| Summary |
UNJUSTIFIED DISMISSAL – Applicant asked friend (“X”) in Police to confirm criminal history of unit manager (“Y”) employed at applicant’s workplace – Authority found X confirmed Y’s police and criminal history to applicant, including “mug shot” photograph of Y – Seven months later, applicant sent photograph to union president (“Z”) – Z mistakenly faxed photograph to medical practitioner’s rooms, instead of to union’s lawyer – Medical practitioners advised respondent – Newspaper article published in relation to unidentified unit manager with alleged criminal convictions – Parties accepted article about Y – Respondent gave applicant terms of reference for formal investigation – Investigation reported on allegations that photograph of Corrections manager inappropriately obtained from Police and circulated by applicant – Applicant made submissions on report, with two time extensions granted – Meeting held – Applicant’s explanations not believed – Applicant’s counsel sought mediation – Applicant dismissed – Authority found respondent already aware of and dealt with information about Y – Respondent considered applicant’s dealings with information were improper and breached “lawful obligations” provision of Code of Conduct – Authority interpreted “lawful obligations” broadly, beyond carrying out work duties, to include faithful service to respondent at all times such that standards of professionalism and integrity applied to applicant’s actions in dealing with information – Respondent did not pursue concern about breach of Y’s privacy – Authority found that as privacy concern abandoned, could not criticise applicant providing information to union – Authority found must concentrate on applicant obtaining information then retaining it for 7 months – Authority accepted generally, employee in possession of information evidencing wrongdoing by another employee and genuinely concerned about that wrongdoing would pass on information to employer, union or authorities in timely fashion commensurate with level of seriousness involved – Found applicant not honest with respondent in very material respects – Found although not believed by respondent, applicant not dismissed for dishonesty – Authority agreed with respondent that once established that applicant not genuinely motivated by concern for corruption, applicant’s motives called into question – Found applicant’s conduct properly considered inappropriate if had no reason to take advantage of friendship with X to cause intrusive enquiries of sensitive and highly confidential nature about Y – Found once accepted that applicant acted improperly and for own purposes and not respondent’s interests, finding that failed to fulfil duties or serve employer faithfully, with professionalism and integrity, was correct – Authority found procedural failure that applicant not invited to give input to report until findings reached – Found applicant provided with all information respondent relied on, and provided every opportunity to respond after, and did so – Found although procedural failure, no unfairness – Found applicant should have been provided with information before findings made – However, found no prejudice as later heard – Authority found did not have to consider whether conduct constituted serious misconduct because respondent concluded that appropriate disciplinary response was final written warning – Found respondent only dismissed applicant after earlier warnings for serious misconduct taken into account – First written warning for using personal handcuffs, not respondent’s, on prisoner, - Final written warning for having two weapons seized from prisoners in locker – Respondent did not consider third warning which applicant challenged – Authority found both warnings operative at time applicant obtained information from X – Found although conduct not sufficient to justify dismissal on its own, was clear continuing pattern of failure to comply with respondent’s rules – Found respondent justified in concluding no trust and confidence in applicant to serve respondent faithfully – Dismissal justified - Corrections officer |