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Farquharson v Queensland Racing Integrity Commission[2018] QIRC 1

Farquharson v Queensland Racing Integrity Commission[2018] QIRC 1

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Farquharson v Queensland Racing Integrity Commission [2018] QIRC 001

PARTIES: 

Farquharson, David

(Applicant)

v

Queensland Racing Integrity Commission

(Respondent)

CASE NO:

TD/2017/21

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

8 January 2018

HEARING DATE:

13 November 2017

HEARD AT:

Brisbane

MEMBER:

Deputy President Bloomfield

ORDERS:

  1. That Mr Farquharson be reinstated to his former position of Chief Stipendiary Steward - Harness, with the Queensland Racing Integrity Commission from 24 February 2017.
  1. That Mr Farquharson's continuity of employment be maintained for all purposes of his Contract of Employment - both written and legislatively provided.
  1. That Mr Farquharson be paid any remuneration lost since his dismissal after taking into account any employment benefits or wages received by him since his dismissal.
  1. That the parties discuss, with the intention of agreeing, how any statutory entitlements paid to Mr Farquharson at the time of his original termination are to be treated. In the event the parties are unable to agree, liberty to apply is granted.
 

INDUSTRIAL LAW – TERMINATION OF EMPLOYMENT – APPLICATION FOR REINSTATEMENT – where summary dismissal – where investigation into applicant's behaviour during Stewards' Inquiry Hearing – where allegations of serious misconduct – whether applicant engaged in an act of dishonesty – whether applicant engaged in an act and/or omission that could negatively affect the reputation or good standing of the employer – whether applicant engaged in an act or omission that could preclude or inhibit him from performing his duties – where the applicant denies making false statements – whether the applicant made a mistake which he failed to correct – whether the dismissal was harsh, unjust or unreasonable – whether trust and confidence in the employment relationship has been broken

CASES:

Industrial Relations Act 1999, s 77, s 78, s 79

Industrial Relations Act 2016, s 1024

Lamb v Redland City Council [2014] QIRC 041

Briginshaw v Briginshaw [1938] 60 CLR 337

APS Group (Placements) Pty Ltd v O'Loughlin [2011] FWAFB 5230

Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 36 FCR 20

Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15, 72 IR 186

Nicholson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199

APPEARANCES:

Mr T.A. Ryan, Counsel instructed by W.H. Tutt Solicitors for the Applicant.

Mr J. Farren, Counsel directly instructed by the Respondent.

Decision

 Background

  1. [1]
    In an application lodged on 15 March 2017, Mr David Farquharson seeks reinstatement to his former position of Chief Stipendiary Steward - Harness with Queensland Racing Integrity Commission (QRIC).  On the basis that his termination took effect on 24 February 2017, s 1024 of the Industrial Relations Act 2016 prescribes that Mr Farquharson's application must be heard and decided in accordance with the relevant provisions of the Industrial Relations Act 1999 (the Act).
  1. [2]
    The decision to terminate Mr Farquharson's employment, by way of summary dismissal, was taken by the Racing Integrity Commissioner, Mr Ross Barnett, pursuant to clause 9.4 of Mr Farquharson's Contract of Employment following:
  • a Crime and Corruption Commission (CCC) investigation into Mr Farquharson's behaviour during the third day of a Stewards' Inquiry held on 5 July 2016;
  • his stand down on 9 December 2016 following receipt of oral advice by Mr Barnett from the CCC that the matter was to be referred back to him to deal with; and
  • two show cause notices issued to him by Mr Barnett.
  1. [3]
    Relevantly, clause 9.4 of Mr Farquharson's Contract of Employment provides as follows:

 "9.4 Notwithstanding the other provisions of this contract, the QRIC may at any time immediately terminate the steward's employment, without payment of notice, if the steward:

  1. (a)
    Is guilty of serious misconduct including but not limited to:

. . .

  1. (vi)
    any act of dishonesty or fraud in the course of or in connection with the performance of the steward's duties and responsibilities;
  1. (vii)
    any act or omission that could negatively affect the reputation or good standing of the QRIC or preclude or inhibit the steward performing the duties of the position;

. . .".

  1. [4]
    In the first show cause notice, dated 22 December 2016, Mr Barnett wrote:

"TAKE NOTICE that I hereby call upon you to show cause why I should not be reasonably satisfied that you have been guilty of serious misconduct within the meaning of clause 9.4(a)(vi) and/or (vii) of your Contract of Employment by:

  1. Engaging in an act of dishonesty in the course of or in connection with the performance of your duties and responsibilities;
  1. Engaging in an act and/or omission that could negatively affect the reputation or good standing of the QRIC;
  1. Engaging in an act or omission that could preclude or inhibit you from performing the duties of your position.

 The particulars of this allegation are as follows:

  1. On Tuesday 5 July 2016, you were conducting a steward's enquiry hearing in relation to the conduct of Mr Neale Scott ('the Hearing').
  1. The enquiry hearing panel consisted of you as Chairman, Ms K Wolsey and Mr N Torpey.
  1. During the course of the Hearing, the following exchange occurred between you and Mr Scott (at lines 3-24 of page 20 of the hearing transcript):

 'MR SCOTT: So this swab stall was the very first time it was used, and that's why I've asked what compliance it had to meet to be a swab stall and was it inspected on that day. Is there any evidence to say - you're obviously unaware of this now. When they cleaned out all the trainers' gear and medications there, did anybody sanitise and sterilise the room before they then brought my horse in there to take a swab?

 THE CHAIRMAN: I inspected the swab room on the day and to me it was sufficient to take samples. As to what the builders did or any repairs or the standard that you talk about, I'm not aware of. But, as a visual, as an inspection on the things that were associated with integrity ----

  MR SCOTT: So you're saying that you did it?

  THE CHAIRMAN: I had a visual on the race day, yes.

 MR SCOTT: But you're unaware of - you're unaware of the history of it and you're unaware of whether the building ----

 THE CHAIRMAN: They showed me where the swab stall was. I had a look at the swab stall and I was satisfied with the way it was presented for the collection of urine from horses, yes. (emphasis added)'

  1. The relevant race meeting was held on 13 September 2015.
  1. You were not present at the relevant race meeting;
  1. You did not inspect the relevant swab stall on the day of the relevant race meeting;
  1. The facts in paragraphs 4-6 above were known to you at the time you made the emphasised statements in paragraph 3 above;
  1. You made the emphasised statements in paragraph 3 above knowing them to be false;
  1. During an adjournment of the Hearing after the exchange in paragraph 3 above had occurred, Ms Wolsey said to you words, or words to the effect of 'Oh why did you say that, you weren't even working that day'.
  1. Upon resumption of the hearing, you failed to correct the false statements emphasised in paragraph 3 above, or at all.

 If this allegation is found to be substantiated, you may be liable for disciplinary action under clause 9.4 of your Contract of Employment."

  1. [5]
    In an undated letter, apparently sent to Mr Barnett in late January 2017, Mr Farquharson responded as follows:
  • he denied he engaged in an act of dishonesty;
  • he denied he engaged in act or omission that may negatively affect the reputation of QRIC;
  • he denied he engaged in conduct that may preclude or inhibit the performance of his duties;
  • he agreed with the particulars contained in paragraphs 1 to 7;
  • he denied the particulars recorded at paragraph 8 on the basis he did not make the statements recorded at paragraph 3 knowing them to be false; in that:
  • he inadvertently said the words " … I inspected the swab room on the day …" when he meant to say " … for the day";
  • he inadvertently said the words "I had a visual on the race day, yes" when he meant to say " … for the race day";
  • it is clear from P19 of the transcript of the Stewards' Inquiry that he did not inspect the swab stall on the race day, as demonstrated by the following exchange:

 "MR SCOTT:  Was an inspection performed then on that facility by Racing Queensland stewards?

 THE CHAIRMAN:  There would have been an inspection - I didn't conduct the inspection, but there was an inspection carried out on that facility prior to the race meeting.

 MR SCOTT:  Have you got any evidence of that?

 THE CHAIRMAN:  Oh, no I wouldn't - it would just have been a visual inspection I presume Mr Scott.  There's a hundred things to organise and we had to make sure that everything was right, and you don't document every single inspection that you do.";

  • he did not realise at the time of the Inquiry that he had said the word on rather than for;
  • his comment that he inspected the swab room on race day was clearly an inadvertent slip of the tongue when looked at in the context of the exchange which occurred moments earlier at P19;
  • had he realised his mistake he would have corrected it;
  • it is plausible and consistent that he meant to say the word for instead of the word on in reference to the swab room inspection;
  • his use of the word on instead of the word for, whilst regrettable and, in hindsight, confusing does not amount to serious misconduct;
  • in relation to the particulars at paragraph 9, he agreed that Ms Wolsey spoke to him during an adjournment and said words to the effect "you weren't there on race day" and he responded by saying "yeah, I know … I meant I inspected it for race day"; and
  • he did not appreciate at the time that the matter required clarification because of the exchange seconds earlier when he made it clear that he did not conduct the race day inspection.
  1. [6]
    In the course of his response Mr Farquharson also said:
  • his use of the wrong word did not, in any way, cause the Inquiry to be compromised.  The issue as to whether the swab stall was inspected was uncontroversial and it was not a significant issue in the overall context of the Inquiry;
  • his misuse of the word on instead of for does not amount to dishonesty as it is referred to at clause 9.4(a)(vi) of his contract.  For it to amount to dishonesty there must be an intention on his part to be dishonest.  In the present case he used one word when he should have used another;
  • he accepted, in hindsight, that he could have corrected himself but at the time he was under the apprehension that the earlier exchange (at page 19 of the Scott Inquiry transcript) made it clear that he had not conducted the inspection on race day;
  • he has been involved in many inquiries as a panel member (and not as Chairman) and it was not uncommon for him to raise something which was an obvious slip of the tongue.  This did not happen on the day in question (in that neither Ms Wolsey nor Mr Torpey spoke up);
  • he has been a Steward for 30 years and has never been the subject of any disciplinary proceedings.  He had already suffered a detriment, in that it had become public knowledge he had been stood down - which had caused him significant embarrassment both personally and professionally;
  • his actions could not be said to negatively affect the reputation or good standing of QRIC - the test as to whether his actions could negatively affect QRIC's reputation should be looked at objectively.  In the present circumstances, where he misused a word on two occasions during an Inquiry but clarified the matter to accurately reflect the true state of the facts at another part of the Inquiry, "could not, in my view, when looked at objectively, amount to a negative effect on QRIC's reputation"; and
  • "I have a long and honest career in the harness racing industry.  I would like to continue in the industry for many years to come."
  1. [7]
    Finally, Mr Farquharson recorded " … for the reasons referred to above, I submit that cause has been shown and that I should not be the subject of any disciplinary conduct."
  1. [8]
    On 6 February 2017, Mr Barnett acknowledged receipt of Mr Farquharson's undated response to the first show cause letter.  In doing so he wrote:

"I have considered all the evidence, submissions and other material relevant to this matter (whether specifically mentioned in this decision or not) and make the following findings in relation to each allegation, on the balance of probabilities.

I note that you admit the following facts:

  1. On Tuesday 5 July 2016, you were conducting a steward's enquiry hearing in relation to the conduct of Mr Neale Scott ('the Hearing').
  2. The enquiry hearing panel considered of you as Chairman, Ms K Wolsey and Mr N Torpey.
  3. During the course of the Hearing, the following exchange occurred between you and Mr Scott (at lines 3-24 of page 20 of the Hearing transcript):

 'MR SCOTT: So this swab stall was the very first time it was used, and that's why I've asked what compliance it had to meet to be a swab stall and was it inspected on that day. Is there any evidence to say - you're obviously unaware of this now. When they cleaned out all the trainers' gear and medications there, did anybody sanitise and sterilize the room before they then brought my horse in there to take a swab?

 THE CHAIRMAN: I inspected the swab room on the day and to me it was sufficient to take samples. As to what the builders did or any repairs or the standard that you talk about, I'm not aware of. But, as a visual, as an inspection on the things that were associated with integrity ----

 MR SCOTT: So you're saying that you did it?

 THE CHAIRMAN: I had a visual on the race day, yes.

 MR SCOTT: But you're unaware of - you're unaware of the history of it and you're unaware of whether the building ----

 THE CHAIRMAN: They showed me where the swab stall was. I had a look at the swab stall and I was satisfied with the way it was presented for the collection of urine from horses, yes. (emphasis added).'

  1.  The relevant race meeting was held on 13 September 2015.
  2.  You were not present at the relevant race meeting.
  3. You did not inspect the relevant swab stall on the day of the relevant race meeting.
  4. The facts in paragraphs (a)-(f) above were known to you at the time you made the emphasized statements in paragraph (c) above.
  5. During an adjournment of the Hearing after the exchange in paragraph (c) above had occurred, Ms Wolsey said to you words, or words to the effect of 'Oh why did you say that, you weren't even working that day'.
  6. Upon resumption of the hearing, you failed to correct the false statements emphasised in paragraph (c) above, or at all.

However, you deny that you have engaged in serious misconduct.

Disputed Facts

The only particularised fact contained in my cause notice that you deny is that you made the emphasised statements in paragraph (c) above knowing them to be false.

You contend that these statements were merely an 'inadvertent slip of the tongue' and what you meant to say was that you had variously 'inspected' and 'had a visual' on the swab room 'for' the race day, not 'on' the race day. In particular, you point to the . . . earlier exchange with Mr Scott during the Hearing to suggest that it was clear that you were not present on the race day and that your later suggestion that you were present was a slip, rather than intentionally false statement (at page 19 of the Hearing transcript):

. . .

For the following reasons, it is my view that you seek to place a gloss on your later statements.

First, your statements were entirely unambiguous and repeated. You asserted that you inspected the swab room 'on the day' and then when asked by Mr Scott to confirm that you personally did the inspection being referred to, you repeated the assertion - 'I had a visual on the race day, yes.'

Second, the correct characterisation of your later statements must be made upon an analysis of the full context of the hearing, not by selective quotation of particular exchanges. During that part of the hearing, Mr Scott was enquiring as to whether there were standards set down for swab facilities and, if so, whether they were followed at the relevant race track on the day his horse was tested. As to the first question, you could not answer it accurately (see page 18 at lines 14 onwards and 39 onwards). When Mr Scott directly asked whether an inspection had been performed on the Deagon complex, the exchange you rely upon occurred. It is noted that your answer was that an inspection had been carried out by stewards 'prior to the race meeting', not on the race day. The exchange between Mr Scott and the hearing panel then proceeded as follows (see page 19 at line 27 onwards):

 'MR SCOTT: Mm-hm. Do you know how many times has that swab room been used at Deagon prior to 13 September?

 MS WOLSEY: The year before.

 THE CHAIRMAN: Yeah, the race meeting the year before, and also the picnic thoroughbred meeting that was conducted there.

 MR TORPEY: In the thoroughbreds, there have been samples taken at barrier trials there as well during that last 12 months in particular.

 MR SCOTT: That swab stall was built for that day. It was previously a trainers' storage room. They cleaned - they got all the trainers to clean out all their gear and their medications and whatever they had in there and then they put up a wall inside and used it as a swab stall on that day. It was the very first day that the swab stall has ever been used at Deagon. Those meetings that you're talking about at the picnic meeting and the other thoroughbred meetings, and the picnic meeting between the thoroughbred and harness, all over the last 12 months, that swab room was not used, they used to use [it] around near the sand roll for that, right.

 MR TORPEY: Mmm.

 MR SCOTT: So this swab stall was the very first time it was used, and that's why I've asked what compliance it had to meet to be a swab stall and was it inspected on that day. Is there any evidence to say - you're obviously unaware of this now. When they cleaned out all the trainers' gear and medications there, did anybody sanitise and sterilise the room before they then brought my horse in there to take a swab?' (emphasis added).

It is then that you state that you personally inspected the swab room on the day of the race meeting and were satisfied that it was sufficient to take samples.

Considered in its full context, I infer that you made this statement knowing it to be false because Mr Scott had exposed that the Hearing panel were unaware that the relevant swab room had been used for the first time at that race meeting and you wanted to terminate Mr Scott's line of enquiry by asserting that you personally inspected the swab room on the race day and found it to be suitable. Further, perusal of the transcript discloses that this is what in fact occurred, with Mr Scott turning his attention to the manner in which the samples were taken and handled.

Finally, you contend that, had you realised your mistake, you would have corrected it. However, you admit that during the adjournment of the hearing after the relevant exchange had occurred, Ms Wolsey said to you words, or words to the effect of 'Oh why did you say that you weren't even working that day' and upon resumption of the hearing, you failed to correct the false statements you had made to Mr Scott. I therefore reject your claim that you had not realised your mistake.

As such, I reject your contentions and am reasonably satisfied that, on the balance of probabilities, you made the statements emphasised in paragraph 3 of the particulars contained in the first show cause notice, knowing them to be false.

I therefore find that I am reasonably satisfied that all of the particularised facts alleged in the first show cause notice are proven.

Serious Misconduct

You deny that you have engaged in an act of dishonesty in the course of or in connection with the performance of your duties and responsibilities on the basis that you did not intend to be dishonest and you mistakenly used one word - 'on' instead of another - 'for'.

For the reasons given above, I am reasonably satisfied that you made the statements emphasised in paragraph 3 of the particulars contained in the first show cause notice, knowing them to be false.

You admit that the falsity of your statement was raised with you by Ms Wolsey during the adjournment and you failed to correct your false statement upon resumption of the hearing, or at all. You assert that you assumed that it would have been clear to those present at the hearing that it was not you that conducted the inspection on race day because of the earlier exchange referred to above. In my view, that submission is unsustainable on any fair reading of the hearing transcript. For example, if the true facts were that clear to those present, Ms Wolsey would have had no reason to raise the issue with you during the adjournment. I am reasonably satisfied that your statements were made dishonestly in that you knew they were false and failed to correct them.

I am also reasonably satisfied that you engaged in the impugned conduct in the course of or in connection with the performance of your duties and responsibilities.

As such, I am reasonably satisfied that you are guilty of serious misconduct within the meaning of clause 9.4(a)(vi) of your contract of employment by engaging in an act of dishonesty in the course of or in connection with the performance of your duties and responsibilities.

You deny that you have engaged in an act and/or omission that could negatively affect the reputation or good standing of the QRIC because you merely misused a word or two during an enquiry and clarified the matter to accurately reflect the true state of the facts at another part of the Hearing. Your submission is that this could not objectively negatively affect the reputation or good standing of the QRIC.

I consider your submission to be misconceived because the 'clarification' statement that you rely upon was made before the impugned statement. As such, the last fact that was asserted to Mr Scott by you was that you personally inspected the swab stall on the race day and found it to be appropriate. As noted above, that statement effectively shut down Mr Scott's line of enquiry.

As a steward, you effectively stand in judgement over those who the QRIC regulates, as a delegate of the Commissioner. For the reasons already given, I am reasonably satisfied that you dishonestly made false statements in the course of chairing a stewards' inquiry. If that were to become publicly known, which it has at least to Mr Scott, I am also reasonably satisfied that your conduct could negatively affect the reputation or good standing of the QRIC. Whether the issue of swab stall inspections was material to the ultimate issues requiring determination before the enquiry is, in my view, irrelevant.

As such, I am reasonably satisfied that you are guilty of serious misconduct within the meaning of clause 9.4(a)(vii) of your contract of employment by engaging in an act and/or omission that could negatively affect the reputation or good standing of the QRIC.

Apart from denying the allegation, you have not directly made submissions as to why I should not be satisfied that you have engaged in an act or omission that could preclude or inhibit you from performing the duties of your position. You do however point to what you assert is your 'long and honest career in the harness industry'.

A racing steward's position is one that requires utmost and unquestionable integrity. You are the Chairman of Stewards. Your conduct must therefore be entirely beyond reproach. You must be able to be trusted by me as Commissioner, the racing industry that appears before you as a steward and your staff. If that is not the case, you cannot effectively perform the duties of your position.

In addition, while you were entitled to make whatever submissions you wished to in response to my show cause notice, the submissions you have made are such that it is clear that you have no insight into the dishonesty in which you have engaged or its relevance to the discharge of your duties.

As such, I am reasonably satisfied you are guilty of serious misconduct within the meaning of clause 9.4(a)(vii) of your contract of employment by engaging in an act or omission that could preclude or inhibit you from performing the duties of your position."

  1. [9]
    After recording the above findings, Mr Barnett then informed Mr Farquharson that he was "reasonably satisfied that you have been found guilty of serious misconduct within the meaning of clause 9.4(a)(vi) and/or (vii) of your contract of employment" by engaging in the conduct described at paragraph [4] above on the grounds set out in that same paragraph.
  1. [10]
    Having recorded the above findings Mr Barnett informed Mr Farquharson that he was "currently giving serious consideration to terminating your employment without payment of notice" and called upon the latter to respond, by 14 February 2017, as to why the proposed disciplinary action should not be taken.  (emphasis as per original letter)
  1. [11]
    In his response to the above correspondence Mr Farquharson stated:
  • Mr Barnett's letter seemed to support the assertion of a Detective Sergeant during the CCC interview that he (Farquharson) told Mr Scott that he had inspected the swab stall "on the day" to cut out that part of the discussion and move on with the Inquiry;
  • in response to that suggestion, he had told the CCC officer that he was clearly not in attendance on the race day and had nothing to gain by saying he was present;
  • he had inspected the swab stall, track crossing, wash bays and other related checks as a visual only prior to his annual leave (approximately two weeks before the race meeting).  "I have evidence to prove this fact.";
  • Mr Scott's line of questioning related to the overall validity for the swab room to be used as such on race day.  "At no stage did I infer that I was aware of any repairs carried out by builders or stewards to be met for the race meeting (P20 of Scott Inquiry transcript).";
  • "In fact Kwan Wolsey chaired this race meeting and it was her obligation, particularly as a Deputy Chief Steward, to step up and make any comment relating to race day checks and standards on that race day, rather than just sit there, say nothing when what I said may have been misleading, only to make comment during an adjournment when I was of the view I had made clarification that I did not carry out the race day inspection (P19 of Scott Inquiry transcript).  On the balance of probabilities, it is clear that this error was unintentional and in no way a deprivation of natural justice to Mr Scott.";
  • "I vehemently deny that I wilfully made a false statement or was dishonest regarding the inspection of the swab stall.  Your inference that Ms Wolsey would have had no reason to raise the issue during the adjournment as being the test is not sustainable.  It is quite possible Ms Wolsey did not pay proper attention to the statement I made on page 19 - line 21 that I did not inspect the swab stall but someone would have.  As mentioned, this was her opportunity and obligation to set the facts straight to an alleged misconception.  I am acutely aware every word stated at a Steward's inquiry is transcribed and is subject to intense scrutiny by experienced lawyers representing appellants at further hearings.  I am also fully aware that the Steward's report relating to a race meeting will publish the names of the officiating stewards of which I was not one on 13 September 2015.  It is therefore inconceivable that with over 30 years' experience in the racing industry, chairing thousands of Stewards' inquiries, that you form the belief that somehow I deliberately mislead the Inquiry knowing the statement to be false when these tests are applied.  On the balance of probabilities, the benefit would clearly reside in my favour.";
  • "You state that my response in denying that I have engaged in serious misconduct demonstrates no insight into the dishonesty.  With respect, you have completely misunderstood and/or misrepresented my response. … I was not deliberately dishonest therefore I have no reason to develop any insight into the word/s used by me during the Stewards' Inquiry."; and
  • "I disagree with your finding that I used the word 'on' instead of 'for' to shut the line of inquiry down.  The Inquiry was conducted over 3 days.  Mr Scott was given every opportunity to raise any matter he considered relevant.  Further, the Stewards' panel considered all of the evidence adduced by Mr Scott (and others) in determining the outcome of the matter.  There is no basis for you to make this finding in the circumstances.".
  1. [12]
    By way of letter dated 24 February 2017, Mr Barnett summarily dismissed Mr Farquharson from that same date on the basis he was reasonably satisfied that disciplinary action ought to be taken against him and, pursuant to clause 9.4 of his Contract of Employment, his employment ought to be terminated without payment of notice.

Evidence

  1. [13]
    Mr Farquharson said he commenced employment with Queensland Harness Racing Board in October 2007 as a Senior Stipendiary Steward, becoming the Chairman of Stewards in March 2012.  On 1 July 2016 he became an employee of Queensland Racing Integrity Commission upon the creation of that organisation.
  1. [14]
    At the time of the third day of the Scott Inquiry, 5 July 2016, he was responsible for a number of positive swab inquiries - which he estimated to be around 23 in number - and the organisation was relocating from Deagon and undergoing many transitional changes.  He did not realise it at the time but these factors placed him under additional pressures to those he would ordinarily have experienced in the normal course of his duties.
  1. [15]
    In terms of Ms Wolsey's comments to him during the adjournment on 5 July 2016, he understood them to be more inquisitive rather than challenging him about what he had said.  He did not place any real weight on what Ms Wolsey said as he believed that what he said at page 19 of the transcript of the Inquiry made it sufficiently clear that he was not in attendance at the race meeting in question.  In Mr Farquharson's view, if Ms Wolsey held some concern that he had misled the Inquiry then, as the Deputy Chairman of Stewards, she could have placed on record during the Inquiry any concerns that she may have held or corrected any inadvertent mistakes.
  1. [16]
    Under cross-examination Mr Farquharson acknowledged that the role of Chief Steward was one which required unquestioned integrity and that anyone performing that role had to be trusted by the Racing Integrity Commissioner, industry participants and the person's staff.  If the person was not trusted by all of those people they could not effectively perform the role of Chief Steward.
  1. [17]
    In the course of re-examination Mr Farquharson said that the connections of any racehorse witnessed the sterilization of the pan used to collect urine and the use of a control solution which is swirled around the pan and then tipped back into the control bottle.  The control solution, in the control bottle, is also used to rinse out the bottles used to collect the A and the B samples to make sure there is no contamination in the urine that is split into the two samples.  In response to a question from the Bench, Mr Farquharson said Mr Scott witnessed the collection of urine from his horse and signed the relevant paperwork to signify he had observed the process and was satisfied with the way the sample was collected.
  1. [18]
    Finally, Mr Farquharson said that given the specialised nature of his employment as a Chief Stipendiary Steward he had been unable to obtain permanent employment in a similar, or substantially similar, role to the one he held prior to his dismissal by QRIC.  At the time of the hearing he was employed in a temporary position as a Steward with the Tasmanian Office of Racing Integrity - a position he had obtained in early May 2017.
  1. [19]
    Mr Barnett said the reasons for his decision to terminate Mr Farquharson were embodied in his letters dated 6 and 24 February 2017 and that the decision to terminate was taken "following a comprehensive show cause process and my careful consideration of all the relevant evidence and submissions before me."
  1. [20]
    On 24 February 2017 he informed Mr Farquharson that he had come to a decision to terminate his contract but, as a courtesy, offered Mr Farquharson the opportunity to resign before he instigated the termination.  After Mr Farquharson "insisted on being terminated" he was formally advised of his termination and handed a letter to that effect.
  1. [21]
    Mr Barnett said that after Mr Farquharson was dismissed he became aware of an article published in "The Sunday Mail" on or about 4 March 2017.  In the article Mr Farquharson is attributed to have said "This is a farce.  I would do the same thing tomorrow." 
  1. [22]
    Mr Barnett also said that if the Queensland Industrial Relations Commission (QIRC) was minded to find that Mr Farquharson's dismissal was unfair (which was denied) he considered that reinstatement or re‑employment with QRIC was impracticable for the following reasons:

 "(a) The proven serious misconduct engaged in by the Applicant is completely contrary to the stated aims, objectives and legislative responsibilities of the QRIC as set out in the RI Act;

  1. (b)
    That misconduct was discovered after a complaint from the industry participant who was impacted by it and the nature and seriousness of the misconduct, now known, would severely damage the reputation of the QRIC in the racing industry if the Applicant were reinstated;
  2. (c)
    The direct quotes attributed to the Applicant in the newspaper article demonstrate a complete lack of understanding as to the abrogation of his professional responsibilities inherent in his misconduct, a failure to recognize the impact of his actions on Mr Neale Scott, and a complete lack of insight that his misconduct was in fact wrong (and he would do the same thing again);
  3. (d)
    The same comments also demonstrated a lack of respect for me personally and the term 'farce' reflect a contempt for me that makes any future working relationship with the Applicant untenable;
  4. (e)
    Reinstatement of the Applicant after serious misconduct has been proved would completely undermine the efforts by the Commission to build a relationship of trust and confidence with the broad racing industry based on a public commitment to transparency and enforcing high standards of integrity for QRIC officials, particularly those who exercise authority over racing participants".
  1. [23]
    Under cross-examination Mr Barnett indicated that he had only read the transcript of the third day of the Scott Inquiry, although he was aware it had run over three days.  When it was suggested to him that if he had read the full transcript to appreciate, for example, how Mr Farquharson treated Mr Scott through the Inquiry, Mr Barnett responded by saying "I was concerned with the matters of the 5th (July), specifically the questions and answers of relevance about the inspection of the swab.  I was aware that it was [a] continuing - an adjourned hearing."
  1. [24]
    When further questioned about the latitude Mr Farquharson had given to Mr Scott as to the areas of inquiry that he embarked upon, Mr Barnett indicated that he was "not in a position to disagree with that".  Pressed further about whether Mr Farquharson had given Mr Scott an opportunity to pursue lines of enquiry that might be relevant to his case and that such matters would be indicative that Mr Farquharson had behaved in an entirely professional way, Mr Barnett responded by saying "Yes, there's nothing that I am aware of that would indicate that Mr Scott had his avenues of inquiry in any way curtailed."
  1. [25]
    When asked to explain the contradiction between the answer given immediately above and the allegation in the second show cause letter to the effect Mr Farquharson had been untruthful to Mr Scott to cut a particular line of enquiry off, Mr Barnett (ultimately) said "I had read Mr Farquharson's interview with the CCC investigators, and in the course of that he made some comments in relation to his frustration with those matters".
  1. [26]
    After several questions about the length of the Stewards' Inquiry, the challenging approach taken by Mr Scott and the fact that Mr Farquharson told the CCC investigators he had a throbbing headache at the time, the following exchange occurred between Mr Ryan, Counsel for Mr Farquharson, and Mr Barnett (transcript 1-29):

  "So was that something that you had regard to at all, or was that something that you disregarded as far as your consideration? --- I noted the history of the matter, but I also noted that Mr Scott was entitled to raise the matter that he raised and entitled to get a truthful answer when he did.

  But did you consider that there were other possibilities in this case - accepting that, literally, the answers given by Mr Farquharson on page 20 weren't accurate, did you consider at all seriously the possibility that Mr Farquharson had simply misspoke and was confused or got it wrong when he said those things? --- No.

  Not at all? --- Not at all."

  1. [27]
    When asked again (at transcript 1-31) whether he ignored the possibility Mr Farquharson had simply misspoken, Mr Barnett said:

  " --- Not at all.  I took the view that actually Mr Farquharson was in charge of the proceedings.  It was up to him whether he answered the question - the inquiry put to him by Mr Scott, and he would do so having taken sufficient time to gather his thoughts and to provide a truthful answer.  That's the approach I took.  And having read the transcript and having seen that he made one followed by another followed by another definitive statements that were intended to convey a state of affairs - was completely wrong - that's - that's the view I took.

  Well - and that, perhaps, seems to be at the nub of your decision-making, that you came to the conclusion that he intended to make those ---? --- And then ---

  --- statements?  --- Sorry.  And then shortly after an adjournment, having been alerted to the error of his statements, he did not take any action thereafter to immediately correct the record."

  1. [28]
    Later, when it was put to him that the Stewards' Inquiry concerned a swab sample which contained a cobalt level over the prescribed limit, with the control sample not showing any contamination, thereby making the matters Mr Scott was raising an irrelevancy, Mr Barnett responded by saying (transcript 1-32) "No, it's not irrelevant.  It's not irrelevant, and he was entitled to raise it and - and, in my view entitled to get a truthful response when he did raise it".
  1. [29]
    Four paragraphs later the following exchange occurred between Mr Ryan and Mr Barnett:

"What I was suggesting to you before was that Mr Scott's line of inquiry was really an irrelevancy.  It was inconsequential? --- Well, let me put it this way.  Whether the condition of the stall subsequently had any impact on the - upon the - on the result is one issue, but he was entitled to raise it as a valid concern.

Well, yes, but the point about it is, if you had a concern about the misleading statements that were made, surely, in assessing the gravity of the misleading statements, whether they related to something at the very heart of the issue or whether they related to something that was irrelevant has to be important in assessing what disciplinary action you take, doesn't it? --- Well, perhaps, can I put [it] this way?  Mr Scott raised an issue, and it was shut down with two successive statements that were lies.  Well, they were incorrect, sorry, not correct.  They were - they were incorrect statements of the fact.  That stopped him pursuing it any further.  If he had wanted to - if he had been told no one actually inspected it on the day, that might have opened up other lines of inquiry for him, but he accepted the assertion that it had been inspected by Mr Farquharson on race day and moved on to other issues.

But he was perfectly entitled.  He could have raised any matter he liked.  Is - and that's the history of this inquiry.  He was given full rein to raise whatever he liked? --- And he did and - but in response to his valid line of inquiry, he was given incorrect information which effectively shut down that line of inquiry.

But you'd agree it had nothing at all to do with the outcome as to whether or not he was guilty of the offence charged? --- Well, that remains an unanswered question, I believe, because the state of the facility on that day has never actually been established, and it has never been established whether it was inspected, by whom and to what standard.

Well, the point about it is this, plainly, the real objective test in all of this as to whether there was - the issue's whether there was any contamination, isn't it? --- No, I - no, I - I disagree.  I believe that in the course of the hearing, the applicant's entitled to raise issues and have them dealt with truthfully and fairly, and I - and that didn't happen on this occasion."

  1. [30]
    When questioned about whether he had taken Mr Farquharson's 30 years of unblemished history into account, Mr Barnett said:
  • (at transcript 1-33) "I hadn't investigated that.  I wasn't aware of any - well, I hadn't investigated it so - so the answer is no, I'm not aware of any";
  • (at transcript 1-33) "I take account of all of the facts in coming to this decision, but I do not ignore the definitive, clear and unambiguous statements that were made on the day and the failure to correct them.  That was the key issue for me."; and
  • (at transcript 1-35) "… in my police career, I was seeing police with long and outstanding careers making critical mistakes late in their career that are unsurvivable.  It happens."
  1. [31]
    Notwithstanding his evidence (above) to the effect that he had considered Mr Farquharson's failure to correct the record, after Ms Wolsey questioned him during an adjournment, in reaching his decision to terminate Mr Farquharson, Mr Barnett somewhat withdrew from that position in the course of the following exchange with Mr Ryan (transcript 1-39, line 13):

  "But assuming that there was a failure to correct something that was left inaccurate on the record, that, I'm suggesting, might attract perhaps some disciplinary response, but it could only be that the response of dismissing him could only be if you formed a view completely that it was deliberate, and that seems, am I right in saying, to have been at the heart of your decision-making? --- Yes, I believed - I believed that his statements, repeated statements, were clear, unambiguous and designed to create a completely false impression."

  1. [32]
    Finally, Mr Barnett was questioned about "The Sunday Mail" extract, referred to in paragraph [21] above.  In the course of commenting on the article, Mr Barnett insisted that the words attributed to Mr Farquharson meant that the latter was stating that he would, in effect, lie again tomorrow.

Submissions

  1. [33]
    Each of Mr Ryan and Mr Farren, Counsel for QRIC, presented relatively tight and focused submissions in support of their respective client's cases.  As such, rather than attempt to summarise them, I have chosen to record the salient aspects of their respective submissions below.
  1. [34]
    Mr Ryan submitted:
  • because the dismissal was on the grounds of alleged serious misconduct, the onus of proving that ground shifts to the respondent employer;[1]
  • given the seriousness of the allegations, the standard of proof is at the higher end of the sliding scale under the Briginshaw[2] test;
  • this means that much stronger evidence than mere suspicion or an impression is required to establish that particular statements, such as the ones on page 20 of the Inquiry transcript, asserted to be false and deliberately made, can be concluded to a reasonable satisfaction;
  • in order to do so the party alleging the statements were made falsely must exclude all reasonable possibilities consistent with innocence, such as misstatement or error of recollection or confusion;
  • applying the proper onus of proof and standard of proof on the objective evidence, the dismissal of Mr Farquharson was:
  • unjust - because he was not guilty of misconduct, as alleged against him;
  • unreasonable - because the material before the employer did not support a conclusion of "misconduct";  and
  • harsh - because the dismissal was disproportionate to the conduct that could be established against him, i.e., he had misstated a position that went uncorrected;
  • the allegation in the second show cause letter of 6 February 2017 that Mr Farquharson made the statements, at page 20 of the Inquiry transcript, deliberately to shut down Mr Scott's line of inquiry is not supported by Mr Farquharson's handling of Mr Scott during the Inquiry as a whole.  The transcript across the three days of the Stewards' Inquiry reveals that Mr Scott was given more than reasonable latitude.  He was given every possible and imaginable opportunity to explore arguments, which were at times fanciful, to explain the presence of the high cobalt reading in the swab samples;
  • the transcript demonstrates that Mr Farquharson treated Mr Scott with courtesy and respect, which is inconsistent with a motive to conduct the proceedings in a dishonest way - which is the allegation Mr Barnett fastened on to;
  • if Mr Farquharson was trying to shut Mr Scott down he could simply have referred to the absence of any contamination in the control sample and told Mr Scott there was nothing in his point and to "move on";
  • there was no basis for Mr Barnett to decide there was no other conclusion to be drawn other than that Mr Farquharson was being deliberately untruthful to Mr Scott;
  • given his statements at page 19 of the Inquiry transcript there is, at the very least, an inference to be drawn that Mr Farquharson misspoke and, applying the standard of proof required, such inference cannot be excluded;
  • Mr Farquharson did not dispute the fact that Ms Wolsey had a conversation with him during an adjournment but, importantly, he did not challenge her or assert to her that she was wrong - which is what one would expect if he was attempting to be deliberately dishonest;
  • given the nature of the Hearing, and the way Ms Wolsey raised the matter with him, it is hardly surprising that the nature of his error did not fully register with him at the time.  Relevantly, neither Ms Wolsey nor Mr Torpey thought the issue to be important enough to raise the matter, or correct the record, when the Inquiry resumed; and
  • Mr Barnett made his determination on a literal interpretation of the passage on page 20 of the Inquiry transcript without regard to the context in which it was made.  He failed to consider the possibility that Mr Farquharson simply expressed himself wrongly.  He made an assumption that it was a deliberate untruth and it was serious misconduct in a way which ought to result in Mr Farquharson's dismissal.
  1. [35]
    Mr Farren submitted:
  • Mr Farquharson was dismissed because Mr Barnett was satisfied he was guilty of serious misconduct within the meaning of clauses 9.4(a)(vi) and (vii) of his Contract of Employment by providing untruthful answers to questions raised by Mr Scott about whether the swab stall had been inspected and deemed to be fit and proper for the purposes of taking swabs;
  • the untruthful answers to Mr Scott's questions had been given not only because the Inquiry had been long, drawn out and difficult - with Mr Scott chasing every rabbit down every burrow - but also because Mr Scott had made a fool of the entire panel by revealing that the swab stall was used for the first time on the day his horse had been swabbed;
  • it was immediately after Mr Scott caught the panel out that what Mr Barnett found to be repeated false statements were made by Mr Farquharson;
  • the inference was drawn that Mr Farquharson did this to shut Mr Scott's line of questioning down, with any reasonable reading of the transcript showing that is exactly what happened;
  • the respondent accepted it had the burden of establishing that Mr Farquharson had engaged in serious misconduct, but it was still necessary for the applicant to establish that his dismissal was unfair within the meaning of the legislation;
  • whether a dismissal is harsh, unjust or unreasonable is a mixed question of law and fact to be determined by the QIRC;
  • in this case, the applicant's dismissal could not be said to be unfair because Mr Farquharson accepts that his (former) position of Chief Steward is one which requires utmost and unquestionable integrity - a point reflected in clause 9.4 of his Contract of Employment;
  • while a single act of dishonesty will not automatically render a dismissal fair, just and reasonable[3] the fact is that Mr Farquharson's contract did not require any misconduct on his part to be repeated before his employment could be terminated;
  • " … the preponderance of credible evidence is that the applicant did, in fact, engage in serious misconduct as defined in clauses 9.4(a)(vi) and (vii) of his contract and as found by the respondent.  The applicant's dishonesty in the course of conducting the Scott Hearing was deliberate and was left uncorrected by the applicant despite being challenged by another member of the Hearing panel.  The applicant, in the show cause process, and, again, before the QIRC, has attempted to place a gloss upon his serious misconduct by seeking to characterize it as a mere slip.  In my submission, your Honour, the evidence simply does not support that contention";
  • "the applicant's serious misconduct and lack of insight, remorse and contrition led the respondent, through the Commissioner, to correctly determine that the necessary trust and confidence in the applicant had been destroyed and that, in accordance with his contract, his employment ought to be terminated";
  • Stewards' Inquiry panel members are effectively the investigators, the prosecutors - which Mr Farquharson plainly considered himself to be and primarily saw himself to be - then, supposedly, the fair hearers and determiners of the charges which they themselves prefer.  "It was clearly the Commissioner's view - and, in my submission, an entirely appropriate view - that when members come before these hearings they are not only entitled to a fair hearing, but they are also entitled to scrupulous honesty and honest dealings from the tribunal members they appear before";
  • " … the name of the respondent is the Queensland Racing Integrity Commission … if the Chief Steward does not behave with utmost honesty and integrity in the course of a hearing then the entire purpose of the Commission's existence … is defeated";
  • " … reinstatement and re-employment are impracticable because the applicant's conduct both before and since his dismissal has destroyed the relationship of trust and confidence between the applicant and the respondent for the sound and rational reasons given by Mr Barnett in his evidence. … When an employer makes the claim that reinstatement or re-employment are impracticable because of the loss of trust and confidence, your Honour must examine those claims carefully …".  On Mr Barnett's evidence, it is inescapable that the relationship between he, as Commissioner, and Mr Farquharson, as a potentially reinstated Chief Steward, is irrevocably broken and, therefore, reinstatement or re-employment is impracticable; and
  • since being terminated the applicant chose to draw public attention to his dismissal and to publicly criticise Mr Barnett's decision in what could only be described as pejorative and insulting terms.  "Referring to his decision as a farce, in particular, … has further demonstrated that he holds Mr Barnett in contempt and there can be no relationship of trust and confidence" between them again.

 Conclusion

 Did Mr Farquharson engage in serious misconduct as it is defined in clause 9.4(a)(vi) and (vii) of his contract?

  1. [36]
    As noted above, the respondent accepts that it has the burden of proving, on the Briginshaw standard, that Mr Farquharson engaged in serious misconduct.  Put simply, it has failed to do so.  I set out below my reasons for coming to that conclusion by dealing with each of the three elements of his Contract of Employment he was found to have breached.

Did Mr Farquharson engage in an act of dishonesty?

  1. [37]
    In the course of the CCC interview and again in his responses to Mr Barnett's show cause letters, Mr Farquharson asserted numerous times that he had simply misspoken by using the word "on" when he should have said "for".  However, Mr Barnett decided not to seriously consider Mr Farquharson's explanation choosing, instead, to come to the conclusion that Mr Farquharson's statements to Mr Scott were repeated and "… were clear, unambiguous and designed to create a false impression".  Indeed, when asked by Mr Ryan whether he had considered the possibility that Mr Farquharson had simply misspoken, was confused or got it wrong, Mr Barnett emphatically responded "No … Not at all." (see the full exchange at paragraphs [26] and [27] above).
  1. [38]
    Although Mr Barnett also claimed to have taken into account - in reaching his conclusion that Mr Farquharson had deliberately misled Mr Scott - the fact that Mr Farquharson failed to correct his error after Ms Wolsey spoke to him during the adjournment, I am far from convinced that this was the case (see Mr Barnett's evidence at paragraph [31] above).  In any event, what is readily apparent is that Mr Barnett twice chose to ignore, or otherwise disregard, Mr Farquharson's comments and responses concerning the discussion between Ms Wolsey and himself.
  1. [39]
    Firstly, in the course of his CCC interview [lines 1340-1355] on 14 November 2016, Mr Farquharson was asked about the exchange between Ms Wolsey and himself during the adjournment of the Scott Inquiry on 5 July 2016.  In the course of his interview he is recorded as having said "… Kwan Wolsey … said 'you weren't there on race day' and I said 'yeah I know'.  She said 'well you said you were (there) on race day'. … I said 'Oh no I meant for, I inspected it for race day'. … "She's (said) 'Oh'.  And I didn't really pick up … the relevance of that other than she did say that 'Oh you know, you said you were there and you weren't there'.  I said 'Oh ah okay'.  It came across (that) way, yep".
  1. [40]
    Secondly, Mr Farquharson clearly articulated his version of the full conversation with Ms Wolsey in his undated response to Mr Barnett's first show cause letter. In doing so he acknowledged that Ms Wolsey spoke to him and said words to the effect "you weren't there on race day" with his response being "yeah I know … I meant I inspected it for race day".  Notwithstanding Mr Farquharson's response, Mr Barnett failed to mention it when he asserted in his second show cause letter, of 6 February 2017, that Mr Farquharson had "admitted" the allegations against him - including allegation 9 (see paragraph 4 above).
  1. [41]
    Importantly, Mr Farquharson was not challenged in cross-examination about the accuracy of his response to Ms Wolsey's comments during the adjournment, as given to the CCC investigators and to Mr Barnett.  As such, and noting that Ms Wolsey was not called to give evidence to contradict Mr Farquharson, I conclude that he did tell Ms Wolsey, on 5 July 2016, that while he did say "on" he meant to say "for".  Relevantly, neither Ms Wolsey nor Mr Torpey suggested to Mr Farquharson that he should correct the error.
  1. [42]
    Should the record have been corrected?  Undoubtedly, in an ideal world, it should have been.  Did Mr Farquharson mislead Mr Scott by not correcting the record?  Possibly he did.  Did Mr Farquharson deliberately mislead Mr Scott?  No.  He made a mistake and neither he, nor Ms Wolsey or Mr Torpey thought his error to be sufficiently important, in the context of the Inquiry at that time, that it needed to be corrected.  I highlight "at that time" because the adjournment in question was taken (at page 34 of the Inquiry transcript), after all the evidence was given and submissions received, for the purpose of allowing the three members of the Stewards' Inquiry to consider whether the charge laid against Mr Scott had been sustained.  Viewed in context, their respective minds had moved beyond the fact that Mr Farquharson had said "on" when he actually meant to say "for" to other matters of much more significance.  In this respect, the issue of whether the swab stall was constructed the day before the race meeting or the year before had little or no relevance to the swab readings.  Both the A and B samples had high cobalt readings while the control sample had none.  This showed there was no contamination present, making the state of the swab stall an irrelevancy.  Not surprisingly, in those circumstances, no-one thought about correcting the record.
  1. [43]
    In light of my finding that Mr Farquharson did not deliberately mislead Mr Scott, and that his failure to correct the record was both innocent and understandable, it follows that he did not commit an act of dishonesty or fraud within the meaning of clause 9.4(a)(vi) of his Contract of Employment.

Did Mr Farquharson commit an act or omission that could negatively affect the reputation or good standing of QRIC?

  1. [44]
    Mr Barnett's finding that Mr Farquharson engaged in an act or omission that could negatively affect the reputation or good standing of QRIC was predicated on his finding that the latter had "dishonestly made false statements in the course of chairing a Stewards' Inquiry".  However, in light of my finding that Mr Farquharson did not act dishonestly, Mr Barnett's conclusion cannot stand.  Nonetheless, because Mr Farquharson did not correct the record after his mistaken use of the word "on" was brought to his attention by Ms Wolsey, I shall consider whether such failure could negatively affect the reputation or good standing of the QRIC.
  1. [45]
    While it would have been preferable for Mr Farquharson to have corrected the record, I do not believe that his failure to do so, in the circumstances of this case, could negatively affect the reputation and good standing of QRIC to the degree necessary to support a finding of serious misconduct.  While he did create a false impression to Mr Scott, that was because he made a mistake.  He also made a mistake by not correcting the record but, as I have explained above, the circumstances and reasons for that are both explainable and understandable.
  1. [46]
    Indeed all factors properly considered, Mr Farquharson's failure to correct the record could not even be categorized as misconduct.  This is because "misconduct" generally involves something more than an error of judgement, an innocent mistake or plain negligence.  The term usually implies an act wilfully undertaken with wrong intentions.  None of those latter circumstances existed here.
  1. [47]
    Mr Farquharson's failure to correct the record is probably best described as an error of judgement, rather than negligence, but however his failure might be described, it would strain the English language to say that his failure, in the circumstances of this case viewed as a whole, could negatively impact the reputation or good standing of QRIC.

Did Mr Farquharson commit an act or omission that could preclude or inhibit him from performing the duties of Chief Stipendiary Steward - Harness?

  1. [48]
    Mr Barnett's findings and comments in connection with this allegation were, again, underpinned by his earlier finding that Mr Farquharson had been deliberately dishonest in his statements to Mr Scott.  I have found this not to be the case.  Nonetheless, it is necessary to consider whether Mr Farquharson's actions and behaviour on 5 July 2016 were such that they could preclude or inhibit him from performing the duties of the position of Chief Stipendiary Steward - Harness.
  1. [49]
    In my considered view, any reasonably open-minded industry participant who was appraised of Mr Farquharson's mistakes, and the circumstances under which those mistakes occurred, would, if also informed of his previous 30 years of unblemished history, forgive him his error and continue to accept him as being able to perform the role of Chief Stipendiary Steward with integrity, total honesty, and professionalism.  This is because his actions on 5 July 2016 were not pre-determined or deliberate.  He simply made a mistake.  His actions on the day in question, properly explained, would not, now, preclude or inhibit him from performing the duties of the position.

Was Mr Farquharson's dismissal "unfair" within the meaning of s 73 of the Act?

  1. [50]
    As a result of my finding (above) that Mr Farquharson did not engage in serious misconduct, or even misconduct, it is necessary to consider whether his termination, in all of the circumstances, was harsh, unjust or unreasonable.  After careful consideration I have concluded that it was.
  1. [51]
    In this respect, s 77 of the Act relevantly provides:

77 Matters to be considered in deciding an application

 In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  1. (b)
    whether the dismissal related to -
  1. (i)
    the operational requirements of the employer's undertaking, establishment or service; or
  2. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance -
  1. (i)
    whether the employee had been warned about the conduct, capacity or performance; or
  2. (ii)
    whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant.
  1. [52]
    It is clear from the facts recorded above that:
  • Mr Farquharson was notified of the reasons for his dismissal (s. 77(a));
  • his dismissal related to his (alleged) conduct, capacity or performance (s. 77(b)(ii)); and
  • he was given an opportunity to respond to the allegation about his conduct, capacity or performance (s 77(c)(ii)).
  1. [53]
    In terms of s 77(d), Sheppard and Heerey JJ, in Bostik (Australia) Pty Ltd v Gorgevski (No. 1),[4] said of the phrase "harsh, unjust, unreasonable":

 "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."

  1. [54]
    While I have found that Mr Farquharson made a mistake, and compounded that mistake by not correcting the record, Mr Barnett viewed Mr Farquharson's actions as being deliberately dishonest and taken to close down a particular line of inquiry which Mr Scott was pursuing.  In doing so, Mr Barnett chose not to consider any other reasons for Mr Farquharson's actions other than that they were deliberate "and designed to create a false impression".  In that respect, I agree with Mr Ryan's submission that Mr Barnett saw things in a very black and white way - making no allowance for any other possibilities other than untruthfulness on the part of Mr Farquharson.
  1. [55]
    In reaching his decision that Mr Farquharson's actions were deliberate, and that his employment should be terminated for serious misconduct, Mr Barnett:
  • failed to consider any other possible explanation for Mr Farquharson's actions other than that they were deliberate and designed to mislead Mr Scott;
  • failed to give Mr Farquharson any benefit of the doubt;
  • failed to look at how Mr Farquharson had treated Mr Scott during the previous two days of the Stewards' Inquiry and to consider whether the events recorded at page 20 of the transcript were an aberration or otherwise explainable;
  • failed to consider Mr Farquharson's previous 30 year unblemished record - saying he did not look at this history; and
  • failed to consider the impact the decision would have on Mr Farquharson's career and future livelihood.
  1. [56]
    Further, while I do agree with Mr Barnett's view that the overall importance of the matter being pursued by Mr Scott would not have been relevant had Mr Farquharson deliberately misled Mr Scott, I do not agree that the relative lack of importance of the matter is not something to be taken into account in deciding Mr Farquharson's fate where his actions were not deliberate.  In this respect, as I noted above (see paragraph [42]), the state of the swab stall had little or no relevance to the swab result.  It was, to borrow from Mr Ryan's questions to Mr Barnett, inconsequential and should have been considered as such by Mr Barnett.
  1. [57]
    In the end result, because of my findings, the question to be asked (and answered) is whether Mr Barnett's decision to terminate Mr Farquharson's employment, in all of the circumstances, because he made a mistake and then failed to correct it, was harsh, unjust or unreasonable.
  1. [58]
    In deciding that it was, I have not only taken into consideration the matters recorded in paragraphs [54] to [56] above, but have also taken into account the following matters:
  • Mr Farquharson's use of the word "on" instead of "for" was a mistake, and not deliberate;
  • Mr Farquharson did not realise the significance of his mistake at the time it was made, nor after Ms Wolsey spoke to him in the adjournment;
  • in light of the fact that Ms Wolsey did not press the point, and given the stage at which the Stewards' Inquiry was at, Mr Farquharson did not think any more about the fact that he might have needed to correct the record;
  • Mr Farquharson's failure to correct the record constituted an error of judgement or, at the very worst, negligence;
  • irrespective of whether his failure constituted an error of judgement or negligence, the appropriate action for Mr Barnett to have considered taking - given Mr Farquharson's previous unblemished work history - would have been either a reprimand or a warning.

Remedy

  1. [59]
    Section 78 of the Act provides:

 78 Remedies - reinstatement or re-employment

  1. (1)
    This section applies if the commission is satisfied an employee was unfairly dismissed;
  1. (2)
    The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before the dismissal;
  1. (3)
    If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.
  1. (4)
    The commission may also -
  1. (a)
    make an order it considers necessary to maintain the continuity of the employee's employment or service; and
  2. (b)
    order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and
  3. (c)
    order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.
  1. (5)
    This section does not limit the commission's power to make an interim or interlocutory order.
  1. [60]
    As is readily apparent, the primary remedy under the Act if the QIRC decides that an employee was unfairly dismissed is reinstatement.  Given this, I turn now to consider whether Mr Farquharson's reinstatement is impracticable.
  1. [61]
    In Perkins v Grace Worldwide (Aust) Pty Ltd[5] the Full Court of the Industrial Relations Court (Wilcox CJ, Marshall and North JJ) said of the practicability of reinstatement:

"Each case must be decided on its own merits.  There may be cases where any ripple on the surface of the employment relationship will destroy its viability.  For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability.  There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information.  But those are relatively uncommon situations.  In most cases the employment relationship is capable of withstanding some friction and doubts.  Trust and confidence are concepts of degree.  It is rare for any human being to have total trust in another.  What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.  Whether that standard is reached in any particular case must depend upon the circumstances of the particular case.  And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing.  The requirement may cause inconvenience to the employer.  But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee.  The problems will be of the employer's own making.  If the employer is of even average fair-mindedness, they are likely to prove short-lived.  Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable."

  1. [62]
    In this case, Mr Barnett has strongly asserted that reinstatement or re-employment of Mr Farquharson would be impracticable for the five reasons recorded in paragraph [22] above.  Three of the reasons advanced are directly based on Mr Barnett's belief that Mr Farquharson deliberately misled Mr Scott during the final day of the Stewards' Inquiry and that such behaviour had completely destroyed the requisite trust between he, as the Commissioner for Racing Integrity, the broader racing community and Mr Farquharson, as Chief Stipendiary Steward - Harness.
  1. [63]
    The remaining two grounds essentially concern 'The Sunday Mail" article (written by Nathan Exelby, a sports writer, under the banner "The Verdict"), dated 5 March 2017, and Mr Barnett's interpretation of its content.  The full text of that article is as follows:

  "Sacking angers Steward

  DISMISSED harness racing chief steward David Farquharson has described his sacking as "a farce" and has sought advice as to whether he has grounds for a wrongful dismissal case against the Queensland Racing Integrity Commission.

  Farquharson was stood down in December last year after a complaint was made to QRIC by a racing participant.

  Integrity commissioner Ross Barnett then ordered an independent external investigation and after being handed the findings, dismissed Farquharson nine days ago.

  Barnett said no further comment would be made, but Farquharson has spoken out about the decision.

  'This is just a farce.  I would do the same thing again tomorrow'.  Farquharson said of the behaviour in question, which has not been disclosed.

  'I've been a steward in different parts of this country for 30 years and I have no regrets in getting rid of drug cheats and prosecuting the people doing the wrong thing.

  A charge of misconduct from a person (Barnett) that's only known me since July has ruined my career.

  I vehemently deny any allegations of serious misconduct and will be considering my legal options.'"

  1. [64]
    Based on his reading of the article, Mr Barnett asserted the words attributed to Mr Farquharson about doing "the same thing tomorrow" demonstrated his "complete lack of insight that his misconduct was in fact wrong".  With respect to Mr Barnett, such interpretation is unduly narrow and totally at odds with the words attributed to Mr Farquharson in the following paragraph.  Mr Farquharson was clearly talking about the Scott Inquiry outcome and not the misconduct he had allegedly engaged in.
  1. [65]
    Mr Farquharson said he had no recollection as to the exact content of his conversation with Mr Exelby other than he felt "hard done by in the circumstances in which I was dismissed".  When pressed as to whether he used the word "farce" Mr Farquharson said he could not be sure, but it was a word Mr Exelby used most weeks.  Pressed further about whether he expressed the view publicly that his dismissal was a farce or absurd, Mr Farquharson replied "No, I expressed the view that I felt I was unfairly dismissed.  I did not give any specifics about the case.  I couldn't talk about the case and there are no details in Mr Exelby's column".
  1. [66]
    While Mr Farquharson's views about his treatment should have been kept to himself, and not made to a reporter chasing a story, I can well understand his decision to talk publicly about what he saw as his unfair treatment.  Mr Farquharson seemed, on my short observation of him, to be a rather unsophisticated, "salt-of-the-earth", sort of man who rose up through the stewards' ranks - across a number of States - to eventually become the Chief Stipendiary Steward of the harness racing industry in Queensland.  His sudden summary dismissal for serious misconduct (in circumstances where he believed he was innocent) would have come as quite a shock.  After 30 years in the industry he was suddenly out of a job, with his career and future prospects in tatters.  Without thinking about the repercussions he "vented" to Mr Exelby.
  1. [67]
    The challenging question now confronting me is whether Mr Farquharson's "vent" makes his reinstatement to his former position impracticable.  After thinking about the matter carefully I have concluded that it does not.
  1. [68]
    In Perkins, the Full Court noted that in Nicholson v Heaven and Earth Gallery Pty Limited[6] Wilcox CJ said:

 "It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible.  The word 'impracticable' requires the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way.  If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable' to order reinstatement, notwithstanding that the job remains available."

  1. [69]
    As further noted by the Full Court in Perkins, the employment relationship is capable of withstanding some friction and doubts and that trust and confidence are concepts of degree.  While Mr Barnett asserts that he no longer has trust and confidence in Mr Farquharson that is because he believed the latter was guilty of misconduct by being deliberately untruthful to Mr Scott.  In coming to that conclusion, however, he closed his mind to any other possible reason for Mr Farquharson's behaviour.  Now that his decision has been reviewed and overturned by a Tribunal charged with the responsibility to review decisions of the type that he made, I am confident that Mr Barnett will step back and accept that he might have made a mistake and perhaps he should have given Mr Farquharson the benefit of the doubt.  In this respect Mr Farquharson has made it plain that he wishes to return to his former position notwithstanding his treatment.
  1. [70]
    In stating that I am confident Mr Barnett will accept the overturning of his decision, I note his long and distinguished service as a police officer, rising to the equal second highest rank in that service, and the fact that he is well used to following decisions from Courts and Tribunals - even those with which he might personally disagree.  While my decision might be inconvenient and disappointing to him, I consider he is capable of re‑establishing an appropriate and professional working relationship with Mr Farquharson.
  1. [71]
    In any event, this is not a case where Mr Farquharson actually engaged in misconduct,  He simply made a mistake and then failed to correct it.  It was not serious misconduct and it was not a dismissible offence.  In considering the matter of reinstatement in a common sense way, it seems to me that it would be a travesty of justice if Mr Farquharson was not reinstated to his former position simply because the person who, I have found, unfairly dismissed him objects to his return.  Far stronger grounds than that are required before reinstatement could become impracticable.

Orders

  1. [72]
    For the foregoing reasons, I make the following Orders:
  1. That Mr Farquharson be reinstated to his former position of Chief Stipendiary Steward - Harness, with the Queensland Racing Integrity Commission from 24 February 2017.
  1. That Mr Farquharson's continuity of employment be maintained for all purposes of his Contract of Employment - both written and legislatively provided.
  1. That Mr Farquharson be paid any remuneration lost since his dismissal after taking into account any employment benefits or wages received by him since his dismissal.
  1. That the parties discuss, with the intention of agreeing, how any statutory entitlements paid to Mr Farquharson at the time of his original termination are to be treated.  In the event the parties are unable to agree, liberty to apply is granted.

Footnotes

[1] Lamb v Redland City Council [2014] QIRC 041 at [4].

[2] Briginshaw v Briginshaw [1938] 60 CLR 337 at 362.

[3] APS Group (Placements) Pty Ltd v O'Loughlin [2011] FWAFB 5230, [56].

[4] Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 36 FCR 20 at 28.

[5] Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15, 72 IR 186.

[6] Nicholson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199 at 210.

Close

Editorial Notes

  • Published Case Name:

    Farquharson v Queensland Racing Integrity Commission

  • Shortened Case Name:

    Farquharson v Queensland Racing Integrity Commission

  • MNC:

    [2018] QIRC 1

  • Court:

    QIRC

  • Judge(s):

    Bloomfield DP

  • Date:

    08 Jan 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
APS Group (Placements) Pty Ltd v O'Loughlin [2011] FWAFB 5230
2 citations
Jump To
Cite 1 - [2011] FWAFB 5230
Cite 2 - [2011] FWAFB 5230
Bostik (Aust) Pty Ltd v Gorgevski (1992) 36 FCR 20
2 citations
Jump To
Cite 1 - (1992) 36 FCR 20
Cite 2 - (1992) 36 FCR 20
Briginshaw v Briginshaw [1938] 60 CLR 337
2 citations
Jump To
Cite 1 - [1938] 60 CLR 337
Cite 2 - [1938] 60 CLR 337
Lamb v Redland City Council [2014] QIRC 41
2 citations
Jump To
Cite 1 - [2014] QIRC 41
Cite 2 - [2014] QIRC 41
Nicholson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199
2 citations
Jump To
Cite 1 - (1994) 1 IRCR 199
Cite 2 - (1994) 1 IRCR 199
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
2 citations
Jump To
Cite 1 - (1997) 72 IR 186
Cite 2 - (1997) 72 IR 186
Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15
2 citations
Jump To
Cite 1 - [1997] IRCA 15
Cite 2 - [1997] IRCA 15

Cases Citing

Case NameFull CitationFrequency
Thomson v Brisbane City Council [2021] QIRC 4292 citations
1

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