de Villiers v State of Queensland
[2017] QIRC 105
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- Unreported Judgment
- de Villiers v State of Queensland[2017] QIRC 105
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de Villiers v State of Queensland[2017] QIRC 105
de Villiers v State of Queensland[2017] QIRC 105
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | de Villiers v State of Queensland [2017] QIRC 105 |
PARTIES: | de Villiers, Alain Gerard Frantz D'Hotman (applicant) v State of Queensland (Office of Industrial Relations) (respondent) |
CASE NO: | TD/2016/35 |
PROCEEDING: | Reinstatement application |
DELIVERED ON: | 1 December 2017 |
HEARING DATES: | 20, 21, 22, 23 February and 2 May 2017 |
MEMBER: | Deputy President O'Connor |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL RELATIONS – REINSTATEMENT APPLICATION – where employee dismissed after investigation – where investigation substantiated allegations – whether dismissal harsh, unjust, or unreasonable – where dismissal was not harsh, unjust, or unreasonable. |
LEGISLATION: CASES: | Fair Trading Act 1989 Industrial Relations Act 1999, s 73, s 77 Public Service Act 2008, s 189(1)(b) Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 Byrne v Australian Airlines Limited (1995) 185 CLR 410 G A Stewart v University of Melbourne [2000] AIRC 779 Mathieu v Higgins [2008] QSC 209 Queensland Teachers’ Union of Employees v Department of Education (2000) 165 QGIG 767 Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914 State of Queensland v Alain D'Hotman De Villiers [2016] ICQ 024 |
APPEARANCES: | A G F D'Hotman de Villiers the applicant in person C Murdoch QC, instructed by Crown Law for the respondent |
Reasons for Decision
- [1]This application arises from the termination of Alain D'Hotman de Villiers' employment at the Office of Industrial Relations. That decision was made on 5 April 2016 by Dr Simon Blackwood, the Deputy General Director of the OIR. The events which led to the termination of the applicant's employment occurred while he was employed as a Compliance and Enforcement Officer at the Department of Justice and Attorney-General (Office of Fair Trading). At the time of his dismissal the applicant held the position of Principal Compliance Officer (Investigations) and was acting in the role of Regional Investigations Manager. The position fell within the Major Investigations Unit. The MIU investigates matters of significant serious and complexity, classified as legally or factually complex and usually involving systemic breaches of fair trading legislation. Such matters are generally protracted due to their complexity or size and can include allegations of fraud or theft on a large scale.[1] The reinstatement application was made on 22 April 2016 but its hearing was delayed while an interlocutory application was resolved.[2]
- [2]The events giving rise to the allegations made against the applicant occurred during his employment at the OFT, however the resulting disciplinary process taken against him occurred during his employment at both the OFT and then the OIR. On 16 September 2016 Vice President Linnane agreed with the parties that for the purposes of resolving this application for reinstatement the hearing would only touch on whether Mr De Villiers' dismissal was harsh, unjust, or unreasonable. The question of remedy was reserved for another time. There was no deviation from that approach when the matter was heard before me.
Legislative context
- [3]The applicant's employment was terminated under Chapter 3 of the Industrial Relations Act 1999. Part 2 of Chapter 3 of that Act is entitled 'Unfair Dismissals'. Section 73 is contained within Part 2 and it is relevant insofar as it outlines when a dismissal is unfair:
"73When is a dismissal unfair
- (1)A dismissal is unfair if it is—
- (a)harsh, unjust or unreasonable; or
- (b)for an invalid reason."
- [4]The role of the Commission in an application such as this is to consider whether the dismissal was harsh, unjust, or unreasonable, or done for an invalid reason. There is no suggestion in this matter that the dismissal occurred as the result of an invalid reason, i.e. the dismissal was not a reprisal action arising from a public interest disclosure.
- [5]Accordingly it is only necessary for me to examine whether the applicant's dismissal was unfair as the result of it being harsh, unjust, or unreasonable. The words "harsh, unjust or unreasonable" have their ordinary meaning. In Bostik (Australia) Pty Ltd v Gorgevski (No 1),Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:
"These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct."[3]
- [6]Guidance on what might be considered "harsh, unjust, or unreasonable" can also be found in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited:
"… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[4]
- [7]
"Where… an application... is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immune from interference by the Commission…."
- [8]In Stewart v University of Melbourne, Ross VP considered s 170CG(3) of the Workplace Relations Act 1996 (Cth) in which he followed the joint judgment of McHugh and Gummow JJ in Byrne.[6] Ross VP wrote:
"… a termination of employment may be:
- Harsh, because of its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;
- Unjust, because the employee was not guilty of misconduct on which the employer acted; and/or
- Unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer."[7]
Background
- [9]In considering whether the dismissal was harsh unjust or unreasonable, I must examine the circumstances of the termination which will, in turn, necessitate an examination of the allegations which ultimately caused the applicant to be dismissed.
- [10]The allegations leading to the applicant's dismissal were put to him in a letter from Mr David Ford, the Deputy-Director-General of Liquor, Gaming and Fair Trading, dated 23 October 2015. The allegations were in the following terms:
"Between October 2014 to December 2014 you used your official position as a Principal Compliance and Enforcement Officer, Major Investigations unit, Office of Fair Trading (OFT) inappropriately and without authority to influence the settlement of a civil dispute in that you:
- (a)held yourself out as exercising the statutory powers of a Principal Compliance and Enforcement Officer, Major Investigations Unit, OFT, with the conduct of a civil dispute which you had no authority to be involved with and which was a low level conciliation matter assigned to the OFT Gold Coast;
- (b)failed to disclose a conflict of interest in relation to Mr Glen Dobson and acted in a biased manner; and
- (c)breached s 11(2) of the Fair Trading Act 1989 (FT Act) in that you gave advice as to the rights and liabilities in law of a person and held yourself out as competent to give this advice."[8]
- [11]The applicant made a submission in relation to the Show Cause process by letter dated 14 November 2015.
- [12]In regard to allegation (a) the applicant advised that: "I accept and concede to the allegations as outlined." In my view, and for the reasons which follow, the acceptance of that allegation is significant in that it is sufficient on its own to justify the termination.
- [13]In respect of allegation (b) the applicant accepted that he did not disclose a conflict of interest because he did not have any personal interest that could, then or in the future, be seen as influencing the performance of his duties. It was the applicants case that he had never met or had any personal association with Mr Dobson. The reference to his friendship with Mr Delaney, a solicitor, was a figure of speech and was not said to suggest that he had a personal relationship with him. His claim was that he had formally acted on his behalf in a professional matter and any relationship was one of solicitor and client.
- [14]With respect to the allegation of bias the applicant contended that the ESU investigation did not uncover any evidence to suggest that he acted in a biased manner.
- [15]Allegation (c) was also denied.
- [16]On 7 December 2015, Mr Ford wrote to the Applicant finding him liable to disciplinary action in respect of allegations (a), (b), and (c).
- [17]The applicant provided his response by letter dated 18 December 2015. In that response he submitted "…that [his] dismissal would not serve any constructive benefit to correcting the situation."
- [18]
- [19]The evidence of Mr Ford was largely unchallenged by the applicant. I have no reason to consider Mr Ford as anything other than a witness of credit. Attached to Mr Ford's affidavit was a briefing report dated 24 April 2015. That report was authored by Troy Bawden of the Ethical Standards Unit and it was relied upon by Mr Ford in deciding to commence disciplinary action against the applicant. The report substantially, and accurately, sets out the facts in this matter:
"On 9 December 2014 the Ethical Standards Unit (ESU) received a referral from Mr Greg Ogle, Manager, Major Investigations Unit, while acting as Director, Tactical Compliance. The referral contained details of allegations that Mr De Villiers used his official position inappropriately and without authority to influence the settlement of a civil dispute.
The referral states that OFT's Marketplace Accreditation and Compliance System (MACS) contained a record of an official complaint made on 8 October 2014 by one Glen Dobson against Residential Letting Agents (RLAs) Adam Mitchell and his fiancée Belinda Pangbourne (henceforth referred to as Mrs Mitchell), proprietors of Gold Coast Holidays Houses (GCHH).
Mr Mitchell had given notice to Mr Dobson that he wished to terminate the property management agreement that existed between them. Mr Dobson's complaint centered on a dispute between the parties over the length of the termination period and therefore the sum of commission monies owing to GCHH from advance bookings that it had secured for the property.
Mr Dobson's complaint was assessed by OFT on 13 October 2014 and classified as a low-level conciliation matter. Mr Ogle advised ESU that Mr Dobson's complaint would not have met the criteria for the commencement of a major investigation by personnel from his unit. Mr Ogle confirmed that Mr De Villiers had never been assigned the matter, which was the responsibility of OFT Gold Coast.
Information in the referral shows that Mr De Villiers nonetheless did involve himself in the dispute. His involvement came to light when Helen Osbourne, Service Delivery Officer, OFT Gold Coast made a routine follow-up call to Mr Dobson regarding his complaint, only to be told that Mr De Villiers was known to him, and had already fixed the problem. Mr Ogle then contacted Mr Mitchell, who expressed grievance that he and Mrs Mitchell had been intimidated by Mr De Villiers into transferring all disputed monies to Mr Dobson's solicitor."[10]
- [20]Mr Ogle's referral to the ESU alleged that:
"Mr De Villiers had contacted Mr and Mrs Mitchell on or about 30 October 2014, and the impression that couple had come away with after talking with Mr De Villiers was that he knew Mr Dobson personally. Both expressed surprise to Mr Ogle that someone holding a position in the Major Investigations Unit of OFT would handle such a matter.
Mr Mitchell claimed to Mr Ogle that both he and Mrs Mitchell had felt intimidated by Mr De Villiers' telephone manner, claiming he had 'struck fear' into them. Mrs Mitchell claimed that Mr De Villiers had made threats that their business would be audited by OFT if resolution on Mr Dobson's payment request were not forthcoming by the close of business on 31 October 2014.
Mr and Mrs Mitchell advised Mr Ogle that, due to their imminent honeymoon together and the advice of Mr De Villiers, they capitulated and paid Mr Dobson all advance booking monies without deducting commission. The couple contended that they had lost about $5,000 that they might otherwise have been entitled to retain had Mr De Villiers not influenced the settlement of their civil dispute.
On 23 December 2015 Mr Ogle provided email advice to ESU that on Friday 19 December 2014, in the course of addressing with Mr de Villiers a variety of work-related issues, he had advised Mr de Villiers that there was another issue [this investigation] that he could not address. The following Monday, Mr Dobson suddenly emailed OFT Gold Coast and stated that his approach to Major Investigations had been at the suggestions of his solicitor Tim Delaney. Mr Dobson's email states that he made that approach through an introduction by Mr Delaney. The email named and praised Mr De Villiers for having achieved an ostensibly amicable result in the matter. Mr Dobson's email went on to denigrate OFT Gold Coast and the worker who made the follow-up call for what he perceived to be their tardiness and unhelpfulness.
On 14 January 2015 Mr Ogle confirmed with ESU via telephone that:
- There are no records held by major investigations of assistance requested by or provided to Mr Dobson by that unit.
- There are no records held by the unit of Mr de Villiers' involvement in the matter.
- Mr De Villiers' involvement was unknown to Mr Ogle.
- Mr Ogle regarded the dispute as a conciliation matter that was too low-level to be dealt with by the Major Investigations Unit.
- The issues had only come to light when Ms Osborne made her follow-up telephone call to Mr Dobson, only to be advised that the matter had already been settled by 'Allan'. As her notes record, Ms Osborne became perturbed when Mr Dobson told her that the 'Allan' he referred to was not less than the 'Commissioner' for Fair Trading."
- [21]The referral continued:
"IT Security provided ESU with records of email traffic between Mr De Villiers, Mr Dobson, and GCHH. The records show that after Mr De Villiers first approached GCHH, Mr Mitchell forwarded him prior email correspondence with Mr Dobson, following which negotiations ensued between GCHH and Mr Dobson's solicitor Mr Delaney. The key points in those background emails are:
- On 23 September 2014 Mr Mitchell gave Mr Dobson notice of termination of their management agreement for the property at… Advancetown. Mr Mitchell offered to manage the property for as long as it took Mr Dobson to find another agent. Mr Mitchell advised that GCHH would manage the property until 1 February 2015, which he said was the date on which the furthest booking was to vacate the property.
- On 30 September Mr Dobson emailed Mr Mitchell to accept his resignation as agent. Mr Dobson indicated that the booked guests would be able to see out their holiday stays under his management. Mr Dobson requested that all booking monies be transferred to his personal account.
- On 1 October 2014 Mr Mitchell replied to Mr Dobson, attaching a copy of their Form 20a agreement. Mr Mitchell restated 1 February 2015 as the proposed termination date, but in reference to their agreement advised Mr Dobson that he might wish to elect a shorter notice period of 80 days and provide GCHH written notice of same. Mr Mitchell declined to provide guest details and monies during the termination period.
As relayed by the Mitchells during their [ESU investigation] interview…, Mr Delaney had told them that in his view, each party would have been entitled to some portion of the disputed monies. Attempts to reach a compromise were still ongoing when on 30 October 2014, Mr De Villiers involved himself in the dispute. The emails … demonstrate that Mr De Villiers' involvement was not merely unauthorized and extraterritorial – he then [influenced] the settlement of their dispute with Mr Dobson's position, when he simply could have provided them with impartial advice to assist that settlement."
- [22]The applicant's emails to the Mitchells were sent over two days. There were three emails sent by the applicant. The first email was sent at 5.00pm on 30 October 2014:
"Adam Mitchell
Thank you for taking the time to speak with me this afternoon.
As you are aware, Mr Glen Dobson has consulted the office of Fair Trading to seek advice about this matter.
He has informed us that disagreements between the two of you prompted you to terminate the Letting and Property Management Agreement that was effectively in place for his property at Advancetown. The email sent by you clearly suggest that you are 'happy to provide as much notice as possible'.
In a return email from Glen on 24 September 2014, he agrees to this.
Glen has informed the Office of Fair Trading that both parties agreed to a 30 day termination, until you realised that you were not entitled to commissions on incomplete transactions.
I have been informed by your wife Belinda that you have a number of emails that confirm that both parties agreed to a 90 day termination period. Belinda has agreed to send these to me.
Please note that under the PAMDA [Property and Motor Dealers Act], a licensee is not entitled to any commissions until the transaction is finalised, and the transaction is NOT finalised until the tenant completes his occupation of the property and makes the final payment. Consequently, you will not be entitled to any commissions where you have not fulfilled your obligations as a manager i.e. during the period of occupation. You are however, entitled to any commissions earned during any period of occupation and whilst you are still the appointed manager of the property.
I wish to have this matter resolved by c.o.b. tomorrow to avoid this matter being referred to us as a formal complaint where we may be obliged to commence proceedings."
- [23]On the same day, Mr Mitchell sent a lengthy reply to the applicant at 9.44 pm. The referral summed up Mr Mitchell's response as containing "a denial [that] there [had] ever been an agreement to reduce the termination period to 30 days." Mr Mitchell's response was direct and fully addressed the applicant's email. Mr Mitchel also attached the standard terms that Mr Dobson had agreed to when their property management agreement commenced. The applicant sent his response to the Mitchells on 31 October 2014, at 9.59am:
"Morning Adam
I have been trying to call to discuss this matter but no answer.
I am still waiting on the emails that Belinda said, you had, that clearly showed the agreement being 90 days.
I understand and acknowledge the information you've sent in your email, however there is still no written confirmation (emails or otherwise) to prove that both parties agreed on either 30 or 90 days. If the matter was to be taken further, the court / tribunal would consider this as a 'disputed fact' and they would have to consider the evidence.
Emails show that you terminated the agreement on 23/9/14 and the language used in the email suggests that you were giving Glen the option to choose the termination period. Glen clearly states that he wanted a 30 day termination, a very reasonable request under the circumstances. It appears in your emails that you later agreed to this, provided he agreed to relinquish all commissions on forward bookings.
The court / tribunal would take a very dim view of this, and see this as holding the property to ransom until your receive commissions that you are not entitled to.
The real issue to consider is the agreed termination period, which is in contention. Based on the evidence, I would say that the court would agree with Mr Dobson and that the termination period was 30 days.
I understand that is has cost you to secure these bookings, however, 'commissions' are clearly defined in the appointment and under the Act, and you are not entitled to these until the guests leave the property.
I urge you to obtain legal advice and to contact me at your convenience to discuss this matter."
- [24]At 1.41 pm on 31 October 2014 the applicant sent a follow-up email:
"Hi Adam / Belinda
Can you please let me know soon what you intend to do with this matter, so I can let Glen know?
Thank you."
- [25]The Mitchell's response, at 1.59 pm, informed the applicant that they had begun the process of contacting guests and advising them of the change in management and that bookings would need to be transferred accordingly. This process would result in the transfer of funds from the Mitchell's Trust account to that of Mr Dobson's solicitor, Mr Delaney.
- [26]The final correspondence between the applicant and the Mitchells was on 11 November 2014, when Mr Mitchell wrote to Mr De Villiers about the final transfer of funds for Mr Dobson's property to the trust account of Mr Dobson's solicitor.
Was the Dismissal Unfair?
- [27]The applicant held a position requiring a high degree of trust and confidence. He was a public service officer. The Mitchells' interaction with the applicant should have been professional and uneventful. That was not the case and, instead, the Mitchells were left feeling scared.
- [28]I accept the evidence of Dr Blackwood that he had lost the necessary trust and confidence in the applicant to be an officer of his department; and officer who had responsibilities to exercise sound judgement and to conduct themselves with the appropriate degree of professionalism not inconsistent with the position that he held.
- [29]In Queensland Teachers' Union of Employees v Department of Education, Hall P wrote:
"It may be conceded that trust and confidence is a necessary ingredient of any employment relationship. It follows that '… a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based…."[11] (Citation omitted)
- [30]Mr Ford's evidence made it clear that investigators are given a considerable degree of autonomy and, as such, he must have confidence in their integrity. In his affidavit Mr Ford observed:
"The role of an investigator is one which requires absolute confidence by the investigator's management and integrity of the officer. This of necessity requires a level of assurance that the investigator will act in accordance with the law and the procedures and processes applicable to the position. In my view Mr De Villiers has by his blatant disregard for the requirements of his position in intervening in a matter which was outside the remit, without approval or advice or even reasonable reporting and which was done in an inappropriate way on the instigation of a person with whom he had a personal association, forfeited any such confidence."[12]
- [31]Dr Blackwood expressed his concerns regarding the actions of the applicant as follows:
"Look, our concern or my concern, and certainly, I imagine, Mr Ford's concern, but it had passed to me, is that if officers engage in this sort of activity, and that's what that sentence relates to, then we need to have confidence that an officer understands what they have done and what the problem is with that approach, and I've put in the affidavit that my [concern] is that you had been a responsible officer with regulatory agencies for a long time, and I think there was a seriousness in the conduct and the lack of insight [or contrition] demonstrated through the disciplinary process. I – I don't think we can put it more clearly like that, and it was a long process of investigation and consideration."[13]
- [32]The relationship between Mr Dobson and the applicant and, in particular, how Mr Dobson came to directly contact the applicant at the Office of Fair Trading has never been adequately explained. The applicant said during the Show Cause process that Mr Dobson was referred to him through Mr Delaney, a solicitor from the Gold Coast.
- [33]Mr Dobson, in his email of 22 December 2014, wrote:
"He, my solicitor, suggested I talk to OFT Major Investigations of which I did through my solicitor's introduction and a gentleman by the name of Alain De Villiers. He also attempted to settle this compliant [sic] and through persistence he achieved and [sic] amicable results. If it was not for my solicitor Mr De Villiers, we would still be waiting and lost a large amount of money let alone the unhappy visitors."
- [34]However, Mr Dobson in his undated affidavit had a different recollection as to how he was referred to the Applicant:
"On the advice of my partner Emma, I then made contact with Alain De Villiers at the Office of Fair Trading in Brisbane. To my knowledge, Emma had heard about this guy through an associate but had never met him herself. I had never heard of or met Alain De Villiers before this."[14]
- [35]The evidence of Mr Delaney was that it would be wrong to suggest that he made a suggestion to Mr Dobson to contact the applicant. He said that he had no idea that the applicant worked at the OFT until he received a call from him.
- [36]The evidence of the applicant in relation to how Mr Dobson was referred to him leaves me concerned, not only in relation to his candour with the ESU but equally as to his reliability as a witness. The applicant's responses to the question of personal association with Mr Delaney and Mr Dobson reflected badly on his credit.
- [37]The applicant has not adequately explained how he became involved in a low level dispute and one which he had no authority to be involved in and was outside his area of responsibility.
- [38]Importantly, the applicant, in his dealings with Mr Dobson and the Mitchells did not make any file notes, opened no file and electronically recorded nothing through the MACS system. In this way his involvement in the matter was concealed from his employer. This was done in the knowledge that a file was already open within the Gold Coast OFT. The applicant's justification for conducting himself in this manner was based upon a suggestion that in his experience with the Queensland Police Service matters were often dealt with "informally". I do not accept that suggestion.
- [39]The evidence of Ms Osborne from the Gold Coast OFT was that she was unaware that the applicant was involved in a matter within her office. When she contacted Mr Dobson said she was concerned to hear that the applicant was "meddling" in a matter which was outside his area of responsibility.
- [40]The communications between the applicant and the Mitchells can be characterised as formal, threatening, constraining, and opinionated. By contrast, the applicant's communication with Mr Dobson had a very different flavour. Those communications were informal and non-threatening.
- [41]I accept that Dr Blackwood was concerned that the applicant demonstrated a lack of insight as to the seriousness of his actions as well as a lack of contrition.[15]
- [42]The Mitchell's had a legitimate expectation that in dealing with an officer of the OFT they could expect honesty, integrity, and fairness. However, in my view, the applicant's conduct did not exhibit the qualities that one would ordinarily expect of an investigator of his seniority and experience.
- [43]Mrs Mitchell's evidence was that she "felt that Mr De Villiers had a bias towards Mr Dobson, did not appear to be reasonable, fair or impartial in his dealings with us."[16] When asked by the applicant in cross-examination why she had formed this view she replied:
"Mr de Villiers: What made you think that?
Mrs Mitchell: That you – because you had made up your mind before you spoke to Adam and I…
Mr de Villiers Okay. And?
Mrs Mitchell: …and that's – that's different to every other contact we've had with Fair Trading.
Mr de Villiers: Yes. But I suggest to you that you said that there was emails – sorry, I'll just – I'll just take it back a bit. You're – you're basing on what, that I had made up my mind already?
Mrs Mitchell: Yeah, that, and also the tone that was used. We were being spoken down to, like, you know, we were made to feel like we didn't know what we were doing, and – and that we had done everything wrong to date."[17]
- [44]Mr Mitchell said he was "scared" by the approach of Mr De Villiers. Mr Mitchell was concerned that should his real estate license be removed he could lose his livelihood. The telephone call of 30 October 2014 was of a nature to cause the Mitchells a genuine concern because the applicant held the position that he did and was advising them that: that they were not entitled to retain the commissions for the advance bookings;[18] they should transfer the monies; that they could lose their real estate license;[19] and that a Court would rule in Mr Dobson's favour should the monies not be transferred.[20] The subsequent emails of 30 October 2014 and 31 October 2014 were intimidatory and threatening. For the Mitchells they felt that they "…had absolutely no hope".[21]
- [45]The evidence supports a conclusion that the applicant acted in a biased way. In coming to that conclusion, I note that the approach taken by the applicant was uncritical and unquestioning of Mr Dobson, the opinion of Mr Delaney and advancing a position which was predetermined.
- [46]The show cause process concluded that the applicant had breached s 11(2) of the FT Act. Section s 11(2) of the Act relevantly provides that it:
"…shall not be construed to require the Commissioner or any officer of the department to give, or hold himself or herself out as ready or competent to give, to any person, advice concerning the rights and liabilities in law of the person concerning any matter, or to aid in the enforcement of the rights of the person."
- [47]The effect of s 11(2) of the FT Act is that it is not the function of the Commissioner or any officer of the Department to give advice concerning the rights or liabilities in law, or to hold themselves out as being competent to give advice concerning their rights and liabilities in law.
- [48]Notwithstanding the provisions of s 11(2) of the FT Act, the applicant submitted to the Commission:
"… I was, at the time of this matter, competent to give both Dobson and Mitchell, advice concerning their rights and liabilities in law concerning this matter, and to aid in the enforcement of the rights of both parties, as provided for under s 11(2) of the FTA.
- [49]He went on to submit:
"… the advice given to the Mitchells was based on my thorough knowledge of the legislation that related to this specific matter, and that the legislation had been thoroughly researched and extensively discussed with the Director, Tactical Compliance and the OFT Legal Officer prior to this situation."
- [50]I accept the submission of the respondent that having regard to the emails sent by the applicant, in particular, the 9.44 am email of 30 October 2014, the applicant was giving advice concerning the rights or liabilities in law, and holding himself out as being competent to give advice concerning the Mitchells rights and liabilities in law.
- [51]In light of the evidence before the Commission, Mr Ford was entitled to conclude that the applicant was in breach of s 11(2) of the FT Act.
- [52]In assessing whether or not to terminate the applicant, Dr Blackwood had reference to, amongst other things, the applicant's past work history both within the Department and the Queensland Police Service.
- [53]The applicant submitted to the Commission that he had "… an impeccable service history throughout my 28 years of service and that only discipline sanction was an official warning issued to me which I was attached to the Office of Fair Trading and which I have never accepted and which the evidence shows is highly contentious."
- [54]Dr Blackwood did not accept the submission and did not consider that the applicant had an "unblemished" record.[22]
- [55]On 15 December 2015, Mr Brian Bauer, Executive Director, Ethical Standards Unit issued a formal warning to the applicant in relation to a breach of the media policy. The applicant indicated that any further such conduct would result in the commencement of disciplinary proceedings. On 20 October 2012, the applicant was counselled following an investigation into allegations that he had spread rumours about three officers in the OFT at Southport.
- [56]Reference was also made to the applicant's service record with the Queensland Police Service. That Queensland Police Service, Ethical Standards Command – Probity Report discloses that on five occasions the applicant was provided with managerial guidance. One of the entries has a similar complexion to the current matter before the Commission. The entry reads:
"Complaint received regarding a traffic accident in which the complainant was involved. It was alleged D'Hotman de Villiers contacted the complainant's sister and advised her the accident was entirely the fault of the complainant and if the full amount of damages weren't paid to his friend, the complainant would end up in court. Dealt with by managerial guidance 30/01/1992"[23]
- [57]I accept the submission that the applicant's conduct can be properly described as constituting misconduct for the purposes of s 187(1)(b) of the Public Service Act 2008. The respondent referred the Commission to the decision of Mathieu v Higgins & Anor where Daubney J wrote:
"… 'misconduct,' to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed …."[24] (Citation omitted)
- [58]The applicant's conduct, in my view, precludes any suggestion that he be given a "second chance".
Matters to be considered in deciding the application
- [59]It is convenient to turn at this point to the matters which s 77 of the Act requires the Commission to consider in determining whether a dismissal was harsh, unjust or unreasonable:
"77Matters 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."
Notification of reason for dismissal
- [60]The evidence before the Commission shows that the termination letter of 4 April 2016 from Dr Blackwood clearly, and in some detail, notified the applicant of the reasons for his dismissal.
- [61]Accordingly, for the purpose of satisfying s 77(a), I conclude that the applicant was notified of the reasons for his dismissal.
Operational requirements or conduct, capacity, or performance
- [62]For the purpose of satisfying s 77(b), I conclude that, as the termination letter of 4 April 2016 made clear, the applicant's dismissal related to his conduct as an employee of the respondent.
Whether the applicant was given an opportunity to respond to the allegations
- [63]Given my conclusion with respect to s 77(b), I am required by s 77(c) to consider whether the applicant was either warned about the conduct to which his dismissal related, or was given an opportunity to respond to the allegations about that conduct.
- [64]The applicant was not previously warned about the conduct giving rise to the termination of his employment as it was not the type of conduct which lent itself to such a warning.
- [65]The letter of Mr Ford dated 23 October 2015 outlined the three allegations against him. A copy of the investigation report together with attachments was provided to the applicant. A seven day extension was granted to the applicant to respond. The applicant was afforded an opportunity to respond and he did so, after a fourteen day extension of time was allowed, on 16 November 2016.
- [66]Mr Ford's letter dated 7 December 2015 set out the findings which determined that the allegations had been substantiated. Mr Ford also addressed the issue of penalty and specifically advised that he was "…currently giving serious consideration to termination of your employment."
- [67]The applicant responded on 18 December 2015. By this stage, the applicant had transferred from the OFT to the Workplace Health and Safety Division of the Queensland Treasury and Dr Blackwood had become the relevant delegate to determine the appropriate disciplinary action and to assess whether termination was warranted.
- [68]In his letter of 4 April 2016, Dr Blackwood sets out in some considerable detail the matters to which he had regard in coming to his determination. I accept that Dr Blackwood took into account the applicant's extenuating circumstances including, amongst other things, financial stress and hardship, his work record, personal factors, and alternative penalties as detailed in the applicant's response.
- [69]In light of the facts outlined above, the Commission is satisfied in accordance with s 77(c)(ii) that, in considering the evidence before it, the applicant has been given an opportunity to respond to the allegations against him.
Other relevant matters
- [70]Section 77(d) allows the Commission to consider any other matters it considers relevant.
Financial and Family Circumstances
- [71]In considering the harshness of the penalty imposed, I have taken into account the submissions of the applicant particularly in respect of the impact that the termination has had on his family and his financial position. I have also considered the applicant's age and the likelihood of him securing alternative employment.
- [72]It must be appreciated that it is a consequence of any termination of employment that some degree of hardship is a likely to ensue whether it be financial, family circumstances or otherwise. As was observed in Bostik:
"Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct."[25]
- [73]Having considered the matters raised by the applicant, I am of the opinion that they do not weigh so heavily in favour of the applicant as to render the termination in the circumstances, harsh, unjust or unreasonable.
Conclusion & Order
- [74]I accept that the respondent was left with no other option but to terminate the applicant's employment. Dr Blackwood viewed the applicant's conduct to be extremely serious and warranting termination. I agree.
- [75]As noted above, the vital relationship between employer and employee of trust and confidence has been broken by the conduct of the applicant. Whilst I accept that the applicant did not receive any personal benefit, his conduct was nevertheless such as to compromise Dr Blackwood's trust and confidence in his ability to perform his role as a Principal Compliance and Enforcement Officer in the Office of Fair Trading and his then role as a Principal Investigator. Equally, there is a real risk of reputational damage to the Department and the OFT.
- [76]Having weighed all the evidence and considered the matters that the Commission is required to consider under s 77 of the Act, I have come to the conclusion that the applicant's dismissal was not harsh, unjust or unreasonable. The dismissal was not therefore "unfair" within the meaning of s 73 of the Act.
- [77]The applicant has failed to demonstrate that the dismissal was "unfair".
- [78]The application is dismissed.
Footnotes
[1] T1-32, Ll 43-45; T1-33, Ll 1-3.
[2] State of Queensland v Alain D’Hotman De Villiers [2016] ICQ 024.
[3] Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28.
[4] Byrne v Australian Airlines Limited (1995) 185 CLR 410, 465.
[5] Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914, 916.
[6] Byrne v Australian Airlines Limited (1995) 185 CLR 410.
[7] G A Stewart v University of Melbourne [2000] AIRC 779, [74].
[8] Ex. 25.
[9] T5-22, Ll 2-6.
[10] Ex. 25.
[11] Queensland Teachers' Union of Employees v Department of Education (2000) 165 QGIG 767, 769.
[12] Ex. 25.
[13] T4-100, Ll 39-47.
[14] Ex. 16.
[15] T4-100, Ll 38-47.
[16] T3-96, Ll 46-47.
[17] T3-97, Ll 1-11.
[18] T3-53, Ll 28-31.
[19] T3-53, Ll 37-41.
[20] T3-55, L 6.
[21] T3-55, Ll 45-47.
[22] T4-
[23] Ex. 23.
[24] Mathieu v Higgins [2008] QSC 209, 6 [20].
[25] Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28.