Worker 'smuggles' unauthorised devices in 'high-security' workplace

Background of the case

The worker had been employed for nearly 20 years in an instructional role at a highly secure workplace. Their responsibilities included training and supervising trainees who were processing ordered goods for distribution. The workplace was described as a high-trust environment, with statutory obligations to maintain good conduct and security.

In May and June 2023, the worker brought USB devices and RAM sticks into the workplace, allegedly to upgrade a software system called "Z" that had been experiencing slowdowns.

The worker claimed they had discussed this with their manager and been told to "see what they could do" to address the issue. The worker had liaised with a former trainee, referred to as “G2,” who had provided the devices with uploaded software.

However, shortly after the devices were brought in, unauthorised material was found in trainee accommodation areas within the wider workplace. This discovery triggered an investigation by the employer. The unauthorised material included items that the employer considered potentially "objectionable" if formally classified.

The investigation process

The employer initiated an investigation, alleging that the worker may have brought contraband into the workplace and liaised with a former trainee to obtain IT storage devices.

The worker was suspended on full pay during the investigation. The employer appointed an investigator who interviewed several staff members, including the worker.

Throughout the process, the worker maintained that they were trying to help improve the workplace's software system and had not knowingly brought in any unauthorised content. They argued that others in the workplace were aware of their actions and that they had declared the devices upon entry to the workplace.

The employer's decision-maker, in a letter dated 5 February 2024, presented a "preliminary view" that the worker's actions constituted serious misconduct.

The letter stated:

"I consider Summary Dismissal to be the appropriate sanction in these circumstances. To be clear, I do not consider there to be any mitigating circumstances to your actions."

Contraband in the workplace?

The case raised several important issues:

1. Whether the employer clearly communicated that serious misconduct was alleged
2. Whether the factual basis for alleging serious misconduct was properly explained
3. Whether the worker was given sufficient opportunity to respond to the allegations
4. Whether the decision to dismiss was predetermined
5. Whether certain lines of inquiry were not adequately pursued

Worker’s arguments

The worker argued that the dismissal was unjustified both procedurally and substantively. They claimed that:

1. The allegations were not clearly stated as serious misconduct from the outset
2. The employer's focus on unauthorised content shifted during the investigation
3. They were not given an opportunity to respond to certain findings, such as the allegation of "deliberateness" in their actions
4. The decision to dismiss was predetermined

The worker also contended that reinstatement would be practicable and reasonable, citing their long service and the physical remoteness of their work area from the larger workplace.

They argued that their actions were a "once-off mistake" in a long employment career and that they had fully cooperated with the investigation process.

On the other hand, the employer maintained that:

1. The allegations and potential consequences were clearly communicated from the start
2. The worker's actions breached the Code of Conduct and IT Security Policy
3. The worker's long experience meant they should have known better
4. The high-trust environment of the workplace made reinstatement impracticable

The employer emphasised the seriousness of the breach, stating:

"I am of the view that what [the worker] had admitted to in terms of bringing the devices from [a former trainee] with software loaded and giving them to [a current trainee] in the workplace constituted serious misconduct."

The employer also pointed out that the worker had received training over the years, including training on "being got" by trainees, which was relevant to the high-trust environment of the workplace.

The ERA's decision

The ERA found that the worker had a "weakly arguable" case for unjustified dismissal and reinstatement. While there were some procedural issues, the ERA did not find these to be significant enough to strongly support the worker's case.

Regarding the substantive decision to dismiss, the ERA noted:

"Given this message appears on the face of it to have been clear in the final decision I find it arguable but not strongly arguable that an element of deliberateness may have influenced [the decision-maker's] decision making towards the final decision to dismiss for serious misconduct."

The ERA also considered the practicality of reinstatement, noting the high-trust environment of the workplace:

"While at this interim stage I have found an arguable case for unjustified dismissal, I have found it weakly arguable. This combined with the considerations under this head lead me to conclude that the case towards an arguable case for reinstatement is also weakly arguable that interim reinstatement would be practicable and reasonable."

In considering the balance of convenience and overall justice, the ERA ultimately declined the application for interim reinstatement. The decision emphasised:

"I am particularly persuaded that in the circumstances of the high trust environment operated by [the employer], and that [the worker] has a prior warning that relates to the second allegation with the same [[redacted]] involved [G2] I find that the overall justice does not support an order of interim reinstatement."

This case serves as a reminder of the importance of clear communication in disciplinary processes and the challenges of maintaining trust in high-security work environments.

It also highlights the complexities involved in balancing an employee's long service against serious breaches of workplace policies, particularly in environments where security and trust are paramount.