Eleni Martsoukas v The Australian Capital Territory as represented by the Chief Minister, Treasury and Economic Development Directorate T/A Access Canberra

[2017] FWC 5960

[2017] FWC 5960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eleni Martsoukas
v
The Australian Capital Territory as represented by the Chief Minister, Treasury and Economic Development Directorate T/A Access Canberra
(U2017/5494)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 NOVEMBER 2017

Application for relief from unfair dismissal - harsh, unjust or unreasonable – dismissal found to be fair, application dismissed.

[1] Ms Eleni Martsoukas (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 24 May 2017 alleging that the termination of her employment by The Australian Capital Territory as represented by the Chief Minister, Treasury and Economic Development Directorate T/A Access Canberra (Access Canberra – the Respondent) on 3 May 2017 was unfair.

[2] The application was heard on 18 and 26 September 2017. At the conclusion of the hearing a timetable was agreed for the provision of further material relating to the issue of remedy (compensation) and material requested of Access Canberra by the Commission. Access Canberra provided the requested further material on 26 September 2017 and the last submission regarding remedy (compensation) was received by the Commission on 10 October 2017.

[3] At the hearing, Mr James Macken of Counsel appeared with permission for Ms Martsoukas, while Ms Alicia Irving of Counsel appeared with permission for Access Canberra.

[4] Ms Martsoukas gave evidence on her own behalf together with Mr Christopher Lea, a former Parking Operations colleague of Ms Martsoukas. Evidence was given for Access Canberra by Mr Christopher Seddon, Acting Manager, Parking Operations; Mr Richard Siddall, Manager, Parking Operations; and Mr Craig Simmons, Access Canberra’s Director, Community, Business and Transport Regulation.

[5] For the reasons outlined below, I have found that Ms Martsoukas’ dismissal was not harsh, unjust or unreasonable. Accordingly, her application is dismissed.

Background

[6] Ms Martsoukas commenced employment with the Respondent as a Parking Inspector in April 2001 and in 2011 was promoted to the position of Team Leader in the Parking Operations area, a role which entailed supervisory responsibilities.

[7] In March 2015 Ms Martsoukas injured her knee at work. Ms Martsoukas contends that pending surgery on her injured knee she was granted approval by her supervisors, Mr Siddall and Mr Seddon, to go home to use the toilet and to pick up ice packs for her knee when that was more convenient than returning to base.

[8] Following knee surgery Ms Martsoukas returned to work on 31 August 2015 on reduced hours and modified duties which did not involve fieldwork. On 9 October 2015 Ms Martsoukas was deemed fit to return to all of her pre-injury duties.

[9] On 26 October 2015 a Parking Inspector, Ms Sheree Lewer, advised Mr Seddon that Ms Martsoukas had been leaving early on her scheduled Friday night overtime shifts. Ms Lewer’s concerns were set out in the following email to Mr Seddon:

“Hi Chris,

Just further to our discussion this morning in regards to observations I have had on Friday night overtime.

Supervisor 16 has been leaving by 9:15pm over the past few weeks.

16^th of October 2015 – I brought the work van back into the gate around 9:15pm, at the same time I witnessed supervisor 16 leave the building with her bag and after a brief conversation with my crew walked toward the car park. By the time the rest of the shift left approximately 10 minutes later, supervisor 16 and her personal vehicle were not able to be seen.

23^rd October 2015 – Again I returned to base with my crew around 9:15pm and was upstairs in the briefing room a few minutes later. Supervisor 16 was again on duty this night but I did not see her anywhere in the building between this time and when the entire shift left approximately 10 minutes later. I have observed similar behaviour from Supervisor 16 on Friday night overtime shifts in the past and have had several complaints made to me by various fellow officers that this is a regular, almost weekly, occurrence by the supervisor.”¹

[10] Later that day Mr Seddon sent an email to Mr Simmons requesting vehicle logs for a specific ACT Government vehicle which was driven by Ms Martsoukas. Mr Seddon’s email read as follows:

“Hi Craig,

Can I please request the vehicle logs for registration # 216 870 from Friday 23 October to Monday 26 October inclusive. I have had reports that this vehicle was not in the locations that it was required to be.”²

[11] On 29 October 2015 Mr Seddon met with Ms Martsoukas and her rehabilitation case manager to discuss the closure of the rehabilitation case regarding her knee injury. Mr Seddon did not mention to Ms Martsoukas the issue raised by Ms Lewer on 26 October 2015.

[12] In early December 2015 Mr Simmons authorised the establishment of a geofence to more closely monitor Ms Martsoukas’ use of ACT Government vehicles to visit specified addresses (i.e. her home address, her mother’s boyfriend’s address and the Hackett shops) during working hours.

[13] On 1 March 2016 Mr Seddon sent Ms Martsoukas an email in the following terms:

“RE: Notice of Preliminary Assessment

This correspondence is to inform you that ACT Parking Operations have been made aware of an allegation that in the course of your duties as a supervisor in Parking Operations you may have misused ACT Government assets to suit your personal purposes. Specifically, the allegation relates to unauthorised use of a Government vehicle.

As per Section H of the ACT Public Sector Administration and Related Classifications Enterprise Agreement 2013-2017 (the Agreement), I am required to complete a preliminary assessment in cases where an allegation of inappropriate behaviour is made. The Preliminary Assessment will determine whether further action is required …

Once I have completed my Preliminary Assessment you will be contacted by myself or suitably skilled delegate if any further action is recommended.”³

[14] On 7 March 2016 Mr Seddon sent the following email to Mr Leighton Phipps, a Human Resources Director in the ACT Government’s Chief Minister, Treasury and Economic Development Directorate:

“Hi Leighton,

Preliminary Assessment report for complaint received regarding Helen Martsoukas.

I received a complaint that Helen Martsoukas was leaving her duties as supervisor early, was seen down stairs before finish time in her vehicle. This is of concern as inspectors may need radio assistance during this time, possible emergency situation.

I subsequently notified my Director Craig Simmons. I requested the electronic log book (ELB) tracking history, this was approved by Craig Simmons. The log book report was supplied by Wayne Willimott in fleet services.

Upon receipt of tracking report, it was noted that the same addresses appeared on the report, on a daily basis. After assessing the vehicle log reports, I uncovered a greater issue, with the use of ACT Government vehicle.

I have informed Helen Martsoukas the [sic] I am conducting a preliminary assessment of complaint received as per clause H2.3.

My recommendation is for this matter to be progressed to a formal investigation. I have referenced the vehicle log tracking report to our complaints data base, there have been no complaints received in the areas that Helen is constantly tracked to location. The address of … has been referenced through the Australian Electoral Role as Helen Martsoukas living address. This address appears throughout the report on a daily basis, when Helen is at work.

Other addresses that are constantly appearing on the vehicle log report are … I have crossed referenced these addresses to our complaints data base, there are no complaints in these locations.

As the vehicle log reports and Parking Operations complaints data base indicate there is no reason for a Government vehicle to be driven too [sic] these locations on an ongoing basis. These visits are not one off visits, this is a consistent pattern of behaviour, which is in breach of section 9 of ACT Public Sector Code of Conduct.”⁴

[15] On 8 March 2016 Mr Simmons advised Ms Martsoukas that he had considered the findings of the preliminary assessment undertaken by Mr Seddon and that he had decided to request that a formal investigation be undertaken under the terms of Section H of the ACT Public Sector Administration and Related Classifications Enterprise Agreement 2013-2017⁵ (the Agreement). The letter stated, inter alia, that:

“Notice of Disciplinary Investigation and Reassignment to Alternate Duties

Investigation

I am writing to you in accordance with clause H7.1 of the ACT Public Sector Administration and Related Classifications Enterprise Agreement 2013-2017 (the Agreement) to inform you that I have received allegations that you have allegedly engaged in inappropriate behaviour. If substantiated your actions may be considered as misconduct under the terms of the Agreement.

You were advised by Mr Christopher Seddon, A/g Manager Parking Operations, that a preliminary assessment was being conducted as per clause H2.3 of the Agreement. I have considered the findings of the preliminary assessment and the serious nature of the allegations and am requesting that a formal investigation be undertaken to establish the facts of the matter, under the terms of Section H9 of the Agreement…

An investigator will contact you in due course to provide further particulars of the allegations and to offer you an opportunity to respond. I can advise the allegations relate to the repeated use of government vehicles to attend addresses and locations that are outside the scope of the operational requirements.

Reassignment to Alternate Duties

In accordance with clauses H7.2 and H8.2 of the Enterprise Agreement, I propose to reassign you to alternate duties while the allegations are investigated. I consider this in the best interests of yourself and your colleagues …”⁶

[16] Ms Martsoukas was reassigned to alternative duties at the Dickson Motor Registry while the allegations were investigated.
[17] In subsequent developments, the investigator wrote to Ms Martsoukas on 20 June 2016 setting out the full particulars of the allegations. Specifically, the allegations were that:

“1. On multiple occasions between 12 May 2015 and 21 January 2016, you acted inappropriately when you used an ACT Government vehicle to attend your home address at … during work hours.

…

2. On multiple occasions between 12 May 2015 and 21 January 2016, you acted inappropriately when you used an ACT Government vehicle to attend a private residence at … during work hours.

…

3. On multiple occasions between 12 May 2015 and 21 January 2016, you acted inappropriately when you used an ACT Government vehicle to attend Hackett Place Hackett ACT, during work hours.

…

4. On 06 January 2016, you acted inappropriately by providing misleading information to your Supervisor, Chris Seddon. At 0951hrs, Mr Seddon sent you a text message querying your location, which you responded to immediately via text message, stating you were driving to Bruce. Vehicle records reveal that the vehicle was stationary at … from 0949hrs and remained in that location until 1014hours.

...

5. On 20 June 2015, you acted inappropriately when you submitted an overtime/extra duty claim form claiming that on 19 June 2015, you worked overtime until 2130 hours, when swipe card records reveal that you left the workplace at 2103 hours, thereby claiming 27 minutes overtime that you are not entitled to.

…

6. On 19 December 2015, you acted inappropriately when you submitted an overtime claim form, claiming that on 19 December 2015 you worked overtime until 1230 hours, when swipe card records reveal that you left the work place at 1202 hours, thereby claiming 28 minutes overtime that you are not entitled to.

…

7. On 03 March 2016, you acted inappropriately when you submitted an overtime claim form, claiming that on 10 February 2016, you worked overtime until 2030 hours, when swipe card records reveal that you left the workplace at 1751 hours, thereby claiming 2 hours 39 minutes overtime that you are not entitled to.

…

8. On 03 March 2016, you acted inappropriately when you submitted a claim for a meal allowance of $26.41 in relation to overtime claimed on 10 February 2016.

…

9. On multiple occasions between 25 May 2015 and 21 October 2015, you acted inappropriately when you were absent from the workplace and upon your return to work, did not submit a leave form or update HR21 appropriately. The dates identified are as follows:

a) On 25 May 2015 …

b) On 16 June 2015 …

c) On 17 June 2015 …

d) On 19 October 2015 …

e) On 20 October 2015 …

f) On 21 October 2015 …”⁷

[18] Ms Martsoukas provided a written response on 7 October 2016 and on 21 November 2016 responded to an invitation from the investigator to expand on some of her responses.

[19] The Investigation Report which was finalised on 16 December 2016 concluded that on the basis of the information provided there was sufficient evidence to conclude that on the balance of probabilities allegations 1-5 and 9 had been made out and that there was insufficient evidence to conclude that on the balance of probabilities that allegations 6-8 had been made out⁸.

[20] On 24 February 2017 Mr Phipps provided Ms Martsoukas with a copy of the Investigation Report without attachments, though he did offer to provide these by email if required⁹.

[21] On 1 March 2017 Mr Simmons wrote to Ms Martsoukas setting out among other things his proposed disciplinary action. The letter included the following:

“… The investigation has concluded and I am now writing to inform you of the findings and the proposed discipline action to be taken.

After considering the investigation report, including your response to the allegations, I have determined your actions constitute misconduct under clause H6.5(a) and (b) of the Agreement and I am satisfied you have breached section 9 (a), (c), (k), (o) and (p) of the Public Sector Management Act 1994 (the PSM Act). I have outlined my findings and proposed action below. Detailed explanation of my decision is at Attachment A.

In reaching my decision on the proposed discipline action to be taken in relation to the allegations, I have taken account of those elements required by clause H10.3 of the Agreement (outlined below) and as addressed in the investigation report:

a) the nature and seriousness of the misconduct;

b) the degree of relevance to the employee’s duties or to the reputation of the directorate;

c) the circumstances of the misconduct;

d) any mitigating factors, including any full admission of guilt; and

e) the previous employment and the general conduct of the employee.

With the aforementioned elements considered, the sanction that I propose is termination of your employment, as per clause H10.1(e) of the Agreement.

Stand Down with Pay

To allow you time to consider a response to my proposal, I am immediately suspending you from duty with pay in accordance with the discipline provisions set out in Section H of the Agreement.”¹⁰

[22] Ms Martsoukas responded to Mr Simmons’ letter on 12 March 2017¹¹. The following is an extract from Ms Martsoukas’ response.

“At the outset I would like to acknowledge and apologise for my behavior [sic]. I recognise now that some of my actions might not have met the professional standards expected of me as an employee of the ACT Public Service and have caused you, as my Director, to question my integrity and fitness to perform my duties as a public employee.

…

The period of misconduct coincided with a time of significant personal difficulty for me. While this does not excuse my behavior, I believe that I was acting in a way that was out of character in which was influenced, to a large degree, by the physical and mental health issues I have suffered since early 2015. Since late 2014 I have struggled with some difficult workplace relationships that resulted in me feeling distressed and isolated work. In March 2015, I experienced what I perceive to be a serious workplace bullying incident which I reported to my supervisor …

Nevertheless, I recognise that my behavior [sic] was inappropriate and inconsistent with the expectations of the ACT Public Service. In recognition of this, I would propose that instead of my employment being terminated, the following disciplinary action be taken:

1. …

2. Transfer to another section of the ACT Government. I acknowledge that as a consequence of my misconduct my managers have lost trust and confidence in my integrity and my ability to perform my duties …” (Underlining added)

[23] On 3 May 2017 Mr Simmons wrote to Ms Martsoukas advising that her employment was terminated with immediate effect¹². Mr Simmons in an attachment to his letter set out his justification for upholding his decision to terminate Ms Martsoukas’ employment. In that attachment, Mr Simmons stated among other things that:

“I am satisfied the termination of your employment is the most appropriate sanction to be provided as a result of your behaviour. To demote and transfer you as per your proposal would continue to leave the Directorate questioning its ability to trust you. Your continued dishonesty and deceit through your actions in a supervisory position have critically broken the trust that the Directorate has in you as a public employee and I believe the working relationship is irreparable. I am not comfortable transferring you to another position or area of the ACTPS as your actions demonstrated a continual disregard for our processes, values and obligations. I am not satisfied that you can be trusted in a different role, such is the significance of the breakdown in trust we have as your employer. As a supervisor you are expected to be a role model for junior staff and were afforded a high level of independence that has been abused. This behaviour cannot be excused and the Directorate must be absolutely sure that all of its employees can uphold our values and signature behaviours whilst completing their work professionally.”

[24] As previously noted, Ms Martsoukas’ unfair dismissal application was received by the Commission on 24 May 2017.

The Applicant’s case

[25] Ms Martsoukas submitted that there was no valid reason for her dismissal for several reasons, including that:

● following her knee injury in late March 2015 she had sought and been granted permission by Mr Siddall and Mr Seddon to go home for her breaks to assist in managing her knee injury;

● in response to the issues raised by Ms Lewer on 26 October 2016, Mr Seddon launched an expansive investigation into her vehicle logs instead of raising the matter directly with her as required by clause H4.4 of the Agreement and consistent with good management practice;

● the failure to raise with her the issue of her use of ACT Government vehicles for a period of four months effectively condoned her behaviour;

● there was no evidence that she had acted deliberately or dishonestly in relation to failing to properly apply for leave or overtime;

● she had received no prior warnings or counselling in relation to the alleged misconduct and was not warned that her employment was at risk until 1 March 2017;

● there was no evidence to suggest that Team Leaders were not allowed to drive a Government vehicle to a convenient place to have their breaks; and

● the investigation of the allegations which resulted in her dismissal was seriously unfair and did not afford her a fair opportunity to respond to the reasons for her dismissal.

[26] Ms Martsoukas also submitted that her dismissal was in contravention of the Workplace Privacy Act 2011 (ACT) (the WP Act) and was harsh due to her personal and economic circumstances. More specifically, Ms Martsoukas contended that she had been treated differently to another Team Leader, Mr Craig Allen, who was also found to be regularly going home during his patrol shifts, that she had worked for the Respondent for 16 years and other than a misconduct incident in 2008 had an unblemished work record, that she had documented health issues which affected her ability to obtain alternative employment and that she financially supported and cared for her elderly mother.

[27] At the hearing, Ms Martsoukas submitted among other things that:

● there was no misconduct on her part, adding that she believed her conduct had been approved and was consistent with longstanding practice in the workplace;

● she had been treated unfairly in the process which led to her dismissal, for example she was not informed of the commencement of a preliminary assessment of her vehicle use as required by Clause H2.3 of the Agreement resulting in her losing the opportunity to show that further action was not required;

● Mr Simmons letter to her of 8 March 2016 did not set out the alleged misconduct as required by clause H7.1(c) of the Agreement, adding that by the time the actual allegations were put to her on 20 June 2016 the bulk of the work of the investigation had already been done;

● her evidence should be believed for several reasons including that it was clear from the evidence in this case that it was common practice for Team Leaders to use ACT Government vehicles to travel home to attend to personal business and because she called in on the radio on each occasion she drove home for a break;

● she had permission to travel home during working hours to use the bathroom and to ice her knee;

● her evidence for leaving a Friday overtime shift early was readily believable;

● with regard to the allegations that she did not submit leave forms, this issue did not constitute misconduct as she recorded her leave in her attendance records, had submitted paper leave forms and Mr Seddon signed her attendance records certifying that leave applications had been submitted and approved;

● relying on the decision in Burge v New South Wales BHP Steel Proprietary Limited¹³(Burge) Access Canberra had condoned her conduct, contending in particular that Access Canberra’s conduct after 26 October 2016 when it had concerns about her use of ACT Government vehicles constituted condoning conduct;

● establishing the geofence was contrary to the WP Act;

● the entire process was overseen by Mr Seddon who did not like her and who appeared to have deliberately steered the investigation onto terrain where the case against her would flourish; and

● the Commission could reinstate her to another position on terms no less favourable than the position from which she was dismissed.

[28] As to remedy, Ms Martsoukas sought reinstatement to another area of the Chief Minister, Treasury and Economic Development Directorate.

[29] Key aspects of Ms Martsoukas’ witness statement¹⁴ and oral evidence were that:

● she was aware that her movements in ACT Government vehicles were being tracked;

 ● on 1 March 2016 she was made aware of an investigation into alleged misconduct relating to her use of ACT Government vehicles, with the investigation involving a review of her employment records over the period 12 May 2015 to 21 January 2016;

● during that time Mr Seddon had not raised with her any conduct or performance issues concerning the matters that were investigated;

● as a result of an incident in August 2014 in which Mr Siddall belittled her in front of her colleagues she felt isolated, bullied and intimidated;

● she felt more isolated and started to withdraw from her colleagues following a further bullying incident in March 2015;

● following her knee injury in March 2015 and prior to undergoing surgery on the injured knee she asked Mr Seddon and Mr Siddall whether she could go home whilst on patrol to manage her knee injury if that was more convenient than returning to base, with both indicating that that would be fine;

● on 20 June 2015 there was an issue with the overtime boards which required her to work through her lunch hour and meal break to resolve, adding that Mr Seddon agreed that she could leave early in lieu of her missed breaks;

● in late September 2015 Mr Seddon reaffirmed that he was happy for her to continue to attend home to tend to her knee and have toilet breaks and also indicated that he had no concerns if an ACT Government vehicle was used to attend her physiotherapy sessions during work hours unless the appointment was late in the day;

● the first time she became aware of the issues raised by Ms Lewer was on 20 June 2016 when she was provided details of the allegations against her by the investigator;

● she was the victim of further bullying incidents in October and November 2015;

● the vehicle logs for the period 14 December 2015 to 22 January 2016 indicated that Mr Allen also attended his home address whilst on patrol but she was not aware whether his misuse of ACT Government vehicles was being investigated;

● she did not keep ice packs at Access Canberra’s Fyshwick offices as there was a not a freezer that worked there, later attesting that there was no reason that she could not have used the bar fridge in the Chiefy’s room to store her ice packs despite the freezer section of that fridge being used to store water bottles for Parking Inspectors;

● she recalled discussing with Mr Siddall and Mr Seddon in early April 2015 about going home to get fresh ice packs and again about a week later after she got the results of an MRI scan on her injured knee and had consulted her physiotherapist;

● her relationship with Mr Seddon was not much, adding that he did not like her, was prejudiced against her, would not talk to her much at all, would talk down to her and would not reply to her emails;

● she felt isolated from the rest of her team members;

● in respect of allegation 9, she did apply for leave on the dates specified using paper forms, adding that she also completed electronic applications and recorded her absence on her timesheets each of which were submitted to either Mr Siddall and Mr Seddon;

● she had used an ACT Government vehicle to travel home for personal reasons prior to 12 May 2015 to use the toilet and to get ice packs after her first knee injury which occurred in late 2013, adding that she obtained Mr Siddall’s permission to do so around March 2014;

● while Mr Seddon did not respond to an email she sent him on 14 November 2014 indicating that whilst on patrol she would pop home briefly to feed her dog as she was working in the office that evening until 9:30pm¹⁵, he did come and see her and indicated that she did not have to write such emails but should just go home and do it;

● the icing of her knee was not discussed at the rehabilitation meeting of 29 October 2016 which was attended by Mr Seddon;

● with regard to the vehicle log for 7 October 2015, at around that time she was suffering from anxiety and depression and would suffer panic attacks;

● Mr Siddall did nothing about her bullying complaints;

● she received a warning for misconduct in March 2009 for leaving her patrol and using an ACT Government vehicle to go from Manuka to Parkes and Barton, adding that she appealed against the warning and subsequently did not hear anything further about it after that;

● as a Team Leader she set an example to Parking Inspectors;

● she was not really familiar with Access Canberra’s Passenger and Light Commercial Vehicle Management Guidelines¹⁶;

● when driving home to use the bathroom or to ice her knee she did not record that as a break on her attendance sheet;

● she knew that she was not allowed to use an ACT Government vehicle for personal use without permission;

● Mr Seddon had signed off on her timesheets; and

● she was icing her knee from the time of her first knee injury in late 2013 until after the second knee injury in March 2015.

[30] In his witness statement¹⁷ Mr Lea deposed inter alia that:

● he was aware that some other Team Leaders might go home during their breaks, adding that Mr Craig Allen went home on an almost daily basis;

● when Ms Martsoukas returned to work after her knee injury she told him that she was going home to use the bathroom when she was out on patrol; and

● he did not notice that Ms Martsoukas left early on her overtime shifts, though he did recall one occasion about two years ago when Ms Martsoukas finished at 9:00pm with Mr Siddall’s agreement because she had worked through her break.

[31] Key aspects of Mr Lea’s evidence under cross examination were that:

● he believed that Mr Siddall and Mr Seddon had ignored certain behaviours in the workplace such as inspectors going off patrol, later agreeing that he would not necessarily be aware of any action taken in respect of matters reported to Mr Siddall and Mr Seddon;

● he believed favouritism was a feature of the workplace, adding that Ms Martsoukas did not enjoy favourable treatment;

● colleagues had advised him that they had seen an ACT Government vehicle parked outside the residence of Mr Don Jeffries (another Team Leader in Parking Operations), later acknowledging that he had not actually seen this himself;

● it had been common practice for the 22 years he had worked as a Parking Inspector for people to conduct private matters during working hours;

● he recalled Ms Martsoukas quite a few times mentioning to Mr Siddall and Mr Seddon that she was going home to use the bathroom, adding that at the time of her knee injury she required an icepack and that there was no freezer in the workplace; and

● he had on occasions travelled home to use the bathroom while at work, deposing that Mr Siddall had often told employees that he did not mind them popping home for several minutes to use the bathroom.

The Respondent’s case

[32] Access Canberra submitted that Ms Martsoukas was found to have breached s.9 of the Public Sector Management Act 1994 (the PSM Act) in a number of ways and that these multiple breaches, when considered together, constituted serious misconduct. Access Canberra further submitted that termination for serious misconduct was termination for a valid reason. In that regard, Access Canberra relied on the Full Bench decision in Paramalat Food Products Pty Ltd v Mr Kasian Wililo¹⁸. Access Canberra also contended that consideration should be given to a number of factors, including that Ms Martsoukas:

● was a Team Leader with supervisory responsibilities;

● had admitted to the conduct; and

● had received a warning in 2009 for similar issues.

[33] Beyond that, Access Canberra disputed that it conducted a covert surveillance of Ms Martsoukas’ movements in contravention of the WP Act and highlighted that both Mr Siddall and Mr Seddon denied giving Ms Martsoukas permission to go home to use the bathroom or to ice her knee. In summary, Access Canberra submitted that the dismissal was neither harsh, unjust nor unreasonable.

[34] As to remedy, Access Canberra submitted that reinstatement was not appropriate as it would be extremely difficult for Ms Martsoukas, her supervisors and other members of the team to work together again given the nature of Ms Martsoukas’ conduct. Access Canberra also submitted that were the Commission to find Ms Martsoukas had been unfairly dismissed that:

● it could not order that Ms Martsoukas be reinstated to a different position; and

● awarding compensation would be a more appropriate remedy than reinstatement, adding that there should be no order to restore lost pay or to maintain continuity of service given the prolonged nature of Ms Martsoukas’ conduct.

[35] At the hearing Access Canberra submitted inter alia that:

● Ms Martsoukas was on notice from 2008 that using an ACT Government vehicle for personal use was not appropriate;

● there were two people who used ACT Government vehicles to attend their home, Mr Allen, who was being dealt with separately, and Ms Martsoukas;

● Mr Lea’s evidence regarding Mr Jeffries was not direct evidence;

● Ms Martsoukas’ evidence was often inconsistent and implausible and at times was also evasive, emphasising that her response to Mr Seddon’s text message of 6 January 2016 inquiring as to her whereabouts that she was on her way to Bruce was implausible given that she stopped in the neigbouring suburb before she got to Bruce;

● Ms Martsoukas had admitted to the conduct, to driving to non-work related places while on duty, to leaving overtime shifts early and to not completing forms correctly;

● Ms Martsoukas acknowledged that as a Team leader she was required to set an example to other Parking Inspectors;

● Mr Seddon and Mr Siddall were both credible witnesses; and

● the only appropriate remedy if a finding of unfair dismissal was made would be a remedy of compensation.

[36] In his witness statement¹⁹ Mr Siddall deposed that a Team Leader’s role in Parking Operations entailed inter alia allocating Parking Inspectors to particular patrols, with Team Leaders required to go into the field to investigate parking complaints and assist junior Parking Inspectors. Mr Siddall further deposed that Team Leaders spent a week each month in the office answering emails and queries from the general public. With particular regard to Ms Martsoukas, Mr Siddall deposed he was not informed of any particular requirements with respect to managing her knee injury and that he had never given her permission to go home on a daily basis. Finally, Mr Siddall deposed that he could not trust Ms Martsoukas to do her job appropriately in the future and that if she returned to her position there would be serious issues of trust.

[37] Key aspects of Mr Siddall’s oral evidence were that:

● he did not recall a conversation with Ms Martsoukas in 2014 in which he gave her permission to go home to use the bathroom or to ice her knee;

● he did not remember giving Ms Martsoukas permission in March 2015 to go home to use the bathroom or to ice her knee and did not believe he had done so;

● there was a functioning freezer at the Fyshwick depot at the time of Ms Martsoukas’ 2015 knee injury; and

● there may have been circumstances where it was more efficient for Ms Martsoukas to go home rather than return to the depot to go to the bathroom or to ice her knee, adding that if this was occurring on a regular basis that he would have been changing her duties to make sure she was not requiring that or was better able to do it.

[38] Mr Seddon deposed in his witness statement²⁰ inter alia that:

● all Parking Inspector vehicles were fitted with GPS trackers with a sticker visible in all vehicles which stated that “This vehicle contains electronic equipment that allows the vehicle’s movements to be monitored”;

● following Ms Martsoukas’ knee injury he did not recall any conversation with her regarding the use of public toilets whilst on patrol;

● at no time did Ms Martsoukas seek his approval to go home whilst on patrol to get fresh ice packs and medication to manage her knee injury, adding that he did not approve Ms Martsoukas going home while she was meant to be on patrol;

● it was the responsibility of all employees to ensure that they had recorded any personal or annual leave accurately in HR21, adding that it was not sufficient to record such leave on a paper timesheet only;

● he did not recall Ms Martsoukas requesting to leave early on 20 June 2015 in lieu of a missed break;

● he did not recall ever approving a supervisor who was working overtime to leave early if there were Parking Inspectors still working;

● he did not allow any staff member to use an ACT Government vehicle for personal use and did not authorise Ms Martsoukas attending physiotherapy sessions during work hours in an ACT Government vehicle;

● he did not mention the issues regarding the overtime complaints or ACT Government vehicle usage to Ms Martsoukas at the 29 October 2015 meeting as the meeting was about rehabilitation and not issues regarding her conduct;

● following Ms Lewer’s complaint of 26 October 2015 he approached Mr Simmons to obtain vehicle logs of Ms Martsoukas’ use of ACT Government vehicles to ascertain whether she was leaving early;

● he also requested vehicle logs for Mr Allen as he was aware that there may have been discrepancies with his use of ACT Government vehicles;

● Mr Simmons authorised him to obtain the vehicle logs;

● the vehicle logs for Ms Martsoukas showed a number of addresses which appeared constantly and which upon further review did not relate to parking complaints;

● he subsequently asked Mr Simmons whether a geofence could be set up to see whether Ms Martsoukas visiting those addresses was an ongoing issue or whether she was driving to deal with parking complaints;

● the geofence was in place for the period 11 December 2015 to 22 January 2016;

● he was aware that Ms Martsoukas’ employment had been terminated for misconduct; and

● he considered that Ms Martsoukas had breached his trust on numerous occasions over a prolonged period of time and as such he did not think that she could be trusted if returned to the position of Team Leader.

[39] Key aspects of Mr Seddon’s oral evidence were that:

● he did not give Ms Martsoukas permission in either 2014 or around March 2015 to go home to use the bathroom or to ice her knee;
● the vehicle log for Ms Martsoukas for the period 2 September 2014 to 27 March 2015²¹ could not be relied upon as the recorded times appeared to be 12 hours out;

● he did not recall Ms Martsoukas lodging a formal complaint about the March 2015 bullying incident at the time it occurred;

● with regard to the November 2015 bullying incident involving Mr Berry, he referred the matter to Corporate HR and counselled Mr Berry at the time and to the best of his knowledge nothing else happened regarding the incident, adding that Mr Berry had not been terminated as a result of the incident and still worked in Parking Operations;

● in signing Ms Martsoukas’ time sheets for the period 9 April to 16 December 2015 he had certified that “Leave applications including relevant documents have been submitted and approved – Supervisor must check HR21 where available”²² (underlining as per original), adding that he would have gone through the staff calendar to satisfy himself in this regard and that he did not sign the time sheets on a “tick and flick” basis;

● there was no special enmity between he and Ms Martsoukas, adding that he liked all his staff and treated them all the same;

● he could not answer why he requested vehicle logs relating to Ms Martsoukas in circumstances where Ms Lewer’s complaint related to Ms Martsoukas leaving work early while on overtime;

● it was not correct that as at 29 October 2016 he knew what the vehicle logs would show because he had already given Ms Martsoukas permission to use ACT Government vehicles to go home;

● there was a possibility that had he discussed Ms Lewer’s complaint with Ms Martsoukas shortly after the matter was brought to his attention that she may have been able to provide an adequate explanation;

● it was an oversight that he did not discuss the issue with Ms Martsoukas;

● had he raised the matter with Ms Martsoukas at that time it was possible that she may have stopped using ACT Government vehicles to go home during working hours;

● there were freezers available at the Fyshwick depot; and

● he had never given any employee permission to go home to use the bathroom.

[40] In his witness statement²³ Mr Simmons deposed among other things that:

● he had no knowledge of the bullying incidents involving Ms Martsoukas in 2014 and early 2015 as he was not in his current position at that time;

● on 26 October 2015 Mr Seddon spoke to him regarding a complaint by another Parking Inspector with respect to Ms Martsoukas not leaving the Fyshwick base during an overtime period when she was meant to be out in the field supervising other Parking Inspectors;

● he authorised records of the vehicle logs for the period 23 to 26 October 2015 to ascertain where the vehicle had been, with the report uncovering a number of discrepancies with respect to Ms Martsoukas not being in her area of responsibility;

● on or around 11 December 2015 he authorised the establishment of a geofence in respect of a number of addresses to ascertain whether Ms Martsoukas’ behaviour was for a constrained period of time or whether she continued to frequently attend those addresses;

● on 18 November 2015 Ms Martsoukas emailed him regarding the March 2015 bullying incident which was the first time she had brought this incident to his attention;

● on 8 March 2016 he wrote to Ms Martsoukas regarding the Notice of Investigation into her alleged misconduct and reassigned her to alternate duties;

● he understood that the investigation took a considerable amount of time to finalise because of delays with Ms Martsoukas meeting the investigator;

● on or around 16 December 2016 he received the Investigation Report;

● on 1 March 2017 he informed Ms Martsoukas of his proposed disciplinary action, i.e. his intention to terminate her employment, and invited her to respond;

● in deciding to terminate Ms Martsoukas’ employment he took into account the difficult time that she had endured in the workplace and the financial hardship that she indicated she would endure if her employment was terminated but considered that these factors did not outweigh the serious misconduct that she had engaged in over a prolonged period of time;

● he also took into account that she had previously been found to have engaged in misconduct in very similar circumstances to the current misconduct; and

● Access Canberra had lost all trust and confidence in Ms Martsoukas’ ability to honestly perform her duties, adding that he was of the opinion that she could not be trusted or relied upon to undertake the duties of a Team Leader or any other position of equivalent classification level within the ACT Public Service.

[41] Key aspects of Mr Simmons’ oral evidence were that:

● Mr Allen was being investigated in relation to his performance and attendance, adding that it was yet to be determined whether other matters such as Mr Allen’s use of ACT Government vehicles would be formally investigated as Mr Allen was not at work when the allegations came to his attention in mid-2016;

● he referred the matter involving Mr Berry to the Professional Standards area which investigated the matter, with Mr Berry subsequently admonished for his conduct, later conceding that the matter appeared not to have been investigated as Mr Berry had admitted his conduct to Mr Seddon who advised that he would be reprimanded;

● the Investigation Report informed his decision to terminate Ms Martsoukas’ employment, adding that there was nothing else that influenced his decision;

● he considered termination appropriate because Ms Martsoukas’ conduct involved her systemically going to her house, her mother’s house or her mother’s boyfriend’s house which meant that she was not where she needed to be all the time she needed to be there, adding that in good conscience he could not place her elsewhere in the ACT Public Service;

● he considered Ms Martsoukas’ response to be less than convincing and while she admitted to the conduct she seemed to have no remorse or compunction with respect to what she did;

● Ms Martsoukas’ prior warning was not a factor in his decision to terminate her employment;

● it appeared that Mr Seddon was aware of issues concerning Mr Allen’s use of ACT Government vehicles to go home during working hours in late 2016 or early 2017, adding that the circumstances in Mr Allen’s case were very different to those concerning Ms Martsoukas;

● had Ms Martsoukas had permission from Mr Siddall or Mr Seddon to use ACT Government vehicles to go home to use the bathroom or to ice her knee it would not necessarily have made a big difference to his conclusion that she could not be trusted to honestly perform her duties, adding that any such permission could only be acceptable within a limited range and for a period of time which was contemporaneous with her knee injury;

● he did not accept that permission might have been granted in Ms Martsoukas’ case;

● he did not believe that Mr Siddall or Mr Seddon gave everybody permission to take an ACT Government vehicle home whenever they felt like it and for whatever reason they felt like;

● he had no evidence that Mr Jeffries was using ACT Government vehicles to travel home during work hours, adding that if that evidence existed he would deal with the matter as he had with Ms Martsoukas;

● he did not have sufficient information to say that it was long standing practice for Team Leaders to take home ACT Government vehicles during work hours;

● he did not think the level of Ms Martsoukas’ behaviour would ever be condoned;

● he would probably have not agreed to the release of vehicle logs concerning Ms Martsoukas had he been aware that Ms Lewer’s complaint related to Ms Martsoukas leaving early when she was working overtime;

● had Ms Martsoukas been spoken to at the time of Ms Lewer’s complaint, the conduct may have ceased without the need for an investigation;

● Mr Berry’s conduct was not of the same magnitude or equivalence as Ms Martsoukas’ conduct;

● Ms Martsoukas’ misuse of ACT Government vehicles was determinative, later attesting that he characterised her behaviour as a “systemic and sustained misuse of Territory resources”²⁴; and

● he had no reason not to believe Mr Siddall and Mr Seddon when they told him that they had not given Ms Martsoukas permission to take an ACT Government vehicle home to use the bathroom and ice her knee.

The statutory framework

[42] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Ms Martsoukas is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWC considers relevant.”

[43] There is no dispute that Ms Martsoukas was dismissed, so s.385(a) of the Act is satisfied. Ms Martsoukas contended that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. Access Canberra is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Ms Martsoukas was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[44] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria.

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[45] In Rode v Burwood Mitsubishi²⁵ (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd²⁶. The following is an extract from the Full Bench’s decision in Rode.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 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, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)

[46] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King)²⁷. In King the Full Bench, drawing on Moore J’s comments in Edwards v Guidice²⁸, stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[47] In this case it was not disputed that Ms Martsoukas used ACT Government vehicles to visit her home address and a number of other non-work related locations. This is clear from Ms Martsoukas’ response of 12 March 2017 to Mr Simmons’ letter of 1 March 2017 outlining his proposed disciplinary action. However, what is disputed is whether or not Ms Martsoukas had permission from her supervisors (i.e. Messrs Siddall and Seddon) to do so and whether it was common practice in Parking Operations for Team Leaders to go home during the day using ACT Government vehicles.

[48] Ms Martsoukas maintained that she had Mr Siddall’s and Mr Seddon’s permission to use ACT Government vehicles to go home to use the bathroom or to ice her knee. Mr Martsoukas’ evidence was supported by Mr Lea who attested inter alia that he recalled Ms Martsoukas quite a few times mentioning to Mr Siddall and Mr Seddon that she was going home to use the bathroom and that Mr Siddall had often told employees that he did not mind them popping home for several minutes to use the bathroom. On the other hand, Mr Siddall attested that he did not recall or remember giving Ms Martsoukas permission in either 2014 or 2015 to go home to use the bathroom or to ice her knee, while Mr Seddon’s evidence was that he did not give Ms Martsoukas permission in either 2014 or 2015 to go home to use the bathroom or to ice her knee and that he had never given any employee permission to go home to use the bathroom. Further, there was evidence that other Team Leaders had used ACT Government vehicles to go home during working hours, e.g. vehicle logs in respect of Mr Allen.

[49] On the first disputed issue I prefer Mr Siddall’s and Mr Seddon’s evidence because I consider it highly unlikely that they would have given Ms Martsoukas an open ended authorisation of the nature which she contends she was given. I have come to that view having regard to what the vehicle logs demonstrate regarding Ms Martsoukas’ use of ACT Government vehicles (discussed below). As to the second disputed issue, there was evidence before the Commission that Mr Allen used ACT Government vehicles to go home, with Mr Simmons attesting that the circumstances concerning Mr Allen were very different from Ms Martsoukas’ (also discussed below). Mr Lea’s evidence regarding Mr Jeffries use of vehicles was hearsay evidence. As such, I attach no weight to it. Mr Lea also attested that he had used ACT Government vehicles to go home to use the bathroom. However, he did not provide any detail of the circumstances, e.g. he may have been acting upon a complaint in the vicinity of his home. In the absence of such context, I attach little weight to his evidence in this regard.

[50] The material before the Commission included vehicle logs for Ms Martsoukas for the period 12 May 2015 to 21 January 2016. An analysis of those logs as they related to allegations 1-3 was attached to the investigator’s letter of 20 June 2016 to Ms Martsoukas. In summary, the analysis indicated that of a total of 72 shifts on the road over the period 12 May 2015 to 21 January 2016 Ms Martsoukas used an ACT Government vehicle to visit:

● her home address on 96 occasions for periods of between 2 minutes and 42 minutes;

● her mother’s boyfriend’s home in Giralang on 18 occasions for periods of between 2 minutes and 59 minutes; and

● the Hackett shops on 27 occasions for periods of between 2 minutes and 14 minutes.²⁹

[51] A more detailed analysis of her movements on a random sample of days was also included in the Investigation Report when setting out Mr Seddon’s evidence to the investigation. I have set out below a summary of some of the more extreme examples of Ms Martsoukas’ use of ACT Government vehicles:

● 13 May 2015 – at 12:06pm Ms Martsoukas drove from Yarralumla (in South Canberra) to her home address (in North Canberra) where she remained for 13 minutes after which she returned to Yarralumla logging off at that location at 12:58pm. The vehicle remained there until 1:16pm when it was again driven to her home address, arriving there at 1:33pm. The vehicle remained at Ms Martsoukas’ home address until 1:39pm when it was driven to her mother’s boyfriend’s home in Giralang where it remained for 32 minutes. The vehicle was then driven to Phillip.

● 7 October 2015 – Ms Martsoukas drove from the base in Fyshwick to her home address, remaining there for 11 minutes before the vehicle was driven to Phillip. The vehicle remained at Phillip until 10:44am when it was driven back to Ms Martsoukas’ home where it remained for 5 minutes. After that, the vehicle was driven back to the base in Fyshwick.

● 20 November 2015 - among other journeys to her home address that day Ms Martsoukas left the base at Fyshwick at 6:56pm and drove to her home arriving there at 7:18pm. The vehicle remained there for 7 minutes after which it was driven to the Hackett shops where it remained for 6 minutes before being driven back to the Fyshwick base.

[52] The vehicle logs also include other such examples which I have not included for reasons of brevity.

[53] In summary, the vehicle logs do not support Ms Martsoukas’ contention that she was going home to use the bathroom or to ice her knee. To the contrary, they support Mr Simmons’ characterisation of Ms Martsoukas’ behaviour as a “systemic and sustained misuse of Territory resources”. While I accept that going home to use the bathroom whilst on patrol would have been acceptable to Access Canberra in some circumstances, e.g. where it was more efficient than returning to base, this does not in my view constitute carte blanche approval for Ms Martsoukas to return home from the other side of Canberra for 5 minutes before returning to base at Fyshwick as occurred on 7 October 2015 when going straight from Phillip to Fyshwick would have been the most direct route. I note also that there was no evidence that Ms Martsoukas had any difficulty using the bathroom or icing her knee at Access Canberra’s Fyshwick premises when she returned to work after her knee surgery and was on modified duties in the office at Fyshwick. Further, I note that Ms Martsoukas’ response of 12 March 2017 to Mr Simmons does not mention that she had permission from either Mr Siddall or Mr Seddon to use ACT Government vehicles to go home to use the bathroom or to ice her knee. Her response also acknowledged that her behaviour was inappropriate and inconsistent with the expectations of the ACT Public Service.

[54] The vehicle logs for the period 2 September 2014 to 27 March 2015 annexed to Mr Simmons’ witness statement³⁰ indicate a pattern of vehicle usage consistent with the above examples. However, in view of the time recording irregularities in those logs I have attached no weight to that material despite the likelihood of the location details reflected in those logs being accurate.

[55] Section 9 of the PSM Act as applied in this case provided as follows:

“General obligations of public employees

9. A public employee shall, in performing his or her duties:

(a) exercise reasonable care and skill;

(b) act impartially;

(c) act with probity;

…

(k) not take, or seek to take, improper advantage of his or her position in order to obtain a benefit for the employee or any other person;

…

(o) not make improper use of the property of the Territory;

(p) avoid waste and extravagance in the use of the property of the Territory;

…” (Emphasis added).

[56] I note that amendments to s.9 of the PSM Act came into effect on 1 September 2016. As noted in the Attachment to Mr Simmons’ letter of 1 March 2017 “Due to the alleged inappropriate behaviour occurring in 2015 and early 2016, I have considered your conduct against the previous version of Section 9 of the Public Sector Management Act 1994. Amendments to the Act were implemented during the course of the investigation, therefore the allegations will be considered against the general obligations of public employees as found in Section 9 when the allegations occurred.”³¹ Nevertheless, the material before the Commission supports a finding that allegations 1-3 which relate to Ms Martsoukas’ use of ACT Government vehicles contravened her obligations under the PSM Act, in particular her obligation not to improperly use Territory property or resources.

[57] Clause H6.5 of the Agreement defines misconduct as follows:

“H6.5 For the purposes of this Section, misconduct includes any of the following:

(a) the employee fails to meet the obligations set out in section 9 of the PSM Act 1994 (this includes bullying and harassment or discrimination);

(b) the employee engages in conduct that has brought, or is likely to bring, the Directorate or ACTPS into disrepute;

(c) …”

[58] With regard to the remaining substantiated allegations, having examined the Investigation Report I am satisfied that the conclusions reached by the investigator were reasonably open to her based on the material before her. In my view the conduct involved in allegations 4, 5 and 9 would not of itself justify dismissal. However, the conduct involved in allegations 4, 5 and 9 cannot be divorced from Ms Martsoukas’ use of ACT Government vehicles. When seen in that light, the conduct provides further justification for Ms Martsoukas’ dismissal. Finally, in this regard, I should note that while Mr Seddon’s certification of Ms Martsoukas’ attendance forms appears to have been less than thorough, this does not absolve Ms Martsoukas of her obligation to submit leave forms in a timely way for each absence.

[59] Having regard to all the material before the Commission supports a finding that there was a valid reason for Ms Martsoukas’ dismissal based on her misuse of Territory property/resources which comes within the definition of misconduct in the Agreement. Further, drawing on the language in Rode, I am satisfied that the reason for Ms Martsoukas’ dismissal was defensible or justifiable on an objective analysis of the material before the Commission and that it was not “capricious, fanciful, spiteful or prejudiced.”

(b) Whether the person was notified of that reason

[60] Ms Martsoukas did not address this consideration in her submissions.

[61] Access Canberra submitted that Mr Simmons’ letter of 1 March 2017 notified Ms Martsoukas of the findings of the investigation into the allegations of misconduct, the disciplinary action proposed and the reason for that decision.

[62] Based on Mr Simmons’ letters of 1 March and 3 May 2017 it is clear that Ms Martsoukas was advised of the reasons for her dismissal.

[63] Accordingly, this factor does not point to Ms Martsoukas’ dismissal being harsh, unjust or unreasonable.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[64] As previously mentioned Ms Martsoukas submitted that the investigation which resulted in her dismissal was seriously unfair and did not afford her a fair opportunity to respond to the reasons for her dismissal.

[65] Access Canberra submitted that Ms Martsoukas had ample opportunity to present her views and respond to the allegations, adding that she took up these opportunities and that her responses were taken into account by both the investigator and the decision maker. Among other things, Access Canberra highlighted that on 20 June 2016 the investigator wrote to Ms Martsoukas articulating the allegations against and inviting her to respond, which she did on 7 October 2016³². Access Canberra further highlighted that on 1 March 2017 Ms Martsoukas was notified of the findings of the investigation and proposed disciplinary action and again invited to respond which she did on 12 March 2017³³.

[66] The opportunity to respond to the allegations and to comment on the findings of the investigation and proposed disciplinary action support a finding that Ms Martsoukas was given an opportunity to respond to reasons related to her conduct. While it arguably would have been better if Mr Seddon had discussed with Ms Martsoukas the issues identified in Ms Lewer’s complaint of 26 October 2016 shortly after they had been raised with him, his failure to do so does not mean that Ms Martsoukas was denied the opportunity to respond to the allegations regarding her conduct in the course of the investigation or during the proposed disciplinary action meeting on 1 March 2017.

[67] Having regard to the above, I consider that this factor weighs against a finding that Ms Martsoukas’ dismissal was harsh, unjust or unreasonable.

(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[68] Ms Martsoukas did not address this consideration in her submissions.

[69] Access Canberra submitted that Ms Martsoukas was not refused the opportunity to have a support person and in fact was encouraged to bring one to the meeting of 1 March 2017.

[70] The Investigator’s letter of 20 June 2016 to Ms Martsoukas among other things stated “You may elect to have a support person accompany you to the interview.”³⁴ Further, Ms Martsoukas deposed in her witness statement that on 27 February 2017 her supervisor at the Dickson Motor Registry told her that she had received an email from Mr Simmons asking her to advise Ms Martsoukas to bring a support person with her to a meeting with him on 1 March 2017³⁵. Beyond that there is no material before the Commission which points to any refusal by Access Canberra to allow Ms Martsoukas to have a support person assist at any discussions relating to her conduct or her dismissal.

[71] This does not point to Ms Martsoukas’ dismissal being harsh, unjust or unreasonable.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[72] Ms Martsoukas submitted that she received no prior warnings or counselling in relation to the alleged misconduct and was not warned that her employment was at risk until she received Mr Simmons’ letter of 1 March 2017.

[73] Access Canberra submitted that the allegations made against Ms Martsoukas concerned misconduct and were not related to unsatisfactory performance.

[74] The material before the Commission supports a finding that Ms Martsoukas’ dismissal related to her conduct rather than unsatisfactory performance. Accordingly, this factor is not relevant.

(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[75] Ms Martsoukas did not address this consideration in her submissions.

[76] Access Canberra submitted that the procedures followed in this matter were in accordance with the Agreement.

[77] In its Form F3 – Employer Response to Unfair Dismissal Application Access Canberra indicated that there approximately 21,500 employees working in the ACT Public Service, with around 2,470 of those employees working in the Chief Minister, Treasury and Economic Development Directorate. Further, it was not contended, nor was there any material before the Commission which would support a finding that Access Canberra’s size had any impact on the process followed in respect of Ms Martsoukas’ dismissal.

[78] As such, I consider this factor to be a neutral consideration.

(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[79] Ms Martsoukas did not address this consideration in her submissions.

[80] Access Canberra submitted that it did not understand this to be an issue concerning Ms Martsoukas.

[81] It is clear from the material before the Commission and Mr Seddon’s evidence in particular that Access Canberra had recourse to the Chief Minister, Treasury and Economic Development Directorate’s human resources area. Against that background and in the absence of any contentions to the contrary, I consider this factor to be a neutral consideration.

(h) Any other matters that FWC considers relevant

[82] Ms Martsoukas raised several issues in respect of this consideration. They were:

● she had been treated differently to Mr Allen;

● she had worked for the Respondent for 16 years and other than a misconduct incident in 2008 had an unblemished work record;

● she had documented health issues which affected her ability to obtain alternative employment; and

● she financially supported and cared for her elderly mother.

[83] At the hearing Ms Martsoukas further submitted that:

● she had been treated unfairly as several provisions of the Agreement had not been complied with by Access Canberra; and

● Access Canberra had condoned her conduct.

[84] I deal with each of these issues separately below.

[85] Access Canberra on the other hand submitted that Ms Martsoukas’ bullying and harassment claims were independent of the claims of misconduct and that there was no evidence before the decision maker that her behaviour was a direct result of any psychological condition.

Differential treatment

[86] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd³⁶ (Sexton). In that case the Vice President said:

“[33] It is settled that differential treatment of comparable cases can be a relevant consideration under s.170CG(3)(e) to consider in determining whether a termination was harsh, unjust or unreasonable …

[34] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[87] Mr Simmons’ oral evidence was that Mr Allen was being investigated in relation to his performance and attendance, adding that it was yet to be determined whether his use of ACT Government vehicles would be formally investigated. What was clear from Mr Simmons’ evidence was that he considered the circumstances relating to Mr Allen to be different from Ms Martsoukas’ situation. While Mr Simmons appropriately did not divulge the detail of some of the issues involved in respect of Mr Allen as a result of privacy considerations, it is important to note that Mr Allen is under investigation and that the only vehicle logs before the Commission relating to Mr Allen were for the period 14 December 2015 to 22 January 2016, a considerably shorter period than the vehicle logs available for Ms Martsoukas. Accordingly, drawing on the language in Sexton, I am not satisfied that Ms Martsoukas’ and Mr Allen’s cases are “properly comparable” or that Ms Martsoukas has established that the termination of her employment involved her being treated differently to Mr Allen. I therefore do not consider this issue to be a relevant matter.

Ms Martsoukas’ employment record

[88] It was not disputed that Ms Martsoukas was a longstanding ACT Public Service employee. Further, it was not disputed that Ms Martsoukas had received a warning for misconduct in 2009, though Ms Martsoukas attested that she appealed the warning and in the absence of any advice regarding her appeal assumed that it had been successful. The warning issued to Ms Martsoukas directed her “Not to make improper use of property of the Territory in using a government vehicle for private purposes.”³⁷

[89] While I note Mr Simmons’ evidence that Ms Martsoukas’ prior warning was not a factor in his decision to terminate her employment, the warning regarding her improper use of an ACT Government vehicle is a relevant consideration in the context of this matter. In my view, the warning diminishes the weight that can be attached to Ms Martsoukas’ length of service. This is because in light of the warning Ms Martsoukas would have been aware of her employer’s expectations regarding the use of not only ACT Government vehicles but Territory property in general.

[90] Further, I also note that as a Team Leader Ms Martsoukas had supervisory responsibilities. As observed by the Full Bench in Mr Michael Brambleby v Australian Postal Corporation T/A Australia Post “It is not unreasonable to expect higher standards of supervisory employees”³⁸.

[91] For these reasons, while Ms Martsoukas’ length of service is a relevant matter, the weight that can be attached to it is diminished by her prior misconduct and the higher standards reasonably expected of her as a supervisor.

Ms Martsoukas’ health issues

[92] Ms Martsoukas stated in her response of 12 March 2017 to Mr Simmons that her health issues and knee injury influenced her conduct. By way of background, on 18 July 2016 Ms Martsoukas lodged a workers’ compensation claim alleging psychological injury as a result of workplace bullying. Ms Martsoukas’ workers’ compensation claim was accepted by Comcare.

[93] As to the effect of Ms Martsoukas’ health issues on her ability to obtain alternative employment, I note that one of the medical reports (dated 30 May 2017) attached to her witness statement stated, inter alia, that “Now that her employment has been terminated, she [Ms Martsoukas] has engaged in study and is looking forward to an alternate career, it is likely that her symptoms will continue to resolve.”³⁹ The report also stated that “Ms Martsoukas would be able to perform her pre-injury duties as a parking inspector but not with her pre-injury employer.”⁴⁰

[94] While at the hearing Ms Martsoukas appeared anxious she provided no probative material as to how her health issues would affect her ability to find alternative employment.

[95] Against that background, I do not consider this issue a relevant matter.

Ms Martsoukas’ caring responsibilities

[96] Ms Martsoukas deposed in her witness statement that she lived with and provided financial support to her elderly mother. Further, in her response of 12 March 2017 to Mr Simmons’ letter of 1 March 2017, Ms Martsoukas stated:

“… I am the sole income earner in my household and have sole responsibility for the support and care of my elderly mother. While my mother receives a pension she is nevertheless dependent on my income to support her accommodation and care. I also provided support (financial and emotional) to my sister (who regularly experiences domestic violence) and my four nephews. Given my caring and financial responsibilities for my family, the termination of my employment would have significant and serious consequences for my family and cause great financial hardship.”41

[97] At the hearing Ms Martsoukas did not elaborate as to the nature and extent of her caring responsibilities for her mother, though I note that a medical report dated 8 September 2016 which was attached to Ms Martsoukas’ witness statement described her current home environment as “Currently, Ms Martsoukas is living at home with her mother, who is retired and in good health.”⁴²

[98] In the absence of more substantive evidence, I am not satisfied that Ms Martsoukas’ caring responsibilities are a relevant matter in this case.

Non-compliance with the Agreement

[99] Ms Martsoukas submitted that Access Canberra had not complied with clauses H2.3 and H7.1(c). Those provisions of the Agreement provide as follows:

“H2 PRELIMINARY ASSESSMENT

H2.1 In cases where an allegation of inappropriate behaviour is made, the manager/supervisor will initiate a preliminary assessment process to determine whether further action is required. The manager/supervisor may inform and/or seek the assistance of an appropriate Human Resources Manager.

H2.2 Following this process if the manager/supervisor determines that the allegations:

a) require no further action, then no further action needs to be taken;

b) can be resolved through counselling, other remedial action, or assistance to the employee then the manager/supervisor will implement such action;

c) are better resolved through Internal Review procedures set out in this Agreement or appropriate external mechanisms the manager/supervisor will refer the matter accordingly;

d) relate to underperformance processes the manager/supervisor will commence an underperformance process where this is warranted;

e) require investigation the manager/supervisor will recommend to the head of service that the matter be investigated;

f) may be vexatious or knowingly false, the manager/supervisor will consider whether further action needs to be taken in relation to the person who made the allegations.

H2.3 The manager/supervisor will inform the employee where a preliminary assessment process is commenced under subclause H2.1 if it is appropriate to do so.

H7 DEALING WITH ALLEGATIONS OF MISCONDUCT

H7.1 If, after receiving a recommendation from the manager/supervisor under paragraph H2.2(e), the head of service is of the opinion that the alleged misconduct cannot be resolved without recourse to investigation, the head of service will:

a) inform the appropriate Human Resources Manager that an investigation is to take place;

b) with the assistance of the appropriate Human Resource Manager make arrangements for an appropriately trained or experienced person (the investigating officer) to investigate the alleged misconduct in accordance with clause H9; and

c) inform the employee in writing of the alleged misconduct and that the matter is to be investigated.”

[100] With regard to clause H2.3 of the Agreement, Mr Seddon wrote to Ms Martsoukas on 1 March 2016 advising her that he was undertaking a preliminary assessment into allegations that she may have misused ACT Government assets. While it would have been more appropriate for Mr Seddon to advise Ms Martsoukas of this earlier in the process, I note that advising an employee that a preliminary assessment has commenced is a discretionary decision as a result of the words “if it is appropriate to do so” in the provision.

[101] As to clause H7.1c), as can be seen from paragraph [15] above, Mr Simmons’ letter of 8 March 2016 clearly states that the allegation to be investigated related to Ms Martsoukas’ use of ACT Government vehicles for non-work related purposes. While ultimately the allegations put to Ms Martsoukas on 20 June 2016 by the investigator went beyond that issue, this of itself does mean that the Agreement has not been complied with.

[102] Ms Martsoukas contended in her written submissions that Mr Seddon was required by clause H4.4 of the Agreement and consistent with good management practice to raise Mr Lewer’s complaint with her. While I accept that it would have been consistent with good management practice for Mr Seddon to do so, I note the clause H4 of the Agreement deals with underperformance. As previously determined, Mr Martsoukas’ dismissal related to her conduct and not her performance. As such, Clause H4.4 was not relevant in Ms Martsoukas’ case.

[103] The above analysis does not support a finding that Access Canberra has not complied with the Agreement. Accordingly, I do not consider this issue to be a relevant matter.

Access Canberra had condoned Ms Martsoukas’ conduct

[104] As stated above, Ms Martsoukas relied on the decision in Burge to contend that Access Canberra had condoned her conduct after 26 October 2015 by failing to act upon it at that time. In particular, Ms Martsoukas referred to the following passage in Burge:

“In any event, we are satisfied the conduct of the appellant referred to has been condoned by the respondent or that it has waived any right it may have had to dismiss him for serious and wilful misconduct. As Macken J observed in Australasian Transport Officers’ Association v Department of Motor Transport (1988) 25 IR at 235 at 244, ‘‘the doctrine of condonation has always formed a part of the law applied by the NSW Industrial Commission’’. In that respect, his Honour referred with approval to the following statement by Cook J in Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 at 25:

‘‘. . . where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting, then he is regarded in law as having waived the right of summary dismissal for that offence, or of having ‘condoned’ that offence, so that he cannot, therefore, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action.’’”⁴³

[105] Mr Seddon attested that he approached Mr Simmons to obtain vehicle logs of Ms Martsoukas’ use of ACT Government vehicles to ascertain whether she was leaving early. I find that explanation somewhat implausible given the nature of Ms Lewer’s complaint and in circumstances where Mr Seddon in his statement of 11 April 2016 to the investigator stated that “Helen [Ms Martsoukas] had been assigned to duties as Team Leader in the Office on those nights”⁴⁴. This suggests that Mr Seddon had some concerns regarding Ms Martsoukas’ use of ACT Government vehicles at the time he approached Mr Simmons requesting the vehicle logs. However, there is no material before the Commission which points to Mr Seddon having any definitive evidence to substantiate any such concerns that he may have had at the time that he approached Mr Simmons. Further, the vehicle logs obtained for the period 26-29 October 2016⁴⁵ provided prima facie evidence that there may be an issue regarding Ms Martsoukas’ use of ACT Government vehicles, with further evidence required to indicate whether the issue was a more systemic matter or that the results were an aberration. Seen in that light, I am not satisfied that Access Canberra’s conduct after 26 October 2015 constituted condonation of Ms Martsoukas’ conduct.

[106] As such, I do not consider this to be a relevant matter.

Summary

In summary, I consider Ms Martsoukas’ length of service to be a relevant matter, though as noted above the weight that can be attached to it is diminished by her prior misconduct and the higher standards reasonably expected of her as a supervisor.

Conclusion

[107] Drawing on the above analysis, I find that there was a valid reason for Ms Martsoukas’ dismissal, that Ms Martsoukas was notified of that reason and given an opportunity to respond to that reason and that her length of service is a relevant matter. Beyond that, I find that the remaining criteria in s.387 of the Act are either neutral considerations or not relevant in this case.

[108] The leading statement of principle regarding the meaning of the expression “harsh, unjust or unreasonable” is the statement in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd⁴⁶(Byrne):

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” (Underlining added)

[109] Drawing on the language in Byrne the material before the Commission does not support a finding that Ms Martsoukas’ dismissal was harsh because of the consequences for her personal circumstances or on the basis that it was disproportionate to her misconduct. Further, Ms Martsoukas’ admitting to the conduct does not support a finding that her dismissal was either unjust or unreasonable.

[110] Against that background, and having considered all of the criteria in s.387 of the Act, I find that Ms Martsoukas’ dismissal was not harsh, unjust or unreasonable. Accordingly, her application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

J. Macken of Counsel for the Applicant.

A. Irving of Counsel for the Respondent.

Hearing details:

2017.

Canberra:

September 18 and 26.

Final written submissions:

September 26 and October 10

1 Exhibit 7 at Attachment 3 to Annexure CS6

2 Ibid at Annexure CS2

3 Exhibit 2 at Attachment EM18

4 This Preliminary Assessment report was requested by the Commission at the hearing of 26 September 2017 and was provided later that day by Access Canberra

5 AE408295

6 Exhibit 7 at Attachment 1 to Annexure CS6

7 Ibid at Attachment 20 to Annexure CS6

8 Ibid at Annexure CS6

9 Exhibit 2 at Attachment EM32

10 Ibid at Attachment EM1

11 Ibid at Attachment EM2

12 Ibid at Attachment EM3

13 (2001) 105 IR 325

14 Exhibit 2

15 Exhibit 7 at Attachment 9 to Annexure CS6

16 Exhibit 3 at Attachment CMS1

17 Exhibit 1

18 [2011] FWAFB 1166

19 Exhibit 4

20 Exhibit 3

21 Exhibit 7 at Annexure CS10

22 Ibid at Attachment 12 to Annexure CS6

23 Ibid

24 Transcript at PN2367

25 Print R4471

26 (1995) 62 IR 371

27 Print S4213

28 (1999) 169 ALR 89 at 92 per Moore J

29 Exhibit 7 at Attachment 20 to Annexure CS6

30 Ibid at Annexure CS10

31 Exhibit 2 at Attachment EM1

32 Exhibit 7 at Attachment 9 to Annexure CS6

33 Exhibit 2 at Attachment EM2

34 Exhibit 7 at Attachment 20 to Annexure CS6

35 Exhibit 2 at paragraph 138

36 PR93140

37 Exhibit 7 at Annexure CS9

38 [2014] FWCFB 9000 at [89]

39 Exhibit 2 at EM35

40 Ibid

41 Ibid at EM2

42 Ibid at EM23

43 (2001) 105 IR 325 at 31

44 Exhibit 7 at Attachment 7 to Annexure CS6

45 Based on the vehicle logs set out in Exhibit 7 at Attachment 10 to Annexure CS6

46 (1995) 185 CLR 410 at p 465-6

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