Dragan Marijan v Rail Corporation New South Wales T/A RailCorp
[2013] FWCFB 215
•18 JANUARY 2013
[2013] FWCFB 215 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Dragan Marijan
v
Rail Corporation New South Wales T/A RailCorp
(C2012/5700)
VICE PRESIDENT WATSON | MELBOURNE, 18 JANUARY 2013 |
Appeal against decision [2012] FWA 5639 of Senior Deputy President Hamberger at Sydney on 28 September 2012 in matter number U2011/14880. Termination for breach of employer policies - significant delay in concluding investigation - employee not suspended while investigation occurred - whether employer condoned contraventions - whether evidence should have been called from the decision-maker - permission to appeal - public interest - Fair Work Act 2009 ss.387, 604.
Introduction
[1] This decision concerns an application for permission to appeal under s.604 of the Fair Work Act 2009 (the Act) by Dragan Marijan against the decision of Senior Deputy President Hamberger on 28 September 2012. 1 His Honour found that Mr Marijan’s dismissal by Rail Corporation New South Wales trading as RailCorp (RailCorp) was not harsh, unjust or unreasonable and dismissed the application.
[2] At the hearing of this matter in Sydney on 30 November 2012, Mr Marijan was represented by Mr M Easton of counsel and RailCorp was represented by Mr P Ginters of counsel.
Background and Decision under Appeal
[3] Mr Marijan commenced employment at RailCorp as a graduate pilot engineer in 2001. A series of promotions saw him appointed to the position of Plant and Equipment Manager, Assets Manager. The Senior Deputy President set out the background to the matter at paragraphs [5] to [27] of his decision. We do not set out that background in full. In essence Mr Marijan was dismissed from his employment on 15 December 2011, following a three year disciplinary investigation into allegations that he had breached the RailCorp Code of Conduct and the RailCorp Procurement Policy. The contraventions are alleged to have taken place between March 2008 and June 2009.
[4] RailCorp began investigations into the allegations in January 2009 and Mr Marijan continued in employment while the investigations were underway. In October 2010, some of the allegations were put to Mr Marijan and he was given the opportunity to provide a written response. Mr Marijan remained in employment and was not suspended after providing his response. RailCorp completed the investigation in or about October 2011 and informed Mr Marijan in a letter dated 1 November 2011 that the investigation resulted in the conclusion that the allegations against him were substantiated and the appropriate disciplinary outcome proposed by the report was dismissal.
[5] Mr Marijan was given the opportunity to make a submission on the proposed outcome within 14 days. Mr Marijan’s employment continued and he was not suspended at this time.
Mr Marijan requested a copy of the report and this request was refused. He was given an extension of time to provide his response and did so by a way of a letter dated 30 November 2011 that included 14 annexures and an analysis of the allegations put against him.
[6] Mr Marijan’s employment was subsequently terminated within two weeks of providing his response and approximately three years after the investigation commenced. The dismissal was effective on 15 December 2011, with a payment in lieu of notice.
[7] The Senior Deputy President found that there was a valid reason for dismissing Mr Marijan. His conclusions are summarised at the following paragraphs of the decision:
“[62] Mr Marijan has accepted that he breached RailCorp’s procurement policy. Based on the concessions he made during cross cross-examination, I am satisfied that he was well aware of the need to comply with RailCorp's policy with regard to supplier panels. He knew how to find information about supplier panels on the RailCorp intranet, yet he continued to engage RAM to do work that was covered by a panel, even though he knew RAM was not a member of a panel. In particular, he should not have signed off on RAM as a supplier on the MIMS Supplier form (and as a consequence entered RAM on to the system). He did this even though he could have applied for a certificate of exemption, or where he could have engaged someone who was on the panel. This conduct was in clear breach of the policy. The applicant did not breach the policy once or twice but repeatedly.
[63] By the time of the applicant’s final submissions, his main argument was that the breaches were ‘technical’ in nature, and that other employees, including managers, breached the policy but were not disciplined.
[64] It is important to appreciate the purpose of RailCorp’s procurement policy. It has a number of objectives, including preventing the risk of corruption and ensuring transparency and accountability in the expenditure of public money. It is also designed to achieve value for money, inter alia by ensuring that contracts are awarded in a competitive manner. As Ms Hartono explained, to operate effectively the panel system requires good suppliers to tender for the work. If a non-panel firm is engaged where a panel firm could have been engaged it undermines the panel system by suggesting it is not necessary to comply with the tender process or panel requirements in order to be engaged by RailCorp. Given the time and expense in tendering, such practices have the potential to discourage good suppliers from bidding for a place within the panel system.
[65] Was Mr Marijan treated differently from other employees? There is limited evidence of other employees breaching the procurement policy. Mr Marijan in his initial response to RailCorp tried to pin much of the blame for the use of RAM on Mr Humphries as the ‘requesting officer’. However, under cross examination he grudgingly conceded that Mr Humphries was effectively doing the paper work at his own behest. In effect Mr Marijan was both the requester and the approver. Other employees who authorised the use of RAM’s services did so on the basis of their inclusion the MIMS system - something that had been in effect by Mr Marijan. This clearly distinguishes their conduct from that of Mr Marijan.
...
[68] It was suggested by Mr Easton that it was unfair to dismiss the applicant as the respondent had in effect condoned Mr Marijan’s conduct. It is unfortunate that the investigation into Mr Marijan’s misconduct took so long. However the respondent did act fairly promptly once it had received the results of the investigation in November 2011. Moreover, once his supervisor was aware of the concerns about Mr Marijan’s relationship with RAM, the use of RAM was suspended and the approval process was altered so that Mr Marijan could no longer approve suppliers without going through Mr Croucher. This does not indicate that Mr Marijan’s conduct was condoned. Rather he continued to work for the respondent while the matter was being investigated.
[69] I am satisfied that the applicant was guilty of serious breaches of RailCorp’s procurement policy. These constitute a valid reason for his dismissal.”
[8] In regard to the other factors the tribunal is required to consider in s.387 of the Act, the Senior Deputy President found that Mr Marijan was notified of the reasons for the proposed dismissal on 1 November 2011 and he was given two weeks to respond. His Honour said that he was sympathetic to Mr Marijan’s situation but concluded that this must be weighed against the expectation of RailCorp that its employees, especially senior employees such as Mr Marijan, will comply with the procurement policy and the expectation that tribunals will support appropriate disciplinary action when there is a serious breach of that policy.
Grounds of Appeal
[9] Counsel for Mr Marijan submits that while it may often be open for the tribunal to find that a contravention of RailCorp’s procurement policy was a valid reason for termination of employment, there are significant aspects in the matter that should have caused his Honour to find that there was no valid reason for dismissal or find that even if there was a valid reason, the dismissal was nonetheless harsh, unjust or unreasonable.
[10] In particular, counsel submits that the three years’ delay between the commencement of the investigation and its conclusion while not suspending Mr Marijan from his responsible procurement role seriously undermined RailCorp’s ultimate conclusion that the original contraventions resulted in a breakdown of the employment relationship. Further, counsel submits that his Honour erred in not properly dealing with the consequences and inferences arising from RailCorp’s decision not to call evidence from any decision-maker about the reasons for dismissal and the decision to allow Mr Marijan to remain in employment for three years while the investigation was conducted.
[11] Mr Easton also submits that the issues of condonation and the seriousness of the offence were not properly or fairly dealt with by his Honour in his reasons for decision. Counsel submits that these matters are significant enough to affect the outcome of the proceedings and further submits that his Honour’s failure to give adequate reasons which address such matters is an appealable error. Counsel submits that contrary to his Honour’s conclusions, there was ample evidence before his Honour that other employees had also contravened the procurement policy but were not dismissed.
[12] Counsel submits that it is in the public interest to grant permission to appeal as the appeal raises issues in regard to the matter of condonation, the delay in exercising a right to terminate an employee’s employment summarily or generally, termination due to breaches of a policy, and the effects and consequences where an employer fails to call evidence from its decision-makers.
[13] Counsel for RailCorp submits that Mr Marijan has not demonstrated any public interest factors that warrant permission to appeal being granted, any appealable error or any significant error of fact. In particular, RailCorp submits that the Senior Deputy President’s decision is neither unjust nor counter-intuitive and Mr Marijan’s attempt to identify an error is merely the expression of dissatisfaction with the overall outcome. Mr Ginters submits that the evidence establishes that the investigation was fair, the employer’s reasons for dismissal were properly identified, his Honour’s reasons for his conclusions are adequately articulated and his reasoning on each of the factors relevant to a harsh, unjust or unreasonable dismissal is sound and rational.
[14] Mr Ginters submits that as procedural fairness dictated that a full and fair investigation occur, it is surprising that Mr Marijan submits that his remaining in employment is somehow seen as a factor rendering the termination harsh, unjust or unreasonable. He submits that the arguments concerning the calling of decision-makers were clearly considered by his Honour and adequately dealt with in his decision.
The Public Interest Requirement
[15] As has been explained in various Full Bench decisions, s.400 of the Act requires an appellant in an unfair dismissal matter to demonstrate that it is in the public interest to grant permission to appeal. The public interest may be enlivened by issues of importance and general application, for example, where there is a diversity of decisions at first instance so that guidance at an appellate level is required, where the decision at first instance manifests an injustice, the result is counter-intuitive, or where the legal principles applied appear disharmonious when compared to other recent decisions dealing with similar matters. 2
[16] In this matter, we do not consider that any such public interest factor arises. Condoning conduct that is relied on as the reason for dismissal can undermine the soundness of a reason for dismissal and affect the overall fairness of a dismissal. However, there is no clear evidence of condoning in this matter. It is true that Mr Marijan was not suspended while the investigation took place and the investigation took an inordinate period of time. However, the accountabilities of Mr Marijan were modified during this period and the investigation was intended to ensure that procedural fairness was provided. While we cannot see why the investigation needed to last as long as it did (apart from that part of the delay which may be attributed indirectly to inquiries concerning separate matters involving Mr Marijan that were before the Independent Commission against Corruption), the delay in reaching a conclusion does not, on a consideration of the evidence in this matter, amount to condoning of the conduct in question. The appeal grounds in this regard do not attract the public interest.
[17] Nor do we consider that the grounds of appeal regarding the nature and quality of evidence called attract the public interest. It is essentially a matter for an employer to determine how to bring its case. If it considers that it can bring evidence regarding the reasons for the dismissal and the relevant procedural and other matters without calling evidence from the person who made the decision to dismiss, then that is a course open to it. In some cases an inference may arise from such a course, but we are unable to see a sound basis for such a contention in this matter. RailCorp is a large employer. When it investigates a breach of policy large numbers of people are commonly involved and a significant amount of documentation is generated. It led evidence on all of these matters in a way which clearly demonstrated its findings, conclusions and processes. In these circumstances, we do not consider it significant that the decision-maker was not called to give evidence or that his Honour took a similar view.
[18] We do not consider that any of the other grounds of appeal attract the public interest. The decision is well-reasoned and an appropriate consideration of the factors that were required to be considered.
Conclusion
[19] For the above reasons, we do not consider that Mr Marijan has established a basis for granting permission to appeal. We dismiss the application for permission to appeal.
VICE PRESIDENT WATSON
Appearances:
M. Easton of counsel, with T. Nielson, for Dragan Marijan
P. Ginters of counsel, with B. Terry, for Rail Corporation New South Wales T/A RailCorp
Hearing details:
2012.
Sydney.
November, 30.
1 [2012] FWA 5639.
2 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343.
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