Blackwell and CPSU v Australian Protective Service

[1997] IRCA 201

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment - misconduct

Workplace Relations Act 1996 ss.170DC, 170DE, 170EA

CASES:

Victoria v the Commonwealth (1996) 138 ALR at 120

Smoker v Nettlefold, (IRCA, unreported, Lee J, 4 October 1996)

Thomas v Ralph Lynch, (IRCA, unreported, Marshall J, 7 October 1996)

Kerr v Jaroma, (IRCA, unreported, Marshall J, 7 October 1996)

Weston v Union de Assurance de Paris, (IRCA, unreported, Madgwick J, 23 December 1996)

Yew v ACI Glass Packaging Pty Limited, (IRCA, unreported, Wilcox CJ, 11 December 1996)

Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371

Eshak v Public Transport Corporation (IRCA, unreported, Marshall J, 30 August 1996)

PAUL BLACKWELL & CPSU -v- AUSTRALIAN PROTECTIVE SERVICE

No. VI-1013 of 1997

Before:  Ryan JR
Place:  Melbourne
Date:  9 May 1997

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-1013 of 1997

B E T W E E N :

PAUL BLACKWELL & CPSU
Applicant

AND

AUSTRALIAN PROTECTIVE SERVICE
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan       9 May 1997

THE COURT ORDERS:

1. That the application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-1013 of 1997

B E T W E E N :

PAUL BLACKWELL & CPSU
Applicant

AND

AUSTRALIAN PROTECTIVE SERVICE
Respondent

Before:       Ryan JR
Place:          Melbourne
Date:           9 May 1997

REASONS FOR JUDGMENT
(Delivered Ex Tempore)

The applicant claims unlawful termination of employment. He seeks reinstatement. He asserts that the respondent, Australian Protective Service, has breached ss170DE(1) and 170DC of what is now the Workplace Relations Act 1996.

On 23 October 1996 the applicant was given Notice of Direction under sub-section 62(6)(b) of the Public Service Act 1922 that he be dismissed from the service with the dismissal to take effect on 27 November 1996. The termination of employment resulted from an incident early in the morning of Tuesday, 8 August 1995 when the respondent alleges the applicant failed to provide appropriate security protection for Melbourne Airport.

On the afternoon of 8 August at approximately 1520 hours Inspector Dalla Riva of APS was informed by Mr Fred Dosser of Federal Airports Corporation,  that he had just received an anonymous phone call direct to his line without a call going through the switchboard.  The anonymous caller complained that at 0045 hours, a quarter to one in the morning of 8 August the caller saw the APS station vehicle leave the Melbourne Airport terminal building with six APS officers and that the terminal was left unattended by APS security officers for 2 hours until 0245, that is 2.45 am.

Inspector Dalla Riva promptly reported in writing to the APS Superintendent at Melbourne Airport, Superintendent Porter.  Mr Porter spoke to the Regional Commander, Southern Region, and reported in writing immediately recommending an inquiry by a senior officer independent of Melbourne Airport.  Superintendent Porter enclosed photocopies of a duty roster for 7 and 8 August, a daily statistic sheet and a patrol verification record for the APS night shift from 6 pm 7 August to 6 am 8 August.  Mr Porter also gave evidence in these proceedings.

The applicant was the shift supervisor on duty at Melbourne Airport and Superintendent Porter indicated that the documentation confirmed that to be the case.  At about 5 pm, about 1 hour and 40 minutes after Inspector Dalla Riva received the report of the anonymous complaint, Anthony Bridges, Regional Commander, met the applicant and the other night shift officers. Mr Bridges also gave evidence in these proceedings.  The meeting had been arranged in advance and had nothing to do with the reported security breach between 1 am and 2.30 am earlier that day.

The meeting appears to have been arranged to allow the new Commander to meet the night shift officers and to allow the officers to raise various matters with the new Commander.  Counsel for the applicant places some significance on the fact that, at this meeting, the applicant openly indicated that he and his night shift team had met earlier that day to discuss the matters the officers wished to raise with Commander Bridges.  A file note signed by Acting Superintendent Cattanach provides some degree of confirmation, or at least a repetition by the applicant, that he had admitted at the meeting with Commander Bridges, that he had taken all the members of the night shift from the airport terminal.

While I am not convinced from the totality of the evidence that the applicant made such a clear admission at that meeting, I am prepared to assume that this was the case. Certainly the applicant did not seek to conceal the early morning meeting.  The file note, exhibit R1.8, reads as follows:

“Telephone conversation with SPSO Blackwell on 9 August 1995 at 1625 hours SPSO. Blackwell contacted me to find out as to why I wanted to meet him on Monday 14 August 1995.  I informed him that I had had a complaint from the FAC that he had taken all the members from the airport.  He said that he had in order that his shift could have a shift meeting. He also stated that he had mentioned that he had done it before at the shift meeting that was held on 8 August 1995 with the Regional Commander and myself.  I said that I would discuss it with him on Monday and if he required an observer he was entitled.  He said: no.  That he felt we could discuss this problem through. I said that I hoped so as I would have to reply to the client.  I confirmed that the meeting between us was at 1600 hours on Monday 14 August 1995.  IR Cattanach, Acting Superintendent.”

On 14 August Inspector Cattanach interviewed the applicant as part of a preliminary investigation into an apparent unauthorised meeting in the APS station near the airport terminal early in the morning of 8 August.

On 16 August Inspector Cattanach recommended to Commander Bridges that the applicant be removed from the Melbourne Airport and that APS National Headquarters determine what disciplinary action might be required.

On 18 August Commander Bridges proposed to Paul Smith, APS Canberra that APS formulate charges against the applicant for the complaint made by FAC and that the remaining evidence be referred to the appointed investigator from MPRA to investigate.

On 23 August a delegate of the Secretary of the Attorney-General's Department issued a Direction under section 63(B) of the Public Service Act1922.  The delegate indicated that he had considered a statement furnished by the applicant and was of the opinion that it would be prejudicial to the effective operation of the service for the applicant to continue to perform the duties of his existing office pending a decision whether he was to be charged with misconduct.  The applicant was directed to report for duty at the Maribyrnong Immigration Detention Centre (IDC) and to perform duties as set out in the direction.

On 5 December 1995 the applicant was notified that he had been charged with misconduct under sections 55 and 56 of the Public Service Act 1922 and that an inquiry would be held under section 62 of the Act. The charge was that the applicant had failed to fulfil his duty as an officer in that he failed to comply with regulation 8A(a) of the Public Service Regulations.

The particulars were that during the night shift of 7 August to 8 August 1995 at Melbourne Airport during which time he was the shift supervisor the applicant did not perform with skill, care and diligence the duties of his office to the best of his ability in that:

(a)he failed to appropriately deploy the officers under his supervision so as to provide appropriate security protection for Melbourne Airport, in particular:

(i)by holding a meeting of APS officers on duty during that shift in the APS station facility at Melbourne Airport from approximately 1 am to 2.30 am on 8 August 1995;

(ii)by permitting the non-performance of foot and vehicular patrols required by the Australian Protective Service Melbourne International Airport Local Procedures during the period of that meeting;

(b)he directed one of the officers on the shift, PSO P.Beames, to use an APS vehicle for the purpose of disguising that the vehicle had not been used to perform patrols of the airport during the said meeting of officers, and

(c)he permitted the completion of a patrol verification record by one of the officers on the shift, PSO S. Eddington, which was not an accurate record of patrols performed during the shift.

During the course of this trial the respondent tendered a variety of documents which indicated the rather slow process of the Public Service Inquiry from early December 1995 to late June 1996.  In particular I refer to exhibits R1.21 to R1.33.

On 27 June 1996 the Inquiry Officer found the charge of misconduct proven and expressed the view that action other than counselling was necessary. 

On 18 July 1996 Commander Bridges formally advised the Inquiry Officer that Superintendent Porter as OIC Melbourne Airport had not formally counselled or warned the applicant on any aspect of his conduct during the two years they were located at Melbourne Airport.

Inspector Donald, OIC Maribyrnong IDC, had stated that the applicant's conduct since transferring to the IDC had been satisfactory and that he had had no reason to formally counsel the applicant on any matter relating to his performance or conduct.

The formal advice from Commander Bridges continued in paragraphs 3 to 5 of exhibit R1.34 as follows:

1. In regard to earlier records a file exists which contains complaints against Mr Blackwell in 1992 and the subsequent investigation report recommending two courses of action which were implemented.  Rather than commenting on the process or outcomes and whether they are relevant to your inquiry I have included the file for your perusal and assessment.

1. As you would be aware a separate investigation has been undertaken into recent allegations from staff concerning Mr Blackwell and action is being considered in relation to whether charges should be laid in respect of that investigation. As no decision has yet been reached on those matters I believe that it would be inappropriate for me to anticipate an outcome of that process or to take those matters into account when considering the issue you are dealing with.

1. Suffice to say that I believe the particular matter on which you have found the charge proven is a serious breach of Mr Blackwell's responsibilities to the staff he supervised and to our clients.  The removal of an effective CTFR (counter terrorist first response capacity), from Melbourne Airport for an extended period had political ramifications and Australia's international reputation could have been seriously jeopardised had an incident occurred whilst Mr Blackwell conducted the meeting.  The penalty to Mr Blackwell should reflect this.

On 22 July 1996 the Inquiry Officer in writing invited the applicant to comment on the range of penalties open, the details of which had been provided to the applicant in writing on 22 December 1995.  The Inquiry Officer also stated:

“In doing so you may wish to comment on Mr Bridges' submission and any other matter that you consider relevant.  You should be aware that I consider your actions as a serious breach of misconduct and I would expect this to be reflected in any penalty I impose.”

The applicant responded in writing on 21 August 1996.  I have considered his response, exhibit R1.37.  I have considered that in the course of these proceedings and indeed I have considered all the responses, submissions, comments and documents tendered during the trial.  The applicant made certain admissions, maintained his denial of charge 3(b) which in fact the inquiry officer found unproven.  The applicant put forward various aspects in mitigation, expressed the belief that the charges did not amount to serious misconduct and stated that his transfer and what he described as de facto penalties were sufficient.

On 4 October the inquiry officer issued a detailed and thorough report, exhibit R1.38, in which he found charges 3(a) and 3(c) proven and 3(b) not proven. It is not necessary to quote the report in whole or in part, but I have read the report very carefully and I have no doubt that the findings are valid findings of serious misconduct in terms of the Public Service Act and findings of misconduct which could constitute a valid reason for termination under section 170DE(1) of the Workplace Relations Act 1996.

The seriousness of the failure to provide appropriate security protection at an international and domestic airport where counter terrorist first response is a primary responsibility of APS is set out in paragraphs 30 to 38 of the report.  The applicant's claims in mitigation are dealt with in paragraph 39 and there is no indication in the report that the Inquiry Officer gave any weight to the matters in the 1992 report in determination of penalty.  Clearly the 1992 file, exhibit R5, was not a matter which was or could have influenced the finding of misconduct.  The file was provided after the findings were made.

I have concluded that the provision of the 1992 file did not lead to a breach by the respondent of section 170DC of the Workplace Relations Act 1996. The respondent did not terminate the applicant's employment for reasons related to conduct the subject of allegations in 1992. In any event, the applicant was given an opportunity to respond to the 1992 file although he has indicated in evidence, and I accept, that he had never seen the file in its entirety. He was given an opportunity to respond to the matters in the 1992 file and in fact did respond in writing on 21 August, exhibit R1.37.

If I am wrong, and if the provision of the 1992 file without opportunity to respond, could be construed as a technical breach of section 170DC, and if I had reached the conclusion on that account, and only on that account, that the termination was invalid, then, in terms of section 170EE(1), I would not have considered it appropriate in all the circumstances of the case to make any order for remedy for such breach.

Finally, I turn to the applicant's more substantive challenge to the validity of the termination.  His counsel placed considerable reliance on a series of recent authorities since Victoria v the Commonwealth (1996) 138 ALR at 120, namely: Smoker v Nettlefold, (IRCA, unreported, Lee J, 4 October 1996),Thomas v Ralph Lynch, (IRCA, unreported, Marshall J, 7 October 1996), Kerr v Jaroma, (IRCA, unreported, Marshall J, 7 October 1996), Weston v Union de Assurance de Paris, (IRCA, unreported, Madgwick J, 23 December 1996) and Yew v ACI Glass Packaging Pty Limited, (IRCA, unreported, Wilcox CJ, 11 December 1996).  First, it must be said that all these cases follow Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 and the oft quoted comments of Northrop J which are as follows:

“In its context in section 170DE(1) the adjective “valid” should be given the meaning of ‘sound, defensible or well founded’, a reason which is ‘capricious, fanciful, spiteful or prejudiced’ could never be a valid reason for the purposes of section 170DE(1).  At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business.

Further, in considering whether a reason is valid it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them.

The provisions must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.  See what was said by Wilcox CJ in Gibbs v Bosmac Pty Limited (1995) 60 IR 1 when considering the construction and application of section 170DC.

Secondly, while the more recent cases develop the concept of valid reason in section 170DE(1) to an extent where it might be said that elements of harshness and injustice can render invalid a termination otherwise valid, the test of validity remains a test encompassed within section 170DE(1).

The respondent has the onus of establishing that the termination was for valid reason.  I am satisfied the respondent has discharged that onus.  In terms of Smoker v Nettlefold, I do not consider or find the termination of employment unjust or unfair or the action of the respondent incompetent or capricious or unjustified after taking into account the effect of the termination on the employee.

In terms of Kerr v Jaroma, I find the reason for termination defensible and justifiable on an objective analysis of the relevant facts or, as the Chief Justice said in Yew v ACI Glass at 6, “on the basis of the evidence of the primary facts”.

In Weston Madgwick J states at 13:

“The interpretation to be accorded the phrase, “valid reason”, appears most problematic in relation to the extent to which a bona fide reason for an employee's termination, which reason is not capricious, should be judicially examined as to its merits.  No doubt the Court's approach would proceed on a case by case basis and any effort to restate the phrase in more concrete form will not soon be assayed.”

For my part, while all the recent cases assist, the kernel of valid reason for termination remains embraced by the concepts outlined in Selvachandran v Peteron Plastics. In terms of the effect on the employer and the employee of a decision to terminate employment for misconduct, I have gained assistance from the comments of Marshall J in Eshak v Public Transport Corporation (IRCA, unreported, 30 August 1996) at 12-17.  Public safety is a matter of high public interest.  In Eshak the misconduct was not a wilful act, but the employee's good record could provide no shield in the circumstances.

Here I find the applicant's actions were conscious and wilful, even if he lacked then and perhaps still lacks an appreciation of how serious his misconduct was in removing security from the airport and in failing to certify a correct and accurate patrol verification sheet on 8 August 1995.  I have taken account in terms of the effect on the applicant of the length of time from the swift preliminary investigation to the conclusion of the inquiry.  Most of that was not of the applicant's making but the stress of the delay on the applicant in no way leads me to a conclusion that the termination was for invalid reason. 

I find the termination for valid reason, for a reason which was sound, defensible and well founded.  The order of the Court is that the application be dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding 7 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:            
Dated:  9 May 1997

Solicitors for the Applicant:  Slater & Gordon

Counsel for the Applicant:  Mr Perica

Representative for the Respondent:       Australian Protective   Service

Counsel for the Respondent:  Mr J Bourke

Date of hearing:  8 and 9 May 1997
Date of judgment:  9 May 1997