCover Corporation. In this respect I consider that Mr Potter's statements to worker 2 constituted a breach of confidentiality requirements which are fundamental to the WorkCover function and to the equitable treatment of injured workers."15
Notification of reason
[26] His Honour found that Mr Potter was notified of the reason for the termination of his employment, in the following terms:
"I am satisfied that the WorkCover advice sent to Mr Potter on 23 September 2003, together with the various meetings which involved Mr Potter's lawyer and the final advice of the termination of his employment of 7 October 2003, represented clear notification of the reasons for the termination of Mr Potter's employment."16
Sections 170CG(3)(da) and (db)
[27] In respect of these matters his Honour said:
"I consider that WorkCover are of a size such that clear and equitable policies and procedures should have, and did apply to the approach that was followed.
There was no information provided to me relative to the involvement of Human Resource Management specialists in this matter. However, I consider that the approach followed by WorkCover was consistent with the advice that may have been expected from human resource management experts, with the exception that I have already remarked on the incongruity of WorkCover's approach to performance management. I also consider that a more comprehensive investigation of the allegations at the first instance may have facilitated an earlier resolution of the matter."17
Opportunity to respond
[28] The Senior Deputy President was satisfied that WorkCover provided Mr Potter with "opportunities to respond to its concerns relative to his behaviour".18
Other Matters
[29] His Honour noted two additional matters. First, Mr Potter appeared to have been unwell at certain times during the events that led to the termination of his employment. In relation to this the Senior Deputy President said:
". . . There is no medical evidence before me, or anything before me that indicates that this was a factor in either his ability to comprehend the RISE Field Officer position, or the discussions that he had with Ms Krollig and worker 2 on 6 December 2002.
Further, I do not consider that Mr Potter's illness was considered, or argued by him, to be a relevant factor in the consideration of the issues that led to his dismissal."19
[30] Second, it was noted that the RISE Scheme necessitates, by definition, a balance to be struck between the disclosure of adequate information to assist a prospective employee gain and retain employment, and the maintenance of confidentiality requirements. In this respect, the position is one of some responsibility. In this respect his Honour concluded that:
"Mr Potter had the opportunity and the obligation to alert WorkCover to any concerns it may have had about his skills or knowledge in that respect, particularly given his eight years experience in this role."20
Conclusion
[31] His Honour concluded that the termination of Mr Potter's employment was not harsh, unjust or unreasonable. He then turned to the question of remedy and said:
"It is appropriate that I note that even if I had decided otherwise, the very limited information provided to me by Mr Potter mitigates against the granting of any remedy in accordance with section 170CH of the Act."21
[32] Mr Potter has filed an appeal against his Honour's decision. The appeal, subject to the grant of leave, is brought pursuant to s.45(1)(b) of the WR Act.
Nature of the Appeal
[33] The nature of an appeal under s.45 of the WR Act was the subject of consideration by the High Court of Australia most recently in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission22 (Coal & Allied). In that matter Gleeson CJ, Gaudron and Hayne JJ, in a joint judgment, said:
"Because a Full Bench of the Commission has power under s 45(6) of the Act to receive further evidence on appeal, an appeal under that section is properly described as an appeal by way of rehearing. And because there is nothing to suggest otherwise, its powers under sub-s (7) are exercisable only if there is error on the part of the primary decision-maker. And that is so regardless of the different decisions that may be the subject of an appeal under s 45." 23
[34] In relation to appeals against orders made under Subdivision B of Division 3 of Part VIA of the WR Act, the requirement for error as a precondition to the exercise of the powers to quash or vary the decision under appeal is reinforced by the terms of s.170JF(2). That section reads:
"(2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order."
[35] An error in the context of s.170JF(1) may be an error of fact or an error of law.24
[36] The appeal is against a decision dismissing an application for relief in relation to termination of employment brought pursuant to s.170CE(1)(a). That section reads:
"(1) Subject to subsection (5), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a) on the ground that the termination was harsh, unjust or unreasonable; . . ."
[37] In considering applications made pursuant to s.170CE(1)(a) the Commission is required to ensure that "a fair go all round" is accorded to both the employer and the employee concerned (s.170CA(1)). The Commission is also required to have regard to a number of matters specified in s.170CG(3). That section reads:
"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(e) any other matters that the Commission considers relevant."
[38] It is clear from these provisions that the decision-making process in an application pursuant to s.170CE(1)(a) is one in which no one consideration and no combination of considerations is necessarily determinative of the result. It is appropriate therefore to describe a decision that a termination of employment is or is not harsh, unjust or unreasonable as a discretionary decision.25
[39] The types of error that may constitute grounds for review of a discretionary decision of the kind here under consideration were re-stated in Coal & Allied in the following way:
"Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process [See Norbis v Norbis (1986) 161 CLR 513 at 518-519 per Mason and Deane JJ]. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
`If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. [(1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ].' "26
[40] We have applied these principles to the matter before us. We now turn to deal with the arguments raised on appeal.
Submissions on Appeal
[41] We have approached the appeal grounds in the same order as they appeared in the notice of appeal.
Ground 1
1. The Commission erred in finding that the appellant's dismissal was not harsh, unjust or unreasonable.
[42] Ground 1 sets out the appellant's central proposition, namely, that his Honour erred in finding that the appellant's dismissal was not harsh, unjust or unreasonable. This proposition is supported by five specific grounds (grounds 2 to 6) to which we now turn.
Ground 2
2. The Commission erred in failing to identify precisely the basis of finding that the appellant's disclosure of information relating to worker 1 constituted serious misconduct justifying instant dismissal.
[43] The main contention in respect of this ground is that Mr Potter's conduct did not amount to serious misconduct at common law. His conduct may have been wrong or an error of judgment, but it was not repudiatory in character and hence did not amount to serious misconduct.
[44] Two of his Honour's findings are said to support this contention, namely:
[45] In relation to the second matter it was submitted that the appellant's position required him to exercise judgment and that an error of judgment does not amount to serious misconduct. It was also argued that there had been no breach of either WorkCover's confidentiality policy or s.112 of the Workers Rehabilitation and Compensation Act 1986 (SA) because both permit the disclosure of confidential information in the course of official duties. Mr Stanley put it in these terms:
". . . the gravamen of the appellant's argument is that he was performing his official duties.
He made a judgment that in the course of doing so, it was appropriate to disclose certain information to worker 2 for the purpose of worker 2 being able to make a successful transition into the workplace with this particular employer who had very real problems with worker 1, as a result of which worker 1's employment had been terminated with the employer. He made a judgment that it was appropriate to reveal this information. Now, he didn't do it for any collateral or ulterior purpose. He wasn't engaged in the sort of process that might have been contemplated by the parliament when enacting this legislation, namely the risk, for example, that employees with access to confidential information might enter into some sort of secret commercial relationship with private investigators or somebody like that or might do what has occurred in a previous case, disclose information to a friend who had made an inquiry about a potential employee that they were considering engaging.
It wasn't that sort of situation at all. Here he was engaged in an essential task of his employment. He made a judgment. There might be good grounds, sound grounds, to criticise what he did in this case but at its highest, it can constitute no more than a mistake on his part in exercising his judgment that he necessarily had to do for the purposes of performing his duties. Now, we don't shrink from legitimate criticism of his actions in this regard.
He acknowledges himself that with the benefit of hindsight, he might not have revealed the thumb injury, but to suggest that such conduct on his part in those particular circumstances constituted even serious misconduct, we submit, discloses appealable error, because the conduct in no way evinces an intention on the part of the appellant to no longer be bound by the essential terms of his contract of employment. What it does disclose at its highest from the respondent's viewpoint is a person who has gone about the performance of his duties and in the course of that has made a mistake."27
[46] In addition to the proposition that Mr Potter's conduct did not amount to the repudiation of his employment contract, Mr Stanley also submitted that the conduct was not sufficiently serious to give rise to a valid reason for the termination of Mr Potter's employment.28
[47] We think that counsel's focus, at first instance and on appeal, on whether or not Mr Potter's conduct amounted to serious misconduct at common law is misconceived. The issue in respect of Mr Potter's conduct is whether it gave rise to a valid reason for termination of employment. In this respect s.170CG(3)(a) states:
"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; . . ."
[48] The nature of the test to be applied in deciding whether there is a "valid reason" for termination pursuant to s.170CG(3)(a) in cases where serious misconduct is alleged was considered in Annetta v Ansett Australia29 (Annetta). In that matter the Full Bench said:
"It is generally accepted that the term `valid reason' should be construed to mean `sound, defensible or well-founded': Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373. Although that case concerned legislation which has now been repealed it is still regarded as authoritative. To limit the meaning of the term `valid reason' by importing a test amounting to repudiation of the contract at common law is unwarranted and impermissible."30
[49] It is apparent from paragraph 50 of the decision subject to appeal that the Senior Deputy President adopted the construction taken in Selvachandran to the term "valid reason". Indeed he sets out the relevant passage from that decision and explicitly identifies with the approach taken. His Honour then applied that approach to the facts before him. He considered that the second investigation was credible and that ". . . the facts identified represented a valid reason for the termination of Mr Potter's employment . . ."31
[50] This conclusion was supported by a number of specific findings, namely:
[51] None of these findings are challenged on appeal.
[52] His Honour also dealt with the link between Mr Potter's conduct and WorkCover's operational requirements, in the following terms:
"I am satisfied that the termination of Mr Potter's employment related to operational requirements of the WorkCover Corporation. In this respect I consider that Mr Potter's statements to worker 2 constituted a breach of confidentiality requirements which are fundamental to the WorkCover function and to the equitable treatment of injured workers."35
[53] We note that his Honour also states that ". . . Mr Potter's behaviour is best described as serious misconduct".36 It was unnecessary for the Senior Deputy President to deal with the question of whether or not Mr Potter's conduct amounted to serious misconduct at common law in the context of his consideration of s.170CG(3)(a). The issue in respect of s.170CG(3)(a) is whether there was a "valid reason" for the termination of Mr Potter's employment. The meaning of the term "valid reason" is not to be limited by importing a test amounting to repudiation of the employment contract. The issue is not whether the conduct in question amounted to serious misconduct at common law but whether it gave rise to a valid reason for termination of employment.
[54] When regard is had to the nature of the argument advanced in the proceedings below we can understand why his Honour felt it necessary to comment on this issue. Before the Senior Deputy President both parties focussed on the question of whether Mr Potter's conduct amounted to serious misconduct at common law. The appellant was represented in those proceedings but the arguments advanced by his representative were limited and paid scant regard to the provisions of s.170CG(3).
[55] In circumstances of summary dismissal the issue of whether the penalty imposed was proportionate to the conduct is a matter more appropriately considered in the context of s.170CG(3)(e) rather than s.170CG(3)(a). If summary dismissal was disproportionate to the misconduct that would support a conclusion that the termination was harsh, despite the existence of a "valid reason" for termination.
[56] While his Honour dealt with the question of serious misconduct his reasons for decision must be read as a whole and considered fairly.37 Taking these matters into account it is apparent that his Honour concluded that the termination of Mr Potter's employment was for a valid reason within the meaning of s.170CG(3)(a). Further, that reason related to Mr Potter's conduct in disclosing personal information about an individual, in breach of WorkCover's confidentiality policies.
[57] In our view such a conclusion was reasonably open to his Honour on the facts before him.
[58] In addition to the findings set out at paragraph 50 above it is relevant to note that during the course of cross-examination Mr Potter acknowledged that he knew that he had to comply with WorkCover's policies in respect of confidentiality38 and he accepted that it would have been wrong to identify worker 1 by name, during the course of his meeting with worker 2.39
[59] Further, while Mr Potter did not disclose worker 1's name to worker 2 he concedes that he did disclose confidential medical information relating to worker 1. The following exchange takes place during the course of Mr Potter's evidence:
"Mr Potter: . . . what I'm saying is that in this conversation with [worker 2], there was particular instances at that time and I just dropped something I shouldn't have gone into it. Looking at it retrospectively, I probably shouldn't have mentioned the thumbs.
Mr Manual: You understand that that was confidential information, don't you?
Mr Potter: Yes."40
[60] Mr Potter also accepted that there are other ways to identify people than by their name and that the more personal information provided about someone the more likely they are to be identified.41
[61] Earlier in our decision we set out the relevant policy statement (see paragraph 6 above). Paragraph 3 of that policy states, in part: "Employees exposed to, or working with confidential information, are authorised to use the information for proper purposes only" (emphasis added). Paragraph 5 states:
"5. Unless specifically required as part of their duties and responsibilities, no employee may access confidential information, nor may they divulge to anyone any information gained during the course of employment, or arising from it, about a client or customer of the Corporation or their business operations. We reinforce that this is a strict duty. The most diligent and prudent safeguards must apply to information entrusted to us by clients or customers." (emphasis added)
[62] There is a contest between the parties about whether Mr Potter's disclosure of confidential information in respect of worker 1 was in breach of the policy. It is contended on behalf of Mr Potter that any information he disclosed was in the course of performing his duties in seeking to secure a placement for worker 2. WorkCover argued that the information provided was in such detail that it allowed worker 1 to be identified, contrary to WorkCover's policy.
[63] His Honour concluded that Mr Potter's conduct was in breach of WorkCover's confidentiality policy. The appellant contends that his Honour's failure to identify precisely the basis of his conclusion was an error. We disagree. It was unnecessary for his Honour to identify the precise paragraph of WorkCover's confidentiality policy which Mr Potter had breached.
[64] Before his Honour, and on appeal, Mr Potter argued that any information disclosed had been in the course of performing his duties. In this regard Mr Potter relied on the terms of paragraph 5 of the policy. We think it is clear from an analysis of his Honour's decision as a whole, and in the context of the arguments put to him, that he concluded that Mr Potter's conduct amounted to a breach of paragraph 5 of the policy. Specifically, Mr Potter divulged "information [about worker 1] gained during the course of employment" to worker 2.
[65] It may be accepted that the disclosure took place during the course of the performance of his duties, but implicit in his Honour's conclusion is the view that such disclosure was not required in order to perform his duties. The opening words of paragraph 5 of the policy are relevant in this regard: "Unless specifically required as part of their duties and responsibilities . . ." (emphasis added).
[66] In his evidence Mr Cowie, the Program Manager for RISE, acknowledged that it was appropriate for a RISE placement officer to provide a prospective employee with some information regarding the expectations and potential difficulties that might be encountered with a new employer. But Mr Cowie also made it clear that this should be done by talking in terms of issues that may arise and the sensitivity of an employer to particular issues. Mr Cowie said that he would not expect his staff to get involved in giving specific examples.42 In our view the performance of Mr Potter's duties in respect of worker 2 provided no warrant for the disclosure of the information divulged in respect of worker 1.
[67] Of course breaching an employer's policy will not of itself automatically give rise to a valid reason for termination of employment. It depends on the character of the policy and the nature of the breach. The policy in question must be lawful and reasonable. Having regard to the statutory functions performed by WorkCover we are satisfied that the policy breached by Mr Potter was both lawful and reasonable. Moreover compliance with the policy was of particular importance to WorkCover. This point was made by Mr Steer in his evidence in the proceedings at first instance in these terms: ". . . that particular policy is particularly important in our credibility and the maintenance of confidence in the system in South Australia."43 Mr Steer is the General Manager of Customer Service for WorkCover.
[68] We are not persuaded that the appellant has established an arguable case of error in respect of this ground of appeal.
Ground 3
3. The Commission erred in failing to find that if there had not been a breach of s.112 of the Workers Rehabilitation and Compensation Act 1986 (SA) by the appellant there was no basis for finding that his disclosure of information constituted serious misconduct.
[69] Little elaboration was provided in respect of this ground of appeal. For our part we do not think that there is any substance to the point advanced.
[70] WorkCover is entitled, through its policies, to give lawful and reasonable directions to its employees. The decision subject to appeal focussed on whether Mr Potter breached WorkCover's confidentiality policy. His Honour concluded that Mr Potter had breached that policy. In our view such a conclusion was reasonably open, moreover we agree with it. In the circumstances it was unnecessary for his Honour to make any finding as to whether there had been a breach of s.112.
Ground 4
4. The Commission erred in failing to have any, or proper regard to the length and nature of the appellant's service with the respondent in determining whether, in the context of the appellant's conduct that resulted in the termination of his employment, and in all the circumstances, the termination was harsh, unjust or unreasonable.
[71] His Honour considers Mr Potter's employment history with WorkCover, and the appropriateness of the penalty of termination of employment, at paragraphs 56 to 57 of his decision, in these terms:
"[56] I have taken into account Mr Potter's long history with WorkCover and his substantial experience as a RISE Field Officer, together with WorkCover's policies and practices relative to confidentiality.
[57] I have considered whether the termination of Mr Potter's employment was an appropriate penalty in these circumstances. Mr Steer's letter to Mr Potter of 23 September 2003 and his evidence indicates that termination of employment was but one outcome that could have been applied to this situation."
[72] It is contended on behalf of the appellant that while the Senior Deputy President makes reference to Mr Potter's long employment history with WorkCover such consideration appears to have been weighed by the Commission as a factor which militated against a finding that the termination was harsh, unjust or unreasonable. It is argued that such a consideration should have weighed in favour of such a finding and that his Honour's approach discloses appealable error.
[73] Counsel for the appellant also relied on the fact that the misconduct relied upon was an isolated incident and there were substantial mitigating considerations, namely:
[74] The first point to note in relation to the appellant's contention is that this argument was not advanced in the proceedings at first instance. This is a consideration which tells against granting leave to appeal in respect of this ground. We acknowledge that the facts relied on in mitigation were before his Honour, but the argument advanced on appeal was not put at first instance.
[75] In relation to Mr Potter's employment history this is a matter to which the Senior Deputy President had regard. Contrary to the appellant's argument, lengthy service is not always a factor in favour of finding that a termination was harsh, unjust or unreasonable. His Honour considered that given his substantial experience Mr Potter ought to have known better. We think such an approach was reasonably open on the material before him.
[76] We also note that his Honour had regard to the fact that Mr Potter had not previously been warned in relation to breaches of WorkCover's confidentiality requirements. The challenge on appeal is really to the weight which his Honour gave to these matters. Given the paucity of the argument advanced on behalf of Mr Potter in the proceedings at first instance we think that the approach taken by his Honour does not disclose error warranting correction on appeal.
Ground 5
5. The Commission erred in failing to find that in this case the absence of a prior warning about unsatisfactory performance rendered the appellant's dismissal harsh, unjust or unreasonable.
[77] At paragraphs 66 and 67 of the decision subject to appeal his Honour deals with the absence of a warning and the information which had previously been provided to Mr Potter in respect of confidentiality, in these terms:
"[66] I have noted that Mr Potter had not previously been warned relative to breaches of WorkCover confidentiality requirements and have taken this into account in my consideration of the extent to which there was a valid reason for the termination of his employment.
[67] Finally, I have noted the quite specific advices sent by WorkCover to employees following the termination of employment of another employee in 2000 and the training programme conducted on the issue of confidentiality. I consider that this information made the importance of confidentiality patently clear."44
[78] It is contended that, properly characterised, the disclosure of confidential information in this case amounted to no more than an error of judgment and on this basis the appellant was entitled to a warning that disclosure of confidential information in such circumstances was unacceptable. The appellant submitted that the termination of his employment without an appropriate warning rendered the termination harsh, unjust and unreasonable, and that his Honour's contrary finding discloses appealable error.
[79] The appellant argues that it is not sufficient to point to generic advice about the importance of maintaining the confidentiality of client information without specific direction being given to the appellant in relation to the particular circumstances of the case he was dealing with involving workers 1 and 2.
[80] The respondent contends that this ground misunderstands s.170CG(3)(d).
[81] We agree with the respondent's contention. It is clear from both the language and structure of s.170CG(3), and the statutory context in which it appears, that the section requires the Commission to consider each of the matters referred to in ss.170CG(3)(a) to (e). Not only must the matters be considered but the words "have regard to" signify that each must be treated as a matter of significance in the decision making process. But the Commission is only required to have consideration to such matters in so far as they have application45 or are relevant to the factual circumstances of the particular case.46
[82] Section 170CG(3)(d) of the WR Act provides:
"(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; . . ." (emphasis added)
[83] The question of whether the appellant was warned in respect of his performance before the termination of his employment is only relevant if the termination related to his unsatisfactory performance. So much is clear from the opening words of s.170CG(3)(d).47 In this context we agree with the observations made by the Full Bench in Annetta about the proper construction of s.170CG(3)(d), namely:
"In approaching the construction of the term `unsatisfactory performance' it may be significant that in describing a valid reason s.170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s.170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by par (d) itself is whether the appellant's employment was terminated for unsatisfactory performance."48
[84] In this matter his Honour clearly finds that the termination of Mr Potter's employment related to issues of confidentiality and not to any concerns over his work performance.49 It was Mr Potter's conduct, not his performance, which led to the termination of his employment. This finding was reasonably open to his Honour. Section 170CG(3)(d) is not relevant in the factual circumstances of this case.
[85] In any event it is apparent that his Honour did have regard to the fact that Mr Potter had not previously been warned in relation to breaches of WorkCover's confidentiality provisions50. The appellant's complaint is about the weight his Honour gave to this consideration. Given the limited nature of the argument advanced before him we do not think that his Honour erred in his consideration of this issue.
Ground 6
6. The Commission erred in finding that the appellant's refusal to recognise or admit the significance of his disclosure of information was a proper basis for rejecting a finding that the termination of his employment was harsh, unjust or unreasonable.
[86] This appeal ground relates to observations made by his Honour at paragraph 58 of the decision subject to appeal, as follows:
"[58] I have noted that the approach followed by Mr Potter in this matter did not facilitate an amicable resolution which may have included a first or final warning. I have also noted the importance with which WorkCover regard confidentiality and the extent to which all employees, including Mr Potter, have been made aware of this requirement. Mr Potter's continuing position to WorkCover was that disclosures of the nature that he made on 6 December 2002 were appropriate, and the extent to which the evidence he gave to the Commission was not consistent with the advice he previously gave to WorkCover, are also relevant factors in this respect. Mr Potter's lack of preparedness to admit that he had breached the confidentiality requirements of Workcover and had erred, mitigated against him just being given a warning, rather than being dismissed. It was a refusal to recognise or admit to the significance of the incident which WorkCover were entitled to take into account in deciding to terminate Mr Potter's employment."
[87] The appellant contends that the above passage discloses an error of approach. Mr Potter's case to WorkCover was that the relevant disclosure of information by him was made in the course of his official duties and was required as part of those duties. It is contended that there was nothing inherently unreasonable in the position taken by the appellant having regard to the terms of s.112 Workers Rehabilitation and Compensation Act 1986 (SA) and WorkCover's policies.
[88] It is submitted that the appellant's insistence that he had acted in conformity with the terms of s.112 and the respondent's policies did not establish a basis for excluding a warning as a more appropriate disciplinary response than the termination of his employment for the disclosure of the relevant information.
[89] Consistent with the view put by counsel for the appellant we do not think that Mr Potter's insistence upon an erroneous view of WorkCover's confidentiality policy amounted to a repudiation of his employment contract.51 But in our view this appeal ground fails to recognise that his Honour had regard to a range of considerations, not just the appellant's refusal to recognise or admit the significance of his misconduct.
[90] Indeed in the passage quoted above it is apparent that one such consideration was his Honour's finding that Mr Potter's evidence in the Commission was not consistent with the advice he previously gave to WorkCover's investigation officer, Mr Faggoter. There was a conflict in the evidence of Messrs Potter and Faggoter in this regard and his Honour preferred the evidence of Mr Faggoter.52 Another consideration was the importance WorkCover attached to its confidentiality policy and Mr Potter's awareness of that policy. His Honour was clearly entitled to have regard to such considerations. It is not apparent to us that the other matters referred to by his Honour in paragraph 58 of the decision subject to appeal were determinative of the matter before him.
[91] To our mind this sort of appeal point suffers from the vice described by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, in these terms:
"The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law."53
[92] Although the above comments concerned an application for judicial review of a decision of the Refugee Review Tribunal, we think that they are applicable to the matter before us. The Senior Deputy President's reasons must be read as a whole and should be approached fairly. They should not be considered in a manner which would regard a lapse of expression or phrasing as constituting an error warranting correction on appeal.54 In that context it is clear that the central issue in this case has been whether Mr Potter's conduct provided a valid reason for the termination of his employment. The Senior Deputy President concluded that it did and we think that such a conclusion was reasonably open.
[93] We are not persuaded that this appeal ground discloses error warranting correction on appeal.
Conclusion
[94] We agree with the respondent's characterisation of this appeal, namely, that the appellant is really complaining about the result rather than identifying any fundamental errors made by the Senior Deputy President.
[95] We are satisfied that the conclusion reached by the Senior Deputy President in the decision subject to appeal was reasonably open on the material before him. While we may not agree with the outcome of the decision subject to appeal and may be of the view that Mr Potter's conduct warranted the termination of his employment with notice, not summary dismissal, that is not the test on appeal. In order to warrant a decision granting leave to appeal more is usually required than simply establishing a case that might have persuaded the Full Bench to exercise the discretion in another way as if the matter was being considered at first instance. In the absence of an arguable case of either legal error or that the discretion was miscarried the Commission would not grant leave to appeal merely to substitute its decision for the decision under appeal.55
[96] Having regard to WorkCover's statutory functions and responsibilities, the importance of maintaining client confidentiality in that context and the paucity of the argument advanced on behalf of Mr Potter in the proceedings at first instance, we think that his Honour's conclusion was reasonably open in the circumstances of this case.
[97] The appellant has failed to persuade us that an arguable case exists in support of the proposition that the Senior Deputy President made an error warranting correction on appeal. Nor in our view are there any other considerations which would warrant the granting of leave to appeal.
[98] Having regard to all the circumstances we have decided to refuse leave to appeal.
Appearances:
T. Stanley (of Counsel) for the applicant.
R. Manuel (of Counsel) for the respondent.
Hearing details:
2004.
Adelaide:
8 June.
Printed by authority of the Commonwealth Government Printer
<Price code F>
1 Exhibit W1 at pp.9-10; Appeal Book pp.216-217.
2 Statement of Mr Cowie, Exhibit W2 at paragraph 221; Appeal Book at p.336.
3 Exhibit W2 at p.19; Appeal Book at p.221.
4 Statement of Mr Cowie, Exhibit W2 at paragraph 219; Appeal Book at p.335.
5 Exhibit W2 at p.2; Appeal Book at p.209.
6 Transcript at PN364; Appeal Book at p.74.
9 Appeal Book at p.283-284. This document has been altered to remove the names of workers 1 and 2, and the car dealership.
10 Appeal Book at p.302-303. This document has been altered to remove the names of workers 1 and 2.
12 As to Mr Potter's evidence see transcript at PN253-260, 265-286, 291-294, and 514; Appeal Books pp.63-68 and 88. Contrast with the evidence of worker 2, Exhibit W5 at paragraphs 27-42; Appeal Book p.359-360; transcript of 25 February 2004 at PN1227-1270: Appeal Book at p.158-161.
13 Print PR944320 at paragraph 29.
17 Ibid at paragraphs 68 and 69.
18 Ibid at paragraphs 62 - 64.
19 Ibid at paragraphs 70 and 71.
23 Ibid at paragraph 17 on page 204.
24 Edwards v Giudice [1999] FCA 1836 per Moore J.
25 Coal & Allied at paragraph 19 on pp.204 and 205; Woodman v Hoyts (2001) 107 IR 172; see also Liu and others v Windsor Smith, Print Q3462, 13 July 1998 per Giudice J, Polites SDP and Gay C.
26 Coal and Allied at paragraph 21 on p.205.
27 Transcript, 8 June 2004 at PN62-65.
31 Print PR944320 at paragraph 55.
37 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; Drake Personnel Ltd T/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 at 457 per Wright J (President) and Walton J (Vice President); Mulhall v ALH Group Pty Ltd (2002) 117 IR 357.
38 Transcript, 23 February 2004 at PN367; Appeal Book at p.74.
39 Ibid at PN521 and 522; Appeal Book at p.88.
40 Ibid at PN438 and 439; Appeal Book at p.80.
42 Ibid at PN741 - 750 and 792 - 793; Appeal Book at pp 109 - 110 and 114 - 115.
43 Transcript, 24 February 2004 at PN1121; Appeal Book at p.146.
44 Print PR944320 at paragraphs 66 and 67.
45 Chubb Security Australia Pty Ltd v Thomas, Print S279, 2 February 2000 per McIntyre VP, Marsh SDP and Larkin C.
46 King v Freshmore (Vic) Pty Ltd, Print L4213, 17 March 2000 per Ross VP, Williams SDP and Hingley C.
47 See Chubb Security Australia Pty Ltd op cit.
49 Print PR944320 at paragraph 38.
50 See paragraph 66 of Print PR944320.
51 See: Morris v Baron & Co. [1918] AC 1 at 41; Summero v The Commonwealth (1918) 25 CLR 144 at 152; Bruce v AWB Ltd [2000] FCA 594 (10 May 2000).
52 Print PR944320 at paragraph 44.
54 See further Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 at 457 per Wright J (President) and Walton J (Vice President).
55 Corporation of the Catholic Archdiocese of Brisbane v. A.S.U., Print K7698, 19 May 1993 per Moore VP, Keogh SDP and Bacon C:
"The formation of the opinion under s.45(2) leading to the grant of leave to appeal against a decision ordinarily requires considerably more than establishing a case that might have persuaded the full bench to exercise the discretion in another way as if the matter was being considered at first instance."