QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Farquharson v Queensland Racing Integrity Commission [2018] QIRC 001 |
PARTIES: | Farquharson, David v Queensland Racing Integrity Commission |
CASE NO: | TD/2017/21 |
PROCEEDING: | Application for Reinstatement |
DELIVERED ON: | 8 January 2018 |
HEARING DATE: | 13 November 2017 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Bloomfield |
ORDERS: | 1. That Mr Farquharson be reinstated to his former position of Chief Stipendiary Steward - Harness, with the Queensland Racing Integrity Commission from 24 February 2017. 2. That Mr Farquharson's continuity of employment be maintained for all purposes of his Contract of Employment - both written and legislatively provided. 3. That Mr Farquharson be paid any remuneration lost since his dismissal after taking into account any employment benefits or wages received by him since his dismissal. 4. That the parties discuss, with the intention of agreeing, how any statutory entitlements paid to Mr Farquharson at the time of his original termination are to be treated. In the event the parties are unable to agree, liberty to apply is granted. |
| INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - APPLICATION FOR REINSTATEMENT - where summary dismissal - where investigation into applicant's behaviour during Stewards' Inquiry Hearing - where allegations of serious misconduct - whether applicant engaged in an act of dishonesty - whether applicant engaged in an act and/or omission that could negatively affect the reputation or good standing of the employer - whether applicant engaged in an act or omission that could preclude or inhibit him from performing his duties - where the applicant denies making false statements - whether the applicant made a mistake which he failed to correct - whether the dismissal was harsh, unjust or unreasonable - whether trust and confidence in the employment relationship has been broken | |
| CASES: | Industrial Relations Act 1999, s 77, s 78, s 79 Lamb v Redland City Council [2014] QIRC 041 Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 36 FCR 20 Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15, 72 IR 186 Nicholson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199 |
| APPEARANCES: | Mr T.A. Ryan, Counsel instructed by W.H. Tutt Solicitors for the Applicant. Mr J. Farren, Counsel directly instructed by the Respondent. |
Decision
Background
In an application lodged on 15 March 2017, Mr David Farquharson seeks reinstatement to his former position of Chief Stipendiary Steward - Harness with Queensland Racing Integrity Commission (QRIC). On the basis that his termination took effect on 24 February 2017, s 1024 of the Industrial Relations Act 2016 prescribes that Mr Farquharson's application must be heard and decided in accordance with the relevant provisions of the Industrial Relations Act 1999 (the Act).
The decision to terminate Mr Farquharson's employment, by way of summary dismissal, was taken by the Racing Integrity Commissioner, Mr Ross Barnett, pursuant to clause 9.4 of Mr Farquharson's Contract of Employment following:
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Details
- Case
- [2018] QIRC 1
- Decision Date
CaseChat Overview and Summary
The case of Farquharson v Queensland Racing Integrity Commission involved Mr Farquharson, a former Chief Stipendiary Steward, challenging his dismissal by the Queensland Racing Integrity Commission (QRIC). The central dispute revolved around Mr Farquharson's conduct during a stewards' enquiry hearing, specifically his statements about inspecting a swab stall on the race day, which he did not actually do. The case was heard in the Queensland Industrial Relations Commission.
The court was required to decide whether Mr Farquharson's conduct constituted serious misconduct under his contract of employment. This included examining whether his statements were made dishonestly and whether they could negatively affect the reputation or good standing of the QRIC. The primary issue was whether Mr Farquharson knowingly made false statements during the hearing and failed to correct them when pointed out, despite being reasonably satisfied that he had done so.
The court found that Mr Farquharson did indeed make false statements knowingly and failed to correct them when they were brought to his attention. The court considered the full context of the hearing and found that Mr Farquharson's statements were unambiguous and intended to terminate Mr Scott's line of questioning. Despite Ms Wolsey's comments during an adjournment, Mr Farquharson did not correct his statements when the hearing resumed. This led the court to conclude that Mr Farquharson's conduct was dishonest and could negatively impact the QRIC's reputation. Therefore, the court found that Mr Farquharson's dismissal was justified.
The orders of the court included reinstating Mr Farquharson to his former position with QRIC from the date of his dismissal, maintaining his continuity of employment, and compensating him for lost remuneration. The parties were also directed to discuss and agree on the treatment of any statutory entitlements paid at the time of his original termination, with liberty to apply if they could not reach an agreement.
The court was required to decide whether Mr Farquharson's conduct constituted serious misconduct under his contract of employment. This included examining whether his statements were made dishonestly and whether they could negatively affect the reputation or good standing of the QRIC. The primary issue was whether Mr Farquharson knowingly made false statements during the hearing and failed to correct them when pointed out, despite being reasonably satisfied that he had done so.
The court found that Mr Farquharson did indeed make false statements knowingly and failed to correct them when they were brought to his attention. The court considered the full context of the hearing and found that Mr Farquharson's statements were unambiguous and intended to terminate Mr Scott's line of questioning. Despite Ms Wolsey's comments during an adjournment, Mr Farquharson did not correct his statements when the hearing resumed. This led the court to conclude that Mr Farquharson's conduct was dishonest and could negatively impact the QRIC's reputation. Therefore, the court found that Mr Farquharson's dismissal was justified.
The orders of the court included reinstating Mr Farquharson to his former position with QRIC from the date of his dismissal, maintaining his continuity of employment, and compensating him for lost remuneration. The parties were also directed to discuss and agree on the treatment of any statutory entitlements paid at the time of his original termination, with liberty to apply if they could not reach an agreement.
Orders
Orders of the court
1. That Mr Farquharson be reinstated to his former position of Chief Stipendiary Steward - Harness, with the Queensland Racing Integrity Commission from 24 February 2017.
2. That Mr Farquharson's continuity of employment be maintained for all purposes of his Contract of Employment - both written and legislatively provided.
3. That Mr Farquharson be paid any remuneration lost since his dismissal after taking into account any employment benefits or wages received by him since his dismissal.
4. That the parties discuss, with the intention of agreeing, how any statutory entitlements paid to Mr Farquharson at the time of his original termination are to be treated. In the event the parties are unable to agree, liberty to apply is granted.
Background
Background to the litigation
On 6 February 2017, Mr Barnett acknowledged receipt of Mr Farquharson's undated response to the first show cause letter. In doing so he wrote:"I have considered all the evidence, submissions and other material relevant to this matter (whether specifically mentioned in this decision or not) and make the following findings in relation to each allegation, on the balance of probabilities.I note that you admit the following facts:a.On Tuesday 5 July 2016, you were conducting a steward's enquiry hearing in relation to the conduct of Mr Neale Scott ('the Hearing').b.The enquiry hearing panel considered of you as Chairman, Ms K Wolsey and Mr N Torpey.c.During the course of the Hearing, the following exchange occurred between you and Mr Scott (at lines 3-24 of page 20 of the Hearing transcript):'MR SCOTT: So this swab stall was the very first time it was used, and that's why I've asked what compliance it had to meet to be a swab stall and was it inspected on that day. Is there any evidence to say - you're obviously unaware of this now. When they cleaned out all the trainers' gear and medications there, did anybody sanitise and sterilize the room before they then brought my horse in there to take a swab?THE CHAIRMAN: I inspected the swab room on the day and to me it was sufficient to take samples. As to what the builders did or any repairs or the standard that you talk about, I'm not aware of. But, as a visual, as an inspection on the things that were associated with integrity ----MR SCOTT:So you're saying that you did it?THE CHAIRMAN: I had a visual on the race day, yes.MR SCOTT:But you're unaware of - you're unaware of the history of it and you're unaware of whether the building ----THE CHAIRMAN: They showed me where the swab stall was. I had a look at the swab stall and I was satisfied with the way it was presented for the collection of urine from horses, yes. (emphasis added).'d. The relevant race meeting was held on 13 September 2015.e. You were not present at the relevant race meeting.f.You did not inspect the relevant swab stall on the day of the relevant race meeting.g.The facts in paragraphs (a)-(f) above were known to you at the time you made the emphasized statements in paragraph (c) above.h.During an adjournment of the Hearing after the exchange in paragraph (c) above had occurred, Ms Wolsey said to you words, or words to the effect of 'Oh why did you say that, you weren't even working that day'.i.Upon resumption of the hearing, you failed to correct the false statements emphasised in paragraph (c) above, or at all.However, you deny that you have engaged in serious misconduct.Disputed FactsThe only particularised fact contained in my cause notice that you deny is that you made the emphasised statements in paragraph (c) above knowing them to be false.You contend that these statements were merely an 'inadvertent slip of the tongue' and what you meant to say was that you had variously 'inspected' and 'had a visual' on the swab room 'for' the race day, not 'on' the race day. In particular, you point to the . . . earlier exchange with Mr Scott during the Hearing to suggest that it was clear that you were not present on the race day and that your later suggestion that you were present was a slip, rather than intentionally false statement (at page 19 of the Hearing transcript):. . .For the following reasons, it is my view that you seek to place a gloss on your later statements.First, your statements were entirely unambiguous and repeated. You asserted that you inspected the swab room 'on the day' and then when asked by Mr Scott to confirm that you personally did the inspection being referred to, you repeated the assertion - 'I had a visual on the race day, yes.'Second, the correct characterisation of your later statements must be made upon an analysis of the full context of the hearing, not by selective quotation of particular exchanges. During that part of the hearing, Mr Scott was enquiring as to whether there were standards set down for swab facilities and, if so, whether they were followed at the relevant race track on the day his horse was tested. As to the first question, you could not answer it accurately (see page 18 at lines 14 onwards and 39 onwards). When Mr Scott directly asked whether an inspection had been performed on the Deagon complex, the exchange you rely upon occurred. It is noted that your answer was that an inspection had been carried out by stewards 'prior to the race meeting', not on the race day. The exchange between Mr Scott and the hearing panel then proceeded as follows (see page 19 at line 27 onwards):'MR SCOTT:Mm-hm. Do you know how many times has that swab room been used at Deagon prior to 13 September?MS WOLSEY: The year before.THE CHAIRMAN: Yeah, the race meeting the year before, and also the picnic thoroughbred meeting that was conducted there.MR TORPEY: In the thoroughbreds, there have been samples taken at barrier trials there as well during that last 12 months in particular.MR SCOTT: That swab stall was built for that day. It was previously a trainers' storage room. They cleaned - they got all the trainers to clean out all their gear and their medications and whatever they had in there and then they put up a wall inside and used it as a swab stall on that day. It was the very first day that the swab stall has ever been used at Deagon. Those meetings that you're talking about at the picnic meeting and the other thoroughbred meetings, and the picnic meeting between the thoroughbred and harness, all over the last 12 months, that swab room was not used, they used to use [it] around near the sand roll for that, right.MR TORPEY: Mmm.MR SCOTT: So this swab stall was the very first time it was used, and that's why I've asked what compliance it had to meet to be a swab stall and was it inspected on that day. Is there any evidence to say - you're obviously unaware of this now. When they cleaned out all the trainers' gear and medications there, did anybody sanitise and sterilise the room before they then brought my horse in there to take a swab?' (emphasis added).It is then that you state that you personally inspected the swab room on the day of the race meeting and were satisfied that it was sufficient to take samples.Considered in its full context, I infer that you made this statement knowing it to be false because Mr Scott had exposed that the Hearing panel were unaware that the relevant swab room had been used for the first time at that race meeting and you wanted to terminate Mr Scott's line of enquiry by asserting that you personally inspected the swab room on the race day and found it to be suitable. Further, perusal of the transcript discloses that this is what in fact occurred, with Mr Scott turning his attention to the manner in which the samples were taken and handled.Finally, you contend that, had you realised your mistake, you would have corrected it. However, you admit that during the adjournment of the hearing after the relevant exchange had occurred, Ms Wolsey said to you words, or words to the effect of 'Oh why did you say that you weren't even working that day' and upon resumption of the hearing, you failed to correct the false statements you had made to Mr Scott. I therefore reject your claim that you had not realised your mistake.As such, I reject your contentions and am reasonably satisfied that, on the balance of probabilities, you made the statements emphasised in paragraph 3 of the particulars contained in the first show cause notice, knowing them to be false.I therefore find that I am reasonably satisfied that all of the particularised facts alleged in the first show cause notice are proven.Serious MisconductYou deny that you have engaged in an act of dishonesty in the course of or in connection with the performance of your duties and responsibilities on the basis that you did not intend to be dishonest and you mistakenly used one word - 'on' instead of another - 'for'.For the reasons given above, I am reasonably satisfied that you made the statements emphasised in paragraph 3 of the particulars contained in the first show cause notice, knowing them to be false.You admit that the falsity of your statement was raised with you by Ms Wolsey during the adjournment and you failed to correct your false statement upon resumption of the hearing, or at all. You assert that you assumed that it would have been clear to those present at the hearing that it was not you that conducted the inspection on race day because of the earlier exchange referred to above. In my view, that submission is unsustainable on any fair reading of the hearing transcript. For example, if the true facts were that clear to those present, Ms Wolsey would have had no reason to raise the issue with you during the adjournment. I am reasonably satisfied that your statements were made dishonestly in that you knew they were false and failed to correct them.I am also reasonably satisfied that you engaged in the impugned conduct in the course of or in connection with the performance of your duties and responsibilities.As such, I am reasonably satisfied that you are guilty of serious misconduct within the meaning of clause 9.4(a)(vi) of your contract of employment by engaging in an act of dishonesty in the course of or in connection with the performance of your duties and responsibilities.You deny that you have engaged in an act and/or omission that could negatively affect the reputation or good standing of the QRIC because you merely misused a word or two during an enquiry and clarified the matter to accurately reflect the true state of the facts at another part of the Hearing. Your submission is that this could not objectively negatively affect the reputation or good standing of the QRIC.I consider your submission to be misconceived because the 'clarification' statement that you rely upon was made before the impugned statement. As such, the last fact that was asserted to Mr Scott by you was that you personally inspected the swab stall on the race day and found it to be appropriate. As noted above, that statement effectively shut down Mr Scott's line of enquiry.As a steward, you effectively stand in judgement over those who the QRIC regulates, as a delegate of the Commissioner. For the reasons already given, I am reasonably satisfied that you dishonestly made false statements in the course of chairing a stewards' inquiry. If that were to become publicly known, which it has at least to Mr Scott, I am also reasonably satisfied that your conduct could negatively affect the reputation or good standing of the QRIC. Whether the issue of swab stall inspections was material to the ultimate issues requiring determination before the enquiry is, in my view, irrelevant.As such, I am reasonably satisfied that you are guilty of serious misconduct within the meaning of clause 9.4(a)(vii) of your contract of employment by engaging in an act and/or omission that could negatively affect the reputation or good standing of the QRIC.Apart from denying the allegation, you have not directly made submissions as to why I should not be satisfied that you have engaged in an act or omission that could preclude or inhibit you from performing the duties of your position. You do however point to what you assert is your 'long and honest career in the harness industry'.A racing steward's position is one that requires utmost and unquestionable integrity. You are the Chairman of Stewards. Your conduct must therefore be entirely beyond reproach. You must be able to be trusted by me as Commissioner, the racing industry that appears before you as a steward and your staff. If that is not the case, you cannot effectively perform the duties of your position.In addition, while you were entitled to make whatever submissions you wished to in response to my show cause notice, the submissions you have made are such that it is clear that you have no insight into the dishonesty in which you have engaged or its relevance to the discharge of your duties.As such, I am reasonably satisfied you are guilty of serious misconduct within the meaning of clause 9.4(a)(vii) of your contract of employment by engaging in an act or omission that could preclude or inhibit you from performing the duties of your position."
Evidence
Evidence Before The Court
By way of letter dated 24 February 2017, Mr Barnett summarily dismissed Mr Farquharson from that same date on the basis he was reasonably satisfied that disciplinary action ought to be taken against him and, pursuant to clause 9.4 of his Contract of Employment, his employment ought to be terminated without payment of notice.Evidence Mr Farquharson said he commenced employment with Queensland Harness Racing Board in October 2007 as a Senior Stipendiary Steward, becoming the Chairman of Stewards in March 2012. On 1 July 2016 he became an employee of Queensland Racing Integrity Commission upon the creation of that organisation. At the time of the third day of the Scott Inquiry, 5 July 2016, he was responsible for a number of positive swab inquiries - which he estimated to be around 23 in number - and the organisation was relocating from Deagon and undergoing many transitional changes. He did not realise it at the time but these factors placed him under additional pressures to those he would ordinarily have experienced in the normal course of his duties. In terms of Ms Wolsey's comments to him during the adjournment on 5 July 2016, he understood them to be more inquisitive rather than challenging him about what he had said. He did not place any real weight on what Ms Wolsey said as he believed that what he said at page 19 of the transcript of the Inquiry made it sufficiently clear that he was not in attendance at the race meeting in question. In Mr Farquharson's view, if Ms Wolsey held some concern that he had misled the Inquiry then, as the Deputy Chairman of Stewards, she could have placed on record during the Inquiry any concerns that she may have held or corrected any inadvertent mistakes. Under cross-examination Mr Farquharson acknowledged that the role of Chief Steward was one which required unquestioned integrity and that anyone performing that role had to be trusted by the Racing Integrity Commissioner, industry participants and the person's staff. If the person was not trusted by all of those people they could not effectively perform the role of Chief Steward. In the course of re-examination Mr Farquharson said that the connections of any racehorse witnessed the sterilization of the pan used to collect urine and the use of a control solution which is swirled around the pan and then tipped back into the control bottle. The control solution, in the control bottle, is also used to rinse out the bottles used to collect the A and the B samples to make sure there is no contamination in the urine that is split into the two samples. In response to a question from the Bench, Mr Farquharson said Mr Scott witnessed the collection of urine from his horse and signed the relevant paperwork to signify he had observed the process and was satisfied with the way the sample was collected. Finally, Mr Farquharson said that given the specialised nature of his employment as a Chief Stipendiary Steward he had been unable to obtain permanent employment in a similar, or substantially similar, role to the one he held prior to his dismissal by QRIC. At the time of the hearing he was employed in a temporary position as a Steward with the Tasmanian Office of Racing Integrity - a position he had obtained in early May 2017.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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