Licastro v Brisbane City Council
[2015] QIRC 152
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- Unreported Judgment
- Licastro v Brisbane City Council[2015] QIRC 152
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Licastro v Brisbane City Council[2015] QIRC 152
Licastro v Brisbane City Council[2015] QIRC 152
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Licastro v Brisbane City Council [2015] QIRC 152 |
PARTIES: | Licastro, John (Applicant) v Brisbane City Council (Respondent) |
CASE NO: | TD/2015/12 |
PROCEEDING: | Application for Reinstatement |
DELIVERED ON: | 18 August 2015 |
HEARING DATES: | 12 and 13 May 2015 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Black |
ORDER: | Application dismissed |
CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment -allegation of misappropriation - civil standard of proof - procedural deficiencies in investigation alleged. |
CASES: | Industrial Relations Act 1999, s 74, s 77, s 78 |
APPEARANCES: | Mr R. Reitano, Counsel, instructed by Hall Payne Lawyers, for the Applicant. Mr A. Herbert, Counsel, instructed by Brisbane City Legal Practice. |
Decision
Introduction
- [1]Mr John Licastro (the applicant) has applied pursuant to s 74 of the Industrial Relations Act 1999 (the Act) for reinstatement in employment with Brisbane City Council. The applicant had been employed by the Council, with the exception of a 17 month period in the 1980's, since 1975. At the time of termination the applicant was employed as a field mechanic as part of Fleet Services in Council's Field Service Group. He worked on road pavers, rollers, trucks, construction equipment, motor vehicles, golf course equipment and minor plant. During the course of his employment the applicant's performance record was unblemished. However he had been investigated for two allegations of misconduct in 2013 which were found to be unsubstantiated.
- [2]The termination arose from an allegation levelled against the applicant in respect to events occurring at the Wacol Depot on 11 and 12 December 2014. Pending a resolution of the allegation the applicant was suspended with pay. The respondent alleged that the applicant attempted to misappropriate a clear coat kit containing five litres of clear coat and 2.5 litres of hardener which was the property of the respondent. The applicant denied the allegation.
- [3]The applicant was informed in a meeting held on 15 January 2015 that the allegation had been substantiated. Arising from the substantiated allegation the applicant was asked to show cause why his employment with Council should not be terminated. The applicant was asked to provide his response by 19 January 2015. A request for an extension of time made by a union on the applicant's behalf was denied. The applicant's employment was terminated on 20 January 2015 on the ground of serious misconduct.
Issue for Determination
- [4]The issue for determination is whether the termination of the applicant's employment was "unfair" within the meaning of s 73 of the Act because it was "harsh, unjust or unreasonable".
- [5]Section 77 of the Act provides that the Commission must consider certain matters in deciding the application:
"77 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider-
- (a)whether the employee was notified of the reason for dismissal; and
- (b)whether the dismissal related to-
- (i)the operational requirements of the employer's undertaking, establishment or service; or
- (ii)the employee's conduct, capacity or performance; and
- (c)if the dismissal relates to the employee's conduct, capacity or performance-
- (i)whether the employee had been warned about the conduct, capacity or performance; or
- (ii)whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
- (d)any other matters the commission considers relevant."
Evidence
- [6]Evidence in support of the application was given by the applicant and Mr Heald. The applicant's affidavits are in the evidence as Exhibits 1 and 2. Mr Heald's affidavit is in the evidence as Exhibit 3. Mr Heald was not required for cross-examination.
- [7]The witnesses for the Council were;
- Mr Sterling (Apprentice Spray Painter)
- Mr Fitt (Spray Painter)
- Mr Choat (Mechanic)
- Mr Maxfield (Commercial and Operational Services Manager)
- Mr Darwin (Workshop Operations Manager)
- Ms Davies (Ethical Standards Unit)
- Ms Julien (Executive Manager).
11 December 2014
- [8]The applicant said that in a conversation with Mr Sterling on the afternoon of 11 December 2014 at the Wacol Depot, Mr Sterling told him that he was soon to leave the Council's employment and that he was going to commence work in a panel shop. This information prompted the applicant to ask Mr Sterling if he could provide him with some paint at trade price. The applicant said that he was restoring a 1948 Sunbeam motorbike and that he needed the paint for this purpose. In response, Mr Sterling informed the applicant that he knew what the applicant wanted, that he was going to the panel shop that afternoon, and that he would get him "two litres of mirror black paint".
- [9]It was the applicant's evidence that no discussion about price took place. In his oral testimony the applicant said that he believed that the value of the paint would have been in the order of $120. He said that he gave Mr Sterling $30 in cash as a deposit. He said that the arrangement was that Sterling would bring the paint to work the following day with an invoice and the outstanding amount would then be paid.
- [10]While the applicant provided a photo of another bike that he had restored, no evidence was provided that established the proof of the bike's existence. In paragraph 112 of his affidavit (Exhibit 1) which was sworn in April 2015 the applicant said that the motorbike was currently "stripped down into pieces" and that he was "probably a few months away from painting the bike". In his oral testimony (12 May 2015) the applicant said that he had the bike at home and that it was "in a million pieces". It can be inferred from the evidence that when the applicant asked Mr Sterling to get him the paint, the actual painting of the bike was not imminent, but was some months away in the future.
- [11]Mr Sterling's version of events differed significantly from that provided by the applicant. In the first instance he said that he had two conversations with the applicant on 11 December 2014. In the first conversation around 9.00 am he provided the applicant with some thinners after the applicant had requested the same from him. The second conversation which was about the clear coat kit occurred around 11.30 am. However in his oral testimony Mr Sterling accepted that there may have been only one conversation and that it may have occurred later in the day. For his part the applicant said that he did not attend at the Wacol Depot until early afternoon and could not have spoken to Mr Sterling in the morning of 11 December 2014. He also denied that he asked Mr Sterling for thinners.
- [12]In term of the substantive issue Mr Sterling said that the applicant approached him as he was working on a buggy and asked him whether he (Sterling) could get him a clear coat kit. When Mr Sterling said that he would see what he could do, the applicant told him to go with him to his van so that he could give him some money. He said that when they reached the van the applicant gave him $30 in cash and said that "there will be more where that came from". According to Mr Sterling the applicant then told him that he would keep in contact to arrange the pickup of the clear coat kit and said to Mr Sterling "don't tell Steve Fitt about our arrangement". It was Mr Sterling's evidence that immediately after the exchange he went to his supervisor, Steve Fitt, informed him what had happened, and gave him the $30 cash.
- [13]Mr Sterling denied offering to purchase paint for the applicant and denied that the applicant said anything about a tax invoice or a receipt. He also denied that the applicant said anything to him about restoring motor bikes and asserted that it was not possible that he told the applicant that what he needed was "mirror black paint". He said that he had never heard of a product called "mirror black paint" and that such a product was not used in the spray painting trade.
- [14]Further, the effect of Mr Sterling's evidence was that on 11 December 2014 he did not have another job and that phone calls and conversations relating to another job did not eventuate until 12 December 2014 and afterwards. This meant that he could not have told the applicant on 11 December 2014 that he had another job in a panel shop. Mr Fitt said that it was his understanding at the time that one of Mr Sterling's options for on-going employment was to work for a mutual friend who operated a panel beating shop.
- [15]It was Mr Fitt's evidence that around 2.00 pm on 11 December 2014 Mr Sterling approached him and sought his advice arising from circumstances associated with his discussion with the applicant. He said the conversation lasted about ten minutes and that Mr Sterling was confused. In his affidavit (Exhibit 6) Mr Fitt said that Mr Sterling told him that the applicant asked him to obtain a clear coat kit for him; said that he would collect the kit from the workshop the following day; gave him $30 in cash; told him that there would be more from where that came from; and told him not to tell Mr Fitt. While Mr Sterling equivocated when giving evidence about whether he thought the applicant was being dishonest, Mr Fitt had formed the impression from what Mr Sterling had told him that Mr Sterling thought the applicant was doing something dishonest, or doing something that was a cause for suspicion.
- [16]Mr Fitt said that after he spoke with Mr Sterling he referred the matter directly to his manager, Mr Darwin. He said that at some point after he spoke to Mr Darwin, both he and Mr Sterling were asked by Mr Darwin to prepare a statement. While Mr Sterling said that he spoke to Mr Darwin he did not indicate whether he had prepared a statement for him. Mr Darwin said that he did not ask either Mr Fitt or Mr Sterling to provide a statement on 11 December 2014 but he did request that they make a statement the following day (12 December 2014). It was also on 12 December 2014 that Mr Darwin prepared written notes of what had transpired. Mr Darwin said that he prepared the notes about two hours after the applicant had been approached by himself and Mr Maxfield.
- [17]It was Mr Darwin's evidence that around 2.30 pm on 11 December 2014 he was approached by Mr Fitt who sought advice about a situation which he did not know how to deal with. He said that following his conversation with Mr Fitt, he proceeded to talk to Mr Sterling. He said that he asked Mr Sterling to give him a breakdown of the conversation that he had with the applicant. In his affidavit Mr Darwin said that Mr Sterling told him that after he had given the applicant some thinners, the applicant gave him $30 and said that he wanted a clear coat kit.
- [18]Mr Darwin said a clear coat kit consisted of a five litre tin of clear coat and a 2.5 litre container of hardener. He said that the kit weighed about 7.5 kilograms and that it was worth around $600. Mr Fitt said that a clear coat kit would be sufficient for the coating of about five or six vehicles and that the application of the clear coat required specialised equipment. It was Mr Darwin's evidence that the applicant had no use for a clear coat kit in the performance of his duties as a field mechanic.
- [19]After speaking to Mr Fitt and Mr Sterling, Mr Darwin informed Mr Maxfield what had transpired. Mr Maxfield directed him to arrange for a clear coat kit to be boxed and left in accordance with the request made by the applicant to Mr Sterling.
12 December 2014
- [20]The applicant said that on 12 December 2014 he arrived at the Wacol Depot at about 10.30 am. Prior to arriving he had placed a phone call to Mr Choat. He asked Mr Choat whether Mr Sterling had brought something up for him with an invoice. Mr Choat informed the applicant that he had not seen Mr Sterling and that he had not brought anything up for the applicant.
- [21]It was Mr Choat's evidence that the applicant phoned him at work before the morning break and asked him if Adam Stirling was at work. When Mr Choat informed the applicant that Mr Sterling was at work, the applicant then told him that Mr Sterling had a parcel for him and asked him to get Mr Sterling to put the parcel in the service bay. Mr Choat said that he did not recall the applicant mentioning an invoice.
- [22]While the reasoning is intuitive, the claim by the applicant that he asked Mr Choat about an invoice seems contrived. The subject of an invoice appeared superfluous to the conversation with Mr Choat, the purpose of which was to find out if Mr Sterling was at work and to establish whether he had left something for the applicant to collect.
- [23]Mr Sterling said that on 12 December 2014 Mr Choat asked him if he had a box for the applicant. He told Mr Choat that he did not have the box at that time and asked him what should be done with the box when it arrived. In response, Mr Choat said that he should put it in the service bay next to a truck that he was working on.
- [24]Mr Darwin said that at about 8.45 am Mr Fitt informed him that the applicant had contacted Mr Choat and asked him to establish from Mr Sterling whether his box was ready for collection. Mr Darwin then instructed Mr Sterling to put a clear coat kit into a box and to leave the box in a place where the applicant could find it. He said that at about 10.30 am he observed the applicant pick up the box and place it in the rear of his van.
- [25]The applicant said that when he arrived at the Wacol Depot he parked the van at or near the service bay. He said that soon thereafter a co-worker yelled out to him saying words to the effect "John, I think your box is over there". The applicant said he then picked up the box, placed it in his van and closed the backdoor of the van. Shortly thereafter Colin Maxfield approached the applicant and asked him to open the back of the van. When the back was opened Mr Maxfield asked the applicant what was in the box. It was the applicant's evidence that he responded with words to the effect that "one of the guys was getting me some motorcycle paint".
- [26]It was Mr Maxfield's evidence that when he observed the applicant pick up a box and place it in the rear of his van, he approached the applicant in the company of Paul Darwin. He said that when he asked the applicant what was in the box, the applicant said that he did not know. When pressed for a better response the applicant said that the box contained paint and that he had "asked someone to get it" for him.
- [27]Despite this evidence which was set out in his affidavit, Mr Maxfield appeared to contradict himself when giving his evidence in the proceedings. During cross-examination, Mr Maxfield answered in the affirmative a proposition put to him to the effect that the response of the applicant to the question about what was in the box was that someone was getting him some motorcycle paint. When Mr Maxfield subsequently said in his evidence that the applicant never said anything about "motorcycle" paint, he was accused of recanting on his earlier evidence and giving inconsistent testimony. Having viewed the demeanour of the witness when giving his response and having regard to all of his evidence, I am satisfied that Mr Maxfield had inadvertently provided an answer which appeared to confirm the use of the word "motorcycle". I accept that his oral testimony should not be construed to be inconsistent with the version of the evidence included in his affidavit where he said at paragraph 7 that the applicant said "It's paint. I asked someone to get it for me".
- [28]Mr Darwin's version of events as set out in his affidavit (Exhibit 11) was that when the applicant was asked what was in the box, he responded that he did not know. When pressed for more information, the applicant said that the box contained paint which he was picking up for Bob Foster. Mr Darwin doubted the veracity of any such proposition because Bob Foster was a panel beater not a spray painter; Bob Foster was rostered off on that particular day; and there was no reason why the applicant would need to collect paint for Mr Foster.
- [29]How the applicant responded when first confronted is a matter of some significance. I do not think there is any material difference in the versions advanced by Mr Darwin or Mr Maxfield. They agreed that the first response of the applicant was to say that he did not know what was in the box. In terms of the follow-up explanation, both recalled that the applicant said that there was paint in the box. The difference after this was that on Mr Maxfield's version the applicant said that he had asked someone to get the paint for him, while on Mr Darwin's version the applicant had said that he was picking up the paint for a co-worker, Bob Foster. Significantly, Mr Sterling’s name was not mentioned in anyone's version.
- [30]Mr Heald is the superintendent of the Victoria Park Golf Course. The applicant was required as part of his duties to complete mechanical repairs on golf buggies used on the golf course. Mr Heald said in his affidavit (Exhibit 3) that he had known the applicant for about 21 years. He said that the applicant set an excellent example for all other workers through a superior work ethic, good communication skills, and his ability to mentor others.
- [31]Mr Heald concluded that in his dealings with the applicant, the applicant had always been honest and truthful. He said that the applicant was of fine character and of unquestioned integrity. It was Mr Heald's belief that it would be out of character for the applicant to have done what was alleged and to be untruthful about it.
- [32]After the applicant was confronted by Mr Darwin and Mr Maxfield he was immediately suspended from employment. He was not required to answer allegations made against him until six days later on 18 December 2012 when he was interviewed by the ethical standards unit.
Investigation
- [33]Ms Davies said that the initial complaint in relation to the incident emanated from Mr Darwin. She said that when she received the complaint both herself and the manager of the ethical standards unit, Mr Rose, travelled to Wacol on 12 December 2014 to conduct an investigation into the matter.
- [34]The report prepared by the ethical standards unit is in the evidence as Exhibit 7. The investigation included the conduct of interviews with Messrs. Sterling, Fitt, Choat, Darwin, and Maxfield on 12 December 2014 and an interview with the applicant on 18 December 2014. The outcome of the investigation was to substantiate an allegation that the applicant attempted to misappropriate five litres of clear coat and 2.5 litres of hardener. The report noted that the items sought to be misappropriated were valued at $542.07. The report included summaries of interviews but did not include the transcript of interviews. In the proceedings the record of Mr Sterling's interview was tendered into the evidence as Exhibit 5 while the record of the applicant's interview was tendered into the evidence as Annexure JL3 to Exhibit 1.
- [35]Ms Davies evidence was to the effect that before the interviews commenced she had read statements prepared earlier that day by some of the persons involved. In the first instance Ms Davies said that Mr Fitt had prepared an earlier statement. She then said that when she opened the interview with Mr Sterling she thought that she was reading from a note that Mr Sterling had prepared. It emerged in the proceedings that prior notes or statements had been prepared by Mr Fitt, Mr Sterling and Mr Darwin. Neither of these documents were disclosed during the discovery phase. Submissions arising from the non-disclosure were made during the proceedings. In the end result the hearing proceeded on the basis that Mr Darwin's statement or notes would be tendered (Exhibit 12), but that the other statements would not be tendered.
- [36]The availability of earlier statements or notes written by Mr Sterling and Mr Fitt was relied on by Ms Davies to justify some leading of interviewees in the process of fact finding, particularly in the case of Mr Sterling. In Mr Fitt's case, Ms Davies said that "when we interviewed him, we went through the information that he had, so we had it fresh from him". In Mr Sterling's case she did not commence the interview by asking him to provide an independent recollection of events.
- [37]It is clear from a reading of Mr Sterling's record of interview that in the process of eliciting the central facts, Mr Sterling's responses were led by the interviewer. Ms Davies said that when she put a version of events to Mr Sterling she thought that she was "reading from something that he had submitted". It followed that she thought it was more efficient to paraphrase the central parts of Mr Sterling's evidence rather than take the time to elicit the information by asking open questions. The difficulty with this approach from the applicant’s perspective is that it gave rise to errors in the fact finding process in that it was not Mr Sterling’s evidence that he provided the applicant with a litre of thinners, nor was it his evidence that the conversation with the applicant about a clear coat kit took place around 2.30 pm in the afternoon.
- [38]While the record of interview stated that Mr Sterling had given the applicant a litre of thinners, Mr Sterling said in his oral testimony that he would not have said "a litre" because the applicant would have been seeking only a small quantity to remove some glue off a car. This evidence confirmed his affidavit content where he said that he gave the applicant a small cup sized plastic container which contained about 100 ml of thinners. Other than the error in the record of interview, the concern of the applicant was that the investigation outcome may have been influenced by a mistaken belief that an alleged request for a litre of thinners may have amounted to dishonest behaviour.
- [39]While I accept that an inference was open to be drawn that the alleged request for thinners could potentially be linked to the apparent illegitimate clear coat request, in the end result the applicant was not required to answer any allegation arising from Mr Sterling's evidence that he gave the applicant some thinners. In the circumstances it is not necessary that any finding be made about whether the exchange of thinners occurred. If an exchange did occur, it must have occurred in the afternoon and not early in the morning as proposed by Mr Sterling. Further on the evidence of the applicant, Mr Fitt, and Mr Darwin the clear coat conversation would have taken place around 2.00 pm or 2.30 pm on 11 December 2014. However, Mr Sterling's failure to nominate the correct time is not determinative.
- [40]Mr Sterling was interviewed by the ethical standards unit at 11.50 am on 12 December 2014, less than 24 hours after the conversation between him and the applicant took place, and almost immediately after the applicant had been suspended. Recollections on Mr Sterling's part would have been expected to be reliable and accurate. If any significant period of time had elapsed between the relevant events and the interview, the deficiencies in the investigation complained about by the applicant would have attracted greater weight.
- [41]Another criticism levelled by the applicant about the investigation was that it failed to give consideration to the possibility of collusion among the workshop staff. It followed that the investigation was deficient in that it did not test the possibility during interviews of the respondent's witnesses. In developing its criticism, the applicant relied on a number of factors. Firstly, Mr Fitt and Mr Sterling were related and both of them disliked the applicant. In his affidavit Mr Sterling had referred to the applicant in uncomplimentary terms saying that he spoke in tool box meetings in a "very loud and aggressive manner". The applicant said that he and Mr Fitt "did not get on", while Mr Fitt described the applicant in his ethical standards interview as "not an approachable sort of fellow". Secondly, in a context where there was some friction between the respondent and the applicant in relation to an on-going industrial dispute, or arising from the applicant’s activities as a union representative, there may have been a predisposition on the part of Mr Darwin, Mr Maxfield, and the investigators to readily accept Mr Sterling's version while too quickly dismissing the applicant's version.
- [42]While the scenario was developed by the applicant during cross-examination of Council's witnesses, the evidence fell well short of what would be required to support a finding that some or all of the respondent's witnesses conspired to fabricate allegations against the applicant. While Mr Sterling made an observation about the applicant's behaviour during tool box meetings, both he and the applicant agreed that they scarcely knew each other. While Mr Fitt said that he considered the applicant "unapproachable", he said that he did not have any reason to interact with the applicant at work, and that while he was not on friendly terms with the applicant, he did not dislike him. In the end result the applicant did not particularise his proposition that either Mr Fitt or Mr Sterling might have held a grudge and were intent on harming him. The evidence does not support a finding that Mr Sterling and Mr Fitt were motivated on account of a dislike for the applicant to fabricate their evidence.
- [43]The conduct of the investigation was also criticised by the applicant on the basis that Ms Davies, after interviewing the applicant, did not complete second interviews with the complainants for the purpose of putting the applicant's version of events to them. While I am inclined to the view that it would have been appropriate to question Mr Sterling about the applicant's version of events, a review of all the facts and circumstances arising from the proceedings does not support a conclusion that the investigation arrived at the wrong outcome. Without trying to reconcile the differences in the evidence of the applicant and Mr Sterling about what was said on 11 December 2014, the subsequent events on 12 December 2014 indicate that it was more probable than not that Mr Sterling's version was the true version.
Termination
- [44]Ms Julien was the decision maker responsible for making a determination about disciplinary action in response to the incident. On 12 December 2014 she suspended the applicant on full pay until an investigation was carried out. Ms Julian said that she met with the applicant and his support persons on Thursday 15 January 2015. In this meeting she told the applicant that the investigation had been finalised and that the allegation of serious misconduct had been substantiated. She then issued him with a show cause notice and told him that he needed to respond to the notice by the close of business on Monday 19 January 2015. She considered that the applicant had sufficient time to prepare a response as he remained suspended from work on full pay.
- [45]However at 5.55 am on 19 January 2015 the applicant emailed Ms Julian a copy of a medical certificate which stated that the applicant was suffering from a medical condition and was unfit for duty from 16 January 2015 to 23 January 2015. No other information or explanation was provided in the email. The relevance of the certificate is diminished by a number of factors. Firstly, the certificate did not explain the nature of the medical condition. Secondly, while the certificate was dated 16 January 2015, it was supplied retrospectively on 19 January 2015. Thirdly, the certificate was unnecessary to the extent that the applicant was suspended on full pay and it served no purpose until his suspension was lifted. Finally, the certificate was not accompanied by, or connected to, any request for more time to respond to the show cause notice.
- [46]In the end result it was not until 15 minutes before close of business on 19 January 2015 that Ms Julian received a letter from the CFMEU asking for an extension of time. The extension sought was not granted because the respondent considered that the CFMEU had no representative right in the case of the applicant and because the application for an extension should have come from the applicant direct. Given the failure of the applicant to respond to the show cause notice Ms Julian proceeded to determine the nature of the disciplinary action to be taken.
- [47]The applicant submitted that given the applicant's illness or incapacity, it was procedurally unfair to deny the applicant an extension of time to answer the show cause notice. The request for an extension of time was made by the CFMEU on the applicant's behalf. Proof of illness had been provided by the applicant in the form of a medical certificate. The unfairness was compounded by the decision to prevent the applicant's chosen representatives from preparing a reply on his behalf. It was a concern to the applicant that the respondent may have been influenced to act unfairly because of the applicant’s involvement in ongoing dispute in which he was being represented by the CFMEU.
- [48]It was the respondent's submission that the refusal to grant an extension of time in relation to the show cause process should not be allowed to interfere with a substantive finding of misconduct. The applicant was aware of allegations made against him and was interviewed in relation to those matters. The applicant had previously participated in a lengthy interview with the ethical standards unit in which he had ample opportunity to fully explain his position and respond to the allegation made against him. When the applicant was provided with a show cause notice he was accompanied by a union representative and both were aware of the date for filing of any response to the show cause notice. Despite this the request for an extension of time did not eventuate until a few minutes before the specified time. It was the respondent's submission that given the strength of the factual case in relation to this matter, any questions of procedural unfairness ought to pale into insignificance, and could not render an otherwise fair determination unfair in the circumstances of this case.
- [49]In adjudicating on this matter I prefer the respondent's position. There is no evidence to suggest when both the union and the applicant were informed of the deadline for the show cause response on 15 January 2015 that any objection to the deadline was raised. If the applicant were restricted by his illness there is no reason why his union could not have submitted the response in time. While the respondent could have exercised a discretion to extend time, it would not have been unreasonable for Ms Julian to conclude that it was unlikely that new material would be forthcoming given that the applicant had been suspended on 12 December 2014, interviewed by ethical standards on 18 December 2014, and had attended a face to face meeting with Ms Julian in the company of his union representative on 15 January 2015. Further, while the proceedings in the Commission afforded an opportunity to the applicant to introduce new material that he was precluded from so doing in a show cause response, no such material was introduced.
- [50]In the termination of employment letter Ms Julian said that she had determined, on the balance of probabilities, that the applicant had wilfully attempted to misappropriate council property. She also said that she considered that the applicant had used his "seniority and position in Council to influence a younger, less experienced employee to participate in a fundamentally dishonest practice …".
- [51]In her testimony in the proceedings, Ms Julian said that in arriving at her decision to terminate the applicant's employment she relied on the ethical standards report and a consideration of a previous incident in 2013 in which the applicant was investigated in relation to allegations about time sheets. The investigation did not lead to substantiated findings nor to disciplinary action. It was a matter in contention whether Ms Julian should have had any regard to the time sheet incident in arriving at her determination.
- [52]Ms Julian defended her consideration of the time sheet incident in her evidence at T2-30 and T2-31. The effect of her evidence was that although the allegations made against the applicant were unsubstantiated, they resulted in a decision being taken that the applicant was to be taken off field work and directed to spend time in the office in order that he could receive training on the relevant time sheet procedures and be re-educated on the code of conduct, including behavioural standards in the workplace. Given these circumstances it was Ms Julian’s expectation that the applicant’s conduct in the workplace would have been exemplary and it was a matter of significance that the applicant had offended so soon after the training.
- [53]The applicant submitted that it was unfair for the respondent to rely in arriving at its decision to terminate the applicant's employment on events or circumstances associated with the time sheet incident. The applicant was not told, nor was he aware, that the respondent might rely on the time sheet incident in arriving at its decision. For my part I do not accept that the respondent was precluded from considering the applicant’s employment record in arriving at its decision on penalty. It was not necessary that his employment record be opened up for review or re-agitation in the disciplinary process. The employer was entitled, in making a determination about penalty, to have regard to the fact that the applicant had only relatively recently undergone refresher training on the code of conduct.
Applicant's Submissions
- [54]The applicant submitted that in its determination of the matter the Commission should take into account the following principles:
- (i)The Commission must be comfortably satisfied that the applicant was guilty of any misconduct;
- (ii)The more grave or serious the offence, the more satisfied the Commission must be that the alleged offence has occurred;
- (iii)It is for the respondent to prove to the Commission that the applicant attempted to steal;
- (iv)There needs to be a firm evidentiary basis for any finding that the applicant attempted to steal.
- [55]The applicant submitted that the following factors supported a conclusion that the decision to terminate was harsh, unjust and unreasonable:
- inconsistencies in the evidence of the respondent;
- deficiencies or errors in the way in which the respondent conducted its investigation;
- a finding of credit adverse to Mr Sterling, or a finding that little or no weight should be attached to Mr Sterling's evidence because of unreliability and inconsistencies;
- a finding that the applicant’s version of events was to be preferred to that provided by Mr Sterling;
- the failure of the respondent to afford procedural fairness in denying the applicant an extension of time to respond to the show cause letter, and by refusing to recognise the CFMEU as his representative;
- the erroneous reliance by the respondent on previous disciplinary events which did not result in substantiated allegations.
- [56]The applicant argued that, in terms of the conflict in the evidence around what was said by the applicant to Mr Sterling on 11 December 2014, that the applicant's evidence should be preferred. In so submitting the applicant relied on Mr Sterling's own admission that he was confused about what the conversation between him and the applicant concerned, and on the many inconsistencies in Mr Sterling’s evidence.
- [57]The applicant submitted that inconsistencies in Mr Sterling's evidence included the number of conversations that Mr Sterling had with the applicant on 11 December 2014; the time that various conversations took place; whether Mr Sterling considered the applicant's conduct to be suspicious or dishonest; whether he thought the applicant was going to pay for the clear coat kit; the volume of thinners requested by the applicant; and in the various versions he advanced relating to when he knew he had secured a job in a panel beating shop. These inconsistencies confirmed that Mr Sterling was an unreliable witness and supported a finding that his evidence should not be preferred to that given by the applicant.
- [58]The applicant further submitted that procedural unfairness was manifest in the manner in which the respondent had conducted its investigation. Attention was drawn to the following deficiencies:
- (i)The investigators led evidence from Mr Sterling. Further in leading particular propositions the investigators secured Mr Stirling's concurrence with propositions which were wrong in fact. These propositions included the proposition that the applicant requested one litre of thinners, and the proposition that the central conversation between the applicant and Mr Sterling occurred around 2.30 pm. In his affidavit in the proceedings Mr Sterling said that the applicant requested "some thinners" and that the central conversation took place around 11.00 am;
- (ii)There was an unquestioning acceptance by the investigators of everything that Mr Sterling reported - in contrast to the approach with the applicant;
- (iii)The investigators failed to consider that Mr Sterling and Mr Fitt may have been motivated by an animosity toward the applicant and may have colluded to bring harm upon the applicant;
- (iv)The investigators failed to take into account a motivation of retribution based on the applicant's union or representational activities, particularly given that the applicant and the CFMEU were involved in an industrial dispute involving the respondent at the time of the investigation.
- [59]In terms of general merit considerations the applicant also drew attention to a number of factors which supported the grant of the application:
- The applicant's acceptance that he gave Sterling $30 is indicative of his honesty. It was a proposition that he may have been expected to deny. Further the payment of $30 also supports the applicant's version that he always intended to pay for the product that he asked Mr Sterling to obtain;
- While a guilty party may have been expected to do so, the applicant did not attempt to leave the premises when he collected the box and put it into the back of his van. This behaviour is consistent with the applicant's intention to proceed to talk to Mr Sterling later in the day about the transfer and to settle the outstanding amount;
- Nothing should be read into the applicant's failure to provide any explanation about his position when confronted by Mr Darwin and Mr Maxfield. He was entitled to remain silent given the allegation that he had breached the code of conduct;
- There was no secrecy associated with the placement of the box in the service area, nor with the fact that the applicant had made it known that he would be collecting a box from Mr Sterling;
- Beyond the respondent's evidence, there was no independent evidence establishing that the box did not contain an invoice. The box was not opened in front of the applicant;
- It is improbable that an employee of 35 years standing would commit the alleged offence or believe that he might get away with such an offence. The applicant would know that systems were in place to disclose stock discrepancies. There was a clear absence of motive.
- There were significant differences in the versions provided by Mr Darwin and Mr Maxfield despite the fact that both were involved in the conversation with the applicant;
- Any confusion about the circumstances could have been resolved if Mr Fitt had contacted the applicant directly and sought an explanation. There is an inference available that Mr Fitt acted out of malice toward the applicant given the nature of the relationship.
Respondent's Submissions
- [60]The respondent submitted that the Commission should be comfortably satisfied that the respondent's actions were fair and proper. It was put that the civil standard of proof required the Commission to determine whether the employer had sufficient material upon which it could have fairly moved to remove the applicant from his employment. It was accepted that these considerations included a finding about whether the factual basis relied on by the employer was sufficiently reliable to support a level of comfortable satisfaction.
- [61]The respondent attacked the credibility of the applicant's version of events. It was submitted that the applicant engaged in a process of reconstruction in delivering his version to the ethical standards unit on 18 December 2014. It was the respondent's submission that in reconstructing the facts, the applicant made mistakes which undermined the veracity of the position upon which he relied. In this regard the respondent drew attention to the following considerations:
- the applicant must have concocted the proposition that Mr Sterling said that the applicant needed "mirror black paint" because Mr Sterling did not know that such a type of paint existed, and had never heard of the description. As such it was not conceivable that he could have made the statement that the applicant alleged that he did make;
- the applicant could not have known that Mr Sterling had accepted a job with a panel beater on 11 December 2014 because at that point in time Mr Sterling did not have another job to go to, and there was no other employer. Mr Sterling did not start his new job until February 2015. Mr Sterling could not have said that he had a new job, or taken money with a view to getting something at a trade price;
- it was not plausible that an experienced worker in the motor trade would enter into a transaction to buy two litres of paint of a particular type on the advice of an apprentice without knowing the price nor the supplier;
- the volume of paint needed for the stated purpose would be considerably less than two litres;
- the applicant's denial that, despite 34 years in the motor trade, he was not aware of the existence of the clear coat product was implausible. Given that clear coat was applied as the final coat of paint to most if not all vehicles, it was not possible that the applicant was not familiar with the product;
- while the applicant said that he ordered two litres of paint he did not question the size of the box that was left for him the following day notwithstanding that the box included containers that held seven to eight litres of fluid. It was therefore more likely that the box contained exactly what the applicant had ordered and that the applicant intended to conceal it in his vehicle before leaving council premises;
- the applicant did not satisfactorily explain why an invoice was needed for a private transaction, and in circumstances where logically the transfer of the paint could have occurred off site in the car park;
- the applicant's fundamental defence that he needed paint for a motor bike was rejected on the basis that all of the respondent's witnesses said that the applicant did not refer to a motor bike in any conversation on either 11 December or 12 December 2014. Mr Sterling, Mr Darwin and Mr Maxfield all denied that the word "motorcycle" was mentioned by the applicant;
- the applicant never attempted to provide an adequate explanation for the presence of the box in his van. If his evidence were true he would have said that Adam Sterling had got him some paint from a friend and that it was his personal property. He had the opportunity to name Mr Sterling and to ask him to corroborate his version;
- the applicant’s version of events was completely contradicted by the actions of Mr Sterling immediately after the transactions was arranged. If the applicant's version were true, there was no reason for Mr Sterling to approach Mr Fitt and tell him something completely different;
- there was no clear understanding on the part of Mr Sterling that the $30 was to be treated as a deposit and that he was going to be paid the balance, nor was there any understanding about the method or manner of payment.
Section 77 Matters
- [62]It was not argued that the application for reinstatement was supported by non-compliance with any of the terms of s 77 of the Act. The allegation of misappropriation was investigated in detail and the applicant was given the opportunity to defend the allegation in an interview with the ethical standards unit, and in a response to the show cause notice. The applicant was fully informed about the reason for dismissal which related to his conduct on 11 and 12 December 2014.
Reasoning
- [63]A significant matter in contention in the proceedings related to the weight which should be attached to a statement made by Mr Sterling during his ethical standards interview to the effect that he thought that the applicant was going to pay for the clear coat kit. This statement was inconsistent with his affidavit content where he stated that the tone of the applicant's voice and his body language gave him the impression "that he knew that what he was doing was wrong". Additionally, Mr Sterling's evidence in the proceedings was contradictory. Initially when questioned about the matter Mr Sterling agreed that he did not think that the applicant was doing anything dishonest or that the applicant was acting suspiciously. He then accepted an invitation to remove the inconsistent paragraph (paragraph 18) from his affidavit before recanting on his position and maintaining that his affidavit version was correct.
- [64]The applicant relied on Mr Sterling's admission in the ethical standards interview and his oral testimony to support his evidence about what was said in the 11 December 2014 conversation. It was submitted that the fact that Mr Sterling did not think that there was any reason for suspicion, and the fact that he did not think that the applicant was doing anything dishonest, provided a clear pointer to the applicant's innocence. The applicant also drew attention to Mr Sterling's confused state of mind. It was submitted that if Mr Sterling was confused about the things or proposition that he was being confronted with, it was probable that he was also confused about what he was being asked to obtain. The applicant said that these factors mitigated in favour of a finding that the applicant's version of events should be preferred to that articulated by Mr Sterling.
- [65]It was the respondent's submission that any contradiction claimed to exist in Mr Sterling's evidence about whether he thought the applicant was acting dishonestly or intended to pay for the product ordered, was resolved by a complete reading of the relevant parts of the record of interview. In this regard the respondent drew attention to the following extracts from the record of interview:
When he gave you the $30 and said there’d be more where that came from, what do you think he meant by that?
I wouldn’t have a clue. I just thought he was going to pay for it. I don’t know. I just went straight to Steve and was like, "I don’t know what to do, I’m confused." (Page 3)
…
With the 30 bucks, I just want to follow the money trail for a second. He gives you 30 bucks? ‑‑‑Yes.
What did he say when he actually gave you the money? ‑‑‑Nothing really. He said there’d be more where it comes from - (Page 4)
…
So how was he going to pay you this money? When he said there’s more where this come from, how’s he going to do that? ‑‑‑I wouldn’t have a clue. That’s why I was like I don’t know what’s going on. I was all confused. I was just put on the spot. (Page 6)
- [66]It is my view that a review of all the evidence supports a conclusion that Mr Sterling's state of confusion on 11 December 2014 was principally derived from his inability to determine the intentions of the applicant and to understand the predicament in which he was placed in having to respond to the applicant's request. Confusion appeared to set in when he was required to interpret the circumstances which he found himself in and to comment on what he thought the applicant intended to do. The nature of Mr Sterling's confusion is explained in part by his responses given to questions asked during cross-examination. The transcript at T1-61 refers:
"… you at all times believed, after you had had the conversation with Mr Licastro, that he was going to pay for the items that he requested, correct?‑‑‑No, I didn’t know what was going on.
You just thought he was going to pay for it, didn’t you? That’s what you thought?‑‑‑Yes, I thought he was going to give me the rest of the money or something, but I didn’t know what to think. I went to see Fitt straight away and said "What do I do? I’m lost."
Forget about Steve Fitt for the moment. When you had the conversation with Mr Licastro, your belief, from the conversation you had with him, was that he was going to pay for the items?‑‑‑Yes, and then he handed me $30.
Well you - after he handed you $30 - or anything else, it doesn’t matter, you thought he was going to pay for the goods, whatever they were?‑‑‑Yes, but a clear kit doesn’t cost $30.
No because you understood that to be a down-payment, didn’t you, or a deposit?‑‑‑I didn’t assume anything. That’s why I went straight to Steve. I was all confused."
- [67]On a review of all the evidence I am not persuaded to enter a finding that Mr Sterling believed that the transaction proposed by the applicant was legitimate. While Mr Sterling may have been confused, to some degree or other, about what was intended by the transaction proposed by the applicant, he did not form a clear view at the time that the applicant's request constituted accepted or legitimate workplace conduct. The actions he took immediately after the exchange support such a conclusion. Mr Sterling thought something was wrong and immediately relayed his concerns to Mr Fitt.
- [68]It is also a relevant consideration that while equivocation or inconsistency were a feature of parts of Mr Sterling's evidence, in many significant respects his testimony remained unaltered. He was clear that he was asked to get a clear coat kit; that the applicant said that "there was more where that came from"; that he did not offer to obtain mirror black paint; and that the applicant told him that he should not tell Mr Fitt about their conversation.
- [69]The applicant submitted that given the lack of clarity in Mr Sterling evidence associated with the matter, it was probable that the applicant did know that Mr Sterling had secured, or was likely to secure, another job in a panel shop, when the conversation on 11 December 2014 occurred. I accept that this outcome was possible. It appears to me that it may have been common knowledge that Mr Sterling’s employment with Council would end once he completed his apprenticeship. Given that he was a spray painter it was always possible that Mr Sterling would seek employment in a panel beating shop. In the circumstances it is possible that the applicant might have opportunistically considered that Mr Sterling might be a useful source of cheap paint when he found a new employer.
- [70]The possibility however is rendered improbable by Mr Sterling's conduct immediately after the conversation on 11 December 2014 which had the effect of completely contradicting the applicant's version. No explanation is available for why, if the transaction was for Mr Sterling to bring some mirror black paint in from a friend's panel shop, Mr Sterling proceeded to tell Mr Fitt and Mr Darwin something entirely different. Mr Sterling's version is further confirmed by the events of the following day when a clear coat kit was assembled and boxed for collection by the applicant. Finally, the applicant's own conduct when confronted by Mr Darwin and Mr Maxfield, was not consistent with his own account. He provided no explanation for why he did not simply say to Mr Darwin and Mr Maxfield that the box contained black paint which Mr Sterling had obtained for him from a friend's panel beating shop. The applicant's evidence in respect to the matter is recorded at T1-32:
"Well, you see, when you went to - can you jump forward, please, to paragraph 114 and this is where you’ve dealt with your - the ESU investigation. You see, you also stated in the ESU interview that:
I did not have any understanding of the scheme for staff to obtain trade price materials, and, even if there was a scheme to purchase goods, I was not purchasing anything from council, as far as I was aware, but instead from Mr Sterling’s new employer.
Is that right?‑‑‑That’s correct.
Well, if that was the case, wouldn’t you have said that straightaway? "It’s a private deal. It’s nothing to do with council. What are you talking about code of conduct?" As far you knew Mr Sterling had an invoice for you. You could have got an invoice and you wouldn’t have had your fuel card taken away and be suspended and sent home and that sort of thing. You could have produced an invoice, opened the box, there it all is. Perfect answer. Isn’t that right?‑‑‑I wasn’t given the opportunity, sir.
Well, you were you told you were in breach of the code of conduct. You had an immediate answer, didn’t you? Your immediate answer was, "Come with me down to Adam. I’m going down there now and he will give you the invoice for whatever is in that box. Let’s go." Didn’t say that, did you?‑‑‑No, I did not."
- [71]The highly contemporaneous nature of the reporting of the exchange between Mr Sterling and the applicant, the escalation of the incident to management, and the investigation of the incident, diminishes the weight that would otherwise need to be attached to inconsistencies in Mr Sterling’s testimony. The immediate reporting of the exchange to Mr Fitt and Mr Darwin also means, contrary to the submissions of the applicant, that the determination of the central facts is not limited to a consideration of the evidence of the applicant and Mr Sterling, and does not involve a choice being made between the applicant's version or Mr Sterling's version. The evidence of Mr Fitt and Mr Darwin is also relevant to the finding to be made about which version is to be preferred. The other significant contributing factor to such a finding arises from an examination of what transpired immediately after the exchange on 11 December 2014 and of what transpired the following day. A consideration of the evidence associated with these matter leads to a balance of probabilities finding that the evidence of Mr Sterling is to be preferred.
- [72]I am not prepared to find that the application can be sustained on the grounds that the applicant has been denied natural justice or that the investigation process was flawed. While I think there is some validity in the applicant's criticism about the way that the ethical standards unit conducted its interview with Mr Sterling, the nature and extent of the alleged deficiencies does not support a finding that the investigation had miscarried and that the outcome of the investigation was wrong or not sustainable when all the evidence was taken into consideration.
- [73]The applicant was informed of the allegation against him in correspondence dated 15 December 2014. He was provided with an opportunity to explain his circumstances in the ethical standards interview of 18 December 2014. He remained off work on pay between 12 December 2014 and 15 January 2015. He had an opportunity, up to 19 January 2015, to defend his position and persuade his employer to allow him to remain in employment. On all the evidence, it is my view that the processes or procedures followed by the employer in arriving at the decision to terminate the applicant's employment did not unfairly impinge on the applicant's prospects.
Conclusion
- [74]I am not persuaded on the facts and circumstances of this case that the employer’s decision to terminate the applicant's employment was harsh, unjust and unreasonable. The allegation against the applicant was appropriately investigated and the finding of the investigation was open on the evidence on the balance of probabilities. The respondent's evidence establishes to a comfortable level of satisfaction an intent to misappropriate. Notwithstanding the applicant's "sliding scale" defence, the factual basis for the respondent's action was sufficiently robust to substantiate the allegation and support the decision to terminate the applicant's employment. The applicant's behaviour involved serious misconduct and warranted a serious response by his employer. The penalty was commensurate with the offence.
- [75]The application is dismissed.
Confidentiality Order
- [76]The respondent asked that Exhibit 7 be subject to a confidentiality order pursuant to s 679(5)(b) of the Industrial Relations Act. This request has been acceded to. The effect of the order is that, before the file is returned to the Registry, the Exhibit will be placed in a sealed envelope marked not to be opened without further order of the Commission.