Lamb v Redland City Council
[2014] QIRC 41
•24 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Lamb v Redland City Council [2014] QIRC 041 |
| PARTIES: | Lamb, Kevin Alan |
| (applicant) | |
| v | |
| Redland City Council | |
| (respondent) | |
| CASE NO: | TD/2012/48 |
| PROCEEDING: | Application for reinstatement; unfair dismissal |
| DELIVERED ON: | 24 February 2014 |
| HEARING DATES: | 29 July - 2 August 2013 |
| MEMBER: | Deputy President O'Connor |
| ORDERS: | The application is dismissed. |
CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - HARSH, UNJUST OR UNREASONABLE - Where allegations were made against the applicant in relation to misuse of a Council fuel card - Where the matter was referred to the CMC and sent back to the respondent Council for investigation - Where the respondent engaged an independent investigator to conduct the investigation - Where the independent investigation found that there was sufficient evidence to substantiate the allegation that the applicant had been misusing a Council fuel card to fill his son's car - Where the respondent terminated the applicant's employment on the basis of the findings of misconduct against him - Where the applicant applied for reinstatement - Whether the dismissal was "unfair" - Where the onus of proof shifted to the respondent as the dismissal was on the grounds of serious official misconduct - Matters referred to in s 77 of the Industrial Relations Act 1999 considered |
| CASES: | Industrial Relations Act 1999 (Qld), s 73, s 74, s 77 |
| Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 | |
| Briginshaw v Briginshaw (1938) 60 CLR 336 | |
| Gold Coast District Health Service v Walker (2001) 168 QGIG 258 M v M (1988) 166 CLR 69 | |
| Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd | |
| (1992) 110 ALR 449 Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914 | |
| APPEARANCES: | The applicant, for himself. Mr J W Merrell, Counsel, instructed by Thynne & Macartney, for the respondent. |
Background
[1] Mr Kevin Alan Lamb ("the applicant") commenced work with the predecessor to the Redland City Council ("the respondent") on 16 May 1994. He served there continuously until his termination on 8 June 2012, at which time he held the position of "Service Manager, Financial Reporting and Capital Management". He was given two weeks' pay in lieu of notice. On 29 June 2012 he applied for reinstatement to his former position as Service Manager pursuant to s 74 of the Industrial Relations Act 1999 ("the Act"), alleging that his dismissal was unfair. This is a decision on that application.
Relevant legislation and authorities
[2] Section 73 of the Act relevantly provides:
"73 When is a dismissal unfair
(1) A dismissal is unfair if it is–
(a) harsh, unjust or unreasonable; …"[1]
[1]
[3] In Bostik (Australia) Pty Ltd v Gorgevski (No 1), Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:
"These are ordinary non-technical words which are intended to apply to an
infinite variety of situations where employment is terminated. We do not think
any redefinition or paraphrase of the expression is desirable. We agree with the
learned trial judge's view that a court must decide whether the decision of the
employer to dismiss was, viewed objectively, harsh, unjust or unreasonable.
Relevant to this are the circumstances which led to the decision to dismiss and
also the effect of that decision on the employer. Any harsh effect on the
individual employee is clearly relevant but of course not conclusive. Other
2
matters have to be considered such as the gravity of the employee's misconduct."
Onus of proof
[4] Prima facie, it is accepted that an applicant carries the onus of proving that the
3
dismissal was harsh, unjust or unreasonable. However, when considering the appropriate onus of proof to be applied in cases involving a dismissal on grounds alleging serious or criminal misconduct, the onus of proof shifts from the applicant employee to the respondent employer.
[5] In considering the appropriate standard of proof to be applied, Chief Commissioner Hall (as his Honour then was) in Stark v P & O Resorts (Heron Island) wrote:
"For myself, I would add, though it is not a proposition which is necessary to the
decision in this matter, that whomsoever it is who the ultimate onus of proof in an
unfair dismissal case, on a grave allegation of criminal misconduct the onus must
inevitably shift to the proponent of the allegation and, equally inevitably, the
higher onus described in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and
M v M (1988) 166 CLR 69 at 76 to 77 must be applied, compare Byrne and
4
Another v Australian Airlines Ltd. (1992)192 per Hill J."
[6] Earlier in the same decision, Chief Commissioner Hall stated:
"Where, as here, an application under s. 174 is advanced on the basis that a
dismissal was harsh, unreasonable or unfair, the task of the Commission is to
assess whether it should intervene to protect the applicant against a decision
which is fundamentally one for the employer to make. Ordinarily intervention
will be justified only where the employer has abused the right to dismiss.
Ordinarily where an employer conducts a full and extensive investigation and
gives the employee a reasonable opportunity to respond to allegations being made
against him, an honest decision of the employer that misconduct warranting
dismissal has occurred will, if formed on reasonable grounds, will be held
immune from interference by the Commission; Compare Hooper v Bi-Lo Pty Ltd
5
(1992) 59 SAIR 342 at 349 to 354."
Background to the termination
[7] Between 2010 and 2012, the respondent allocated to the applicant, as part of his conditions of employment, a motor vehicle which the applicant was permitted to use for his own private use on an unlimited basis; this is a fact not in dispute between the parties.
[8] Two motor vehicles were supplied to the applicant during the period between 2010 and 2012: a Toyota Camry, and then, subsequently, a Ford Escape. The Ford was supplied to the applicant from February 2010. It was silver in colour and bore the number plate "692 MUJ".
[9] Two fuel cards were allocated for use with the Ford Escape: one being for Caltex service stations and the other for BP service stations.
[10] Between 2010 and 2012, the respondent issued a "guideline document" headed "Fuel Card Use" ("the guideline") in respect of the fuel cards used for the respondent's motor vehicle fleet. Relevantly, it provided:
"1.2 Self propelled vehicles … shall have a Fuel Card specified to each particular vehicle … Such cards shall only be used to purchase fuel for the
relevant vehicle …
…
3.7 When using the Fuel Card, the correct Odometer Reading must, at all
times, be advised to the Service Station Attendant for inclusion in the Monthly
Account. Suppliers have been requested to insist on odometer readings
6
before processing Fuel Card transactions."
[11] The respondent had a fleet management system known as "Maximo", which recorded, amongst other things, the consumption of fuel purchased for each staff member to whom fuel cards were issued, the relevant odometer readings, and the amount of fuel purchased.
[12] The applicant accepted that he was aware of the guideline and knew that he had to follow its requirements, including the requirement that fuel could only be purchased with a fuel card for use in the relevant vehicle allocated to the applicant by the respondent.
[13] The Ford Escape had a fuel tank capacity of 61 litres. The applicant said he never drove the Escape when the fuel light was on and that the generally filled it when it was one-quarter full.
[14] At the relevant time, the respondent also had in place an "Employee Code of Conduct". The applicant knew he had to observe the Code of Conduct and that failure to do so may lead to disciplinary action.
[15] The Code of Conduct relevantly provided:
"3.4.9 Using Council Resources for official purposes a. Employees must ensure Council resources are used for official purposes and the purposes for which they were provided and intended.
…
d. Council resources are not to be used for private purposes unless
authorised by policy, guidelines or the written approval of the Chief
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Executive Officer."
[16] On 9 March 2012, the respondent received an anonymous complaint by telephone. A file note of the conversation was taken by an employee of the respondent. It read:
"I took a call from a female who said she was from a Caltex service station on
corner of Princess Street. She wanted to report a Council worker – over several
months has filled his car up with petrol using a council card but is reeking of alcohol. Her concern was that he was drinking during working hours as he was visiting the service station at lunchtime. Also he would bring his son's car in and fill up firstly his council car and then the son's car and use the council card for both transactions. She said it was service centre process if repeated behaviour to take a name.
She named the staff member as Kevin Lamb.
I asked details but she said she did not want to provide her details."
[17] Also in March 2012, Mr Gavin Holdway - who held the position of "Manager, Financial Services" with the respondent, the manager to whom the applicant directly reported - performed a financial services group budget review. In so doing, he noticed that the applicant's fuel consumption figures were very high compared to the rest of the staff in the applicant's team, especially given that the applicant lived locally, in Thornlands.
[18] The draft for the proposed budget of the respondent's financial services section for the financial year ending 2013 revealed that the applicant's annualised fuel costs for the 2011-2012 financial year was $5492.86, which was significantly higher than that of other employees in the financial services section who had been provided with a vehicle.
[19] On 15 March, Mr Holdway sent an email to Mr Martin Drydale in which Mr Holdway reported his concerns:
"Hi Martin,
In working through reconciling my budgets over the last few days for 12/13 I have come across what may appear to be an anomaly or concern
Attached are 2 screenshots from Finance 1 EB;
1.) Fuel usage by officer (annualised for 11/12) with an increase allowance for
budget provision for 12/132.) Job analysis for Job # 11059 – Financial Reporting & Capital Management
– Draft proposed budget for 12/13I have circled in blue some fuel expenditure costs for Kev Lamb that appear unusually high for an 11/12 annualised extrapolation. I know when Grant originally received some information from fleet we queried the kilometres on a number of officers as they did not appear correct, however, the actual fuel $ seemed OK.
Before raising this with Kev I was going to do some checks with fleet on this and also look at some history to see the relativity. On the second screen shot attached, Kev and Sandra have allowed for the figures 'as suggested' and not reduced the allowance in anyway.
I thought to raise this, certainly as it appears unusually high in comparison to
other officers (living locally) and I was also conscious of looking at
demonstrating how Financial Services can support the efficiency target needed
8
for the next year."
[20] On 10 April 2012, the applicant was asked to attend a meeting with Mr Holdway and Mr Drydale. The purpose of the meeting was to explain to the applicant that a complaint had been made against him and to outline the nature of the allegations. He was further advised that the meeting was not to discuss the evidence but that an independent investigation into the allegations would take place and a formal letter would be sent to him setting out the particulars of the allegations.
[21] Mr Drydale told the applicant that a complaint had been made about the applicant which had been referred to the Crime and Misconduct Commission ("CMC"). Both complaints were referred to the CMC - on 13 and 20 March 2012, respectively.
[22] In due course, the respondent received a "Matters Assessed Report" from the CMC advising that the matter was being referred back to the respondent to deal with the complaints and asking that the outcome be reported to the CMC. The CMC further advised that the allegation could, if proved, amount to official misconduct.
[23] By letter dated 12 April 2012 under the hand of Siggy Covill - who held the position of "Manager, Internal Audit" with the respondent - the applicant was advised as follows:
"Dear Kevin
I am writing to advise that I have received complaints regarding the misuse of your fuel card and use of alcohol during office hours. Details of the complaints are:
that you have attended a petrol station over several months, using your
Council fuel card to fill up your car as well as your son's car.
that you have inappropriately behaved by being intoxicated in the workplace
whilst being on duty.
This matter was duly referred to the CMC and I have now received their formal advice. The advice received from the CMC indicated that the allegation could, if proved, amount to official misconduct (breach of trust, dismissible disciplinary breach) and referred it back to Council to investigate.
I have now appointed Angela Engel from Aitken Legal to investigate this matter. Aitken Legal instigations are conducted sensitively and discretely with the primary focus being to gather sufficient information to allow a decision to be made about the most appropriate response to a particular issue. Their investigation process follows the statutory or policy requirements for each situation and rigidly adheres to the principle of procedural fairness and natural justice.
…
Based on the seriousness of these allegations and the potential impact this has on
your employment with Redland City Council, a determination has been made
that you should take these ten (10) working days (beginning yesterday), as paid
absence from the workplace in order for you to fully consider your response, and
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Council to finalise the investigation."
[24] As part of the Aitken Legal investigation, Ms Engel interviewed:
(a) Mr Drydale; (b) Mr Holdway; and (c) Mr John Horsey, the respondent's "Fleet Manager". [25] Ms Engel also interviewed the applicant on two occasions: 18 and 26 April 2012.
[26] Having concluded the investigation, Ms Engel found that, on the balance of probabilities:
"(a) there is insufficient evidence to substantiate the intoxication complaint; (b) the evidence does support a finding that Lamb has missed the fuel card and his actions are in breach of Council's Fuel Card Use policy and the Code of 10
Conduct."
[27] By letter dated 8 June 2012, Mr Drydale advised the applicant as follows:
"Dear Kevin
As you are aware, at a meeting with Council on 10 April 2012, you were advised
of the following allegations:
(a)
that you had been filling your son's car with petrol and paying for it with the Council fuel card; and
(b)
that you visited the service station at lunch time and were 'reeking of alcohol' (intoxication allegation).
… Aitken Legal provided you with the opportunity to submit a written response
to the allegations, however, you declined to do so. The findings of Aitken Legal's Investigation Report dated 4 May 2012 (Investigation Report) were provided to you by Council in a show cause letter dated 10 May 212 [sic]. You were given 7 days from the date you received the show cause letter to provide your response, which was later extended to 11 days at your request. You provided your written response to the show cause letter on 24 May 2012.
Council has reviewed all of the evidence, including the Investigation Report and
your response, and has made the following conclusions:
Council will not pursue the intoxication allegation;
fuel purchased by you was used for a purpose other than for your Councilsupplied vehicle;
you are in breach of the Fuel Card Policy;
you are also in breach of Principle 3 (Being Honest, Trustworthy and
Reliable) and Principle 5 (Using Council Resources Economically and
Efficiently of the Code of Conduct;
your actions amount to official misconduct.
Given the seriousness of your actions, and the seniority of your position, which
requires a level of trust and transparency, Council has determined that
terminating your employment is the necessary course of action and therefore
wishes to formally advise that effective immediately, your employment at
Council is terminated. Having made a finding of official misconduct, your
employment could be terminated summarily with [sic - presumably he meant
'without'] notice, however, as an act of goodwill a payment of 2 weeks in lieu of
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notice will be made to you."
The evidence
[28] In addition to his own evidence, the applicant relied on the evidence of the following witnesses:
Mrs Alison Lamb, his wife; Mr Benjamin Lamb, his son; Mr Gary Spencer;
Mr James Theodora; and
Mr Jeff Eelkema.
[29] The respondent relied on the evidence of:
Ms Michelle Adams;
Ms Angela Engel;
Mr Martin Drydale;
Mr Jon Horse;
Mr Gavin Holdway; and
Mr Andrew Ross.
[30] The applicant asserted that his dismissal was "harsh, unjust or unreasonable" - and was therefore "unfair" in the sense of that term as used in s 73 of the Act - because it was based on the assumption that his higher fuel consumption was due to using the fuel card allocated to him for the purpose of filling his son's car, as opposed to being due to the undertaking of trips to the Sunshine Coast and to Ballina whilst towing a boat.
[31] In support of that assertion, he relied on the evidence of Mr Jeff Eelkema, an "A" grade qualified mechanic and previously employed as a technical adviser by the Royal Automobile Club of Queensland ("RACQ") and then, at the time of the hearing, as a roadside assistance patrol officer. He gave evidence in the form of an affidavit that, in response to queries from the applicant about the effect that towing a trailered boat with a Ford Escape would have on the fuel consumption of the vehicle, and based on the applicant's estimation that the weight being towed would be in the order of 1000kg, the RACQ had advised:
"There is no doubt that towing a 1100kg open trailer with your Ford Escape will
cause significant extra fuel to be used. We would expect a figure of an extra 40%
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to be realistic."
[32] The RACQ's estimated figure of a 40% increase in the Ford Escape's fuel consumption resulting from towing a 1100kg boat does not appear to be in contention between the parties.
[33] The applicant stated in cross-examination that he would "religiously", every morning, fill the logbook in respect of the safety inspection information as required. However, again in cross-examination, the applicant said that he did not contemporaneously fill out the odometer recordings section of the logbook and that he would leave the logbooks blank in respect of the odometer recordings for two weeks or a month at a time. He would then go back and, from memory, back-date the odometer recordings; as a result, he said, the odometer recordings in the logbooks were inaccurate.
[34] It must be said that if the odometer readings as recorded in the logbooks between October 2010 and March 2011, and between December 2011 and March 2012, were accurately entered by the applicant, then those records do not support his assertion that he was undertaking trips in the Ford Escape to Ballina, Maroochydore and Noosa as frequently as he claimed.
[35] The respondent submits that it does not make reasonable sense that the applicant would "religiously" fill out one aspect of the logbook and not complete the rest at the same time. In support of that submission, the Commission's attention was drawn to inconsistencies between the odometer recordings in the logbooks as compared to the odometer readings which were produced as part of a fuel study under taken by Mr Jon Horsey, the respondent's "Fleet Manager".
[36] Mr Horsey said that he completed a fuel consumption study of the Ford Escape. In his evidence before the Commission, he noted that the data recorded by Maximo in relation to the applicant's vehicle for the period between the 40,000 km fleet service on 29 June 2011 and the 50,000 km fleet service on 5 December 2011 revealed that the Ford Escape had travelled 9662 km and used a total of 1625.61 litres of petrol. This, in Mr Horsey's view, equated to 5.94 km per litre and indicated that the applicant's fuel consumption was significantly higher than the industry guide for the Ford Escape.
[37] In his affidavit, Mr Horsey sets out the data obtained from the Maximo system
which details the occasions on which the applicant's Ford Escape appeared to have
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been "filled" above its maximum capacity of 61 litres.
[38] Mr Horsey goes on to state:
"In my experience, a driver would only do this when he or she failed to monitor
their petrol level and was 'running on fumes'. I would expect this would happen
only very rarely, and certainly not as often as has occurred with Mr Lamb's
14
vehicle."
[39] The affidavit records that the applicant's Ford Escape regularly exceeded the fuel tank capacity which, the evidence suggests, if a vehicle was completely dry, would take approximately 63.9 litres to completely fill the tank to its neck, at which point it would begin to overflow.
[40] Mr Horsey indicated in his evidence that a test drive of the vehicle over 261 km determined that its fuel usage was 7.68 km/L. He goes on to state:
"In my opinion, if Mr Lamb had travelled to Ballina from Cleveland and back almost every second weekend towing a boat during this period, as he claims, then I would expect that the distances travelled between fills and during weekends would be significantly higher than 380 km, to allow his usual travel during the week, for example, to and from work when he was not towing a boat. However, there are only three entries in this five month period where Mr Lamb's fleet vehicle is recorded as travelling more than 50 km more than 380 km (ie over 430 km), namely:
(a) Between 8 November 2011 and 12 November 2012: 691 km; (b) Between 28 August 2011 and 5 September 2011: 461 km; (c) Between 28 to July 2011 and 28 July 2011: 512 km."
[41] Mr Horsey further notes:
"Even allowing for some trips to Ballina over the period of my review, for Mr Lamb's vehicle to have recorded such poor fuel economy which was significantly worse than the other staff members assigned Ford Escapes and the latest statistics I have quoted above, Mr Lamb would have had to be towing the boat all of the time, even between work and on other regular trips. The fact that there are no recorded transactions outside Redland city over this period makes it seem unlikely that Mr Lamb was travelling long distances, i.e. to Ballina as he claimed."
[42] It seems to me inconsistent that the applicant stated in cross-examination that he would "religiously" fill out of the logbook in respect of the requirements for safety inspection information and not at the same time complete the section relating to the odometer readings.
[43] When one compares the odometer recordings in the logbook to those contained in the fuel study, a very clear pattern emerges. The respondent's written submission drew attention to the following examples of similarities between the odometer recordings in the logbooks as compared to the odometer readings in the fuel studies:
(a)
in the log book for the week beginning 1 November 2010, the odometer reading for Wednesday, 3 November 2010 is 21,670 and in the fuel study the odometer recording is 21,670;
(b)
for the week beginning 8 November 2010, in the log books, Friday, 12 November 2010 records an odometer reading of 22,025 whereas the fuel study for that date shows an odometer reading of 22,025;
(c)
for the week did beginning 15 November 2010, in the log books, Saturday, 20 November 2010 records an odometer reading of 22,398 whereas the fuel study for that date shows odometer reading of 22,398 and;
(d)
for the week beginning 20 February 2012, in the log books, Saturday, 26 February 2012 records an odometer reading of 55,410 whereas the fuel study for the day before 25 February 2012 shows odometer reading of 54,410.
[44] In its written submission, the respondent referred the Commission generally to the similarity between the odometer readings in the logbooks and those in the fuel study, and to some other dates where the odometer readings in the logbooks were identical to the fuel study. These included 24 December 2010, 11, 17, 21 and 27 January 2011, 1 February and 13 February 2011. "In all other cases," the respondent submits, "the odometer recordings are similar or close to being the same with the difference in kilometres, logically, being accounted for by the fact that the Ford Escape was a pool car and able to be used during the working week by other employees of the respondent."
[45] Mr Horsey states in his affidavit that the applicant was reminded to fill out the logbook due to the upcoming 50,000 km service of the Ford Escape. In cross- examination, the applicant denied that he was made aware of the requirement to fill out the logbooks in respect of the odometer readings.
[46] However, that evidence is in contrast to the answer he gave Ms Engel with regard to the recording of mileage in the logbook, in that the applicant then responded that he, sometimes in the morning and sometimes in the afternoon, started doing the mileage after Mr Horsey had told to do so. This was inconsistent with his evidence before the Commission in support of his assertion that he would not fill out the logbook each day in respect of the odometer readings.
[47] I accept that the applicant, as part of his regular morning routine of filling out the logbook in respect of the safety inspection information, also completed the odometer readings as he was required to do under the Council's policy.
[48] Even accepting the odometer recordings as contained in the logbooks for the Ford Escape for the period between December 2011 and March 2012, the applicant could not have made trips to Ballina and back to Thornlands on every second weekend he claimed in his evidence before the Commission and to Ms Engel during her interview on 26 April 2012.
[49] The applicant called evidence from Mrs Alison Lamb and Mr Ben Lamb to support his contention that he would travel to Ballina every second weekend whilst towing the boat. However, having regard to the fuel study conducted by Mr Jon Horsey, and in light of the conclusion that the applicant completed the odometer recordings in the logbook on a daily basis, the evidence of both Mrs Lamb and Mr Ben Lamb cannot be accepted.
[50] Further, the striking consistency between the two affidavits of Mrs Lamb and Mr Ben Lamb leaves the Commission in some considerable doubt as to the independence of both witnesses. This is particularly so having regard to the evidence of the applicant in cross-examination that he gave both Mrs Lamb and Mr Ben Lamb a copy of his affidavit before they swore their affidavits.
[51] There is no dispute between the parties that the applicant would fill a 20 litre drum of petrol when he filled up his Ford Escape. The applicant's case is that the reason for filling up the 20 litre container was that he was unable to completely fill the fuel tank of the Ford Escape because of problems he experienced with the nozzle on the petrol bowser at the Thornlands BP and, to a lesser extent, at the Cleveland Caltex.
[52] Mr James Theodorou, a former proprietor of the BP at Manly said in his affidavit that, in his 23 years of experience as proprietor he had, on many occasions, seen customers having difficulty refuelling their vehicles as a result of the fuel nozzle "clicking off". He notes that the nozzle can sometimes be damaged: "It should have a large hole for the fuel to pass and a small hole with a sensor to stop the pump when it backs up. Sometimes the second smaller hole is damaged from continual use which causes premature stoppages."
[53] In the evidence of Michelle Adams, Site Manager of BP Thornlands Service Station she states that on or about 19 April 2012, the applicant attended the service station and approached her and said that his bowser was "clicking off". She indicated that the applicant had never made a complaint personally before about any of the bowsers. She went out to the bowser that the applicant was using and showed him how to hold the nozzle. She said that she advised there was nothing wrong with the
bowser or the pump – it was just the way he was holding the nozzle.
[54] In exhibit "A" to her affidavit, Ms Adams notes in an email to Mr Andrew Ross, the Manager of Legal Services for the respondent:
"As per our conversation over the phone yesterday all our fuel bowsers were fully operational during the period you requested. Our bowsers are checked on a regularly [sic] basis as per government standards and any customer complaints are handled efficiently, they are placed out of order immediately at a service call is logged with our maintenance team, the bowsers are not taken out of order till the service call has come back with a completed status."
[55] The applicant in cross-examination confirmed that it was his practice to fill the Ford Escape when it was approximately a quarter full. In the interview with Ms Engel recorded on 26 April the applicant was asked what his habit was in relation to filling up the Ford Escape. He gave an answer consistent with what he said in cross- examination before the Commission.
[56] In cross-examination, the applicant further indicated that it would, on some occasions, take him up to 15 minutes to fill the fuel tank of the Ford Escape due to the nozzle "clicking off" and that this caused him great frustration.
[57] During the trial, the Commission was shown footage from a CCTV camera at the Thornlands BP. The CCTV footage for the BP Thornlands depicting the applicant filling his Ford Escape indicated that, on average, the time he took to fill the Ford Escape was between two and two-and-a-half minutes.
[58] Whilst the CCTV footage showed that the applicant experienced some difficulty in filling the Ford Escape, it certainly did not support his contention that it took 15 minutes to do so.
[59] Even accepting the applicant's evidence that he had to fill up a 20 litre fuel container
and then tip it into his work vehicle or else the car would only be about half filled
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with fuel, it seems implausible that, having regard to the applicant's evidence that it took some 15 minutes to fill the vehicle and that he experienced high levels of frustration in doing so, together with the fact that 90 to 95% of the time at the BP Thornlands he experienced difficulties which required him to place in the rear of his vehicle a 20 litre jerry can which needed to be topped up with fuel in order to ensure the vehicle would be fully fuelled, that he would not at some stage have made a formal complaint or at least raised the issue with the respondent. The evidence of Mr Horsey is clear that the applicant never complained to him about the problems with petrol browsers in respect of dispensing fuel into the Ford Escape.
[60] Having regard to the level of difficulty experienced by the applicant in filling the Ford Escape at the BP Thornlands and his apparent frustration it seems odd that he did not avail himself of the Caltex fuel card and fill his vehicle at the Caltex Cleveland rather than to persist at filling his vehicle at the BP Thornlands.
[61] In the interview on 18 April with Ms Engel, the applicant told her that he had two fuel containers: one for dispensing petrol for use in the Ford Escape, and a separate 20 litre container for dispensing fuel into his son's car. The container for use with the Ford Escape had a screw cap and the container for use with his son's vehicle was fitted with a spout.
[62] The Investigation Report found:
"The CCTV footage confirms that on at least five occasions, the container being used has a spout top on it. On the other six occasions the camera angle or the footage is not clear enough to be able to identify with the container had a screw top lid or a spout top."
[63] At the 26 April interview, the applicant was shown the CCTV footage which depicted the applicant putting petrol into container which had a spout on a number of occasions.
[64] The Investigation Report refers to the fuel study for the period between 21 May 2010 and 28 August 2011 which shows large difference between the number of kilometres travelled and the approximate amount of fuel used to travel that distance. The fuel study gives some 12 examples of inconsistency in kilometres travelled between fills. The report also notes that the applicant in response to the fuel study indicated that one of the problems with the Maximo system is that the kilometres keyed in by the service station operator contain errors and therefore the data is incorrect.
[65] The Investigation Report sets out a number of fuel purchase transactions in a period between June 2010 and March 2012. In particular the following transactions are noted:
1 March 2012 – 62.22 L was purchased and then two days later after having travelled 262 km, on 3 March 2012, a further 49.5 L is purchased. This equates
to 5.29 km per litre fuel consumption. 16 September 2011 two – 61.76 L was purchased and then two days later after having travelled 202 km, on 18 September 2011, a further 53.45 L was
purchased. This equates to 3.78 km per litre fuel consumption. on 26 August 2011 – 59.97 L is purchased and then two days later after travelling 71 km, on 28 August 2011, a further 53.11 L was purchased. This
equates to 1.34 km per litre fuel consumption. on 11 June 2010 – 62.1 L was purchased and then three days later after having travelled 214 km, on 14 June 2010, a further 52.58 L was purchased. This
equates to 4.06 km per litre fuel consumption.[66] The transactions set out in the Investigation Report were put to the applicant in cross-examination. In response, the applicant again asserted that the odometer readings entered by the service station console operators were wrong.
[67] The 9 April 2012 CCTV footage shows Jeremy Lamb - another of the applicant's sons - filling the Ford Escape. The footage clearly shows that that the 20 litre container in the rear seat of the Ford Escort being filled first, before there was any suggestion of the nozzle clicking off. The footage also illustrates that Jeremy Lamb did not encounter the same difficulties as the applicant in filling the vehicle.
[68] Mr Horsey's affidavit highlights data recorded by the Maximo system which indicates that the applicant filled the fuel tank of his Ford Escape with more than the nominal tank capacity of 61 litres on 16 occasions. He goes on to state:
"The Green Vehicle Guide puts the Ford Escape as having an average fuel consumption of 9.8 litres per 100km for combined urban and 'extra' (outside urban) use, 13 litres per 100km for solely urban use (which gives the worst fuel efficiency) and 8 litres per 100km for extra-urban use (which gives the best fuel efficiency). Redbook puts the figures at 9.8L/100km for combined; 13L/100km for urban; and 8L/100km for extra-urban. Redbook records the Escape's fuel tank capacity at 61L."
[69] Mr Horsey also notes that the fuel consumption of 9.8L/100 km is equivalent to 10.2 km per litre of petrol, and the guide's least efficient rate of 13L/100 km is equivalent to 7.69 km per litre.
[70] Based on the data recorded by the Maximo system in relation to the applicant's vehicle, Mr Horsey calculated that for the period between the 40,000km fleet service on 29 June 2011 at the 50,000km fleet service on 5 December 2011, the vehicle travelled 9,662 km and used a total of 1,625.61 litres of petrol. This is equivalent to 5.94km/L (or 16.82L/100 km). The evidence was that the average fuel consumption for Ford Escape vehicles with other staff was approximately 8.48km/L, which falls between the figures given by the industry guides.
[71] In the applicant's response to the finding in the show cause letter dated 24 May 2012 that "the signature on the receipts, although some are disputed by yourself, are likely to be yours as the CCTV footage shows you undertaking transactions on the date of the receipts", the applicant said:
"I accept your statement I was only alerting you to the possibility that my fuel
card may have underlined the been used by another unauthorised person as it
doesn't have a pin number. As discussed with Angela during the interview my
wife and I had jewellery, CDs and DVDs, expensive fishing rods and reels and
cash stolen from our house all reported to the Cleveland police station. My wife
and I became suspicious that possibly some fuel had been stolen from the fuel
16
canisters at home."
[72] The applicant responded to the finding that "it is evident from the CCTV footage that on at least five occasions, the container being filled has the spout top on it and not the screw top lid" in the following way:
"In terms of financial assistance to both our boys Alison and I generally don't give them money but will purchase something important they might need. This way we know that they are not wasting the money on unnecessary things. In Ben's case we buy him fuel on almost a weekly basis to help support him in his business as a personal trainer as Ben hasn't lived with us for 3 to 4 years and his personal training hours are usually between 4.30 - 8.30 am and 4.00 - 9.30 pm we can't always meet him at the garaged to put fuel in his vehicle Alison and I have come to the arrangement over several years with him that we purchase fuel in a canister and leave it in our front yard behind a retainer wall out of view from the public. Benz container is clearly marked 'home use' is to distinguish it from the second fuel canister marked 'RCC' which I have used for the Council vehicle.
I think something has got lost in the translation between Angela Engel and myself. I just want to confirm that each fuel container is clearly marked."
[73] Having considered the applicant's evidence, I find it both inconsistent and implausible. I regard the applicant as an unreliable witness and I conclude that the applicant's high fuel consumption was not due to usage of the Council vehicle either for frequent trips or as part of his work commitments, but rather as the result of dispensing petrol into a 20 litre container which was not used in the Ford Escape.
[74] I am of the view that, having regard to the evidence before the Commission, the respondent was entitled to conclude, as it did, that there was sufficient evidence before it to find that applicant had misused the fuel card and that his actions were in breach of the respondent's fuel card use guideline and its Code of Conduct.
Matters to be considered in deciding the application
[75] Section 77 of the Act provides that the Commission must consider certain matters in deciding on an application such as this:
"77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider–
(a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to–
(i) the operational requirements of the employer's undertaking,
establishment or service; or
(ii) the employee's conduct, capacity or performance; and
(c) if the dismissal relates to the employee's conduct, capacity or
performance–
(i) whether the employee had been warned about the conduct,
capacity or performance; or
(ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
(d) any other matters the commission considers relevant."
Notification of reason for dismissal
[76] The evidence before the Commission shows that the applicant was notified of the reasons for his dismissal by letter dated 8 June 2012 from Mr Drydale. Those reasons were outlined as follows:
fuel purchased by you was used for a purpose other than for your Council
supplied vehicle;
you are in breach of the Fuel Card Policy; you are also in breach of Principle 3 (Being Honest, Trustworthy and Reliable) and Principle 5 (Using Council Resources Economically and Efficiently of the Code of Conduct; your actions amount to official misconduct. [77] Accordingly, for the purpose of satisfying s 77(a), I conclude that the applicant was notified of the reasons for his dismissal.
To what the dismissal related
[78] For the purpose of satisfying s 77(b), I conclude that, as the dismissal letter of 8 June 2012 made clear to the applicant, his dismissal related to his conduct as an employee of the respondent.
Whether the applicant was given an opportunity to respond to the allegations
[79] Given my conclusion in the preceding paragraph, I am required by s 77(c) to consider whether the applicant was either warned about the conduct to which his dismissal related, or was given an opportunity to respond to the allegations about that conduct.
[80] The Applicant was advised at a meeting on 10 April 2012 between himself, Mr Drydale and Mr Holdway that a complaint had been made about his conduct and the matter had been sent to, and referred back from, the CMC.
[81] At the meeting, Mr Drydale told the Applicant that the complaints related to misappropriation, including theft, as it was alleged that he had used the Fuel Card issued by the Respondent to purchase fuel for his son's car. He also said that there was a further complaint of inappropriate behaviour, in particular, being intoxicated whilst on duty.
[82] The respondent sent the applicant a letter dated 12 April 2012 formally setting out the allegations and advising that Aitkin Legal had been appointed to undertake an independent investigation.
[83] The applicant was interviewed on 18 and 26 April 2012 and the interviews were, by consent, digitally recorded by Ms Engel. A copy of both interviews was provided to the applicant at his request.
[84] A "show cause" letter was sent to the applicant on 14 May 2012 setting out, in some detail, the findings of the investigation (including the factual basis for making them) and the potential ramifications, including termination. The Applicant was provided with 7 days to respond.
[85] The applicant wrote to the respondent on 18 May 2011 seeking further information and an extension of time in which to respond.
[86] By letter dated 18 May 2011, the respondent addressed the request for further information and provided an extension of time in which to respond to 25 May 2011.
[87] The respondent further addressed the request for additional information in its letter of 23 May 2011.
[88] The applicant responded to the show cause letter on 24 May 2012.
[89] Accordingly, in considering the evidence before the Commission as required by s 77(c), I conclude that the applicant has been given an opportunity to respond to allegations against him.
Other relevant matters
[90] Section 77(d) allows any other matters the Commission considers relevant to be considered. In the written submissions on behalf of the Applicant a number of issues are raised.
The fairness of the investigation process undertaken by Aitken Legal
[91] I accept that it was an appropriate course of conduct for the Respondent to engage an independent investigator to conduct investigation and in so doing provided, as far as possible, a greater degree fairness and objectivity to the process.
[92] When reviewing the totality of the evidence of Ms Engel including the Investigation Report, the Commission is of the view that the manner in which the interview process was conducted gave the Applicant every opportunity to respond and to fairly state his case.
[93] The Commission had the advantage of hearing excerpts from the digital recordings of the interview and were satisfied that the approach taken by Ms Engel was professional and fair, indeed the Commission was impressed by the evidence of Ms Engel and her professionalism in undertaking the investigation on behalf of the Respondent.
[94] The applicant raised the issue that Mr Holdway's complaint was not made available to him as part of the investigation. I am satisfied that, during the investigation, Ms Engel clearly put all allegations and evidence provided to her by Mr Drydale, Mr Hollway and Mr Horsey to the applicant and that the applicant was given the opportunity respond to the matters put to him.
[95] The applicant submitted that the conduct of the investigation was not fair as Ms Engel never interviewed Mr Benjamin Lamb as part of the investigation. The applicant states that the allegations against him clearly implied that Benjamin Lamb was complicit in the misuse of the fuel card. I am not convinced that it was necessary, having regard to the nature of the investigation, to interview Benjamin Lamb. If he had been interviewed, Benjamin Lamb would likely have denied that he was the recipient of fuel purchased using the fuel card issued by the respondent to the applicant, as he did in his evidence before the Commission - a factor which the applicant consistently maintained and expressed throughout the investigation process. Interviewing Benjamin Lamb could not have taken the investigation process any further.
[96] In considering the matters raised by the applicant in paragraph 88 of his written submission, I do not, having considered the totality of the evidence and after considering the investigative process adopted by Ms Engel, find any substance in them. There is nothing before the Commission to support the assertion that Aitken Legal's investigation was anything other than objective, fair and reasonable.
Whether the applicant was prejudiced by not being given the draft proposed budget for the financial services section for the year ending 2013
[97] I accept the respondent's submission that the draft proposed budget for its financial services section for the financial year ending 2013 was a source of information that resulted in Mr Holdway's concern being raised with Mr Drydale as evidenced by the email of 15 March 2011. The information did no more than raise a concern in Mr Holdway's mind which ultimately resulted in the investigation being conducted.
[98] In cross-examination the applicant asked Ms Engel
"how could I respond to something that I don't even know about?… No, I don't
agree…
Why?… Because during the interview process I advised you of the general issue
of misuse of the fuel card, and this is what Gavin Hollway had raised – a general
query or a question or a suspicion as to the misuse of the fuel card, and that was
very clear advice to you during our interview process."[99] I do not accept the applicant's assertion that he was prejudiced by not being given a copy of the draft proposed budget for the financial services section of the Respondent
[100] I am satisfied that, having regard to the evidence of Ms Engel, the allegation that the applicant had misused the fuel card was clearly raised with the applicant, and he was given a clear opportunity to respond to the allegation.
Whether the applicant was prejudiced during the discipline process by not being
given a copy of the Investigation Report[101] The applicant submits that he was prejudiced by not having an opportunity to respond to the matters raised in the Investigation Report of May 2012.The applicant submits that he was not given a copy of the Investigation Report until the Commission held a conciliation conference on 19 July 2012. As a consequence, he says, he could not have possibly responded to many of the issues surrounding the allegations, including what he described as the flawed and misrepresentative methodology of using annualised, extrapolated budget data.
[102] The letter of 10 May 2012 requesting that the applicant show cause as to why he should not be disciplined for misuse of the respondent's fuel card set out in great detail the particulars of the allegations against the applicant that, the findings of the investigator, and the factual basis upon which those findings were based. As a consequence, I am satisfied that the applicant knew exactly what had been alleged about him and was given a fair and reasonable opportunity to respond to those allegations.
[103] The applicant wrote to the respondent on 18 and 23 May seeking further information which was provided to him as part of the show cause process. In addition, the digital recordings of the interviews undertaken by Ms Engel on 18 and 26 April were provided to the applicant during the show cause process. Accordingly, I am not convinced that that the applicant has been a prejudiced during the disciplinary process by not being provided with a copy of the Investigation Report of May 2012.
Employment history
[104] In reaching a decision as to whether the dismissal was harsh, unjust or unreasonable I have also taken into consideration the applicant's length of service with the respondent and, in particular, his previous unblemished work history. In this regard, the respondent did not adduce any evidence to demonstrate that the applicant had engaged in similar conduct previously or had misused the respondent's resources for his own gain. Nevertheless, the applicant was the "Service Manager, Financial Reporting and Capital Management" - a position of some seniority and, importantly, trust. The applicant's conduct in using the respondent's resources in contravention of the Code of Conduct and relevant guideline was a serious breach of that trust and a gross error of judgement by an employee who should have known better.
Conclusion and order
[105] Having carefully weighed all the evidence and considered the matters that the Commission is required to consider under s 77 of the Act, I conclude that the applicant's dismissal was not harsh, unjust or unreasonable. The dismissal was therefore not "unfair" within the meaning of s 73.
[106] For the reasons outlined above, I am satisfied that the respondent has discharged the onus to show that the dismissal was not harsh, unjust or unreasonable.
[107] Accordingly, the application is dismissed.
The applicant never alleged that his dismissal was for an "invalid reason", so there is no need to deal with
sub-para (b) of s 73(1) in this decision.
2
Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28.
3
Gold Coast District Health Service v Walker (2001) 168 QGIG 258, 259 (Hall P).
4
Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914, 916.
5
Ibid, 915. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449–50
(Mason CJ, Brennan, Deane and Gaudron JJ).
6
Exhibit 14, attachment A.
7
Exhibit 17, attachment H.
8
Exhibit 13, attachment A, p 7.
9
Exhibit 17, attachment D.
10
Exhibit 13, attachment A, p 2.
11
Exhibit 11, attachment L.
12
Exhibit 8.
13
Exhibit 16 [16].
14
Ibid [17].
15
Exhibit 4 [9].
16
Exhibit 11, attachment K.
5
0