C2003/1229, Transcript of Proceedings [2003] AIRCTrans 906 (18 March 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT10243
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2003/1229

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

FOXTEL MANAGEMENT PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re disciplinary action

MELBOURNE

10.03 AM, MONDAY, 3 MARCH 2003

PN1

MS K. FAWCETT: I seek leave to appear on behalf of the ASU.

PN2

MS M. BARE: I seek leave to appear on behalf of Foxtel Management Services and Customer Services Pty Ltd, and I have with me MS L. WISEMAN and MS F. ADAMSON.

PN3

THE COMMISSIONER: Yes, leave is granted.

PN4

MS J. KING: I appear for the Australian Council of Trade Unions.

PN5

THE COMMISSIONER: On what ground?

PN6

MS KING: We don't seek leave, Commissioner, to intervene in this matter. We are just here in an advisory role to the union at this point in time. I just thought it might be wise to just read out our appearance rather than - - -

PN7

THE COMMISSIONER: Yes, Ms King. Leave is granted.

PN8

MS KING: Thank you.

PN9

THE COMMISSIONER: Ms Fawcett?

PN10

MS FAWCETT: Commissioner, this dispute has arisen out of disciplinary action that is proposed to be taken against Robyn Wellington. Robyn has been accused of accessing her team leader's e-mail account and unsuccessfully attempting to transmit confidential company information to Linda Cargill of the ASU and then successfully transmitting company information to an e-mail address which I will call CopperfieldKid which is alleged to belong to her daughter.

PN11

Now the ASU is not here to dispute the seriousness of such an allegation. The ASU and Ms Wellington both understand that if this in fact was done by Robyn that that would be a serious matter, but we are here today, Commissioner, because Robyn Wellington didn't do what she is accused of doing. Now the ASU is concerned about the current situation for a number of reasons. Firstly it is concerned about Foxtel's willingness to find that Ms Wellington sent the offending e-mails in the face of material which we say of itself would make that finding unreasonable.

PN12

That is material that is available to both parties at the moment. Secondly we are concerned about Foxtel's refusal to provide further documentation that we have requested which would allow Ms Wellington and the ASU access - full access to the material that Foxtel has relied on in coming to its view and thirdly, we are concerned that all this is occurring in circumstances where Ms Wellington has been a committed and successful ASU delegate in the workplace and in fact has been instrumental to the current role that the union has within the organisation.

PN13

Now we would be seeking for the Commission to exercise its conciliation powers this morning in order to discuss some of these issues and assist in coming to a resolution of the dispute.

PN14

THE COMMISSIONER: Just hang on for a minute. Who are you, ma'am?

PN15

MS ..... : I am from the Herald Sun newspaper.

PN16

THE COMMISSIONER: Well, you seek permission to come into this Commission when I am sitting and take notes.

PN17

MS ..... : Certainly.

PN18

THE COMMISSIONER: Okay? It is called manners for a start.

PN19

MS ..... : I beg your pardon?

PN20

THE COMMISSIONER: It is called good manners for a start.

PN21

MS ..... : Certainly.

PN22

THE COMMISSIONER: And as an old printer I am not in love with reporters.

PN23

MS ..... : Okay.

PN24

THE COMMISSIONER: So be very careful what you write.

PN25

MS ..... : Thank you, sir.

PN26

THE COMMISSIONER: Yes.

PN27

MS BARE: Commissioner, if I could just detail briefly Foxtel's version of what has occurred. This matter arises from an incident on 30 January this year when someone in the call centre logged in as Paul Richards. Now Paul Richards is a team leader with Foxtel and the person that accessed his e-mail and documents attempted to and was successful in on-sending confidential information concerning employees of Foxtel to an external address. Now there were two e-mails attaching information that were sent to the Australian Services Union, but those two e-mails bounced back so those e-mails had this documentation attached with confidential information in it.

PN28

One e-mail was successfully sent to a hotmail address which Ms Fawcett has referred to, that is [e-mail]. Now since that time Foxtel has been investigating what has occurred. On 6 February this year Foxtel questioned Robyn Wellington about the incident. She was questioned really for two reasons. One was that in October 2002 she had been counselled and formally warned with respect to an unauthorised access to Foxtel's subscriber accounts and also she had taken time away from the telephones at the time the e-mails had been sent.

PN29

Now at that initial meeting Ms Wellington denied any knowledge as to who had accessed the team leader's login. On 11 February Foxtel wrote to her pointing out, amongst other things, that at the time of the unauthorised access she had been sighted at a team leader's computer terminal by another team leader. At the time of the unauthorised access she had logged off the phones and that the hotmail address appears to have been that of her daughter, Sinead. She was asked to attend a meeting on 13 February to address the above issues and to respond as to why her employment should not be terminated.

PN30

Now since that time Ms Wellington has been on sick leave and so hasn't been able to attend a meeting with management to address the issues that have been raised.

PN31

THE COMMISSIONER: Just bear with me. When you asked her to attend the meeting what did you tell her?

PN32

MS BARE: It might be of assistance, Commissioner, if I hand up the letter.

PN33

THE COMMISSIONER: No, I just asked you. You tell me what you told her.

PN34

MS BARE: Okay. She was advised, as I understand, that she could have a representative attend the meeting with her.

PN35

THE COMMISSIONER: I didn't ask you that. I asked you what else - what did you tell her. Tell me the words you used.

PN36

MS BARE: I could - well, a letter was sent, Commissioner. I could read out the letter.

PN37

THE COMMISSIONER: Yes, you can read it out.

PN38

MS BARE:

PN39

On the evening of 6 February you met with us to assist in our inquiries into the unauthorised access ...(reads)... Please confirm your attendance at this meeting.

PN40

And it was signed, "Fiona Adamson".

PN41

THE COMMISSIONER: Have you seen that correspondence, Ms Fawcett?

PN42

MS FAWCETT: Yes, I have, Commissioner.

PN43

THE COMMISSIONER: Thank you, Ms Fawcett. Yes?

PN44

MS BARE: As I mentioned, unfortunately Robyn has been unable to attend any such meetings since that time because she has been on sick leave. Slater and Gordon have written to Foxtel requesting certain further information. Foxtel have replied to that letter and they have in fact provided much of the information that Slater and Gordon are requesting. There are some matters that are outstanding that we are happy to discuss further in conference.

PN45

I think since the information was provided by Foxtel, Slater and Gordon have again written requesting further information. The company's position in this matter is that it is handling this incident in a way where Ms Wellington is being accorded procedural fairness and they really want to just continue the investigation and have the meeting with Ms Wellington when she is well enough so that she can address the allegations that they have raised. If the Commission pleases.

PN46

THE COMMISSIONER: Thank you. Ms Fawcett, what is this information that you say is being denied to you?

PN47

MS FAWCETT: It is quite technical, Commissioner. I will attempt to explain it.

PN48

THE COMMISSIONER: Yes, well it is quite all right. I only look old and grey. I haven't lost all my brains.

PN49

MS FAWCETT: The outstanding material that we have requested and not received is summarised in a letter that I wrote to Fiona Adamson, the Sales and Services Manager on 27 February and I have a copy available if you would like it.

PN50

THE COMMISSIONER: I presume Ms Adamson has got a copy?

PN51

MS ADAMSON: Yes.

PN52

THE COMMISSIONER: You might supply me with a copy of the correspondence you just read out, too, while we are at it.

EXHIBIT #A1 LETTER FROM MS FAWCETT TO MS ADAMSON DATED 27/02/2003

EXHIBIT #R1 LETTER FROM FOXTEL TO MS WELLINGTON

PN53

MS FAWCETT: I should note that this letter is the second letter dealing with the substance of the material required that has been forwarded to Foxtel. As a result - in response to the letter which Ms Bare has outlined the contents of, we wrote to Foxtel and asked various questions about what in particular was being alleged against Ms Wellington and secondly, asked for various documents which we thought should be considered as part of the investigation or certainly Ms Wellington should have access to in formulating her full response.

PN54

You can - you will note that the numbered paragraphs in this letter deal with the things that are outstanding. Firstly, it has not been made clear to Ms Wellington or to the union or myself how it is alleged that Ms Wellington gained access to this confidential information that was allegedly sent from the team leader's e-mail account. We have asked Foxtel for, in item 2, for details about which terminal various e-mails were sent from, what time e-mail login and logout occurred and the complete header details of the e-mails.

PN55

The reason that we want this information is because we wanted to get a clearer picture of what is being alleged Robyn did at what time on the evening in question. To give you an example, we are aware now as a result of the material already provided, that it is alleged that Robyn Wellington sent an e-mail from her own account at 11.36 pm on the evening and it is alleged that the offending e-mail - first offending e-mail was sent from Mr Richard's account at 11.38.

PN56

Now we don't have information about what time Ms Wellington logged off her e-mail account. Clearly if it was a couple of minutes after she sent her last e-mail, then that would presumably exclude her completely from being considered as responsible for this. The terminal access is also important in considering the precise timing of what occurred on the evening. In item 5 it is - Ms Wellington has advised Foxtel that she didn't know Mr Richard's e-mail password. Mr Richards, as I understand it, has advised Foxtel that he didn't give Ms Wellington his password.

PN57

It is still not clear how it is alleged that Ms Wellington obtained the password in those circumstances and in fact we maintain she doesn't know it. We have asked for the system event log for the evening in question. What we understand that to be and forgive me if I am speaking in layman's terms. We understand that it will give details of all security access, i.e. logon's logoff's, all application access and terminal access for the evening in question.

PN58

So we have asked for that material. We have also asked that consideration be given to other employees on shift at the time. It follows from Ms Wellington's denial that somebody else must have sent the e-mails. We are not in a position to level allegations at anybody and it is certainly not our intention to do that in circumstances where we don't have access to the relevant information, but it can't be said not to be relevant in considering Robyn's response.

PN59

Robyn has also noted and I think Ms Bare mentioned that on the evening that the offending e-mails were sent, Ms Wellington, who is, I should say, somewhat paranoid about her electronic access at Foxtel subsequent to some events that occurred in October last year and which have been referred to, notice that when she returned from her break that someone had tried to access her Wizard account. The Wizard account, as I understand it, is the database where all customer records are contained and each operator has a code to access their Wizard account.

PN60

Ms Wellington returned to - after her meal break and discovered that someone had attempted twice, unsuccessfully, to enter her Wizard account. We have asked for some details about whether that can be authenticated by the computer's records because we consider that to be a relevant factor in the circumstances. And finally we have simply asked for all material that Foxtel has considered in coming to this conclusion that Ms Wellington, subject to her response, will be considered responsible and terminated for this action.

PN61

We simply want access to that material so we can supply a full response. I should note there is one further outstanding matter that we have requested on two occasions, that Foxtel commit to us that Ms Wellington won't be hindered in going about her normal roster once she is fit to return, whilst this investigation continues and the matter is resolved and we have not yet received a response in relation to that matter and had also sought that to be addressed.

PN62

THE COMMISSIONER: Ms Bare?

PN63

MS BARE: Commissioner, would you like me to run through the company's response to each of those items?

PN64

THE COMMISSIONER: Yes, please.

PN65

MS BARE: In relation to one, the company alleges that Robyn logged in as a team leader which was how she gained access to the confidential document. In relation to the items in 2, the complete header details of the various e-mails requested, the company are looking into whether they can provide that information, they have their IT people looking at that. In terms of the e-mail account login and logout times, I am instructed by the company that they don't actually record those details so they can't provide that information.

PN66

Again details confirming which terminal each e-mail access occurred from, it is unlikely again that the company has that information, but they are looking into that to see whether it can be provided. The 3, the issue about the details of Robyn's e-mail traffic or the time she logged in and out of her account, again I am instructed the company don't keep that sort of information on their system. 5, whether it was alleged that Robyn knew Paul Richard's password, well, the company simply don't know the answer to that.

PN67

They can speculate and say that it might be that she saw him put in the password into his computer and was able to ascertain it from that, but I am told that the passwords are fairly easily guessed so it might be that she was able to guess it. I think it relates to his telephone extension. In relation to 7, the system event log, again we don't know that we keep that sort of information but the IT area are happy to look into that to see what we can get there. In relation to 8, where Slater and Gordon are seeking details about the other employees that were on shift at the time that the e-mails were sent.

PN68

Foxtel views this as really a bit of a fishing expedition by Slater and Gordon and it doesn't see any reason why it should provide information as to what other employees were working at that time. In relation to 10, in relation to the Wizard logins, again the company isn't sure that such records exist. Apparently the Wizard details would be actually kept not inhouse but offsite and again the company is happy to look into that and see whether such records exist but they would also see it as quite irrelevant to this investigation.

PN69

And in relation to 11, as far as Foxtel is concerned, all material has been given to Robyn that is relevant to the investigation. Just on the issue of Robyn's return to work, the company has asked that prior to her returning to work she just provide a medical certificate saying that she is fit to return to work before she comes and when that is done the company will consider its position. If the Commission pleases.

PN70

THE COMMISSIONER: Ms Bare, I find it strange that there are so many or a such insecure system in use at Foxtel. Well, I know you can't login or anything in this place without people being able to check it. I also find it strange that the passwords are so insecure. I almost find it unbelievable. I am not asking you to reply, in fact I suggest you don't reply. Especially a firm that is dealing with a large amount of client money and I better show my hand now, as a subscriber to Foxtel I am now concerned about the privacy of my information at Foxtel if it is so slack and idle as to allow easy access to everything.

PN71

It would appear on the surface to me, at the moment anyhow, that any Tom, Dick and Harry could get into anything at Foxtel, and I better put Mary in there as well so I am not accused of being sexist. Are you aware that if, and I say if, and it is a very big if, you were to terminate Ms Wellington all the documentation requested by Slater and Gordon will be delivered to the Commission on subpoena and your failing to do so would cause you some problems. Are you aware of that? Have you got that advice? You are obviously not aware of it.

PN72

Well, you better get some advice. This is not a matter which should go to conciliation at this point. Pursuant to section 111(1)(t) of the Workplace Relations Act the Commission directs that all of the documentation and information sought in that correspondence marked as A1, which is a facsimile message dated 27 February 2003 addressed to Ms Adamson and Foxtel be supplied to Slater and Gordon and at the same time the documentation will be supplied to the Commission as constituted.

PN73

The matter and the information will be treated as confidential by Ms Fawcett and only used in relation to any issues around Ms Wellington. The Commission has already expressed its concern that it appears that no proper security exists at Foxtel on the submissions from Ms Bare as to logging in, how logged in, who has got access to whose password or who hasn't. It is something that doesn't seem very satisfactory to me. That information will be supplied within seven days of today's date.

PN74

In the interim if Ms Wellington wishes to return to work she is to be allowed to do so, but it is fair that she supply a proper doctor's certificate to the employer saying she is fit to return to work and it may be, and I don't know for sure, it may be that when Ms Wellington does return to work she is accompanied by a representative from the ASU at that time to make sure there is no untoward behaviour from either side towards each other. That is the end of the Commission's directions and the Commission asks that its directions be supplied as a matter of urgency of the parties.

PN75

Now ladies it would appear to me that you are better off trying to sort this matter out between yourselves because if this matter becomes involved as a result of a termination and formal hearings often the dirt that is dredged up against both parties does no-one any good. I believe very much in the old axiom that if you are going to shod a bit of dirt be prepared to have it splashed all over you as well and it doesn't wash off very easily, and that applies to both sides.

PN76

So if you can sort it out, try and sort it out. If you can't you let me know, Ms Fawcett, and I will list the matter urgently again. Do you - - -

PN77

MS FAWCETT: Yes, thanks, Commissioner. Could I just clarify one element of your direction that the material provided by Foxtel be kept confidential? I just wanted to confirm that I am able to disclose it to my clients in order to obtain instructions.

PN78

THE COMMISSIONER: Well, you need to disclose it to your client to discuss it with them.

PN79

MS FAWCETT: Yes. Thank you.

PN80

THE COMMISSIONER: Have you got anything else to say, Ms Bare?

PN81

MS BARE: No, Commissioner.

PN82

THE COMMISSIONER: All right. Good morning, ladies. The Commission is adjourned.

ADJOURNED INDEFINITELY [10.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER FROM MS FAWCETT TO MS ADAMSON DATED 27/02/2003 PN53
EXHIBIT #R1 LETTER FROM FOXTEL TO MS WELLINGTON PN53