Henry Carrick v Life Without Barriers
[2015] FWC 8980
•30 DECEMBER 2015
| [2015] FWC 8980 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Henry Carrick
v
Life Without Barriers
(U2014/6383)
DEPUTY PRESIDENT ASBURY | BRISBANE, 30 DECEMBER 2015 |
Application for relief from unfair dismissal.
OVERVIEW
[1] Mr Henry Carrick applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Life Without Barriers (LWB). Mr Carrick was employed by LWB as a Disability Support Co-ordinator from 4 February 2009 and with a predecessor organisation from June 2003.
[2] LWB provides services including support services for disabled persons. Mr Carrick worked in a program funded by the Queensland Government and regulated by legislation including the Disability Services Act 2006. Mr Carrick’s dismissal followed a series of events which occurred on or around 23 January 2014 involving two other employees of LWB, which culminated in Mr Carrick being charged with producing a dangerous drug. The other employees were also charged with the same or similar offences. Given the nature of the allegations which are still before the Court and that those other employees were not called to give evidence in this case, I refer to those employees as “N” and “O”.
[3] Following an investigation of these events and Mr Carrick’s role in them, LWB concluded that it did not accept Mr Carrick’s explanation in relation to a number of questions posed to him and that it no longer had trust and confidence in Mr Carrick as an employee. Mr Carrick was dismissed on 20 March 2014 and was paid four weeks wages in lieu of notice. N and O were also dismissed. Mr Carrick, N and O filed unfair dismissal applications. The applications made by N and O were originally allocated to me. Mr Carrick’s application was originally allocated to another member of the Commission.
[4] Mr Carrick, was represented by his mother Ms Caroline Unwin, who is not a lawyer or a paid agent for the purposes of s.596 of the Act. Ms Unwin was also appointed as the representative for N and O in relation to their unfair dismissal applications. LWB was represented in each case by Mr Justin Davis, a Senior Employee Relations Adviser, and who is also not a lawyer or paid agent. The three applicants initially indicated that they each intended to give evidence in all three cases. Given the interrelationship between the three applications, and that the member to whom Mr Carrick’s application was initially allocated had attempted to resolve the matter by conciliation, Mr Carrick’s application was reallocated to me.
[5] This reallocation reduced travel and associated costs for the Commission and the Respondent’s representative and was intended to provide efficiencies for the Applicants in each matter in terms of the availability of witnesses. The applications filed by N and O did not proceed to hearing, and as previously noted N and O were not called to give evidence on behalf of Mr Carrick. I provide this information because Ms Unwin later questioned why I was dealing with Mr Carrick’s application when it had originally been allocated to another member of the Commission and this is the explanation that I provided to her.
[6] Mr Carrick asserts that his dismissal was harsh, unjust and unreasonable and maintains that there was no valid reason for the dismissal and that he was not dishonest about the events of and following 23 January 2014 and in the investigation of those events conducted by LWB. The application was made within the period required in subsection 394(2) of the Act. No other jurisdictional issues arise. Mr Carrick is a person protected from unfair dismissal as defined in s.382 of the Act. LWB is not a small business employer and the dismissal was not a case of genuine redundancy.
[7] The determination of whether Mr Carrick’s dismissal was unfair involves contested issues of fact. I conducted a hearing into the application as I considered that this was the appropriate course, taking into account the matters set out in s.399 of the Act and the views of the parties. The hearing was conducted in Cairns on the basis that Mr Carrick and a number of witnesses reside there.
[8] At the hearing in Cairns, evidence was given by Mr Carrick on his own behalf. 1 Evidence was given for LWB by Ms Amy Rochelle Williamson, LWB Operations Manager for Far North Queensland.2 A statement signed by Mr David Love - Disability/Youth Support Worker Coordinator - Far North Queensland - on 8 December 20143 was also filed by LWB. On 11 December 2014, Mr Love emailed4 my Associate withdrawing his initial statement and filed a further statement.5 During cross-examination of Mr Carrick it emerged (after repeated denials by Mr Carrick) that Mr Carrick had made contact with Mr Love by text message after he made his initial statement. The issue of the effect of that contact on Mr Love’s evidence and the implications of Mr Carrick having made contact with Mr Love in relation to his statement are dealt with in more detail later in this Decision.
LEGISLATION
[9] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to apply the criteria in s.387 of the Act, as follows:
(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 the FWC considers relevant.”
[10] The employer bears an onus of establishing that there was a valid reason for a dismissal.6 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”7 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,8 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.9 Misconduct justifying dismissal is conduct so serious that it goes to the heart of the employment relationship 10 or evinces an intention that the employee no longer intends to be bound by the employment contract.11
[11] Where an employer alleges criminal conduct or fraud on the part of an employee, the standard of proof to be applied in determining whether the employee engaged in such conduct, is proof on the balance of probabilities. That is the case notwithstanding that the strength of the evidence necessary to establish this to the required standard may vary, because of the seriousness of the allegations 12. A finding that an employee has engaged in criminal conduct should not be lightly made and must be based on clear and cogent proof.13 This is because there is a conventional perception that people do not ordinarily engage in fraudulent or criminal conduct.14 While the employer bears the onus of establishing the validity of the reason for dismissal, the dismissed employee bears the onus of establishing that the dismissal was unfair.
[12] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.15
EVIDENCE
Background
[13] The evidence about the background to the issues in dispute can be summarised as follows. Mr Carrick’s evidence was that he befriended a person named Justin, who was a client of the organisation Mr Carrick worked for prior to working for LWB. At some point Justin moved to Cairns. Mr Carrick introduced Justin to his work colleagues N and O. Mr Carrick and N helped Justin to move house. Mr Carrick also said that he assisted Justin by purchasing what he described in his evidence to the Commission as “plastic garden trays” on line. According to Mr Carrick, Justin was a keen gardener and Mr Carrick believed that Justin was going to use the trays to grow herbs and other plants. Mr Carrick said that he assisted Justin to purchase the trays because Justin did not have internet access. Mr Carrick and his wife socialised with Justin for a period after Justin moved to Cairns before breaking off contact because Mr Carrick was concerned that Justin was infatuated with his wife.
[14] At some point on or around 23 January 2013, Justin was charged with offences in relation to the cultivation of cannabis. Mr Carrick, N and O were implicated and were subsequently charged with production of a dangerous drug. Mr Carrick, N and O were dismissed by LWB. Each filed an application for an unfair dismissal remedy. As previously noted the applications filed by N and O did not proceed to hearing.
[15] It is not in dispute that on 23 January 2014, Mr Carrick was working as Disability Support Coordinator at the Manunda office of LWB. Mr Carrick was on-call during the morning, and part of his role on that day was to coordinate the rosters of Disability Support Workers. N was rostered to commence work at 6:00am and failed to attend for his shift. As it transpired, N was unable to attend for his rostered shift because Police had gone to N’s home that morning and N was taken (or went) to the Police Station and was charged with a drug related offence.
[16] On becoming aware that N had not reported for his shift, Mr Carrick attempted to call him at 8:06am on 23 January 2014. When he was unable to reach N, Mr Carrick contacted N’s partner and, according to Mr Carrick’s phone records, spoke to her for a period of some 2 minutes and 40 seconds. What Mr Carrick was told by N’s partner and what Mr Carrick already knew about the offences with which N was charged, is a matter in dispute between the parties. At or around 9.09 am Mr Carrick had a discussion with Ms Williamson about N’s absence. The subject matter of that discussion is also in dispute.
[17] At some time between 1.00 pm and 1.30 pm on 23 January 2013, Mr Carrick left the office of LWB. Mr Carrick’s wife telephoned him around that time and informed him that the Police were at his home with a search warrant. It is not clear from the evidence whether Mr Carrick was on his lunch break when his wife telephoned him or whether he took his lunch break after he received the call. It is also not clear whether Mr Carrick went to his home after his wife telephoned him. Mr Carrick did attend at the Cairns Police Station at or around 3.00 pm. At 3.11 pm Mr Carrick telephoned Mr Love who was at the LWB office. While Mr Carrick was speaking to Mr Love, Ms Williamson took the telephone from Mr Love and spoke to Mr Carrick. What Mr Carrick told Mr Love and Ms Williamson is also in dispute. Mr Carrick was subsequently questioned by the Police and charged with producing a dangerous drug.
[18] After being released by the Police, Mr Carrick telephoned Ms Williamson at 6:21pm and told her about the charge. Mr Carrick had a further telephone conversation with Ms Williamson at 6.49 pm. On 24 January 2014 Mr Carrick attended at the LWB offices and had a discussion with Ms Williamson about the events of the previous day. At the point Mr Carrick’s unfair dismissal application was heard, Mr Carrick said that the charge against him had been reduced to a summary charge but had not been dealt with by the Court. Mr Carrick also said that it was his expectation that the charge would be dropped.
Allegations and reason for dismissal
[19] Upon becoming aware of the charges against Mr Carrick, management of LWB commenced an investigation and put a series of allegations to Mr Carrick. Those allegations were a moving feast. Initially, by letter dated 24 January 2014, LWB stood Mr Carrick down with pay, until LWB was satisfied that he continued to be a “suitable person”. There was no evidence as to the definition of a “suitable person” but I presume from the documentation tendered by LWB that the term encompasses a person deemed suitable to provide disability services to its clients, in accordance with relevant regulatory requirements. 16
[20] After an investigation LWB concluded that an allegation of Mr Carrick being associated with criminal activity was substantiated “on the balance of probabilities” because he had been charged with production of a dangerous drug. LWB also said that Mr Carrick had breached its policies and procedures by bringing the organisation into disrepute because of his criminal charges. 17 LWB stated in a letter dated 4 February 2014 that it intended to terminate Mr Carrick’s employment on these grounds, but that before a final decision was made he would be given an opportunity to make final submissions or put forward any further evidence or mitigating considerations.
[21] In response to an objection to Mr Carrick being investigated while a criminal proceeding was on foot, taken by the Services Union on behalf of Mr Carrick, LWB raised new allegations that on 23 January 2014 Mr Carrick had breached his employment agreement by leaving the workplace without LWB approval leaving clients and staff in a vulnerable position without supervision or coordination and placing vulnerable clients at risk. It was further alleged that Mr Carrick had failed to comply with the direction given to him in writing that he keep the complaints against him confidential and that contrary to that direction, Mr Carrick had discussed the matter with N.
[22] On 20 March 2014, LWB informed Mr Carrick that after considering his responses to the allegations LWB had come to the conclusion that it no longer had trust and confidence in Mr Carrick as an employee. Mr Carrick was further informed that LWB had reached this conclusion because it did not accept his explanation of events of and surrounding 23 January 2014 and that as a result his employment was to be terminated immediately with four weeks payment in lieu of notice.
[23] Further details about the reason for Mr Carrick’s dismissal can be found in the evidence of Ms Williamson and the outline of submissions filed by LWB in relation to Mr Carrick’s unfair dismissal application. According to Ms Williamson’s evidence, it was determined that Mr Carrick knew that he was likely to be interviewed by Police on 23 January 2014 but chose not to disclose this to LWB. It was also determined that Mr Carrick was not honest because he chose to call Mr Love instead of Ms Williamson in relation to the fact that he had been charged, and that had Ms Williamson not been present when Mr Carrick telephoned Mr Love and taken the phone from Mr Love, Mr Carrick would not have told her about the charges at all.
[24] In its outline of submissions to the Commission, LWB stated that:
● The external investigation identified a number of concerns to LWB related to the cultivation of cannabis by an associate of Mr Carrick.
● On 23 January 2014 Mr Carrick failed to inform his manager that a disability support worker – N – had been charged by police and was unable to attend his shift, in circumstances where Mr Carrick knew that the charge was likely to involve him as well and had advised Mr Love that the police would want to speak to him about the matter.
● Later on 23 January 2014 instead of advising LWB in a timely manner Mr Carrick chose to keep the information from his manager, attend his home (because Queensland Police were executing a search warrant there) and then attend the Police Station (after talking to a lawyer) before he accidentally found himself talking to his manager on the mobile telephone of a colleague. This sequence of events was portrayed by Mr Carrick as accessing his lunch break.
● By leaving the office and not returning that day, Mr Carrick indirectly put clients at risk due to his responsibility to co-ordinate the rosters of disability support workers.
● Mr Carrick was not forthcoming with the Operations Manager and his employer.
● This dishonesty goes to the heart of the employment relationship and made continuing employment untenable.
[25] Mr Carrick’s responses to the allegations were also a moving feast. While this can be explained at least in part by the changing allegations that Mr Carrick was responding to, it is also the case that Mr Carrick gave several different versions of the same events at various times. The chronology of events and the factual disputes between the parties about the chronology is dealt with below.
Events of 23 January 2014
[26] As previously noted, it is not in dispute that on the morning of 23 February at 8.06 am Mr Carrick attempted to telephone N to establish why he had not reported for his shift. At 8.07 am Mr Carrick spoke to N’s partner. In an Interview with an external investigator conducted on 6 February 2014 (a record of which was tendered by Mr Carrick and said by his representative to be accurate) 18 Mr Carrick agreed with a statement by the investigator that N’s partner telephoned Mr Carrick and told him that the reason that N had not arrived for his shift on that day was that he had been questioned by the Police. The record of interview states that Mr Carrick said in response to that proposition: “Yes I was on call, I knew he had been questioned by the Police”. When asked whether he had an inkling that the Police wanted to talk to him, Mr Carrick is recorded to have stated: “No not really as I was not sure what was going on”.
[27] In his oral evidence to the Commission Mr Carrick said that he attempted to telephone N at 8.06 am on 23 January 2014 and on being unable to reach N, telephoned N’s partner at 8.07 am. Under cross examination, Mr Carrick said that N’s partner told Mr Carrick that N had gone to the police station rather than that N had been taken there and that Mr Carrick’s name had been mentioned by the police. Mr Carrick agreed that he did not tell the external investigator that N’s partner had stated that the Police had mentioned Mr Carrick’s name. Later in cross-examination, Mr Carrick said that his name may have been brought up because he was N’s supervisor and the person on call who N was required to contact if N was unable to attend work. Mr Carrick also said that N may have mentioned Mr Carrick’s name rather than the Police and that N’s partner did not specify who had mentioned Mr Carrick’s name.
[28] The proposition was put to Mr Carrick in a series of questions during cross-examination that following the conversation with N’s partner on 23 January 2014 and the fact that police had mentioned his name, Mr Carrick had known he was involved, and that he knew more than what he told Ms Williamson when she had asked him if he knew why N was absent on that day. Mr Carrick disputed this proposition and said that when he spoke to N’s partner he was not aware of N’s situation and the circumstances that required N to go to the police station. Mr Carrick also said that he was not aware that he was involved in the matter, and the fact Police mentioned his name did not necessarily equate to this and his name could have been mentioned for any number of reasons. 19 Mr Carrick agreed that there was a relationship between N, Justin, and himself, and that he had introduced N to Justin. However, Mr Carrick said that on the morning of 23 January 2014 he was not aware that the matter with N involved Justin and himself, and that he only found out the connection later at the Police Station.20
[29] Mr Carrick agreed that he had a discussion with Ms Williamson at 9.09 am on 23 January 2014 but could not recall what the discussion was about. In response to the proposition that the discussion was about N not turning up for his shift and to get approval from Ms Williamson for overtime coverage to fill the shift, Mr Carrick first agreed that this could be the case and then said that it was not the case because by 9.09 am he would already have filled the shift and obtained approval for overtime for this purpose. In response to the proposition that it was unusual that he did not tell Ms Williamson as Operations Manager that N had failed to turn up and that he had gone to the Police Station, Mr Carrick said that N could have gone to the station for any number of reasons, and that his priority and job is to fill the shift and get the person who is stuck on shift covered so that they can leave. 21 Mr Carrick also said that he had contacted Mr Love regarding N’s absence from work, as Mr Love was N’s Disability Support Coordinator, and Ms Williamson would have only been called for overtime approval.
[30] Ms Williamson’s evidence was that Mr Carrick contacted her around 8:30am - 9:00am to seek approval for overtime because N had not turned up to his shift. Ms Williamson stated that Mr Carrick said to her that he received a text from N at 7:30am advising that he could not attend his shift. Ms Williamson said she asked Mr Carrick if he knew why Mr N could not attend, and that Mr Carrick said that he did not know the reason. 22 Mr Carrick denied that N had sent him a text message.
[31] According to Mr Carrick’s evidence, later in the day at approximately 1.00 pm his wife telephoned him and told him that Police had arrived at his home and were executing a search warrant. After receiving the call from his wife, Mr Carrick left the office. It is unclear whether Mr Carrick was on his lunch break at the time of the call, or whether he was still at work and subsequently left the office following the call. 23 In his witness statement, Mr Carrick said:
“On 23 January 2014, I had taken my lunch and notified an admin person that I was leaving the office; my shocked, Japanese wife of two years, called and said the police were at my house and I therefore diverted to my home, to:
(a) support my wife; and
(b) find out what was going on...” 24
[32] Mr Carrick also made a similar statement in the interview conducted by an external investigator on 6 February where he said:
“What I knew was that the Police went to my house. I was here at work, I was out of the office, out to lunch and so on, and then I got a phone call from my wife. My wife said the Police were there conducting a search of the premises and nothing was found.” 25
[33] However, when asked in cross-examination whether he went to lunch before or after his wife had phoned him, Mr Carrick said:
“Actually I don't know, don't know if that's exactly true that I went to lunch at exactly that time. I'm trying to recall now whether I went to lunch and then I got the call and then I tried to call Amy [Williamson] or whether I'd actually gone to lunch because of that call.” 26
[34] Mr Carrick denied that he told the receptionist he might not be back, and said that he just said he was going to lunch. 27 Under cross-examination Mr Carrick agreed that he lives quite some distance from the office, and that it could be a 15 - 17 minute drive in peak hour and an 8 - 9 minute drive to his home in the middle of the day.28 Mr Carrick also agreed that his lunch period is thirty minutes and that this would have been taken up by a return trip from the LWB office to his home.
[35] In response to the proposition that by leaving the workplace at 1.30 and not contacting anyone until 3.11 pm he was being dishonest with LWB, Mr Carrick said that he had been entirely honest and had not put clients at risk. Mr Carrick said that the clients had been a part of his life for over ten and a-half years and he was the one constant thing in their lives. Mr Carrick also maintained that a number of staff of LWB were at work on that day who could have taken over his role in the event that he had been ill or otherwise incapacitated and that this is in fact what occurred.
[36] At 1:33pm, Mr Carrick’s phone record shows that he made a 42 second phone call to Ms Williamson’s phone. Mr Carrick made a number of statements about this call. At one point Mr Carrick said that the call would have been in relation to the police matter and that he did not speak to Ms Williamson personally. Mr Carrick also said that he does not remember whether he left a message or not, but as it was a 42 second call he likely left a message asking Ms Williamson to contact him. 29 Mr Carrick also asserted that he had made the call at 1:33pm after he found out what was happening in relation to the Police matter and at a point when he had been informed by his wife that the Police were at his home. 30
[37] In response to the proposition that he had not bothered to tell Ms Williamson that he needed to talk to her because Police were at his house, Mr Carrick said that it was his lunch hour and he was entitled to go home and find out what was happening. Mr Carrick also said that he was not required to inform Ms Williamson what he was doing in his lunch hour. Mr Carrick then went on to say that it was obvious from the fact that he made a 42 second call to Ms Williamson that he tried to “alert her to the issues that were at hand”. 31In response to the further proposition that he did not think to alert Ms Williamson to the fact that two staff were out of action; N had gone to the Police Station; the Police had mentioned Mr Carrick’s name; and were searching Mr Carrick’s home; Mr Carrick said that the call to Ms Williamson at 1.33 pm would have been about alerting her to these matters.32
[38] Ms Williamson was shown copies of the phone records with the call to her number at 1:33pm. Ms Williamson said that she had not received any missed calls from Mr Carrick, and had the following exchange with Ms Unwin during cross-examination:
“So the records show that he did make that call. So you feel that maybe - - -?---I don't feel that I'm wrong because I know that I stated, "I haven't had any missed calls from him," and there wasn't - - -
It can't be - - -?--- - - - a Henry [Carrick] missed call on the screen of my phone, nor was there a voice message when I was searching to find where Henry was, or else I would have listened to the voice message and gone, "Oh, hold on, I do know where he is." 33
[39] Mr Carrick agreed under cross-examination that he made a large number of calls on his mobile telephone between 1.33 pm when he attempted to call Ms Williamson and 3.11 pm when he called Mr Love. Mr Carrick said that he was just driving around making calls and that it was a stressful time. Mr Carrick also said that he was probably attempting to contact a lawyer. In response to the proposition that between 1.33 pm and 3.11 pm he made no further attempt to contact the office, Mr Carrick said that he was consumed by phone calls with the Police, with lawyers and with his frantic wife and by the bizarre events of that day. Mr Carrick also said that he believed that Ms Williamson was actually not able to be contacted on that day.
[40] Mr Carrick said that he arrived at the Police Station at approximately 3.00 pm. At 3.11 pm Mr Carrick called Mr Love’s mobile telephone. Mr Carrick said that he did this because he had “masses” of missed calls from Mr Love and he wanted to find out what was going on. Mr Carrick also said that Mr Love was the coordinator. While Mr Carrick was speaking to Mr Love, Ms Williamson took the phone from Mr Love and had a conversation with Mr Carrick. Mr Carrick said that during that conversation he explained to Ms Williamson where he was and what was going on. 34 Mr Carrick later said that he told Ms Williamson that he was going to the Police Station and that he did not know what was going on at that stage.35 When asked why he didn’t call Ms Williamson instead of Mr Love, Mr Carrick responded that Ms Williamson had not returned his call from 1:33pm, and she would have checked her message bank by then, assuming he left a message requesting a call back.36
[41] Ms Williamson said that she had been in a meeting with Mr Love offsite, and that at approximately 2:00pm they returned to the LWB office, where they were met by Police officers who stated that they were looking for Mr Carrick. Ms Williamson advised the Police Officers that Mr Carrick was not in the office and checked Mr Carrick’s calendar and asked staff if anyone knew where he was. Ms Williamson said that it was at that point that she became aware that Mr Carrick had told the administration officer that he was leaving and may not be back. Ms Williamson told the Police Officers this, and offered to contact Mr Carrick and ask him to return to work. The police officers asked that no telephone contact be made with Mr Carrick about their visit to the office. 37
[42] Following the visit by Police, Ms Williamson asserts that Mr Love informed her of a conversation that he had had with Mr Carrick that morning about the reasons for N’s absence from work. 38 Ms Williamson said that Mr Love told her that Mr Carrick had mentioned earlier that the drug squad may pay him a visit him that day as they had taken N in for questioning that morning. Mr Love also stated that he had helped a guy move house and the move may have included tubs that were used to grow marijuana. Under cross-examination Ms Williamson maintained that Mr Love told her this after the Police left the LWB Office.
[43] Ms Williamson said that when Mr Carrick telephoned Mr Love at 3.11 pm, she took the telephone from Mr Love and spoke to Mr Carrick. According to Ms Williamson’s evidence, Mr Carrick told her that he was outside the Cairns watch-house and was being taken in for questioning. Mr Carrick also told Ms Williamson that he had helped a guy move house and it may have involved tubs that were used to grow marijuana and that he was now being accused of something illegal. 39 Ms Williamson maintained under cross-examination that Mr Carrick told her this during the telephone conversation at 3.11 pm.
[44] Mr Carrick agreed that he discussed N’s absence with Mr Love on the morning of 23 January 2014, but said that there was no conversation about the old company and Justin. Mr Carrick maintained that at that time he had not been contacted by police, he had no idea there were tubs or that Justin was involved, and that the conversation could not have happened in the morning. 40 When cross-examined about the conversation, Mr Carrick agreed that it occurred but could not remember when as he had a number of conversations with Mr Love including a conversation for a period of around ten minutes on the evening of 23 January and further conversations on later dates.41 Mr Carrick also said that he could not have had a conversation about these matters with Ms Williamson when he spoke to her after telephoning Mr Love at 3.11 pm, because he had not been questioned by the Police at that time and had no knowledge of these matters until after he was questioned.
[45] Ms Williamson said in her evidence that Mr Carrick’s wife went to the office of LWB at or around 5.45 pm on 23 January 2014. Mr Carrick’s wife asked for Ms Williamson’s telephone number in case Mr Carrick was not released that night. Ms Williamson said that Mr Carrick’s wife told her that it had been a scary experience when the police came into their house with a search warrant and “turned their house upside down”. Following police questioning, Mr Carrick telephoned Ms Williamson at 6:21pm and had a conversation with Ms Williamson for a period of 4 minutes and 5 seconds. Ms Williamson said during that conversation Mr Carrick told her he had been charged with a criminal offence, and the Police had informed him that under the Privacy Act that he did not need to reveal what he had been charged with but he wished to be honest and disclose the charge. 42
[46] Mr Carrick and Ms Williamson spoke again during the evening, at 6:49pm for 10 minutes and 20 seconds. Mr Carrick said that this call would have been in relation to work the next day and what was to happen. 43 Ms Williamson gave evidence that when she spoke to Mr Carrick 3:11pm and again from 6:21pm onwards, she believed Mr Carrick was providing her with the correct information.44 Under cross-examination Ms Williamson agreed that during the telephone call at 6.21 pm Mr Carrick told her that he had just come out of the Police Station. Ms Williamson also agreed that Mr Carrick told her that he had been charged and that she had no reason to believe that Mr Carrick would not have told her of the charge. Further, Ms Williamson agreed that at or around 2.00 pm the Police told her that she should not contact Mr Carrick.
[47] Ms Williamson appointed an external investigator to enquire into matters involving Mr Carrick. On the basis of the investigation, Ms Williamson concluded that Mr Carrick knew that he was likely to be interviewed by Police on 23 January 2014, but chose not to disclose this. Ms Williamson said that she was off site for approximately 90 minutes on that day and had her mobile phone switched on. Ms Williamson maintained that she did not receive any calls from Mr Carrick on that day. Ms Williamson also said that she concluded that Mr Carrick was not honest, because he chose to call Mr Love instead of her and she was left to wonder how she would have found out about what was going on if she was not nearby to take the telephone from Mr Love.
Mr Love’s evidence
[48] Mr Love’s evidence was extremely problematic. A statement made by Mr Love and signed on 8 December 2014 was filed by LWB. In that statement, Mr Love said:
“3. I was asked to attend an interview with the external investigator as I had been asked by Amy if I knew why the police were at the LWB office and I said that Henry had mentioned something earlier.
4. At this interview, I confirmed that, after returning to the LWB office with Ms Williamson, and meeting the Police Officers who were looking for the Applicant, informed her that earlier that day the Applicant had said the police had taken [N]. The Applicant explained that he had helped a guy move house and that the move may have included some tubs which looked like they were used to grow marijuana.
5. The Applicant had informed me that [N] had not attended his early morning shift that day. The applicant was oncall after hours so had needed to cover the shift. The Applicant advised he did not know what was going on. He said to me, he had called [N’s] girlfriend and he had done this because it was very unusual for [N] not to turn up for a shift and for him not to be able to get hold of [N]. He then asked the Applicant what was going on, what was it all about? The Applicant said he was not sure.
6. We then ended up getting into a conversation about their old company, AIARS. The Applicant then asked if I remembered a guy from the old company, Justin. The Applicant then said that this Justin had called him and said he was depressed and ‘we were helping him’.
7. The Applicant said they had helped him, Justin, move some items and that his finger prints might be on the stuff. He said to me that he was not sure what the stuff was but it might of have been a bit ‘dodgy’ and there might have been some tubs which had been used to grow marijuana.
8. I assumed he was referring to himself and [N] when he said ‘we were helping him’ because they had been talking about [N] at the time this particular conversation arose
9. At about 3:30pm, the Applicant called my mobile phone. Ms Amy Williamson – Operations Manager noticed this because she was near me. She asked for the phone and spoke to the Applicant immediately.” 45
[49] This initial statement is broadly consistent with a statement Mr Love made in an interview on 6 February 2014 as part of the external investigation conducted by LWB in relation to the events of 23 January 2014. In that statement, Mr Love said:
“3. Earlier in the morning we had been advised that a Support Worker (SW) had not attended shift, the SW had rung in to say he would be late but didn't turn up at all.
4. I asked Henry Carrick what was happening with [N], thought he might know something as they are close friends.
5. Henry said he had gotten onto [N’s] girlfriend but he had not gotten a lot of sense out of her.
6. We covered the shift in that case as [N] hadn't arrived.
7. Henry then told me he had got hold of [N’s] girlfriend. Henry had called her as he said it was very unusual for [N] not to turn up for a shift and for him not to be able to get hold of [N] either.
8. I asked what was going on, what it was all about. Henry said he was not sure but we ended up getting into a conversation about the old company, AAIRS; Henry and I came over to LWB when the company closed.
9. Henry then asked if I remembered the guy from the old company, Justin, and then said that this Justin had called Henry, said he was depressed and ‘we’ were helping him.
10. Henry said they helped him, Justin, with a bit of stuff, that his fingerprints might be on the stuff but he was not sure of what the stuff was but it might of have been a bit ‘dodgy’ and there might have been some ‘tubs’ which were used to grow marijuana.
[50] Mr Love went on in that interview to state that he had spoken to Mr Carrick since that date and Mr Carrick reiterated the same thing about helping Justin move and that things were a bit dodgy. On 11 December 2014, Mr Love emailed an amended statement to the Commission. In a covering email, Mr Love said that he had been under pressure when he signed the original statement and that some of the content was not in the time sequence that he remembered as it had been approximately one year since it had all happened. Mr Love said that he wished to amend the statement into what he remembered and believed to be a more correct timeline of events and content according to his memory. 46
[51] Mr Love’s amended witness statement was in the following terms:
I was asked to attend an interview with the external investigator as I had been asked by Ms Williamson if I knew why the police were at the LWB office and I said that Henry had mentioned something earlier.
At this interview, I confirmed that, after returning to the LWB office with Ms Williamson, and meeting the Police Officers who were looking for the Applicant, Ms Williamson asked me if I knew anything about this? I informed her that earlier that day the Applicant had said the police had taken [N].
The Applicant had informed me that [N] had not attended his early morning shift that day and needed to cover the shift. The applicant was oncall after hours so had been contacted by the staff member on shift that no one had turned up at 6 am for shift changeover. He said to me he had called [N] but could not get hold of him but did speak to [N’s] girlfriend and he had done this because it was very unusual for [N] not to turn up for a shift and for him not to be able get hold of [N]. I then asked the Applicant what was going on, what was it all about? The Applicant advised he did not know what was going on. I can’t remember if he said that his name was mentioned in the conversation with [N’s] girlfriend.
I did try and ring Henry on numerous occasions through the time of the police arriving at LWB and then he contacted me back at approx. 3.30pm saying that he was or had been with the police, or was going to the police station I can’t remember. As I was next to Ms Williamson- Operations Manager when he rang, she asked for the phone and spoke to him immediately.
I did speak on a few occasions straight after this event to Mr Carrick and visited Mr Carrick briefly at a later date with Mr Meadows- Acting Operations Manager, to pick up LWB camping gear that had been stored at Mr Carricks house.
I spoke with Henry one evening after the event to see if everything ok and that may have been when we got into the conversation about Justin from our previous employer AIARS and how he had helped Justin move house. Mr Carrick said that he had received a call from an ex-partner of Justin’s named Wendy, who also used to work with us at AIARS for a long time. Wendy had asked Mr Carrick to help Justin out as he had been going through some personal issues and that she was worried for his mental health as he was really depressed and she was living down South now so could not help him. I am not sure if Henry contacted Justin or vice versa.
The Applicant said they had helped Justin move house, and that they had to move some items and that his finger prints might be on the stuff as he had helped him move house. He said to me that he was not sure what the stuff was but it might of have been a bit dodgy or words to the effect. I assumed he was referring to himself and [N] when he had said ‘we were helping him’ because they had been talking about [N] at the time this particular conversation arose. I think the word tubs may have been used when I visited Mr Carricks home with Mr Meadows. We were moving the camping gear quickly whilst talking.
Some of the conversations are hard to put in a clear timeline of which parts are built on to the previous conversation, as Mr Carrick and I spoke on a couple of occasions.
This statement is as true as I can remember and the timeline is hard to piece together as exact times and dates due to snippets of conversation I have had over the long period since the event first happened. 47
[52] There is some contention about whether Mr Love amended his statement due to a text message he received from Mr Carrick after his original witness statement was filed, which said:
"I never thought you would lie for LWB. I didn't even know about the tubs that day. I told you about them when you and Ash came to pick up the LWB stuff, and I never said there were dodgy plants ever. I thought you were an honest person. I never said anything about you or told lies. You showed what kind of person you really are. I must say I am very hurt and disappointed after 10 years of friendship." 48
[53] After receiving this text, Mr Love sent Mr Carrick a message saying:
"I got your message. Give me a call. I'm not lying for LWB and I got the statements to sign today. Ring me." 49
[54] Mr Love said that he and Mr Carrick spoke the following morning about the statement. When questioned during cross-examination about whether he had contacted Mr Love following the filing of Mr Love’s original witness statement, Mr Carrick denied multiple times that he had contacted Mr Love during the following exchange in cross-examination:
“MR DAVIS: When Mr Love filed his witness statement, the first witness statement, that was sent to Ms Unwin and did she show you the witness statement?---I believe so.
She's advocating your case. Did she show you the witness statement?---Yes.
She showed you the witness statement?---Yes. I'm just looking for the statement.
And did you contact Mr Love after that?---No.
You didn't contact Mr Love?---No.
In any fashion?---No, I haven't contacted him.
You didn't text him or you didn't call him?---No.
You've had no communication with Dave Love after you saw that witness statement?---No.
I'm putting to you - - -?---There's no - - -
I'm putting to you that you've had contact with Dave Love - - -?---After this - - -
- - - after the first statement was issued?---The witness - with the investigator witness statement. We've already said in - - -
The first witness statement that was filed.
THE DEPUTY PRESIDENT: No, the first witness statement that Mr Love filed in this case. Be clear that's what you're being asked about?---No.
MR DAVIS: You've had no contact with Mr Love?---Not at all.
You didn't tell him you were disappointed?---I was definitely disappointed.
Did you tell him you were disappointed?
THE DEPUTY PRESIDENT: Did you tell Mr Love that?---No.
MR DAVIS: Did you ask him why he was telling lies for the company?---I don't believe I said that to Mr Love.” 50
[55] After denying that he contacted Mr Love Mr Carrick eventually admitted that he had sent the text message to Mr Love saying that he could not believe Mr Love would tell lies about him for the company. 51 Mr Carrick denied that the purpose of his text message was to influence Mr Love to change his statement, and said that he was just expressing his hurt and disappointment that Mr Love would lie about him.52
[56] In respect of whether the text message from Mr Carrick influenced him, Mr Love said that it was probably extra drive to amend his statement. Mr Love said that he saw the text message before his statement, but that he thinks he would have amended the statement even if he hadn’t received the text because he did not remember the events as detailed in the original statement. 53
[57] Mr Love was cross-examined about the inconsistencies between his statement to the investigator on 6 February 2014 and his original witness statement filed in these proceedings and his amended statement. Ms Williams’ evidence was that at or around 2.00 pm on 23 January when the Police left the LWB office, Mr Love stated that Mr Carrick had told him on the morning of 23 January, about tubs used to grow marijuana. Mr Love said he could not remember whether he told Ms Williamson about the tubs at that time or later and that he could not say exactly what happened and when it happened. Mr Love agreed that he had removed references to marijuana from his amended statement. Mr Love also said that he had not signed the investigator’s record of interview because he had not seen it after the interview. Further, Mr Love said that he was responsible for rostering on 23 January 2014 and that Mr Carrick being absent from the office did not have any impact. Mr Love confirmed that he had telephoned Mr Carrick two or three times after 2.00 pm on 23 January 2014.
Investigation
[58] Ms Williamson contacted LWB’s State HR department, and spoke to other levels of management within LWB. Mr Carrick came into the office to complete a new probity form. In accordance with Ms Williamson’s statement, the chain of events during the investigation can be summarised as follows. A letter was sent to Mr Carrick on 24 January titled ‘Notification of Suspension’ which advised Mr Carrick that he was being stood down with pay until the Respondent was satisfied that he remains a ‘suitable’ person. 54
[59] An external investigator, Barr Group Consulting was appointed to enquire into the matter. On 4 February 2014, Ms Williamson sent Mr Carrick a letter titled ‘Opportunity to respond’ which requested that Mr Carrick meet the external investigator on 6 February 2014 at 3:00pm to discuss concerns regarding his alleged association with criminal activity. 55 The Record of that interview which was tendered by Mr Carrick56 (and confirmed as accurate by Ms Unwin on his behalf)57 indicates that Mr Carrick made the following statements in response to questions posed to him by the interviewer.
● The Police came here [to LWB’s Office] looking for him and he went to the Police Station to talk to them;
● He was asked by the Police to go the Police Station and did so;
● When N did not arrive for his shift, Mr Carrick knew that he was being questioned by the Police and that N’s partner told him this;
● Mr Carrick had no inkling that the Police may wish to question him as well;
[60] In response to a question about how things proceeded for his point of view, Mr Carrick said:
“What I knew was the Police went to my house. I was here at work. I was out of the office, out to lunch and so on, and then I got a phone call from my wife. My wife said that the Police were conducting a search of the premises and that nothing was found.”
[61] In response to a question about whether the Police told Mr Carrick why they were searching his house, Mr Carrick said that his wife told him that the Police had a warrant and later at the Police Station he was told that he had been accused of producing Cannabis at someone else’s residence. The Record of interview states that it was put to Mr Carrick that a person named Justin had been caught with 100 marijuana plants and claimed that they were “Henry’s”. Mr Carrick said that he knew Justin and had met him over eight years previously. Mr Carrick told the interviewer that he knew nothing about the marijuana or where the information came from, until the Police told him about it. Mr Carrick also said that he had assisted Justin to move house because he had been beaten up by a neighbour and moved from the Tablelands. Mr Carrick introduced Justin to O who had a part of a house available to rent. Mr Carrick said that his fingerprints would be on objects in Justin’s house because he had visited there on a number of occasions in addition to helping Justin to move house. Mr Carrick had not seen anything of concern. Mr Carrick cut off contact with Justin because he was infatuated with Mr Carrick’s wife and had started acting strangely.
[62] In response to a question about why Justin would have involved him in the matter, Mr Carrick said that Justin had gotten himself into trouble and was trying to get out of it by “dobbing everyone he can in”. Mr Carrick was asked whether when he was charged he had disclosed that fact to Ms Williamson and said in response: “Yes, straight away. I had no issue in doing it. I had no idea what it was about until the lawyer gave me some information on Monday.” When asked whether he had anything else to say, Mr Carrick said that he was still trying to figure the whole thing out and that he did not know where it had all come from, other than Justin’s infatuation with Mr Carrick’s wife.
[63] On 17 February 2014, Ms Williamson sent Mr Carrick a letter titled ‘Re: Preliminary Findings of Investigation’. The letter advised Mr Carrick that the preliminary outcome was that LWB’s concerns of alleged association with criminal activity were substantiated as Mr Carrick had been charged with a criminal offence. LWB advised that this constituted a breach of its Policies and Procedures, including the Code of Conduct, LWB values and Mr Carrick’s employment contract by bringing the organisation into disrepute. The letter advised Mr Carrick that LWB’s intention was to terminate his employment but offered Mr Carrick the opportunity to refute the preliminary findings through written submissions by close of business on 20 February 2014. 58
[64] The letters sent by LWB to Mr Carrick dated 24 January, 4 February and 17 February 2014, contained the following statement
“Life Without Barriers expects that you will not disclose these complaints and/or their subject matter to any person, other than to the extent necessary to make a response; for the purposes of obtaining legal or other advice; for the purpose of receiving confidential counselling; to your immediate family; or with written consent. Likewise, Life Without Barriers will ensure that this information is available to authorised personnel only. Further, you are not to approach, through word, action or third party, any persons involved in this matter, A failure to follow these directions will be considered serious misconduct and may lead to termination”.
[65] On 20 February 2014, The Services Union, on behalf of Mr Carrick, sent a letter to LWB which advised that Mr Carrick was eager to defend the allegations against him, but could not participate in any workplace investigation while the criminal proceeding was on foot. The letter also advised that Mr Carrick and The Services Union did not accept that by being charged, Mr Carrick brought LWB into disrepute. The letter went on to state that Mr Carrick denied that he breached the Code of Conduct or any other employment obligations, and that dismissal at that time would be harsh, unjust and unreasonable. 59
[66] On 25 February 2014, LWB sent Mr Carrick a letter titled ‘Notification of Opportunity to Respond to Allegations’ which advised Mr Carrick that LWB wanted to hold a discussion regarding new allegations that:
● On 23 January 2014, Mr Carrick breached his employment agreement by leaving work without approval, putting clients and staff in a compromising position without supervision or coordination and placed vulnerable clients at risk; and
● Mr Carrick discussed matters with N, and therefore failed to comply with the following clause in the letter dated 4 February 2014:
[67] Mr Carrick was requested to attend a meeting on 28 February 2014 at 10:00am to discuss these allegations, and offered the opportunity to provide written submissions by 5:00pm on 4 March 2014. 60 On 28 February 2014, Mr Carrick attended a meeting with Ms Williamson and Mr Davis, Senior Employee Relations Adviser. There is no evidence about what transpired at that meeting. On 6 March 2014, Mr Carrick sent a letter to LWB in response to the letter dated 25 February 2014 and subsequent to the meeting on 28 February 2014.
[68] The letter addressed the allegations that Mr Carrick left the workplace without approval and that he failed to comply with the clause regarding disclosure of the matter by speaking to N. Mr Carrick denied the allegation that he left work without approval and put clients at risk and asserted that he was taking his lunch break in accordance the Social, Community, Home Care and Disability Services Industry Award 2010. Mr Carrick denied that he failed to comply with the clause regarding disclosure of the matter, and stated that he had only spoken with his advocate, union and immediate family about the correspondence and allegations. Mr Carrick also said that N had the same advocate; therefore it is understandable that their correspondence to LWB would be of a similar nature. 61
[69] On 11 March 2014, LWB representatives and Mr Carrick had a teleconference to discuss the allegations. 62 On 13 March 2014, Mr Carrick provided a written response to questions raised in the conference call about why Mr Carrick did not advise Ms Williamson that he was required at the police station, and why Mr Carrick rang Mr Love first after he was allowed to leave the police station. The written response dated 13 March 2014 provided by Mr Carrick stated that the questions he was asked at the meeting and his answers to them were:
1. Why didn’t, I Henry Carrick, advise Relations Manager Amy Williamson that I was required at the ‘Cairns Police Station’ in regards the false allegations made against me?
ANSWER
a. I did try to ring Amy Williamson on her office telephone, but was unable to get through and by that time I had arrived at the Cairns Police Station I was required to obey the police requirements that I immediately report to the relevant Police Officers, where my mobile phone was confiscated by the Police Officers to whom I reported and therefore, I was not able to ring anyone until my mobile phone was returned several hours later, when allowed to leave said Police Station.
However
b. My wife, in the interim, went to my LWB place of work and advised Amy Williamson that I had been required to report immediately to the Cairns Police Station and they swapped mobile telephone numbers with Amy Williamson in order that who-soever heard from me first, could inform the other.
c. Therefore Amy Williamson was informed and was aware of where I was and why I had not returned to work after lunch.
2. Why did you ring David Love first after you were allowed to leave the Cairns Police Station before Amy Williamson?
ANSWER
a. At the conference call meeting I could not immediately recall why I had called David Love first, however, after the said meeting and able to reflect on the events of the relevant day, I recalled that the reason I rang David Love first, was that I there were several missed calls from him on my mobile and so I rang him in case there was some client emergency to which I needed to attend.
b. However, David Love, was in the office and when Amy Williamson realised it was me, she took the phone from David Love and was immediately informed of the circumstances that had caused my prolonged absence from work and the fact that I had only at the time of making the said call to David Love, which she had intercepted I had only just been allowed to leave the Police Station. 63
[70] At the conclusion of the investigation, a letter dated 20 March 2014 was sent to Mr Carrick advising that Mr Carrick’s employment was terminated and that the reason for dismissal was:
“After considering all the information at hand, we have come to the conclusion we no longer have trust and confidence in you as an employee of LWB.
We have come to this conclusion because we don’t accept your explanation of events of and surrounding 23 January 2014.” 64
[71] Ms Williamson gave evidence that the basis for this statement came after the external investigation, and the decision was made that there was no longer trust and confidence by operational regional staff and state HR staff who reviewed the evidence that was gathered through the investigation. Ms Williamson said that LWB did not accept the explanation of events due to the timeframes around what Mr Carrick knew in the morning, and the evidence which arose during the investigation that he had spoken to Mr Love about N’s absence, Justin and the tubs. 65 Ms Williamson gave evidence that irrespective of Mr Love amending his statement to alter the timelines of when this conversation occurred, and whether he informed Ms Williamson of this conversation on the afternoon of 23 January 2014, that she maintained that her witness statement and the time lines set out in it, was correct.66
LWB Policies and Procedures
[72] Ms Williamson tendered a number of documents including an extract from LWB’s Policy Manual and LWB’s Code of Conduct, which relevantly provides that LWB employees:
● must act in a manner that upholds the integrity of the organisation and does not risk or threaten its reputation;
● must familiarise themselves with and comply with laws relevant to their area of responsibility and service deliver;
● must comply with lawful and reasonable directions given by LWB;
● will act in accordance with mandatory reporting requirements;
● will immediately notify LWB of any event or situation which will or may impact on suitability or ability to provide service to LWB or its clients; and
● will immediately notify LWB of any change to criminal record including charges, convictions or any other matters which have the potential to impact on probity status.
[73] Ms Williamson also tendered a copy of Mr Carrick’s letter of offer in relation to his employment with LWB dated 14 September 2009. The first paragraph of that letter includes the following statement:
“This offer is contingent upon Life Without Barriers receiving confirmation of your ‘suitability’ from the Department of Child Safety, in addition to receiving a clearance from the Commission of Child and Young People and Child Guardian and maintaining these clearances throughout your employment with us.”
[74] On 18 August 2014 LWB received a letter from Blue Card Services, advising that Mr Carrick had been issued with a negative notice pursuant to the Working with Children (Risk Management and Screening) Act 2000. LWB was advised that it must not continue to employ a person in regulated employment where it is aware that the person has been issued with a negative notice, and that this obligation applied whether or not an individual is in the process of appealing the negative notice. 67
[75] Ms Williamson gave evidence that LWB requires Disability Support Coordinators to have both a Blue Card and a Yellow Card. 68 A Blue Card is required to work with children. A Yellow Card relates to employment by a disability services provider in circumstances where services are not provided to children. Ms Williamson said that if Mr Carrick was to be reinstated he could not be engaged in his previous role.69 During cross-examination, Ms Williamson was asked about the policy change by the Respondent from requiring only the Yellow Card to requiring both the Blue Card and the Yellow Card. Ms Williamson responded that the LWB Probity Policy changed in 2012 to mandate a Blue Card to work in its disability program. As there were large costs involved, Ms Williamson said that there would be a phase-in while LWB waited until the renewal period for the Yellow Card for employees to get an exemption card where the Blue and Yellow Cards are combined.70 Ms Williamson said that LWB had taken this approach to avoid having to pay fees for both cards.
[76] Ms Williamson said that no one in LWB’s office can work without a Blue Card because the disability program overlaps with the home care program, which involves working with children and young people. According to Ms Williamson, children and young people come into LWB’s office and LWB has also taken on eight persons under the age of 18 in its disability program. 71
[77] Under cross-examination Ms Williamson agreed that there are employees working for LWB who have a yellow card and not a Blue Card but said that these employees are transitioning to a Blue Card. Ms Williamson also maintained that nobody in the LWB office can work without a Blue Card because the office is collocated with an out of home care program. Ms Williamson also maintained that Mr Carrick had contact with children in his role and that he could not work as a disability co-ordinator for LWB without a Blue Card.
CONSIDERATION
Was there a valid reason for Mr Carrick’s dismissal?
[78] I am unable to be satisfied that there was valid reason for Mr Carrick’s dismissal. Notwithstanding the evolution of the reasons for Mr Carrick’s dismissal, the underlying premise is that Mr Carrick at best knew about, and at worst was involved, in the cultivation and production of marijuana. However LWB attempts to dress up its reason for dismissal as loss of trust in Mr Carrick, the source of the loss of trust is the conclusion on the part of LWB’s management that at all times Mr Carrick knew more about the events that resulted in the charges against himself, N and O, than he told them. It is implicit that management of LWB believed that Mr Carrick was involved in some sort of drug related criminal conduct. This is apparent from the way in which the reasons for dismissal changed over the course of LWB’s dealings with Mr Carrick.
[79] In my view this belief permeated the entire investigation and the manner in which LWB dealt with Mr Carrick. This belief and the conclusions which underpinned it were decided on inferences that could not reasonably have been drawn from the material before the employer. In short, I am not satisfied, on the balance of probabilities, that Mr Carrick, who is a long term employee of LWB, with no prior disciplinary record and who is himself disabled, had knowledge of or involvement the production of a dangerous drug. I am also unable to accept that LWB could have reasonably drawn such a conclusion on the material that was before the organisation.
[80] I accept that on becoming aware of the charges against Mr Carrick and another two employees, that it was reasonable for management of LWB to be concerned and to conduct an investigation. I do not accept that it was reasonable for management of LWB to conclude that at the point Mr Carrick spoke to N’s partner on the morning of 23 January 2014, that Mr Carrick knew that N had been charged by the Police and that the charge was likely to involve Mr Carrick. I also do not accept that it was reasonable for LWB management to from a view that Mr Carrick deliberately did not inform his manager Ms Williamson of these matters.
[81] LWB’s case is underpinned by the proposition that Mr Carrick was required to tell the organisation everything that he knew about Justin, N and O and the criminal charges made against him and that he failed to do so. Mr Carrick was not and could not have been lawfully or reasonably required to make admissions to LWB or its managers about matters that could have incriminated him or others. All that Mr Carrick could have lawfully and reasonably been required to do was to inform LWB that he had been charged with a criminal offence. Given that the Code of Conduct requires that Mr Carrick advise of any event or situation that will or may impact on his suitability, Mr Carrick could lawfully and reasonably have been required to inform LWB of the fact that he was required to attend at the Police Station and answer questions.
[82] In my view, Mr Carrick complied with these requirements to the extent that he could lawfully and reasonably have been required to do so. On the morning of 23 January 2014, Mr Carrick was not required to inform LWB that N had been taken (or had gone) to the Police Station or that the Police had mentioned Mr Carrick’s name. There is no evidence to suggest that Mr Carrick even knew that N had been charged at that point, much less that Mr Carrick knew that he would also be implicated. Mr Carrick had a brief conversation with N’s partner, and even if N’s partner told Mr Carrick that N had been taken by the Police (rather than that N had gone with the Police) and that the Police had mentioned Mr Carrick’s name (rather than N mentioning Mr Carrick’s name to the Police), it was not reasonable for LWB to conclude that Mr Carrick was under an obligation to inform the organisation of these matters on the basis of the limited information that he had been provided with at that point. N had not reported for work and it was Mr Carrick’s job to attempt to find another employee to cover N’s shift. Mr Carrick did this.
[83] I do not accept that LWB could have reasonably concluded that Mr Carrick should have put two and two together at that point and that Mr Carrick knew that he would also be involved and drawn in to whatever the Police were speaking to N about. This view on the part of LWB indicates that the organisation concluded that Mr Carrick knew that Justin was cultivating cannabis before N was charged and that when Mr Carrick was informed that N was at the Police Station, Mr Carrick should have known that the Police would want to talk to him, also because of his knowledge of Justin’s illegal activities. To draw such conclusions requires clear and cogent proof and in my view there is insufficient evidence upon which to base such a conclusion.
[84] It is equally probable that Mr Carrick had no idea that he had been implicated by Justin until he was informed by his wife that the Police were at his house with a search warrant or until the Police questioned Mr Carrick. I do not accept that LWB could reasonably have concluded that Mr Carrick:
● failed to advise in a timely manner of the situation that arose on 23 January 2014 because he chose to attend his home while the Police were executing a search warrant;
● attended a Police Station after talking with a lawyer; and
● kept information about the situation from his manager and only talked to her accidentally when he telephoned Mr Love.
[85] Mr Carrick was telephoned by his wife who told him that the Police were at his home with a search warrant. Mr Carrick stated that his wife was very distressed and that he wanted to go to his home to find out what was going on. In my view, this reaction was entirely reasonable and understandable. That Mr Carrick left his workplace without reporting this sequence of events to Ms Williamson or some other manager of LWB is not grounds for a conclusion that Mr Carrick knew more than he was letting on or that he was guilty of some criminal conduct. It is equally probable that Mr Carrick was concerned about his wife being distressed and wanted to find out what was going on. It is also entirely reasonable that as Mr Carrick gathered information about the unfolding events, he gave priority to those events and attempted to contact a lawyer, rather than attempting to contact Ms Williamson or another manager of LWB. Further, there is evidence in the form of Mr Carrick’s mobile telephone account that establishes that at 1.42 pm, Mr Carrick telephoned Ms Williamson.
[86] I do not accept that a negative inference can be drawn from the fact that Mr Carrick telephoned Mr Love before he telephoned Ms Williamson. Mr Carrick said that he noticed missed calls from Mr Love on his mobile telephone and decided to return those calls. Mr Love said that he called Mr Carrick two or three times in that period and this assertion was confirmed by Mr Carrick’s mobile telephone account. Leaving aside Mr Carrick’s exaggerated evidence that he had masses of missed calls from Mr Love, Mr Love had called Mr Carrick’s mobile telephone two or three times and it was not unreasonable that Mr Carrick called Mr Love before he called Ms Williamson, particularly when Mr Love was doing the work that Mr Carrick was rostered to do on that day.
[87] During the telephone conversation at 3.11 pm Mr Carrick told Ms Williamson that he was at the Police Station. On Ms Williamson’s own evidence, Mr Carrick also told her about tubs that may have been used to grow marijuana. Mr Carrick accepts that he had such a conversation with Ms Williamson but said it was later and did not take place at 3.11 pm. There were further discussions between Mr Carrick and Ms Williamson on the evening of 23 January 2014 and it equally probable that the additional details about the tubs and the marijuana were provided in a discussion on the evening of 23 January. Regardless of the time at which the discussion between Ms Williamson and Mr Carrick occurred, Mr Carrick told Ms Williamson more than he was required to tell her. Ms Williamson cannot properly assert that she can only wonder at how she would have found out about these matters had she not taken the telephone from Mr Love. The simple answer to that question is that Mr Carrick told her about the matters at the latest at 6.21 pm on the evening of 23 January when he had been interviewed and charged by Police. Even if Mr Carrick was aware of some of the details which lead to him being charged before he was questioned by the Police, it does not follow that this was because he was involved in illegal activity.
[88] For the reasons set out above I do not accept that any failure on Mr Carrick to provide this information earlier in the day (if there was a failure) was a valid reason for dismissal. I do not accept that in being charged, Mr Carrick brought the organisation into disrepute. There is no evidence to sustain such an assertion. Equally, the finding that LWB’s concerns about Mr Carrick’s alleged criminal activity were substantiated because he was charged with production of a dangerous drug was not a valid reason for dismissal.
[89] The assertion that by leaving the office on 23 January, Mr Carrick indirectly put clients at risk cannot be sustained. There was no evidence to support this assertion. Mr Love was in the office shortly after Mr Carrick left and his evidence was that there were other employees who could have undertaken Mr Carrick’s role. Mr Carrick had good reason to leave the office in the circumstances that confronted him on that date. I do not accept that LWB did not rely on this matter. The assertion is made in the outline of submissions filed by LWB in these proceedings.
[90] I also do not accept that Mr Carrick did not comply with the direction that he not discuss the “complaints” made against him by LWB. As Mr Carrick points out, he was the subject of criminal charges and discussed those charges with Mr Love. N and O were charged with the same offence as Mr Carrick and it is not surprising that they discussed developments. It is also the case that Mr Carrick, N and O were all represented by Ms Unwin in unfair dismissal applications and it is equally probable that the common representation gave rise to a perception that there was a breach of this direction.
[91] On balance, I am unable to accept that the matters relied on by LWB were a valid reason for Mr Carrick’s dismissal. I do not accept that on the material available to LWB, it could have reasonably concluded that Mr Carrick was involved in criminal activity or that he was dishonest or not forthcoming with LWB management about these matters. Mr Carrick was a long term employee and there is no evidence that his conduct or work performance had ever been in issue. He was entitled to the benefit of the doubt and in my view did not receive this benefit. Instead, LWB formed an adverse view about the fact that Mr Carrick had been charged with a criminal offence and set out to dismiss him.
[92] While I accept that Mr Carrick did not help his case by the attitude he adopted to the allegations and by constantly changing his version of events, I am of the view that this was in no small part due to the shifting nature of those allegations. I also accept that Mr Carrick had been subjected to some extraordinary events on 23 January 2014 and thereafter, and was focused on the serious circumstances in which he found himself rather than on his relationship with LWB, and that
Was Mr Carrick notified of the reason for his dismissal?
[93] I am satisfied that Mr Carrick was notified of the reasons for his dismissal. The letters provided to him on 17 February 2014 and 25 February 2014 set out the allegations against him. The termination letter of 20 March 2014 informed Mr Carrick that after considering the information at hand, the Respondent no longer had trust and confidence in him as an employee, and as a result his employment was being terminated.
Was Mr Carrick given an opportunity to respond to the reasons for his dismissal?
[94] I am satisfied that Mr Carrick was given multiple opportunities to respond to the reasons for his dismissal. As outlined, there was significant correspondence between the parties from the period of 24 January 2014 - 20 March 2014 in which Mr Carrick was able to address all the allegations before him and provide a response.
Was there an unreasonable refusal by LWB to allow Mr Carrick to have a support person present to assist at any discussions relating to dismissal?
[95] As set out in letters sent to Mr Carrick by LWB dated 4 February 2014 and 25 February 2014, Mr Carrick was allowed to have a support person present at discussions relating to his dismissal.
If the dismissal related to unsatisfactory performance —whether Mr Carrick had been warned about that unsatisfactory performance before the dismissal?
[96] The dismissal did not relate to unsatisfactory performance in the sense that it was for on-going issues about which it would be expected that an employee would be warned, and this factor is not relevant.
Did the size of the employer’s enterprise and the absence of dedicated human resource management specialists or expertise impact on the procedures followed in effecting the dismissal?
[97] LWB is a large employer with dedicated human resource management specialists. There is no evidence that these matters had any impact on the procedures followed in effecting the dismissal.
Any other matters that the FWC considers relevant
[98] There are a number of additional matters that I consider are relevant to the question of whether Mr Carrick was unfairly dismissed. Mr Carrick is a quadriplegic. LWB is a disability service provider. It would be difficult for an employee who was not disabled to be dismissed in the circumstances in which Mr Carrick was dismissed. Mr Carrick’s disability in heightens the adverse consequences of dismissal for his personal and economic situation. Mr Carrick had a long and otherwise unblemished work record and had worked with a predecessor organisation of LWB.
CONCLUSION IN RELATION TO WHETHER THE DISMISSAL WAS UNFAIR
[99] On balance, I am satisfied that Mr Carrick’s dismissal was unfair on the basis that it was harsh, unjust and unreasonable. It was harsh because of the consequences for Mr Carrick and particularly in light of his disability. It was unjust because Mr Carrick was not guilty of the misconduct on which the LWB acted and because it was decided on inferences that could not have reasonably been drawn from the material before the LWB.
REMEDY
[100] Given that I have found that Mr Carrick’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Mr Carrick was protected from unfair dismissal and that he has been unfairly dismissed. I am also of the view that Mr Carrick should have a remedy for his unfair dismissal. Mr Carrick sought reinstatement. In my view reinstatement is not appropriate. I have reached this conclusion for the following reasons.
[101] Regardless of the fact that I have found that Mr Carrick’s dismissal was unfair and that LWB did not have a valid reason to dismiss him, I am also satisfied that the manner in which Mr Carrick conducted himself both during the investigation in relation to his alleged misconduct and before the Commission, has destroyed the trust and confidence that LWB is required to have in him so that he can perform his role as a disability co-ordinator. Mr Carrick made a considerable number of inconsistent statements during the investigation conducted by LWB and in his evidence to the Commission. It is apparent that at best Mr Carrick sought to put a spin on events and statements he had previously made and at worst, Mr Carrick was dishonest.
[102] For example, Mr Carrick’s insistence that he was on his lunch break when he decided to go to his home after being informed that the Police were conducting a search, was disingenuous. The simple fact of the matter was that Mr Carrick’s wife had rung him in a distressed state about the Police visit and he decided to go to his home to find out what was going on. There was no need for Mr Carrick to raise the issue of a lunch break and invoke the provisions of an award.
[103] Mr Carrick was dishonest about the contact he made with Mr Love after Mr Love provided a statement to the Commission. I have no doubt that as a result of that contact Mr Love amended his statement. While Mr Carrick may not have set out to achieve this result, the statement was amended. In particular references to the tubs and marijuana were removed. I do not accept Mr Davis’s submission that Mr Carrick attempted to pervert the course of justice. That is an offence relevant to Federal judicial proceedings and an unfair dismissal application in the Fair Work Commission is not such a proceedings.
[104] Section 678 of the Act deals with false or misleading evidence. Section 678(2) provides that it is an offence to induce, threaten or intimidate a witness to give false evidence in a matter before the Commission. The offence requires intent. In the circumstances of this case, I am of the view that Mr Carrick did not intend to induce Mr Love to give false evidence and there is no basis for a conclusion that Mr Love was intimidated or threatened by Mr Carrick. However, I am satisfied that Mr Carrick inappropriately contacted Mr Love in circumstances where he should have known better, and on being confronted with this matter in cross-examination, lied. I do not accept that Mr Carrick did not understand the questions put to him about this matter in cross-examination. I am also of the view that Mr Carrick only told the truth when he realised that Mr Love would be asked questions about the contact and that he would be caught out, rather than that Mr Carrick suddenly remembered that he had contacted Mr Love by text message. That evidence was also dishonest.
[105] It is also the case that Mr Carrick’s Blue Card has been cancelled and he cannot be employed in the capacity of Disability Support Co-ordinator. In this regard, I accept the evidence of Ms Williamson. I also accept that it was a condition of Mr Carrick’s continuing employment that he have a confirmation of suitability from the Department of Child Safety and clearances in relation to working with children and that these be maintained. Mr Carrick does not meet these conditions and accordingly reinstatement is not appropriate.
[106] At a hearing on 18 December 2015, I informed the parties that I had decided that Mr Carrick had been unfairly dismissed and that I had also decided that reinstatement was not appropriate. I indicated that I would issue detailed reasons for that decision in the next few days. My reasons are set out above. I further indicated to the parties that it would be necessary to relist the matter to deal the question of compensation. Mr Carrick has filed submissions and a witness statement in relation to compensation. LWB has also filed submissions. It is likely that both Mr Carrick and LWB will wish to make further submissions in relation to compensation in light of these reasons. It may also be the case that Mr Davis will wish to cross-examine Mr Carrick in relation to his statement with respect to compensation.
[107] As discussed at the hearing on 18 December 2015, LWB is required to put any further submissions in relation to compensation by close of business on Friday 15 January 2016, and to advise on or before that date whether it requires to cross-examine Mr Carrick in relation to his witness statement with respect to remedy. Ms Unwin is required to file any further submissions in relation to remedy by 29 January 2016.
DEPUTY PRESIDENT
1 Exhibit 1- Statement of Henry Carrick; Exhibit 2 -Witness Statement in Reply of Henry Carrick.
2 Exhibit 8 - Statement of Amy Rochelle Williamson.
3 Exhibit 4 - Statement of David Love signed on 8 December 2014.
4 Exhibit 6.
5 Exhibit 5 – Amended Witness Statement of David Love.
6 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
7 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
8 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
9 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
10 Culpeper v Intercontinental Ship Management (2004) 134 IR 243; [2004] AIRC 261; Print RP 944547.
11 North v Television Corporation Ltd (1976) 11 ALR 599.
12 Brinks Australia Pty Ltd v Transport Workers’ Union of Australia PR922612 per Giudice J, Acton SDP and Hingley C at [7].
13 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449 at 449-450.
14 Ibid at 450, citing the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
15 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
16 Exhibit 8 Witness Statement of Amy Williamson Appendix E.
17 Exhibit 8 Witness Statement of Amy Williamson Appendix F and Appendix G.
18 Exhibit 1 Witness Statement of Henry Carrick - Attachment 2 Interview Summary Statement. PN472 confirmation by Ms Unwin on behalf of Mr Carrick that the Interview Summary Statement is correct.
19 PN703 - PN723; PN736; PN865 - PN868; PN976 - PN980; PN1028 - PN1044.
20 PN724 - PN736.
21 PN842; PN980.
22 PN1676 - PN1680.
23 PN881 - PN887; PN990.
24 Exhibit 1, Witness Statement of Henry Carrick dated 23 October 2014 at page 1.
25 Exhibit 1, Attachment 2 at [15].
26 PN887.
27 PN990.
28 PN993 - PN1001.
29 PN876 - PN880; PN893 - PN903; PN938
30 PN880; PN887; PN889; PN890.
31 PN890.
32 PN893-PN897.
33 PN1689 - PN1690.
34 PN1057.
35 PN1059.
36 PN1060.
37 Exhibit 8, Witness Statement of Amy Williamson dated 8 December 2012 at [5] and [6].
38 PN1723 - PN1728.
39 PN1700 - PN1703, PN1719, PN1728 and 1734.
40 PN1134.
41 PN1115; PN1138.
42 PN618; PN1745; PN1763 - PN1767.
43 PN647 - PN648.
44 PN1817.
45 Exhibit 4, Witness Statement of David Love dated 8 December 2014 at [3] - [9].
46 Exhibit 6 Email from Mr Love dated 11 December 2014.
47 Exhibit 5 Amended Witness Statement of David Love paragraphs [4] to [11].
48 PN1422 - PN1428.
49 PN1429.
50 PN1196 - PN1213.
51 PN1214.
52 PN1228 - PN1245.
53 PN1590 - PN1594.
54 Exhibit 8, Witness Statement of Amy Williamson dated 8 December 2014 at [18]; Exhibit 8, Appendix E.
55 Exhibit 8, Witness Statement of Amy Williamson dated 8 December 2014 at [19]; Exhibit 8, Appendix F.
56 Exhibit 1 Witness Statement of Henry Carrick Attachment 2.
57 PN472.
58 Exhibit 8, Witness Statement of Amy Williamson dated 8 December 2014 at [20]; Exhibit 8, Appendix G.
59 Exhibit 8, Witness Statement of Amy Williamson dated 8 December 2014 at [21]; Exhibit 8, Appendix H.
60 Exhibit 8, Witness Statement of Amy Williamson dated 8 December 2014 at [22]; Exhibit 8, Appendix I.
61 Exhibit 8, Witness Statement of Amy Williamson dated 8 December 2014 at [23]; Exhibit 8, Appendix J.
62 Exhibit 8, Witness Statement of Amy Williamson dated 8 December 2014 at [24].
63 Exhibit 8 Statement of Amy Williamson Appendix K.
64 Exhibit 8, Appendix L.
65 PN1847 - PN1848.
66 PN1853; PN1902.
67 Exhibit 8, Appendix M.
68 PN1835.
69 Exhibit 8, Witness Statement of Amy Williamson dated 8 December 2014 at [26].
70 PN1824-1827.
71 PN1829.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR575513>
9
0