Mitigating actors are only for a one-off-incident of misconduct

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Mitigating factors are only for a one-off incident of misconduct or a short period of poor performance.

A senior West Australian public servant has failed in his appeal bid to challenge a demotion in his classification, arising from a penalty imposed after a serious misconduct investigation initially recommended his termination for several significant policy and employment breaches.

The Applicant had been employed by the Western Australian Police Force since 1992. From August 2010 to July 2019 the Applicant occupied a senior executive role as Assistant Director in the Office of Information Management (Level 8), with a considerable number of direct reports and responsibility for a substantial multi-million dollar budget. It was accepted that during his lengthy tenure, the Applicant had an unblemished discipline record.

However, in March 2019, he received written notification from his employer informing him of four allegations of suspected breaches of discipline under s 80 of the Public Sector Management Act 1994 (WA). The allegations were in connection with the misuse of the respondent’s computer system, unauthorised release of official information, and inappropriate behaviour. Tellingly, the allegations of misconduct extended over the period from 2011 – 2017.

It emerged that the four allegations related to an extra-marital affair that the appellant engaged in with a young woman who was an employee of the respondent between 2011 and 2014. In the period between January 2013 and January 2014, the young woman concerned occupied a position in the Office of Information Management, overseen by the Applicant.

In a written response, the Applicant admitted to three of the four allegations and made qualified admissions to most of the fourth. The allegations can be summarised as follows:

Allegation 1: Computer Misuse – Offensive materials.                     (Admitted)

Between 19 July 2013 and 17 October 2016, the Applicant utilised the Western Australia Police Force (WA Police Force) computer system to receive images, via email, which are deemed obscene and offensive in nature, and without attempts to delete and cease the receipt of such emails.

Allegation 2: Information Security – Unauthorised release of official information. (Admitted)

Between 13 April 2015 and 29 July 2016, without lawful authority, the Applicant made disclosures of official WA Police Force information, via email, to an unauthorised person.

Allegation 3: Computer Misuse – Inappropriate use of email system. (Admitted)

Between 2011 and 2017, the Applicant utilised the WA Police Force email system to engage in an excessive number of personal emails (23,736) to one particular person.

Allegation 4: Misconduct – Inappropriate Behavior.            (Generally Admitted)

Between 28 July 2014 and 3 January 2017, the Applicant utilised the WA Police Force email system to make arrangements to meet with an individual on seven separate occasions for intimate liaisons during work hours.

Following the finalisation of the investigation, the initial recommendation considered the offences warranted termination of the Applicant’s employment. However, the penalty imposed was to significantly demote his classification level from Level 8.3 to Level 5.4, effectively removing him from any management functions.

In his appeal, he sought to have the demotion overturned citing a range of mitigating factors, including a lapse of judgement (principally concerning his affair with the junior employee), his length of service, unblemished service record and good character, his early admission of wrongdoing and remorse, the financial loss from the demotion, a minor health issue, as well as the relatively recent deaths of both his parents.

However, the appeal judges were not swayed “In our view, they cannot be relied upon in mitigation of sustained misconduct over many years of the present kind. Such circumstances may be relevant to a one-off incident of misconduct or a short period of poor performance for example, where an employee may legitimately claim to have been significantly affected and request some leniency be shown by an employer in those circumstances. The present circumstances, however, bear no resemblance to such a situation.

In addition, they described the exchange of over 23,000 personal emails and the receipt of explicit sexual photographs quite simply represented “a most profound abuse of the employer’s official email system”.

Overall, their collective view was that the penalty imposed of demotion of classification could be regarded as quite lenient in the circumstances, and subsequently, the appeal was rejected.

Purcell vs Western Australian Police [2020] WAIRC 246 May 2020

For queries about mitigating factors, public service investigations or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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