Jarome Pirozzi v Sydney Trains

[2019] FWC 596

[2019] FWC 596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jarome Pirozzi
v
Sydney Trains
(U2018/7529)

COMMISSIONER CAMBRIDGE SYDNEY, 12 FEBRUARY 2019

Unfair dismissal - misconduct involving spray painting of personal motor vehicle during paid working time - practice known as foreign orders - purported mistake by applicant as to shift commencement time - further misconduct involving dishonesty - findings of employer verified - valid reason for dismissal - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged on 20 July 2018. The application was made by Jarome Pirozzi (the applicant) who has been represented by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU). The respondent employer is Sydney Trains (the employer or Sydney Trains) who has been represented by Lander & Rogers Lawyers.

[2] The application indicated that the date that the applicant’s dismissal took effect was 13 July 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney over four days, 1 and 26 November, and 4 and 5 December 2018.

[4] During proceedings held on 16 October 2018, the Commission determined that permission was granted, pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. At the Hearing, the applicant was represented by Mr S Howe from the AMWU, who appeared together with Mr J Rabaud also from the AMWU. The employer was represented by Mr A Woods, solicitor, who appeared together with Ms J Mandel, solicitor, from Lander & Rogers Lawyers.

[5] Mr Howe called the applicant as one of four witnesses who provided evidence in support of the unfair dismissal claim. MrWoods called a total of ten witnesses who provided evidence on behalf of Sydney Trains.

Background

[6] The applicant had worked for the employer and its predecessor RailCorp, for about 12 years, including an initial three year period as an apprentice. The applicant was engaged as a Fitter/Machinist, and classified under the Sydney Trains Enterprise Agreement 2018 as an Engineering Operator 9.

[7] The applicant worked at the employer’s Eveleigh Maintenance Centre (EMC) located in the inner Sydney suburb of Eveleigh.

[8] Prior to the events leading to his dismissal, the work of the applicant was without recorded complaint regarding any performance or conduct issues. Indeed, the applicant had a commendable work record that included a Certificate of Appreciation provided by the employer in January 2016. The applicant was also an AMWU job delegate, and he was held in high regard by senior Officials of the NSW Branch of the AMWU, some of whom had encouraged the applicant to nominate for an elected position on the AMWU’s State Council.

[9] The dismissal of the applicant arose as a direct, but somewhat delayed, consequence of an incident that occurred when he attended for a rostered shift at the EMC on the evening of 11 July 2017. On 11 July 2017, the applicant was rostered to commence work at 18:30 (6:30 pm) and he was electronically recorded to have been present at the EMC from 17:25 (5:25 pm). Shortly after the applicant arrived at the EMC, he commenced to undertake activities that involved the spray-painting of his personal motor vehicle, a Nissan Pulsar.

[10] The applicant had driven his motor car into an area of the EMC where spray painting equipment was located. The applicant was present at the EMC at least an hour before his rostered commencement time of 18:30 (6:30 pm). However, the work involved in preparing and spray-painting his motor vehicle would at very least, have occupied more than two hours activity. Subsequently, when questioned about the spray-painting incident of 11 July 2017, the applicant has maintained that at the time of the incident he mistakenly believed that he was not rostered to commence work until 20:30 (8:30 pm).

[11] Shortly after he had commenced activities associated with the spray-painting of his motor vehicle, the applicant said that he engaged in a short conversation with, inter alia, his immediate manager, Mr Caitens. According to the applicant, Mr Caitens inquired about the applicant undertaking the spray-painting of his personal motor vehicle and the applicant told Mr Caitens that he was not commencing work until 8:30 pm. The applicant said that this explanation appeared to satisfy Mr Caitens’ inquiries, and there was no objection raised by Mr Caitens regarding the applicant undertaking the spray-painting of his personal motor vehicle during what was presumably understood to have been unpaid time prior to the commencement of the applicant’s rostered engagement.

[12] Mr Caitens gave evidence that there was no conversation as the applicant had asserted. Mr Caitens said that he was not aware that the applicant had spray-painted his personal motor vehicle on 11 July 2017. Mr Caitens said that he only became aware of the spray-painting incident of 11 July some weeks after the event when he overheard other staff talking amongst themselves about the incident.

[13] On 30 August 2017, as a result of hearing rumours about the spray-painting incident of 11 July, Mr Caitens sent an email to his immediate manager Mr Stammers, which in summary, recounted the rumours surrounding the spray-painting incident, and indicated that the matter should be further investigated. The investigation informally commenced on the following day when Messrs Caitens and Stammers took photographs of the overspray on the floor of the area of the EMC where the applicant had spray-painted his car some seven weeks earlier.

[14] On 3 November 2017, the employer engaged the services of an external consultant to undertake an investigation into the spray-painting incident of 11 July 2017. The external investigator commenced inquiries and interviewed various individuals including staff who were present at the EMC on the evening of 11 July.

[15] On 19 February 2018, the employer sent the applicant an email which attached a formal notification of misconduct allegation. This notification advised, inter alia, that the employer’s Workplace Conduct and Investigations Unit (WCIU) had engaged external consultants to undertake an investigation into an allegation that the employer anticipated may represent misconduct that may lead to disciplinary action including dismissal. The notification included the allegation which provided particulars concerning the spray-painting incident of 11 July 2017. In particular, the allegation stipulated that the applicant had been rostered between the hours of 18:30 on 11 July 2017, and 06:35 on 12 July 2017, during which time he was alleged to have spray-painted his private motor vehicle. The applicant was invited to provide a written response to the allegation within 14 calendar days.

[16] Shortly after reading the notification of misconduct allegation, the applicant contacted the employer’s payroll officer and he sought to have two hours overtime payment that he received for the 11/12 July 2017 shift taken out of his next pay. The recovery of wages previously paid to the applicant required that the applicant submit an amended timesheet for the 11/12 July shift. The applicant completed an amended time sheet, but the relevant manger declined to sign the document, and although the applicant was prepared to pay back two hours wages in respect of the 11/12 July shift, the employer declined to process any recovery payment as the incident was the subject of investigation.

[17] On 6 March 2018, the applicant provided an email response to the notification of misconduct allegation. The applicant’s response included an admission that he had painted “…a part of my vehicle but it was before my shift started. And it was with material that I had purchased.” 1 The applicant also stated that he believed that his shift start time on 11 July was 20:30 and that “… it appears that I have made an honest mistake and my start time was 1830…”2 Further, the applicant advised that he had requested that the two hours overtime payment be recovered by the employer.

[18] Later on 6 March 2018, the applicant received a further email from the WCIU which invited him to attend a disciplinary interview at a mutually agreed time or alternatively answer any further questions regarding the investigation in writing via email. On 7 March 2018, the applicant advised the WCIU that he would provide any further information in writing via email.

[19] Subsequently, on 9 March 2018, the applicant provided a further email in response to three additional questions that had been raised by the WCIU. The applicant’s further email response reiterated that he had made an honest mistake in respect to his roster start time on 11 July 2017, and that he honestly thought that he was conducting his spray-painting activities in his own time.

[20] On 20 March 2018, the applicant received another email from the WCIU which attached a letter dated 19 March 2018. This letter advised that the investigation into the 11 July 2017 incident had been completed, and that the findings of the investigation would be forwarded to the employer’s Disciplinary Review Panel (DRP).

[21] On 23 March 2018, the applicant received another email from the WCIU which attached a letter requesting that the applicant respond in writing to seven further questions relating to the 11 July 2017 spray-painting incident. Later on 23 March 2018, the applicant received a further email from the WCIU asking him to disregard the previous email and its attached letter, and to instead respond in writing to the (second) attached letter dated 23 March 2018, which sought written responses to six questions.

[22] On 11 April 2018, an organiser with the AMWU (Mr Daniel White) provided the WCIU with a written response on behalf of the applicant. Mr White raised various concerns about the process that Sydney Trains had undertaken in regards to the investigation into the 11 July 2017 spray-painting incident, and the findings of the investigation that had apparently been referred to the DRP but which had not been provided to the applicant at that time. On 16 April 2018, Mr White provided a further response to the WCIU which included specific answers to the six questions which had been included in the second letter provided to the applicant on 23 March 2018.

[23] On 17 April 2018, the applicant was at work when he was requested to attend a meeting in the fleet manager’s office. The employer’s associate Director of Train Maintenance, Fleet Maintenance Division, Mr Aquilina, attended the meeting, and he read out the contents of a letter dated 17 April 2018, which advised, inter alia, that the investigation into the 11 July 2017 spray-painting incident had been finalised and that two particular allegations against the applicant had been substantiated. In broad terms, the letter of 17 April advised the applicant that the employer had determined that the applicant had spray-painted his private motor vehicle during rostered hours, on the employer’s premises, and using the employer’s materials including paint and other resources. Further, the letter advised that the preliminary view of the appropriate disciplinary outcome based upon the findings that had been made, was the dismissal of the applicant. The applicant was advised that he was placed on paid suspension from duty whilst a final decision in relation to the disciplinary outcome would be made following the provision of any further evidentiary or other material that the applicant sought to put before the employer.

[24] On 30 April 2018, the applicant provided the employer with a written response to the contents of the letter of 17 April 2018. The applicant’s written response of 30 April 2018, reiterated that he believed that he had not been rostered to commence work on 11 July 2017 until 20:30 onwards. In addition, the applicant mentioned the conversation that he said occurred with his manager Mr Caitens, when Mr Caitens witnessed the applicant preparing to spray-paint his car. The applicant also asserted that he had used his own paint gun and his own black paint to paint his car, and he acknowledged that he did use the employer’s
compressor and airline.

[25] The applicant had also earlier raised concern about an apparent breach of confidentiality regarding the investigation into the 11 July 2017 spray-painting incident, and he reiterated his concern about another staff member apparently becoming intoxicated at a work/social function and advising other employees that the applicant was going to be dismissed because he had painted his car while on duty. The applicant also made representations to the employer that the proposed disciplinary outcome of dismissal would be unfair given that there had been other occasions where the employer’s staff including managers, had used the employer’s equipment and resources for personal purposes including an incident where a manager had apparently painted his own yacht using the employer’s resources. The applicant also sought to rely upon his good work record and the devastating impact that dismissal would have upon him financially and personally.

[26] On 19 June 2018, the applicant received a further letter from the employer which confirmed that the appropriate disciplinary outcome of dismissal had been confirmed. The applicant subsequently requested a review of the disciplinary penalty decision that had been made by the employer.

[27] On 19 July 2018, the applicant received a letter dated 13 July 2018, which provided written confirmation of the outcome of the review of the dismissal determination. Relevantly the communication from the Disciplinary Review Panel advised the applicant that it considered that the painting of his personal vehicle during paid work hours constituted misconduct, and that further, the applicant’s behaviour had involved dishonesty and a lack of integrity. Accordingly, the Disciplinary Review Panel upheld the disciplinary outcome of dismissal of the applicant.

The Case for the Applicant

[28] Mr Howe, from the AMWU, appeared for the applicant at the Hearing, and he made verbal submissions which elaborated upon documentary material that had been filed on behalf of the applicant. Mr Howe submitted that the applicant had been unfairly dismissed within the meaning of s. 385 of the Act, as the dismissal of the applicant was harsh, unjust and/or unreasonable. Mr Howe stressed that the applicant continued to seek reinstatement as a remedy for his unfair dismissal.

[29] The submissions made by Mr Howe referred to the various criteria set out in s. 387 of the Act and upon which the Commission was required to determine whether the dismissal of the applicant was harsh, unjust or unreasonable. In respect to the first criteria found at paragraph (a) of s. 387 of the Act, Mr Howe submitted that the findings of the employer in respect to the two identified allegations of misconduct did not provide valid reason for the dismissal of the applicant.

[30] It was submitted by Mr Howe that the two particular allegations that were made against the applicant were not properly substantiated particularly as the allegations had been changed or added to at different times during the investigation process and further, the findings of the employer were ultimately made at a level of generality that was unacceptable. Mr Howe stressed that the first allegation which involved the conduct of the applicant spray-painting his car on the evening of 11 July 2017, had never been denied by the applicant. Mr Howe said that the essential issue regarding this conduct was whether or not the applicant honestly believed that he was undertaking this activity in a time period prior to when he believed that his paid rostered shift was to commence. Mr Howe submitted that only by implication, and without stated findings, the employer had not accepted that the applicant had a genuine belief that his shift commencement time on 11 July 2017 was 20:30 rather than 18:30.

[31] Mr Howe referred to the second allegation upon which the employer sought to establish valid reason for the dismissal of the applicant which involved his use of the employer’s equipment and/or materials in respect to the spray-painting incident of 11 July 2017. Mr Howe submitted that the applicant had used his own paint and spray equipment and that the only aspect of the use of the employer’s resources was confined to the air hose and compressor which, according to the submissions made by Mr Howe, was minimal and broadly contemplated and permitted when one judged the standards of conduct that applied generally in respect to the practice of what was referred to as “foreign orders.”

[32] Mr Howe made further submissions that challenged the validity of the decision to dismiss the applicant which had also been based upon the conduct of the applicant that was said to have breached workplace safety requirements and created potential risks to the work, health and safety of other employees. Mr Howe submitted that the health and safety aspects of the spray-painting incident of 11 July 2017 were not matters that had been put to the applicant during the investigation process, but had been subsequently introduced and became part of the basis for his dismissal.

[33] Mr Howe submitted that when properly assessed, the conduct of the applicant in respect of the spray-painting incident of 11 July 2017, could not represent valid reason for his dismissal. Mr Howe submitted that the applicant did not knowingly undertake the spray-painting during his paid working time, further, his use of the employer’s resources was minimal and broadly consistent with standards of conduct that generally applied in the employer’s workplace, and the health and safety aspects of the activity did not breach any particular prohibitions. Therefore, Mr Howe submitted that the reasons that were relied upon by the employer were not valid reasons for dismissal as they were not sound, defensible or well-founded.

[34] The submissions made by Mr Howe urged that the Commission should accept the applicant as a witness of truth, and that his evidence should be believed particularly where it conflicted with evidence provided by Mr Caitens regarding the conversation that the applicant said occurred shortly after he commenced activities associated with spray-painting his vehicle on 11 July 2017. Further, Mr Howe submitted that the Commission should accept the applicant’s explanation for the motivation for conducting the spray-painting on the evening of 11 July 2017, at the EMC, whereby, he had commenced to spray-paint the vehicle at his home in Emu Plains and the weather became inclement so he decided to complete the spray-painting of the vehicle at the EMC. In this regard, Mr Howe said that the weather observation evidence did not provide conclusive proof that the rain and wind that the applicant said he experienced could not have occurred because the weather could be highly changeable at the particular location of the applicant’s home in Emu Plains.

[35] Mr Howe made further submissions which urged the Commission to believe that the applicant had made an honest mistake in respect to the rostered commencement time of his shift on 11 July 2017. Mr Howe submitted that it was entirely possible that the applicant did not properly identify his shift commencement time, and that he was at a later time, simply confused and had made an honest mistake. Mr Howe made submissions that acknowledged that a finding of dishonesty was significantly more serious than a finding of inadvertence or carelessness, and he submitted that when objectively considered, the evidence supported that the applicant had made an honest and genuine mistake about his shift commencement time on 11 July 2017.

[36] Mr Howe also made submissions about the evidence of the long-standing practice of “foreign orders” at the EMC. Mr Howe acknowledged that the employer had implemented a code of conduct that sought to reduce or minimise the practice of “foreign orders.” However, Mr Howe said that the practice continued to exist and importantly, no other employee had ever been dismissed for engaging in a “foreign order.” Mr Howe acknowledged that the applicant had not sought permission before he commenced the spray-painting activity on 11 July 2017. However Mr Howe said the applicant’s evidence should be believed regarding his conversation with Mr Caitens which provided condonation of what would have represented very minimal use of the employer’s resources in a period of time that the applicant genuinely believed was not paid working time.

[37] Mr Howe made further submissions which addressed evidence that the applicant had obtained other employment during the period that he had been stood down with pay whilst the investigation was conducted into the spray-painting incident of 11 July 2017. Mr Howe submitted that the applicant’s failure to seek approval prior to obtaining secondary employment should not represent a subsequent basis upon which the employer could rely upon as further reason for dismissal. Mr Howe submitted that the applicant had not contravened his obligations to his employer and that the Commission should have regard for the unnecessarily long period of time that the matter was under investigation and the applicant had been stood down.

[38] The submissions made on behalf of the applicant also addressed the other criteria contained in s. 387 of the Act. In particular, Mr Howe made criticism that the applicant had not been given an opportunity to respond to the allegation that his conduct in respect of the spray-painting incident of 11 July 2017 caused some risk to health and safety. Further, it was submitted on behalf of the applicant that there was no evidence that the employer had properly considered the responses that had been provided by the applicant during the investigation process.

[39] In addition, Mr Howe made submissions which stressed that the applicant had been treated inconsistently when compared with other evidence of employees performing “foreign orders” and further, the employer’s investigation into the spray-painting incident of 11 July 2017 was unacceptably long. Mr Howe also submitted that the disciplinary action of dismissal was disproportionate to the nature of any misconduct associated with the applicant’s spray-painting of his vehicle on 11 July 2017. Further, Mr Howe submitted that the dismissal of the applicant was harsh having regard to the applicant’s personal circumstances and in particular his considerable length of service and very good disciplinary record.

[40] In summary, Mr Howe submitted that when all of the evidence was properly considered, the dismissal of the applicant was harsh, unjust and unreasonable because there was not a valid reason for the dismissal. Mr Howe submitted that the applicant had made an honest and genuine mistake and the alleged misconduct of the applicant associated with the spray-painting incident of 11 July 2017, had not been substantiated. Further, Mr Howe submitted that the dismissal of the applicant was harsh as it was a disproportionate disciplinary measure in respect to any of the alleged misconduct. In addition, Mr Howe said that the dismissal of the applicant was inconsistent with the treatment of similar conduct of other employees, and it was also harsh because of various aspects arising from the individual circumstances of the applicant having regard to his good disciplinary record and personal commitment to working on the railways.

[41] Mr Howe submitted that the dismissal of the applicant was harsh, unjust and unreasonable and he asserted that there had been no evidence to establish that reinstatement would be inappropriate. Therefore, Mr Howe urged that the Commission make appropriate Orders providing for the reinstatement of the applicant together with continuity of his service.

The Case for the Employer

[42] Sydney Trains was represented by Mr Woods from Lander & Rogers Lawyers who submitted that the dismissal of the applicant was not unfair. Mr Woods made submissions which referred to documentary material that had been filed on behalf of the employer. The submissions made on behalf of Sydney Trains asserted that it was clear on the evidence that the applicant’s dismissal was neither harsh, unjust or unreasonable and that the employer had a valid reason for dismissal.

[43] Mr Woods said that the determination required in this instance focused upon the resolution of clear conflict of evidence provided by particular witnesses. Specifically Mr Woods referred to the conflicting evidence provided by, on the one hand, the applicant and another employee Mr Matthew Fasan, as opposed to the evidence provided by Mr Caitens in respect to the conversation that was alleged to have occurred shortly after the applicant commenced activities in respect of the spray-painting of his car at the EMC on 11 July 2017.

[44] Mr Woods submitted the determination of the matter involved a close consideration of the evidence in order to enable the Commission to resolve a crucial determination regarding the credibility of the witnesses who had provided conflicting evidence. Mr Wood submitted that there were various aspects of the evidence provided by the applicant which were relevant to resolving the critical question of his credibility.

[45] Mr Woods submitted that there was no credible evidence provided by the applicant about his purported mistake regarding the shift commencement time on 11 July 2017. Mr Wood submitted that the evidence established that there was no doubt that the applicant knew the commencement time of his shift and it was only after he had been caught red handed that he attempted to introduce the prospect that he believed that his commencement time had somehow changed from what was indicated in any available roster. Mr Woods submitted that there was just no explanation for why the applicant might have believed that he had a later start time on 11 July 2017.

[46] The submissions made by Mr Woods examined other aspects of the evidence provided by the applicant which he said had demonstrated that in some circumstances the applicant had simply lied. Mr Woods referred to paragraph 104 of the statement of the applicant made on 21 September 2018 3 wherein the applicant had stated that he had some casual work but was making significantly less money than when he was employed by Sydney Trains. Mr Woods submitted that the subsequent evidence provided by way of subpoenaed payslips from the applicant’s secondary employment demonstrated that at the time that the applicant made this statement he was working 76 hour fortnights and accruing leave entitlements.

[47] Mr Woods also referred to other aspects of the applicant’s evidence which he asserted displayed a reluctance to be honest and involved evasive and in some ways creative evidence. Mr Woods submitted that the applicant had endeavoured to rely upon evidence of other employees performing “foreign orders” as some justification for his misconduct. However, when the circumstances of other incidents of “foreign orders” was properly examined those events could be contrasted with the applicant’s circumstances, particularly as most of the other examples of “foreign orders” occurred at some time in the past including an event that occurred 28 years ago. Mr Woods submitted that the applicant’s credibility suffered when he sought to rely upon a 28 year old event to justify his position.

[48] Mr Woods also made detailed submissions about the evidence of the weather conditions in the area near the applicant’s home at Emu Plains on the afternoon of 11 July 2017. The applicant asserted that the onset of inclement weather at his home was his motivation to cease the spray-painting of his car and to complete the painting at the EMC. Mr Woods said that the Bureau of Meteorology records from a range of locations around where the applicant lives showed that there was no rain or strong winds at any of those sites on 11 July 2017. Mr Wood submitted that when this evidence was carefully considered the applicant’s “story” about commencing the painting of his car at home and making a decision to complete the task at the EMC was not credible.

[49] Mr Woods made further submissions which also challenged the reliability of the evidence provided by the applicant as was supported by evidence from Mr Fasan. In this regard, Mr Woods drew attention to what he said was the significant inconsistency that involved the applicant confirming that he used a dust mask when performing the spray-painting on 11 July 2017 while Mr Fasan affirmed the applicant was wearing a respirator and that he had a very clear image of him with the respirator around his neck.

[50] The submissions made by Mr Woods also asserted that the evidence established that the spray-painting work undertaken by the applicant continued even after the supposedly late commencement time of 8:30 pm. Mr Woods referred to evidence from other witnesses who had raised concern about the odour and spray paint mist at a point in time that was on any estimation past 8:30 pm.

[51] Mr Woods submitted that when all of the factors which challenged the credibility of the applicant were carefully considered it was clear that the applicant undertook the spray-painting work knowing that it was during his paid work time, and that his responses throughout the employer’s investigation had been dishonest. Therefore, according to Mr Woods there was valid reason for the dismissal of the applicant.

[52] Mr Woods made further submissions which addressed the various other criteria identified in s. 387 of the Act. Mr Woods submitted that the applicant had been notified of the reason for his dismissal and he had been offered an opportunity to respond and did so during the investigation process. Mr Woods submitted that when each of the elements contained in s. 387 of the Act were properly considered the result should be that the application for unfair dismissal remedy be dismissed.

[53] In summary, Mr Woods submitted that the dismissal of the applicant was for valid reason and it was submitted that the employer had acted in a manner that was fair, sound and reasonable. Consequently, the employer submitted that there was no basis to establish any unfairness as the dismissal of the applicant was not harsh, unjust or unreasonable. Mr Woods urged that the application for unfair dismissal remedy be dismissed.

Consideration

[54] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are identified in s. 385 which is in the following terms:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

[55] In this case, there was no dispute that; (a), the applicant had been dismissed, and (b), the Small Business Fair Dismissal Code did not apply, and (c), there was no suggestion that the dismissal was for reason of redundancy. Consequently, the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically, whether the dismissal of the applicant was harsh, unjust or unreasonable.

[56] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are stipulated as:

“(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.”

S. 387 (a) - Valid reason for the dismissal related to capacity or conduct

[57] The determination of this case has required a careful analysis of various aspects of conflicting evidence in order to enable a conclusion to be made as to the credibility of the applicant. There was no contest that the spray-painting incident did actually occur on the evening of 11 July 2017 (the incident). The applicant admitted to the conduct in his initial response to the employer’s notification of misconduct allegation wherein he stated: “Yes I did paint a part of my vehicle but it was before my shift started. And it was with material that I had purchased.” 4 Notwithstanding this admission, it was the applicant’s conduct in respect of particular aspects of detail of the incident, and his subsequent conduct in respect to answers and explanations that he provided to the employer during its investigation into the incident, which were found by the employer to have represented misconduct of sufficient gravity to justify dismissal.

[58] Essentially, the employer rejected the applicant’s version of the incident and the explanations that he provided as mitigation or justification for his engaging in what is referred to as a “foreign order”. If, upon careful examination of all of the evidence provided during the proceedings, the Commission similarly rejected the applicant’s version of the incident and his explanations, there would be no basis upon which the application could succeed. Alternatively, if the Commission accepted the applicant’s position regarding particular aspects of detail of the incident, there would be significant prospect that dismissal would have been an entirely unreasonable and disproportionate disciplinary measure.

Foreign Orders

[59] The applicant’s conduct involving the incident was an event that was described as a “foreign order”. The term “foreign orders” is used to describe conduct or activity on the part of an employee that utilises the resources of the employer for the personal benefit of the employee or a friend or associate of the employee, rather than for any direct interest or benefit of the employer. In some workplace circumstances the term “foreign orders” is also interchanged with terms such as “foreign jobs” or “foreigners” or “foreignies”.

[60] Thus, the colloquial expression; “On the weekend I done a foreignie for me mate” might be used to describe circumstances involving an employee taking some specialised piece of equipment owned by the employer and using that equipment to help a friend. As an example, a worker might take the employer’s concrete mixer home over the weekend and use the mixer to help a neighbour lay a concrete floor in their shed. In this example, the resources of the employer in the form of the concrete mixer were used by the employee for the benefit of the employee’s neighbour and for no benefit of the employer.

[61] There are a number of key components of detail regarding the performance of “foreign orders” which are relevant to whether the particular conduct associated with the performance of the specific “foreign order” did or did not represent misconduct. Most employers generally accept and tolerate that from time to time there will be some utilisation of the employer’s resources for the personal benefit of employees. There would be many instances where employer provided stationery, telephones, computer equipment, et cetera, would be utilised by employees for personal use without concern or complaint raised by the employer. As an extreme example, an employer would not complain that an employee who had been provided with a ballpoint pen used some of the ink in that pen to write out a personal shopping list.

[62] However, in circumstances that involve other than the incidental or innocuous use of the employer’s resources or equipment for personal purposes, particular key components of the performance of the “foreign order” become crucial as to whether the activity could be properly characterised as misconduct.

The Key Components of Foreign Orders

[63] Firstly, and perhaps most obviously, the issue of whether the employee sought and first obtained the employer’s approval for the “foreign order” would likely remove the prospect for any misconduct to arise. However, clarification of the detail of the particular activity associated with the “foreign order” for which approval was putatively provided can be very important. For instance, in the example used above involving the concrete mixer, the employer may have provided approval on the understanding that the concrete mixer would be utilised only on weekends for personal purposes and available for use devoted to the employer’s interests at all other times.

[64] Further, particular conduct involving a “foreign order” may be acceptable to an employer in one circumstance but that same conduct may not be acceptable in different circumstances. For instance, an employer may have approved use of its photo copying machine for an employee who requested to make 500 A4 copies of flyers that advertised a fundraising event for a local not-for-profit kindergarten. Another employee who wished to use the same photo copying machine to make 500 A4 copies of flyers that advertised his secondary pet washing business could not automatically anticipate approval from the employer.

[65] Consequently, the first key component in any assessment of activity undertaken as a “foreign order” is clarification of whether or not the employer had provided approval for the conduct. Importantly, an employee should be very cautious about assuming that approval had been provided by way of an inference gained from evidence of apparently similar conduct which was approved.

[66] A second key component of detail regarding any “foreign order” involves whether at the time that the activity was undertaken the employee was being paid. In the concrete mixer example referred to above the utilisation of the employer’s resources did not involve activity undertaken during paid work time. In many instances an employer may be unconcerned if the utilisation of its resources for personal benefit of an employee occurs in the employee’s own time, perhaps before or after any rostered paid engagement, or on weekends, leave, et cetera.

[67] Thirdly, the nature and extent of the utilisation of the employer’s materials and/or equipment is a key component of detail relevant to whether a particular “foreign order” may be misconduct. An employer may tolerate the occasional personal use of its resources but in the event that the level of personal use became excessive or that the costs to the employer associated with the activity escalated, the employer might properly determine that the activity represented misconduct.

[68] Fourthly, any health and safety implications that arise in respect to the particular “foreign order” is another key component in consideration of whether the activity may be considered to represent misconduct. It is conceivable that in circumstances where two employees undertook the same activities associated with a “foreign order” but one employee adopted some unsafe work practice, the unsafe aspect of the performance of the same “foreign order” may establish misconduct, notwithstanding that all other key components had been satisfied.

[69] The fifth key component associated with any performance of a “foreign order” relates to any damage or loss to the property, plant or equipment of the employer that may be caused by the activities associated with the “foreign order”. In similar fashion to the health and safety key component, if the activities associated with a particular “foreign order” resulted in damage or loss to the employer’s assets, misconduct might readily emerge.

The Applicant’s Version of the Incident

[70] The applicant’s version of the incident can be carefully assessed against the key components of “foreign orders” that have been identified above.

[71] The applicant did not seek approval from any manager or other representative of the employer prior to commencing the activities involving the painting of his car. The applicant drove his car into the EMC and parked it in the area where he was intending to paint it. He then commenced the “foreign order” without any concern for first obtaining approval from a manager. 5

[72] In respect of the issue of employer approval or sanction for the “foreign order”, the applicant sought to rely upon a conversation that he said had occurred with his manger Mr Caitens, whilst he was painting his car. This conversation was the subject of directly contradictory evidence provided by Mr Caitens who emphatically stated that the conversation did not occur. The applicant was supported by evidence provided by another employee, Mr Fasan, who said that he was present during the conversation that involved Mr Caitens.

[73] Notwithstanding any findings that may be made in order to resolve the conflicting evidence regarding the conversation that was said to have involved the applicant, Mr Fasan and Mr Caitens, it was clear from the applicant’s version of the incident, that the applicant had commenced the “foreign order” without any prior approval from the employer. Consequently, at best, the subsequent conversation that was alleged to have occurred with Mr Caitens represented implied condonation as opposed to any prior approval.

[74] The resolution of the factual conflict as to whether the conversation with the applicant, Mr Fasan and Mr Caitens did actually occur has been assisted by other aspects of evidence that challenged the credibility of the applicant. However, there were some significant aspects of the evidence about this alleged conversation that have supported the adoption of a firm preference for the evidence of Mr Caitens over that provided by the applicant and Mr Fasan.

[75] Firstly, according to the evidence provided by the applicant and Mr Fasan, the conversation purportedly included the applicant telling his manager, Mr Caitens, that he was conducting the spray-painting in his own time as his shift did not commence until 8:30 pm. Mr Fasan, said that the applicant told Mr Catiens words to the effect of; “Don’t worry about changing my start time. I start at 8:30 pm.” 6

[76] This purported conversation was a vital support for the applicant’s assertion that he believed that he had painted his vehicle before his shift had started, and that he only subsequently recognised that he had made an honest mistake about his true start time. Strangely however, the applicant made no mention of the alleged conversation with Mr Caitens when, on 6 March 7 and 9 March 20188 he provided email responses to the employer’s notification of misconduct allegation. It would have been logical and of great assistance to the applicant if he was to have simply included in these emails some mention that his mistaken start time could be verified by both Mr Caitens and Mr Fasan.

[77] If the conversation with Mr Caitens had occurred there is simply no plausible explanation why the applicant would not have mentioned that conversation as part of his initial responses to the employer’s investigation. Frankly, the conversation was of such importance that it would have logically been the first thing the applicant would have mentioned in defence of the allegations of misconduct. Instead, the first mention of the purported conversation emerges in the applicant’s written response dated 30 April 2018, and at that stage there is no mention of potential support that would also be obtained from Mr Fasan who was said to have also been present during the alleged conversation.

[78] Secondly, there was peculiarly inconsistent evidence provided by the applicant and Mr Fasan about whether the applicant was actually undertaking spray-painting or only performing preparation work at the time that the alleged conversation was said to have occurred. In his statement Mr Fasan said: “I only witnessed Jarome painting the bonnet of his car. He was using single pack paint and wearing a respirator.” 9

[79] Initially during cross-examination, Mr Fasan confirmed that he had seen the applicant painting his car. 10 However, subsequently Mr Fasan said that he was not 100% sure but he thought the applicant was not actually spray-painting when he initially arrived on the scene.11 Mr Fasan then provided evidence where he confirmed that he had a nice visual image of the applicant spray-painting and wearing a respirator as opposed to a dust mask.12 In totality, the evidence provided by Mr Fasan as to whether he actually witnessed the spray-painting work became quite equivocal.13

[80] In contrast to the equivocal nature of his evidence about witnessing the applicant actually spray-painting his car, Mr Fasan provided firm evidence that he saw the applicant wearing a respirator as opposed to a dust mask. Strangely however, the applicant said that he wore a dust mask and glasses 14 and that he did not wear a respirator.15

[81] The applicant clearly understood that a key component of any “foreign order” was whether the activity was undertaken in paid or unpaid time. In this instance, the applicant said that he mistakenly believed that his start time was 20:30 rather than 18:30 and therefore he asserted that he was not consciously undertaking the “foreign order” in paid work time.

[82] The applicant did not provide any plausible explanation for why he would have mistakenly thought that his start time on 11 July 2017 was 20:30 rather than 18:30. The applicant suggested that his confusion arose because of the dark blue colour on his shift roster. 16 However, the dark blue colouring on the shift roster was for Wednesday, 12 July 2017, and his shift roster document shows shift commencement times for Monday, 10 July 2017, of 18:30, Tuesday, 11 July of 18:30 and Wednesday, 12 July of 18:00. Further, the applicant accepted that there was no document which recorded a start time of 20:30 for 11 July 2017.17

[83] Further, it would be unusual for any experienced shift worker to have not known their rostered commencement time, and the implications of the evidence given by Mr Fasan as mentioned in paragraph [75] above involving the applicant purportedly telling Mr Caitens not to worry about changing his start time, provides further basis to conclude that the applicant was aware that his rostered commencement time on 11 July 2017 was 18:30, and he has subsequently constructed an alleged mistaken belief that his start time was 20:30.

[84] In addition, there was very sound evidence provided by other witnesses including in particular, Mr Attrill, which established that the applicant’s spray-painting activity continued well past 20:30. Mr Attrill provided very believable evidence which was not discredited or disturbed by extensive cross-examination, and which confirmed that he smelt the odour of strong paint fumes at approximately 9:30 pm (21:30), and that he noticed the applicant’s car at around 6:45 to 7 pm at which time it had not been prepared ready for spray-painting.

[85] Consequently, even if the applicant’s alleged honest mistake with his start time was to be believed he nevertheless undertook a substantial part of the work involving the “foreign order” during his paid rostered shift.

[86] The applicant asserted that the incident did not involve any extensive use of the employer’s materials or equipment. The applicant said that he used his own paint and spray gun and therefore the extent to which the employer’s resources were utilised was minimal, and essentially confined to the workshop premises, the compressor and airline. The proposition that the applicant used his own paint and spray gun logically introduced the question as to why the applicant painted his car at the EMC. If indeed the applicant had his own equipment and materials why would he have to use the employer’s?

[87] In order to address this obvious question the applicant said that on the afternoon of 11 July 2017, he commenced to spray paint his car at his home at Emu Plains. The applicant said that he had painted the sides and had started to paint the top of the car using his own air hose, paint gun and paint when the weather became windy and rainy. The applicant said that as he did not have any undercover area at his home, the inclement weather would damage the paint that he was applying to his car. Therefore the applicant said that he decided to put the paint gun and the paint into the boot of the car and drive it to the EMC so that he could complete the spray-painting prior to the commencement of his rostered shift.

[88] There were two particular issues which have discredited the applicant’s evidence about the motivation for undertaking the spray-painting at the EMC being the windy and rainy weather that developed at his home on the afternoon of 11 July 2017.

[89] Firstly, evidence of the Bureau of Meteorology Daily Observations weather data records show that on 11 July 2017, and the six days before and six days after, there was no rain recorded at the weather station closest to the applicant’s home (Penrith Lakes AWS). Further, the Bureau of Meteorology weather data taken from observation stations in the vicinity of the applicant’s home, being, Penrith Lakes AWS, Badgerys Creek AWS, Richmond RAAF site, Springwood, Prospect Reservoir, and Parramatta North, records that there was no rain or strong wind at any of those locations on 11 July 2017.

[90] Secondly, in a practical sense it would be counterintuitive to drive a car that had just been painted. The wind created by the speed of the car would cause the paint to run, and particularly if the weather was inclement, the paint would be likely to be further affected by rain or road spray making contact with the freshly painted surfaces of the car at speed.

[91] There were certain workplace health and safety concerns associated with the incident. The spray-painting of a motor vehicle particularly in a confined area can clearly create health and safety problems for other employees who may have been inadvertently exposed to paint fumes. The applicant sought to downplay the nature of the activity associated with the “foreign order” as he said that it was not a big issue and that he was following the correct protocols. 18 This cavalier and somewhat brazen approach of the applicant elevated potential for serious workplace health and safety concerns. Regrettably, the health and safety concerns of the incident were not properly put to the applicant during the employer’s investigation into the incident so as to enable his considered response to be recorded.

[92] The incident did result in some very minor damage to the employer’s assets where paint overspray marked the floor of the area of the EMC. In respect to the various key components identified as relevant in any assessment of a “foreign order” on balance, and compared to other key components, the nature and extent of damage in this instance would be a matter of little or no consequence.

[93] Further to the consideration of the key components of the “foreign order” that the applicant performed in this instance, an additional aspect of consideration regarding valid reason for dismissal emerged from the evidence that was adduced during the proceedings. The evidence revealed that the applicant had obtained secondary employment during the time that he was stood down on pay. The secondary employment was initially casual but it had become full-time permanent employment before the dismissal of the applicant had been confirmed and finalised. Further, the secondary employment had been obtained by the applicant without any advice to or approval from the employer.

[94] On 21 September 2018, the applicant was well established in this full-time permanent employment when he made his initial statement in these proceedings, Exhibit 1, which at paragraph 104 stated; “I have some casual work, but I’m making significantly less money than when I was employed by Sydney Trains.”

[95] The applicant knew that this statement was false in two important respects. Firstly, he had been working in permanent full-time work for some time, and secondly, he had been receiving wages from both this secondary employment and payment while stood down from duty with Sydney Trains. When the applicant was tested on this issue during cross-examination he provided testimony that, regrettably, impugned his credibility. 19

[96] In summary therefore, the Commission has not been prepared to accept the applicant’s evidence. Upon examination of the key components of the “foreign order” performed by the applicant on 11 July 2017, the incident has represented serious misconduct. Specifically, the conduct of the applicant involved, (a) the performance of the “foreign order” without prior approval of the employer, (b) the “foreign order” was knowingly performed in paid time, (c) the “foreign order” involved the utilisation of the employer’s equipment and materials, (d) there were potentially serious health and safety implications associated with the “foreign order” which were disregarded by the applicant, and, (d) there was some inconsequential damage to the employer’s property as a result of the performance of the “foreign order”.

[97] Consequently, the employer’s findings of serious misconduct arising from the applicant’s performance of a “foreign order” on 11 July 2017, and his subsequent conduct including providing dishonest answers during the investigation into the incident, have been verified. Further, the applicant breached both a stated and implied employment obligation when he obtained secondary employment without seeking approval of the employer.

[98] Therefore, there was valid reason for the dismissal of the applicant. The findings of serious misconduct made by the employer, specifically including the finding that the applicant acted dishonestly when he provided answers to the employer during the investigation into the incident, have established sound, well-founded and defensible reasons for the dismissal of the applicant.

S. 387 (b) - Notification of reason for dismissal

[99] The employer provided written notification of the reason for the applicant's dismissal. Although the applicant had not been notified of the health and safety aspect of the reasons for his dismissal the applicant indicated that the question of notification was a neutral factor.

S. 387 (c) - Opportunity to respond to any reason related to capacity or conduct

[100] The employer provided the applicant with appropriate opportunities to respond to the substantive issues surrounding the reasons for dismissal except for the health and safety issue which was not properly put before the applicant in a manner that gave him opportunity to respond on this particular issue.

S. 387 (d) - Unreasonable refusal to allow a support person to assist

[101] There was no evidence that the applicant was refused the assistance of a support person during the various meetings that were held regarding the investigation into the incident. No issue was taken by the applicant in respect of the question of any unreasonable refusal to allow a support person to assist.

S. 387 (e) - Warning about unsatisfactory performance

[102] This factor is not relevant to the circumstances in this instance.

S. 387 (f) - Size of enterprise likely to impact on procedures

[103] The size of the employer’s operation would not have been likely to have a significant impact on procedures surrounding the dismissal of the applicant.

S. 387 (g) - Absence of management specialists or expertise likely to impact on procedures

[104] This factor is not relevant to the circumstances in this instance.

S. 387 (h) - Other relevant matters

[105] Consideration has been provided for other relevant matters including the applicant’s age, the extraordinarily lengthy period of the investigation and determination process, his lengthy and previously unblemished employment record, and other personal factors. These factors have been balanced against all relevant factors. In particular, further consideration has involved contemplation of the serious misconduct involving the applicant’s dishonesty which has provided valid reason for dismissal. Consequently, other relevant matters have not provided any persuasive basis upon which to render the dismissal of the applicant to have been harsh, or otherwise unfair.

Conclusion

[106] The applicant was dismissed upon the employer’s findings that his conduct in respect to the “foreign order” incident of 11 July 2017, and his subsequent false and dishonest portrayal of that incident, represented serious misconduct. These findings were established by the employer following an extraordinary lengthy investigation and determination process. The employer relevantly found that, in combination, the applicant’s misconduct associated with the incident, and his subsequent false and dishonest portrayal of the incident represented serious misconduct. The subsequent discovery that the applicant had obtained secondary employment without seeking approval of the employer has provided further valid reason for dismissal.

[107] Upon full Hearing of the applicant’s claim for unfair dismissal remedy, the findings of serious misconduct made by the employer have been confirmed by the Commission. There were no other factors which militated against the primary factual findings which represented the reason for the dismissal of the applicant.

[108] Consequently, the employer dismissed the applicant for valid reason relating to the applicant's conduct. That conduct represented serious misconduct sufficient to justify dismissal.

[109] The dismissal of the applicant was not harsh, nor was it unjust, or unreasonable. Therefore, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Mr S Howe with Mr J Rabaud from the Australian Manufacturing Workers' Union appeared for the applicant.

Mr A Woods, solicitor with Ms J Mandel ofLander & Rogers Lawyersappeared for the Employer.

Hearing details:

2018.

Sydney:

November, 1 & 26.

December, 4 & 5.

Printed by authority of the Commonwealth Government Printer

<PR704474>

 1   Exhibit 1 - page 76.

 2   Exhibit 1 - page 77.

 3   Exhibit 1 - page 13.

 4   Exhibit 1 - page 76.

 5   See for instance transcript @ PN163-164, PN173 and PN331.

 6   Exhibit 5 - paragraph 45.

 7   Exhibit 1 - page 76.

 8   Exhibit 1 - page 74.

 9   Exhibit 5 - paragraph 42.

 10   Transcript @ PN1620-1621.

 11   Transcript @ PN1683-1684.

 12   Transcript @ PN1710-1712.

 13   Transcript @ PN1853.

 14   Exhibit 1 - paragraph 51.

 15   Transcript @ PN799.

 16   Transcript @ PN620.

 17   Transcript @ PN591, PN597.

 18   Transcript @ PN123.

 19   Transcript @ PN240-PN243.