Lucas McAuley v Northern Territory Government T/A Department of Primary Industry and Resources - [2018] FWC 330

[2018] FWC 330 [Note: An appeal pursuant to s.604 (C2018/761) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Lucas McAuley

Northern Territory Government T/A Department of Primary Industry and Resources

(U2017/8664)

Commissioner Wilson

MELBOURNE, 24 JANUARY 2018

Application for an unfair dismissal remedy.

Lucas McAuley was employed within the Northern Territory Government Department of Primary Industry and Resources (DPIR) between 19 January 2015 and 26 July 2017. In that time he was employed as an inspector within the Department with particular responsibilities under the Animal Welfare Act (NT). Mr McAuley’s employment was terminated with effect from 26 July 2017 after the DPIR’s Chief Executive Officer, Alister Trier, formed the view that termination of employment should be the appropriate sanction against Mr McAuley as a result of investigations into his conduct which had commenced in September 2016.

Section 396 of the Fair Work Act 2009 (the FW Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr McAuley’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

The matter proceeded by way of a hearing, with me being satisfied that such was appropriate, and neither party objected to the conduct of the proceedings in that manner.

Mr McAuley was unrepresented in the hearing. The DPIR was represented by Ms Chris Osborne, solicitor, from Hunt and Hunt, following a grant of permission by me for the Respondent to be represented by a lawyer. In granting permission for representation of the Respondent by a lawyer I had regard to the provisions of s.596(2) of the FW Act, and was persuaded that such representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a)).

For the reasons set out below, I have found that Mr McAuley was not unfairly dismissed and accordingly his application for unfair dismissal remedy must itself be dismissed.

BACKGROUND

Evidence in this matter was given by five witnesses. In addition to Mr McAuley giving evidence on his own behalf, evidence was given for him by a former colleague, Sherie Hunt, who at the relevant time was also an inspector within the DPIR. Evidence of behalf of the Respondent was given by the DPIR’s Chief Executive Officer, Mr Trier, as well as two solicitors in private practice, Ray Murphy, the principal of Murphy and Associates, which provides legal services to the Department, and his associate, Jon Bortoli.

In 2016 Mr McAuley was a member of an Animal Welfare Inspectorate within the Animal Welfare Branch of the DPIR. That team was managed by Paul Mitchener (manager, Animal Welfare Branch) and Ron Hutcheson (acting manager, Animal Welfare) who in turn reported to Michelle Rodan, director, Biosecurity. The branch performs functions under the Animal Welfare Act (NT) which also establishes an Animal Welfare Authority as well as the Inspectorate.

The Authority is presently a single person, the Chief Executive of DPIR, Alister Trier. The Authority has the functions set out within the Animal Welfare Act (NT), which include ensuring compliance and prosecuting offences; and “to appoint inspectors and officers and be responsible for the performance by them of their functions”.[1] The Inspectorate established under the Animal Welfare Act (NT) is small, consisting only of a handful of inspectors. The Act defines an “authorised person” to include an inspector, and the wider class of authorised person has these functions:

“Functions of authorised persons
(1)       An authorised person has the following functions:
(a)       to assess whether or not the provisions of this Act are being complied with;
(b)       to seek evidence of a suspected offence against this Act;
(c)       to perform the functions conferred on the person by this Act;
(d)       to assist the Authority in the performance of its functions.

(2) An authorised person may exercise a power conferred by this Act for the purpose of performing those functions.
(3) In exercising a power or performing a function under this Act, an authorised person is subject to the direction of the Authority.”[2]

A person who hinders or obstructs the Authority, an inspector, officer or veterinarian in the exercise of powers or performance of functions under the Animal Welfare Act (NT) is guilty of an offence.[3]

Amongst other things, the Animal Welfare Inspectorate has responsibility for the welfare of crocodiles, and Mr McAuley’s dismissal relates, at least partly, to an investigation relating to some crocodiles found in the greater Darwin area.

On 21 August 2016, Mr McAuley received information from the Northern Territory Police about three female saltwater crocodiles which appeared to have been dumped at Taminmin College, Humpty Doo. The circumstances of the dumping required that the matter be the subject of an animal welfare investigation. The crocodiles appeared to have been purposefully left at the school and were in an emaciated condition.

Mr McAuley and a colleague, Sherie Hunt, also an animal welfare inspector, were tasked with investigating the circumstances in which the reptiles were found. Their initial report apparently included the observation that markings on the crocodiles indicated they had originally come from a crocodile farm identified in this decision as Crocodylus Park. Crocodiles in farms have markings cut on their “scutes” which enable identification of their source, rather like cattle or horse brands. A scute is a dermal plate, or “the skin of crocodilians”.[4] The document containing the inspectors’ conclusion about the reptiles’ source is not before the Commission, however it is referred to in a response Mr McAuley gave to the DPIR in May 2017,[5] and is not something that appears to be in dispute between the parties.

The place at which the crocodiles were found was a considerable distance from Crocodylus Park, and indeed was closer to another farm, the Darwin Crocodile Farm.

As part of their investigation, Mr McAuley and others considered seeking the issuance of a search warrant under the Animal Welfare Act (NT) authorising entry to and a search of the Darwin Crocodile Farm’s premises in relation to possible animal welfare offences. Mr McAuley’s opinion was that, for reasons of proximity to where the crocodiles were found, the crocodiles had likely escaped from the Darwin Crocodile Farm’s premises. Mr McAuley’s managers initially supported seeking a search warrant, provided that legal advice was sought on the subject and that an investigation plan was prepared and witness statements obtained, together with advice from the police about the information they had obtained, including from any records of interview they may have conducted.[6]

Mr McAuley’s opinion about the most recent source of the crocodiles being the Darwin Crocodile Farm was not universally supported. An officer of the Northern Territory’s Parks and Wildlife agency cautioned that his view was that the markings on one of the animals indicated it came from Crocodylus Park.[7]

On 2 September 2016, Mr McAuley and Ms Hunt sought from Murphy and Associates the legal advice that had been requested by the Department. They did this by attending on the principal of the firm, Ray Murphy, and his associate, Jon Bortoli, at the firm’s premises. What was said and done in the meeting and what documents were left with, or offered to be left with, the solicitors is the subject of controversy.

It is to be noted that, for a search warrant be issued under the Animal Welfare Act (NT), an applicant must apply to a Justice of the Peace with certain information, who is then vested with the power to issue the warrant. The role of the legal advice appears to be in order to allow the objective assessment of the grounds for the seeking of a warrant and to advise the DPIR about the risks of proceeding.

Mr McAuley says, supported by Ms Hunt, that the possibility of the crocodiles having originally come from a source other than the Darwin Crocodile Farm, and specifically Crocodylus Park, was mentioned by them in the meeting with the solicitors. Mr Murphy and Mr Bortoli say Mr McAuley and Ms Hunt never discussed possible alternative sources for the crocodiles; that all the information they provided focussed on the Darwin Crocodile Farm as being the source of the three crocodiles; and that information about possible alternative explanations would have raised alarm bells.[8]

Mr McAuley’s response to Mr Trier in October 2016 put forward that he and Ms Hunt had provided the lawyers during the meeting a briefing folder that identified one of the crocodiles as being linked to Crocodylus Park.[9] Mr Murphy and Mr Bortoli concede an offer to leave a briefing folder was made, with the two saying it was not necessary for that to be done and that only certain documents needed to be copied and kept by them in order for the firm to provide its advice. The meeting lasted about one hour and ended with the solicitors promising to provide written advice on the subject on Monday, 5 September 2016, which was done.

The legal advice to DPIR was provided by Mr Murphy by email to Mr McAuley, Mr Hutcheson and another person, Cobi Lawler, on 5 September 2016 at 9:13 AM.[10] The advice reviewed certain matters pertaining to the request for authorisation to seek a search warrant and in finality supported the request for the issuing of a search warrant.

Also on 5 September 2016, Mr McAuley was advised by Mr Hutcheson that his superior, Dr Rodan, “had decided that she did not want a warrant being executed on [Darwin Crocodile Farm] and that she wanted to do a friendly visit with the view to educating them”.[11]

In a meeting that took place in the afternoon of 5 September 2016 involving Mr McAuley, Ms Hunt, Mr Hutcheson, Dr Rodan and Ms Simlesa (the crocodile technical and apiary officer in the DPIR’s Fisheries Branch), Mr McAuley expressed the opinion that four young offenders had pushed the three crocodiles through a hole in a piece of broken glass in the office of the Taminmin High School. The hole through which the animals were pushed appeared to be about 1.4 m above the ground. The crocodiles were emaciated and sick but were otherwise quite large crocodiles and had their snouts tied by cable.[12]

In the same meeting Ms Simlesa said that it was possible to ascertain the year the crocodiles were born and how long one had been off the particular farm by examining its scute cut.[13] After Dr Rodan opined that she thought the Department might be on shaky ground in respect of the investigation, Ms Simlesa expressed a view about the need to undertake further consideration about the crocodiles’ source:

“Vicki: Michelle is correct. You cannot know whether it's escaped in the last few months or the last three years because they don't do audits of the big animals they only do audits for the hatchlings. So if an animal is over a year old where there's no record for DPINF of how many in that pen. So Michelle is correct. They could have escaped in the last few months. They could have escaped in the last two years and they've been sitting in the river for two years.
Lucas: Yep.
Vicki They've all been hand raised. They don't know how to hunt and they don't know how to catch.”[14]

In the meeting Mr McAuley referred to the legal advice that had been received from Murphy and Associates and expressed the view that the failure to secure an animal within the area in which they are housed may be a breach of the duty of care under the Animal Welfare Act (NT) for farms to provide appropriate accommodation and living conditions.[15]

Dr Rodan expressed the view that she thought there was a leap between the crocodiles having escaped and the view that the circumstance amounted to an animal welfare problem. She thought there probably were not grounds for seeking a search warrant:

“Michelle: I've got - so I guess where I have trouble is just that we're making the leap that there's an animal welfare problem because animals that are found in ... that have escaped and I get that that comes back to a permit issue, are emaciated and I understand that. And by default that means that the animals within the structure have got some management issues. Is that the basis ...
Lucas: Yeah. That's the basis. So, we're going to ...
Michelle: So, I don't think we can... we don't actually know and until we provide the scoots to Vicki around farmed animals we don't actually know when they were last registered as being on the farm. I agree if they've come off the farm recently and they're in that condition that that's good grounds for that. If we don't know how long they've been off and... and there's evidence... and I think you have got evidence that there's been animals escaping there inappropriately under their permit for a number of years that they could have been out for longer than that. So I don't, you know, I don't think we actually know that. So, I mean my ... my assessment of it is that we probably don't have grounds under that scenario to have a search warrant on it. It's not that I don't think we should visit the farm. I actually think um perhaps with cooperation we could go and visit the farm.”[16]

Mr McAuley and Ms Hunt were concerned by Dr Rodan’s decision to pursue an educative direction and not seek a search warrant and viewed it as a possible obstruction or hindrance of an inspector. Mr McAuley’s concerns led him to contact another NT Government agency, the Commissioner for Public Interest Disclosures (PID) on or around the same day. The precise terms of what Mr McAuley may have communicated to the PID or the nature of any allegations he made are not before the Commission, although it is accepted by the parties that Mr McAuley made contact with the PID making allegations that officers within the DPIR had breached their obligations with respect to the crocodile investigation.

Mr Murphy and Mr Bortoli allege that Mr McAuley attended at their offices later on 5 September 2016 and identified an error in the legal advice, namely that the word “scute” had been incorrectly spelt as “scoot”. Mr Murphy found this both amusing and incredible.[17] Mr Bortoli also says that Mr McAuley told them that:

“…since receiving the advice, he had attended a meeting with Mr Hutcheson (and others) and was told not to obtain a search warrant and cease all investigation into the matter. He indicated that, during the meeting:

• He threw our advice on the table and told all present that they were acting contrary to our advice.
• When told to cease his investigation, he told those present that they could be charged with obstructing or hindering an Animal Welfare Inspector.

Mr McAuley admitted he went overboard but said that one day an escaped crocodile from the Darwin Crocodile Farm would kill someone and things would look very bad for the Department and Parks and Wildlife at a coronial inquest.”[18]

By 6 September 2016, Mr McAuley had relinquished control of the investigation to Dr Rodan.[19]

On 9 September 2016 Mr McAuley sent an email with the subject line “Criminal investigation” to Mr Trier and to the Department’s Deputy Chief Executive, Ian Curnow. The email referred to an earlier correspondence to Mr Trier on Wednesday 7 September in which he says that he had made an allegation of “serious concerns about unethical behaviour that goes against this department’s values”, alleging that Dr Rodan, Mr Hutcheson and Mr Mitchener were committing that behaviour. In Mr McAuley’s 9 September 2016 correspondence he refers to the history of the crocodile investigation and in particular his concern that Dr Rodan had expressed her desire for the investigation to take an educational course. He expressed the view that he felt he was being ethically compromised and obstructed from carrying out a full and impartial investigation. He also puts forward that Mr Hutcheson and Dr Rodan then colluded to discredit him and take formal disciplinary action against him.[20]

The response to Mr McAuley from Mr Curnow, also on 9 September 2016, acknowledges receipt not only of the correspondence from Mr McAuley but also of a USB storage device, with the parties accepting that the device contained for Mr Trier’s information a number of recordings of conversations and meetings that had been made by Mr McAuley.

On 13 September 2016 Dr Rodan questioned the legal advice given by Murphy and Associates, putting forward to Mr Murphy that an alternative conclusion could be reached about the source of the crocodiles and the justification for a search warrant. Her correspondence to Mr Murphy put forward that although all three crocodiles had their scutes cut, only one of those could be identified, with the other two being too difficult to decipher. The one that could be identified was from Crocodylus Park. The information she provided to Mr Murphy about the source of the crocodiles included:

“Mr Tommy Nichols (Parks and Wildlife) provided this advice to Lucas McCauley in a taped interview on 2 September 2016. Mr Nichols also stated in the interview he thought the three crocodiles found at the school and the one from July 2016 found in the bathroom were all likely part of the same cohort (based on the size, condition, female and his experience) and all likely from Crocodylus Park. He advised he believed they had escaped from Crocodylus park and have been held somewhere before being released or put into the bathroom and the school.”[21]

Dr Rodan’s communication to Mr Murphy directly addressed the question of whether the reptiles may have escaped from the Darwin Crocodile Farm:

“The closest crocodile farm is less than one kilometre to where the youths told police they captured the crocodiles and is the Darwin Crocodile Farm (DCF). This information was provided to Mr Tommy Nichols and he stated it did not make sense they had escaped from DCF and he restated the advice he had given to our inspector in regard he had evidence to support one had come from Crocodylus park, and a belief they were from the same cohort from crocodylus park and been held by someone and not appropriately cared for before being released to or put in to the schools and bathroom. Lucas asked if Tommy had any proof of his belief and he said he did not.”[22]

Mr Murphy immediately recognised the problem and changed his firm’s advice in an email to Dr Rodan on 14 September 2016. In the correspondence Mr Murphy advised that he had not been provided with the information referred to above, stating that Mr McAuley “confirmed that Parks and Wild Life had advised that scutes were cut to identify crocodiles held at farms but that none of the crocodiles in this case could be identified as having come from a specific location” (underlining in original). After reviewing his firm’s advice and the most recent information from Dr Rodan, Mr Murphy advised that had he been provided with the information that had been omitted then his firm’s advice would have been that there were insufficient grounds to apply for a search warrant.[23]

At around the same time, and possibly as a consequence of Mr McAuley’s correspondence to Mr Trier, the Department formed a concern about the conduct of Mr McAuley in several other respects and in particular his apparent regular recording of conversations with people, including colleagues in the DPIR and other NT Government agencies; and whether his interactions with Mr Hutcheson were harassing and the like and in breach of his obligations.

After reviewing Mr McAuley’s complaints and the recordings provided to him, Mr Curnow wrote to Mr McAuley on 16 September 2016 saying that he had found no evidence to support Mr McAuley’s allegations and invited him to provide any additional information he may have which supported those allegations. Mr Curnow’s correspondence then raises a number of serious concerns about Mr McAuley’s conduct and advised him that an investigation would be undertaken into those matters:

“Based upon the information available to me, I have found no evidence to support your allegations. If you have any additional information to hand that supports your allegations I will be happy to consider it.
I can advise that the Chief Executive has received a brief from the Director Biosecurity and Animal Welfare on the investigation into the crocodiles found at the school. Based on the information available and in his capacity as the Animal Welfare Authority, the Chief Executive has concurred with the recommendations put forward by the Director of Biosecurity and has:
1. endorsed the conclusion of this investigation unless further evidence comes to hand, particularly in relation to the police interviews with the 4 youths; and
2. approved that management visits be undertaken by the Chief Veterinary Officer and Parks and Wildlife to gain a better understanding on the welfare conditions of crocodiles on all licensed establishments that farm crocodiles in the NT.

In undertaking this review a number of procedural and behavioral matters have been brought to my attention that are of major concern. These include:
• Adherence with policies/procedures to ensure transparent and evidence based decisions are made that ensure accountability for the Animal Welfare Authority.
• Behaviour in the workplace that does not comply with the department's values or the performance and conduct principles in the Public Sector Employment and Management Act; and
• Use of devices to secretly record conversations
• That you have reported yourself a high level of stress, and there are reports by others who are concerned about your emotional state.

Given the nature of these concerns I have asked that a more detailed investigation of these matters is undertaken. I have suggested it be undertaken independently and I will be writing to you and other members of the Animal Welfare Branch with further information on the scope and conduct of this investigation. I confirm no conclusions or determinations have been made in relation to these matters.”[24]

In the same correspondence Mr McAuley was requested not to attend the workplace before 3 October 2016, unless instructed otherwise, and was given an opportunity to provide comment about the approach proposed in Mr Curnow’s correspondence.

The matters referred to within the correspondence from Mr Curnow were subsequently formalised as complaints against Mr McAuley in correspondence from Mr Trier on 7 October 2016. The correspondence was a formal allegation of “breach of discipline” pursuant to s.49A(1) of the Public Sector Employment and Management Act (NT) (the PSEM Act). The correspondence from Mr Trier particularised 5 alleged breaches of the PSEM Act by Mr McAuley, covering allegations that he withheld information from Murphy and Associates; that he recorded conversations with other public sector officers without their knowledge and consent; and that in relation to Mr Hutcheson, the director, Animal Welfare Branch, that he harassed or coerced him, misled him and failed to follow a lawful order or direction given by Mr Hutcheson.[25] The correspondence invited Mr McAuley’s submissions on the matters set out within the letter. The same correspondence also referred to a request that Mr McAuley recommence duty on 12 October 2016, but potentially in another work location.

The substance of the allegation about withholding information from Murphy and Associates is set out generally above.

As to the allegation that Mr McAuley had recorded conversations with other public sector officers, the letter particularises the allegation to involve five occasions as follows:

“8. It is alleged that you used a device to record conversations with other public sector officers without their knowledge and consent of those officers on the following occasions:
a. With Dr Michelle Rodan on 12 and 22 August 2016.
b. With Mr Tommy Nichols on 2 September 2016.
c. With Dr Michelle Rodan, Ms Vicki Simlesa, Mr Ron Hutcheson and other parties on 5 September 2016.
d. With Mr Paul Mitchener on 9 September 2016.
e. With Mr Ron Hutcheson on 9 September 2016.

9. The secret recording of co-workers is conduct that the Fair Work Commission has found to be, sneaky, abhorrent, a fundamental breach of the relationship of trust and confidence between employer and employee, and a valid reason for the termination of employment.”[26]

The allegations pertaining to Mr McAuley’s interactions with Mr Hutcheson involve the interaction between the two on 9 September 2016 at about 8:00 AM, with the correspondence alleging that Mr McAuley’s recording of the conversation establishes:

· That it “was an aggressive interrogation … that constituted harassment of Mr Hutcheson contrary to section 49(g)” of the PSEM Act;
· That he misled Mr Hutcheson about whether he was recording the conversation; and
· That he failed to follow a direction by Mr Hutcheson to leave his office.

Subsequent to this letter Mr Trier appointed a third party investigator, CPM Reviews, to investigate the allegations made against Mr McAuley.[27] Mr McAuley formally responded to Mr Trier’s allegations through correspondence dated 27 October 2016, with the correspondence dealing substantively with four of the allegations.[28] An earlier correspondence from Mr McAuley appears to have dealt with other parts of the allegations, however that correspondence does not appear to be before the Commission.[29]

On 15 November 2016 Mr McAuley wrote to Mr Trier raising with him certain matters, ostensibly of an occupational health and safety nature, with the correspondence setting out the following:

“Good Morning Alister,
As the chair of the work health safety committee for bio security and animal welfare I am often approached by staff to discuss work place issues.
Since Ronald Hutcheson has been acting Director at the animal welfare branch I have been approached by the following employees raising concerns of both misconduct and bullying issues;
1. Paul Mitchener – Has approached me on several occasions stating that he felt bullied and that he was going to make a formal complaint, Paul has also raised concerns about Ronald’s misconduct in particular giving improper direction to staff.
2. Sheradene Solien–Senge – Has raised concerns about misconduct and sexual related comments
3. Deana Horwood – Has raised concerns about misconduct and potential criminal offending
4. Peter Moloney – Has discussed with me issues around misconduct and sexual related comments
5. Sherie Hunt – Has raised concerns about misconduct, potential criminal offending and sexual related comments
6. Cobi Lawler – has raised concerns about being bullied and sent me a text message “I need your help with something Ron has been bullying me today through Paul by email. Normally I would let this kind of thing go but it’s really upset me”

I was just approached by Sherie Hunt almost in tears and she is having to go home due to an incident with Ron this morning. I am very concerned by what is going on in the Animal welfare branch and I believe it to be a work health and safety issue.
I have also had the issue of lack of staff and lack of support from management resulting in two of the above members looking at leaving the branch.
Kind regards
Lucas MCAULEY / Senior animal welfare inspector, Animal Welfare Branch / Department of Primary Industry and Resources”[30] (highlighting omitted)

Also on 15 November 2016 Mr McAuley again contacted the PID alleging certain DPIR employees had been involved in the unlawful seizure and sale of two foals found wandering in the Darwin River area.[31] Mr Trier determined that these allegations made by Mr McAuley should also be referred to the investigator. An acting chief executive officer also determined that while the investigation was proceeding Mr McAuley should be suspended with pay, which commenced from the end of 5 December 2016.[32]

The investigation proceeded through a path of terms of reference being prepared and provided to Mr McAuley, which were then later revised to take account of a broader set of allegations, dealing with the Department’s views about the correspondence from Mr McAuley to it on 15 November 2016 and other matters.

The first allegations letter set out five alleged breaches of obligations as follows:

1.   An allegation that material information had been withheld from Murphy and Associates;
2.   An allegation that recordings had been made on the 6 dates and with the people set out above, without the knowledge or consent of the others involved;
3.   An allegation of harassment of Mr Hutcheson on 9 September 2016;
4.   In relation to the same conversation, an allegation that Mr McAuley had provided false and misleading information to Mr Hutcheson;
5.   An allegation that by not leaving Mr Hutcheson’s office on the same date that Mr McAuley disregarded or disobeyed a lawful order or direction.[33]

The second allegations letter, dated 5 January 2017, brought within the scope of the investigation a further three allegations as follows (to make a total of eight):

1.   An allegation that the email from Mr McAuley on 15 November 2016 included false and misleading information, without it being for the purpose of raising genuine work health and safety concerns and instead being motivated with the intention to harass Mr Hutcheson through the making of false and/or vexatious allegations against him;
2.   An allegation that in respect of a staff meeting on 9 September 2016 which was recorded by Mr McAuley (being a separate occasion to the other event of the same date), Mr McAuley was harassing Mr Hutcheson, including by shouting at him;
3.   An allegation that Mr McAuley failed during September and October 2016 to follow Mr Mitchener’s instructions to prepare an investigation plan or follow other instructions given by Mr Mitchener or Mr Hutcheson.[34]

The investigator apparently then went through a process of seeking statements from Mr McAuley and other relevant people before providing both a draft and then a final report to the DPIR. The final report appears to have been provided to the DPIR on 6 April 2017, with it then being provided to Mr McAuley on 3 May 2017 inviting his response prior to Mr Trier considering its findings.[35] Mr McAuley responded in detail to Mr Trier on 31 May 2017.[36] The final report and Mr McAuley’s responses were personally considered by Mr Trier before providing a findings letter to Mr McAuley on 11 July 2017.[37] Mr Trier’s evidence is that before issuing the findings letter he considered a number of matters:

“25. Once the independent report was received, I felt I was in a position to make a decision as to which, if any, breaches were made out.
26. For this consideration I reviewed the following material:
a. The CPM Reviews final report
b. A hardcopy of Mr McAuley’s responses
c. The recordings made by Mr McAuley.
d. I reviewed all of the information and listened to the recordings in relation to the conversations with Mr Hutcheson on 9 September 2016. I also read all of the transcripts of the other recordings.

27. I then considered each of the breaches and made a decision that the six of the breaches were made out.”[38]

The findings letter from Mr Trier covers his disposition on eight alleged breaches of the PSEM Act with the findings summarised by me as follows:

·   Alleged Breach 1 – agreement by Mr Trier that the investigation established that Mr McAuley withheld information from Murphy and Associates, with that breach meaning that he had not properly carried out his duties; not demonstrated the highest ethical standards or exercised the best possible technical or professional judgement; and breached Mr Murphy’s and DPIR’s trust and confidence;
·   Alleged Breach 2 – agreement by Mr Trier that the investigation established that Mr McAuley had made voice recordings on five occasions with those recordings being in breach of the Northern Territory Public Sector Policy, with him expressing the view that this “breach of discipline is extremely serious”;
·   Alleged Breach 3 – agreement by Mr Trier that the investigation established that the first conversation with Mr Hutcheson on 9 September 2016 “was not only disrespectful but also aggressive and intimidating”;
·   Alleged Breach 4 – also pertaining to the first conversation with Mr Hutcheson on 9 September 2016, agreement by Mr Trier that the investigation established that Mr McAuley gave false and misleading responses to Mr Hutcheson;
·   Alleged Breach 5 – Mr Trier advised this allegation was withdrawn, which also pertains to the first conversation with Mr Hutcheson on 9 September 2016, going to the question of whether or not Mr McAuley complied with a direction given to him by Mr Hutcheson to leave;
·   Alleged Breach 6 – agreement by Mr Trier that the investigation established that Mr McAuley’s email to him on 15 November 2016 contained false or misleading information;
·   Alleged Breach 7 – pertaining to the second conversation between Mr McAuley and Mr Hutcheson on 9 September 2016, agreement by Mr Trier with the investigation finding that Mr McAuley’s behaviour was intended to harass or coerce Mr Hutcheson;
·   Alleged Breach 8 – Mr Trier agreed that an allegation Mr McAuley had failed to provide the information asked for by Mr Mitchener in early September 2016 or to attend meetings as requested was not substantiated and should be withdrawn.

Mr McAuley provided a further response to Mr Trier on 18 July and, after receipt of that correspondence and further consideration of the matter, Mr Trier communicated to Mr McAuley on 24 July 2017 that his employment was terminated:

“Dear Mr Mcauley
RE: DISCIPLINARY ACTION
I refer to my previous correspondence of 11 July 2017 in which I advised that I was satisfied on reasonable grounds, that you have committed breaches of discipline under sections 49(a), (g) & (m) of the Public Sector Employment and Management Act (the Act). I also advised that I was considering terminating your employment.
I acknowledged receipt of your email response of 18 July 2017 and note your suggestions regarding various other alternative courses of disciplinary action for me to consider, under section 49C of the Act. I note that some options available include directing you to undertake training, counselling or other remedial action; transferring you to perform other duties in the agency, or to another agency.
After considering all the information collated in relation to this matter, my view is that given your behaviour as evidenced in the investigation, these options would place an untenable risk to the safety and welfare of other staff in any future workplace, and as such, I am unable to support them. Therefore, I have not changed my view that the disciplinary action foreshadowed to you on 11 July 2017 is the only reasonable and appropriate action available in the circumstances.
As a consequence I hereby terminate your employment with effect from the close of business 26 July 2017 pursuant to section 49C(1 )(c) of the Act.
You have the right to appeal my decision under section 59A(1)(b) of the Act. Notice of an appeal under this section, must be given to the Commissioner for Public Employment within 14 days of my decision being given to you. Relevant sections of the Act have been enclosed for your information.
Yours sincerely
Alister Trier
Chief Executive”[39]

In conformity with this correspondence, Mr McAuley’s employment with DPIR was terminated on 26 July 2017, a decision he maintains was unfair.

LEGISLATION

The legislative provisions which are relevant to this matter are set out in s.387 of the FW Act, which is as follows:

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

The DPIR, in terminating Mr McAuley’s employment, was satisfied that he had committed breaches of discipline as defined in s.49 of the PSEM Act. That section provides the following:

Breaches of discipline

An employee who does any of the following commits a breach of discipline:

(a) fails to uphold the performance and conduct principle or otherwise contravenes this Act;

(b) is found guilty in a court of an offence that affects the employee's employment committed before or after the commencement of this Act;

(c) disregards or disobeys a lawful order or direction given by a person having authority to give such an order or direction;

(d) uses a substance (including liquor or a drug) in a manner that results in inadequate performance of the employee's duties or improper conduct at the place of employment;

(e) is negligent or careless in the performance of any of the employee's duties or fails to perform the duties assigned to him or her;

(f) in the course of employment or in circumstances having a relevant connection to his or her employment, conducts himself or herself in an improper manner;

(g) harasses or coerces another employee;

(h) without good cause, is absent from duty without leave;

(j) except as authorised by his or her Chief Executive Officer, engages in any remunerative employment, occupation or business outside the Public Sector;

(k) in relation to an application of the employee for employment, promotion or transfer to perform duties in an Agency or at any stage in the selection process, provides information to the Chief Executive Officer or the Chief Executive Officer's representative that the employee knows, or ought reasonably to know, is false or misleading;

(m) provides information in the course of his or her employment that he or she knows or ought reasonably to know is false or misleading;

(n) fails to remedy previous unsatisfactory conduct or fails to comply with a formal caution.

CONSIDERATION

Determination of whether Mr McAuley’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

I will deal with each of the criteria within s.387 in turn.

(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)

The Full Bench has summarised the approach that should be taken by the Commission to the valid reason criterion within s.387 in the following way:[40]

“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

·   a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced;[41]
·   a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour);[42]
·   it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal;[43]
·   the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss[44] (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and
· the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct).[45]” (original references)

Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.”[46]

Having been dismissed for misconduct, the Commission is first required to find whether, on the balance of probabilities, the alleged misconduct actually occurred.[47] In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct, without applying a standard of proof higher than the balance of probabilities.[48] The Commission will also take into account the need for honesty on the part of the applicant during the course of an investigation.[49] In considering applications before it of this sort, the Commission does not “stand in the shoes” of the former employer and determine what it would have done in the circumstances.[50]

The DPIR’s letter of termination relies on several important findings about Mr McAuley’s conduct, and sets out in finality that he was dismissed because his conduct was disrespectful, dishonest, and aggressive, with that conduct including harassment and coercion of another employee. The conduct was further said to adversely affect the safety and welfare of other employees. The “findings” letter of 11 July 2017 and the actual letter of termination of 24 July 2017 shows that Mr McAuley was dismissed for misconduct, with that proposition also being relied upon in DPIR’s outline of submissions, in which it is said that misconduct is made out against Mr McAuley, and that the finding of a valid reason for termination is not reliant upon a finding of serious misconduct.[51]

DPIR relied in its termination of employment letter upon the six findings of misconduct against Mr McAuley set out above (numbers 5 and 8 of the original eight allegations were withdrawn).

As will become evident from a review of the evidence about these allegations, DPIR’s decision in respect of the matters rests heavily upon the recordings made by Mr McAuley and which the Department had transcribed. The irony is not lost upon the Commission that one of the key reasons for Mr McAuley’s dismissal, namely that he covertly recorded conversations with co-workers without their knowledge or consent, is part of the evidence brought against Mr McAuley in relation to his conduct. While it is ironical that such is the case, it does not change the substance of the matters before the Commission or the manner in which the evidence about the allegations requires consideration.

Alleged Breach 1 – misleading or withholding information from the Department’s solicitors

The first breach relates to the seeking of advice by Mr McAuley and Ms Hunt from Murphy and Associates on the afternoon of 2 September 2016. In summary the allegation is that Mr McAuley failed to inform Mr Murphy that Mr Nichols had informed him he believed the crocodiles had escaped from Crocodylus Park; that they had been held somewhere else before being released into the school; and that it made no sense to say they had escaped from Darwin Crocodile Farm. The allegation was particularised to Mr McAuley in the following manner:

“4. On 2 September 2016, in your consultation with Mr Ray Murphy of Murphy and Associates, the following information from the taped interview with Mr Tommy Nichols of Parks and Wildlife was withheld in relation to the issue of a warrant against the Darwin Crocodile Park:
a) Three crocodiles found at Taminmin College on 21 August 2016 were likely from the same place (ie Crocodylus Park as opposed to Darwin Crocodile Farm) based on their similar size and condition.
Mr Murphy has advised if this information was provided this raises the possibility of the likelihood of third party intervention and therefore severance of liability from either the Darwin Crocodile Farm or Crocodylus Park.
b) That one of the crocodiles located was identified from having come from Crocodylus Park.
c) Your advice to Mr Murphy that none of the crocodiles in this case could be identified as having come from a specific location.

5. Mr Murphy has advised if this information was provided he would have determined that there were insufficient grounds to apply for a search warrant against Darwin Crocodile Farm.”[52]

Critical to the DPIR’s findings on these allegations is a contention about whether or not Mr McAuley and Ms Hunt provided Murphy and Associates a brief of evidence pertaining to the search warrant. Mr McAuley and Ms Hunt are adamant that they both prepared a brief in the form of a folder containing relevant materials pertaining to the application; that they brought the folder with them to the meeting with Murphy and Associates; and that they provided the folder to Mr Murphy and Mr Bortoli. Their evidence is that within the brief there was material that should have reasonably alerted Mr Murphy and Mr Bortoli to the fact that at least one of the crocodiles may have originally come from Crocodylus Park. The evidence which is said to support that proposition includes a briefing note and three CDs containing voice recordings of interviews with witnesses, one of whom was Mr Nichols, who put forward the proposition that one of the reptiles came from Crocodylus Park. The briefing note and the content of the voice recordings are before the Commission, however the full content of the brief is not.

Both Mr Murphy and Mr Bortoli put forward that the task they were required to address through their professional skill and experience was to advise whether the things asserted by the inspectors were sufficient to persuade a Justice of the Peace to issue a search warrant in accordance with the statutory criteria. The evidence of each was that they did not require the full brief in order to form a view about the request and provide their advice. Mr Murphy and Mr Bortoli are both adamant that while Mr McAuley and Ms Hunt had with them various briefing materials, including a folder, at no time did they provide a copy of the brief to the solicitors. They accept an offer was made to leave the folder, with that offer not being accepted, and Mr Murphy instead sought to retain a somewhat limited set of materials from the folder which he believed, based on his extensive experience, were sufficient for him to form his views about the issuance of a search warrant.

In the response he provided to DPIR on 31 May 2017 Mr McAuley conceded that what is complained about in the allegation is the product of a misunderstanding or miscommunication in the course of the meeting on 2 September 2016. He argues that the relevant information was within the brief and that it cannot be found that he withheld information:

“8. There is no evidence to support that I withheld this recording from Mr Murphy and as outlined there is evidence to suggest that it was indeed discussed based on Mr Murphy’s own actions and repeated reference to looking up Crocodylus Park. In further support, Mr Murphy located and copied a briefing note that specifically stated “crocodiles possibly from Crocodylus Park”. The assertion that Ms Sherie Hunt and I failed to report a link between the Crocodylis Park and the three crocodiles I reject.
9. In retrospect, I am willing to admit there may have been miscommunication or misunderstanding between myself and Murphy and Associates resulting in this belief that this scenario was not presented. That being the case I wish to stress it was in no way intended and I further assert that I had no vested interest in pursuing the Darwin Crocodile Farm. Generating a search warrant only increased my work load and I was already under pressure given my other cases and prosecutions. I had made my Director aware of this fact and had specifically requested the job be allocated to another inspector when it was reported to the animal welfare branch.
10. I regret that my intentions and actions were not clearly understood. Based on the above evidence and explanation a decision maker should find that on the balance of probabilities that this allegation is not proved and that on the balance of probabilities an unintentional misunderstanding due to a breakdown in communication resulted in this incident.”[53]

This argument, at best, amounts to there being incompleteness or sloppiness on his part in presenting the information to the solicitors or even that he was negligent in the things he discussed with the solicitors. There are at least three problems with this proposition:

·   Firstly, it is directly contradictory to the evidence Mr McAuley gave to the effect that he both provided the briefing folder to the solicitors and that he identified to them in the course of the meeting the link between the crocodiles and Crocodylus Park.
·   Secondly, Mr McAuley was an experienced inspector at the time and had been trained in the issuance of search warrants and the standards required by Murphy and Associates. It can therefore be presumed that Mr McAuley well understood the obligation he had to provide all relevant information to the lawyers.
·   Thirdly, the argument overlooks that Ms Hunt was in attendance as well, also in the capacity of an animal welfare inspector, and that she was someone who had a working knowledge of the investigation. Despite this, she did not speak up about Mr McAuley’s omission, if there was one.

The combination of these factors leads me to prefer the evidence of Mr Murphy and Mr Bortoli on the subject.

The evidence in relation to this allegation leads to the conclusion that Mr McAuley likely held the view that the Darwin Crocodile Farm was not adhering to its duties as well as it should and that it was his suspicion crocodiles had escaped from the farm. The conversation he had with Mr Nichols on 2 September 2016 included a request made of Mr Nichols to provide a briefing note about the number of escapes that had come from the Darwin Crocodile Farm over the prior 12 months.[54] His investigatory theory was that where the animals were found was “adjacent to the crocodile farm suggesting they'd all come from the Darwin Crocodile farm.”[55] When it was put to him and Ms Hunt in a meeting on 5 September 2016 that it may be up to Parks and Wildlife to do a welfare inspection of the property, their response was that such would not be practical or desirable since there was a conflict of interest between that agency and the farm for reason that there was an arrangement between the two in relation to wild caught animals, meaning that their commercial interests may get in the way of their regulatory duty.[56]

The evidence, of things both before and shortly after the legal advice was obtained, leads to the view that Mr McAuley was advocating a certain direction and would be reluctant to be diverted.

I find that Mr McAuley did not provide the brief with Murphy and Associates and that he and Ms Hunt merely spoke about what it contained without volunteering that there was information linking one or more of the crocodiles to Crocodylus Park. I accept that they had a folder with them and that the folder likely contained the material to which each referred about the source of one of the crocodiles potentially being Crocodylus Park; however the evidence does not lead to the finding that it was “provided” to the lawyers for them to view, consider and keep. The lawyers may have neglected to consider that it contained important information and properly review its contents, however, there was no insistence by Mr McAuley that they have the folder, or endeavour by him to say they needed to consider what Mr Nichols had told him about the source of the crocodiles. More likely than not, it was Mr McAuley’s intention that the folder not be provided to the lawyers unless they happened to ask for it. Such a situation is, indeed, the withholding of important and pertinent information, which prevented Murphy and Associates from providing accurate legal advice.

Related to this circumstance, and taken into account in forming my findings about the subject of Alleged Breach 1, is that having been issued with written advice by the firm on 5 September 2016 Mr McAuley and Ms Hunt are said by Mr Murphy and Mr Bortoli to have gone to the firm’s premises on the same day for the purposes of clarifying a single error within the advice. Mr Murphy’s response to the Department’s investigation into Mr McAuley relates the interaction in the following terms, which he adopted in his evidence to the Commission, with him being adamant the interaction took place:

“Inspectors McAuley and Hunt had attended my office on either the day I had provided the advice to the Authority (05 September 2016) or the day after. They had clearly read the advice because upon their attendance at my office, Inspector McAuley said; "You mucked up in your advice."
I said; "How so."
He said; "Scoot is spelt s-c-u-t-e. Not s-c-o-o-t-e."
At the time of doing so, he handed me an A4 sheet containing a diagram of a crocodile tail depicting scutes and burn brands.
I said; "Oh, funny. Apart from that was there anything else?
He said; "No."

I find it incredible that upon reading my letter of advice dated 05 September 2016, Inspector McAuley was so perceptive as to have identified a spelling mistake and yet not perceptive enough to have identified that points 5 and 7 of my letter of advice, directly contradicted the instructions that he and Inspector Hunt now say were provided by them to me on 02 September 02016, namely:
1. that all three crocodiles had their scutes cut (as opposed to one); and
2. that all twenty six crocodiles (including three crocodiles referred to in the advice) that had been captured by Parks and Wildlife in 2015 -2016 had come from the Darwin Crocodile Farm (as opposed to one of the three crocodiles having come from Crocodylus Park).

If as is purported by inspectors McAuley and Hunt they had told me these things during our consultation, I would have expected that my purported misunderstanding of their instructions would have been brought to my attention at the same time as my misspelling of the word scutes.”[57]

For his part, Mr McAuley argues strongly that there never was such an interaction. In considering the overall evidence, I accept that the interaction occurred. I find each of Mr Murphy and Mr Bortoli to be witnesses of credit and that their evidence in relation to the interaction on 5 September 2016 is capable of acceptance.

Having accepted that the interaction on 5 September 2016 occurred as described in Mr Murphy’s evidence, the contention he then puts forward about the oddity of circumstance, dealing only with a spelling error and not potentially with more substantial errors of evidence within the advice, becomes a live proposition. It would, indeed, be an oddity to question someone about the spelling of an unusual word, while not addressing more fundamental errors within their advice.

It is inappropriate to refer in detail to the legal advice since it purports to establish the failure by a duty holder to observe their legislated duties, however, the errors that would leap out from the advice to an informed reader, who knew that at least one of the three captured crocodiles was marked as originating from Crocodylus Park, include these contentions:

·   The three crocodiles came from the Darwin Crocodile Farm and they had not been provided with appropriate or sufficient food;
·   The evidence supported that the crocodiles came from the Darwin Crocodile Farm and allowed the belief there may be other similar animals at the farm; and
·   It would follow that, if such was the case, there would likely be feed records which would constitute “a thing connected with an offence”.[58]

Nonetheless, having accepted that the interaction on 5 September 2016 occurred, its purpose must remain a mystery. To travel to a lawyer’s office to take up with them a spelling error and not any other matter of substance would clearly be an unusual circumstance. However there is no apparent explanation available to the Commission as to what, if anything, beyond the matter of a spelling error was the intended purpose of the interaction.

Having reviewed all of the evidence in respect of Alleged Breach 1, I am satisfied on the balance of probabilities that the alleged misconduct actually occurred.

Alleged Breach 2 – making of covert recordings

The second alleged breach relates to numerous recordings made by Mr McAuley of interactions he had with other Northern Territory public sector employees. The precise allegation made against Mr McAuley and relied upon by DPIR as part of the validity of its reasons for his dismissal is set out in the allegations letter sent by Mr Trier on 7 October 2016:

“8. It is alleged that you used a device to record conversations with other public sector
officers without their knowledge and consent of those officers on the following occasions:
a. With Dr Michelle Rodan on 12 and 22 August 2016.
b. With Mr Tommy Nichols on 2 September 2016.
c. With Dr Michelle Rodan, Ms Vicki Simlesa, Mr Ron Hutcheson and other parties on 5 September 2016.
d. With Mr Paul Mitchener on 9 September 2016.
e. With Mr Ron Hutcheson on 9 September 2016.

9. The secret recording of co-workers is conduct that the Fair Work Commission has found to be, sneaky, abhorrent, a fundamental breach of the relationship of trust and confidence between employer and employee, and a valid reason for the termination of employment.
10. Based on the matters set out in paragraphs 7 to 9 above, I suspect that you have breached sections 5F(1)(a)(ii) and 5F(1)(b) of the [PSEM] Act, contrary to section 49(a) of the [PSEM] Act.”[59]

Mr McAuley does not contest that the recordings were made or that in most circumstances they were made by him without the knowledge or consent of the other person or people involved in the interaction. Mr McAuley’s evidence on the subject is that he routinely recorded conversations or meetings not only of persons being interviewed in association with administration of the Animal Welfare Act (NT), but also other public servants, both within DPIR and other agencies. Not only the recordings, but also transcripts prepared on behalf of the DPIR, were tendered in evidence to the Commission in these proceedings. Listening to the conversations confirms that indeed the recordings were planned, as well as being without the explicit consent of most others participating in the conversations. Routinely the recordings start with a file identification comment, followed by silence for a while or with interaction with others, as if the recorder is being walked past workstations with unconnected officers, in order to go to a meeting.

In response to the allegations made against him, Mr McAuley sets forth several justifications for the recordings: they were for the purpose of protecting his interests given no action had been taken against another employee whose conduct had been found wanting; and that a civil suit had been brought against officers within the Department for their involvement in an unrelated matter.[60] They potentially also assisted him to defend questions which may be raised at a future time about why the crocodile investigation had been stopped, with him making the recordings “where I feared there was the possibility for me to be given an unlawful instruction or may lead to me being implicated in a future criminal or civil law suit”.[61] The investigation report notes that Mr McAuley confirmed that the recordings had been made for his notes.[62]

The investigation report also noted, in relation to the second of the recordings from 9 September 2016, (allegation (d) above), a concern on the part of Mr McAuley that his stand-down from work on the ground of mental illness may be imminent; and that a colleague had warned him to “watch his back”:

“• On 7 September 2016 “Michelle Rodan and Ronald Hutcheson had a meeting discussing standing me down for mental health reasons”;
·   Peter Phillips sent Mr Mcauley a text on 7 September 2016 telling him “Anyway be careful and watch your back”;
·   Peter Phillips rang Mr Mcauley at 6 pm on 8 September 2016 and told him about Mr Phillips conversation on 7 September 2016 with Mr Hutcheson which discussed possibly forcing Mr Mcauley to take leave and possibly taking disciplinary action against him to “discredit any future allegations of corruption” he might make;
·   Sherie Hunt told Mr Mcauley between 5 – 9 September that she believed “that Michelle and Ronald were actively colluding together to cover up this investigation and she believed it to be unethical”; and
·   Mr Phillips sent Mr Mcauley a text at 6.47pm on 8 September saying “Remember keep what I told you in your back pocket and expose it only and if you have to”[63]

There is insufficient evidence before the Commission on the matters referred to in connection with the second of the 9 September 2016 recordings to make findings about Mr McAuley’s concerns, although they do lead generally to the proposition that Mr McAuley had concerns by the dates referred to about what may happen to his employment.

Despite conceding that the recordings were made, and were done so in most cases without the explicit consent of the others involved, Mr McAuley puts forward in essence that they were made for the purpose of protecting his interests as an inspector or for furthering the obligations he held as an inspector and as such they were made for an exempt purpose as contemplated by the Surveillance Devices Act (NT). Ms Hunt put forward on Mr McAuley’s behalf that his DPIR superiors had encouraged the use of voice recorders in all sorts of situations[64] and authorised the making of recordings, or at least not directed that they were not to occur. Over some period of time in 2015 and 2016 the subject had been discussed within DPIR and advice had been provided, according to Mr McAuley and Ms Hunt, which led them to believe that recordings made without the consent of the other party were permissible as long as it was for a purpose under the Animal Welfare Act (NT).

Both Mr McAuley and Ms Hunt extend this rationale beyond, say, making a recording of a discussion in the field with a person of interest about their knowledge of potential breaches of the Animal Welfare Act (NT), to include a discussion with a manager or a co-worker, or a public servant in another Department, where the conversation has some connection with the Animal Welfare Act (NT) or their status as a public servant.

Consideration of whether the recordings amount to misconduct requires a consideration of several layers of obligation. On the one hand, legislation may prohibit or permit the making of a recording without the knowledge of another party; there may be other legislation clarifying acceptable and unacceptable behaviour by a public servant; and there may well also be workplace guidance material on the subject.

The Northern Territory Surveillance Devices Act 2007 prohibits a person recording a conversation to which the person is not a party, except in certain limited circumstances related to law enforcement (s.11). The Act further prohibits the communication or publication of a recording without the consent of the other parties to the conversation, except also in certain exempted circumstances (s.15). The Respondent also referred in the course of the investigation to a Northern Territory government policy, the “Recording Internal Government Meetings Policy”, which puts forward the general proposition that when internal government meetings are recorded meeting participants are to be informed of the recording and the reason for the recording being made, and that if the recording is to be communicated to others outside of the meeting or published then consent needs to be obtained from all the meeting participants.[65]

For his part Mr McAuley puts forward that it was well known that recordings were being made by employees. To some extent the response given by Mr Hutcheson to him in one of the meetings on 9 September 2016 confirms that; why else would Mr Hutcheson ask Mr McAuley “[h]ave you got the recorder on you?”[66]

Mr McAuley also puts forward that when he and others asked departmental officials about the permissibility of recording conversations they were not told that it was impermissible and instead the officers directed them to an external website purporting to give advice on the subject.[67] The website in question provides a “Legal Guide to Surveillance Legislation in Northern Territory” and generally provides a review of the Surveillance Devices Act 2007 (NT). While the website appears to provide generally correct advice, the focus of its advice is upon the lawfulness of making the recording, as opposed to the question of whether it may be acceptable within workplaces. The website does not appear to deal with the fact that employment legislation or policy may well proscribe the making of such recordings.[68]

A review of the content of each of the recordings in contention shows the following:

·   The recording made on 12 August 2016 involved Mr McAuley, his immediate manager, Mr Mitchener, Ms Hunt and Dr Rodan, with the main discussion of the meeting canvassing a complaint that Mr McAuley and Ms Hunt had made about Mr Hutcheson and certain directions he had given them.[69] While one can understand that Mr McAuley may not have particularly liked being directed in the way that he was by Mr Hutcheson or indeed by Dr Rodan in the course of the meeting on 12 August 2016, the content of the meeting is unremarkable in the sense of it being a rather ordinary discussion between managers and their subordinates.
·   The recording made on 22 August 2016 includes a number of voices, and principally those of Mr McAuley and Dr Rodan.[70] The subject matter of the conversation starts with Mr McAuley’s interactions with Mr Hutcheson and moves to Dr Rodan’s counselling of Mr McAuley about his own demeanour and approach. The conversation is an unremarkable discussion between a manager and a subordinate.
·   The recording made on 2 September 2016 is a conversation, apparently by telephone, between Mr McAuley and Mr Nichols.[71] By that date the crocodile investigation had commenced and the purpose of the conversation appears to be an exchange of information between the two. In the conversation Mr Nichols expresses his views about the source of the three crocodiles and Mr McAuley gives his opinion that there had been a number of occasions on which crocodiles had escaped from the Darwin Crocodile Farm, with him requesting Mr Nichols provide a briefing note on his records of such events. Other than those matters, the conversation is essentially an ordinary discussion between two public servants each working from different perspectives in relation to a matter of public administration.
·   The recording from 5 September 2016 is of a conversation between Mr McAuley, Ms Hunt, Dr Rodan, Mr Hutcheson and Ms Simlesa and others. The recording starts with Ms Hunt pointedly asking “[d]o you think she's going to tell us off for recording it?”[72] The meeting discusses the crocodile investigation, with Dr Rodan expressing the view that she did not think there were grounds to seek a search warrant and that instead “perhaps with cooperation we could go and visit the farm”.[73] Ms Hunt and Mr McAuley also express the view that there may be a conflict of interest in the way another department exercises its regulatory functions in respect of the farm, due to it having a financial contract with the farm.[74] The conversation between all concerned is plainly a robust and possibly even difficult conversation; however it does not appear to support the proposition that anything within the meeting had the potential to be contrary to Mr McAuley’s interests.
·   The first of the two recordings from 9 September 2016 was made at about 8:00 AM and is an interaction, initiated by Mr McAuley between him and Mr Hutcheson, the key content of which is a question from Mr McAuley about whether Mr Hutcheson had commenced a disciplinary action against him, ultimately followed by the question “[w]hy are you lying to me Ron?”[75] The purpose of the recording is plainly intended to be an endeavour to record Mr Hutcheson saying something that could later be held against him; it has nothing to do with protecting Mr McAuley’s interests as an employee.
·   The second of the 9 September 2016 recordings was apparently made about an hour later, shortly after 9:00 AM, and involves a meeting between Mr McAuley, Ms Hunt and others and involves a discussion of the crocodile investigation and other matters. The immediate purpose of the recording is unclear and, other than for the matter to be discussed later in this decision which shows Mr McAuley to have the intent to embarrass Mr Hutcheson, the purpose of the recording is a generally unremarkable discussion between public servants.

The proposition that Mr McAuley would secretly record conversations he had with other public servants and his superiors because he wanted either to protect his interests both in respect of any liability which may attach to his actions as a public servant and in respect of the future of his employment does not, within the scheme of the recordings actually made, amount to any or sufficient justification on his part.

Much was made by Mr McAuley that the decisions of his superiors, including Dr Rodan and Mr Trier, were hindering or obstructing his duties as an inspector under the Animal Welfare Act (NT). As referred to earlier in this decision, a person who hinders or obstructs the Authority, an inspector, office or veterinarian in the exercise of powers or performance of functions under the Act is guilty of an offence.[76] The argument put forward by Mr McAuley in relation to hindrance and obstruction is substantially one that, being an inspector, he could not be directed in his duties and that he was entitled to independently form his views about things that should or should not be done and he should then be permitted to do those things, all without direction from others. Such argument overlooks entirely the provision of the Animal Welfare Act (NT) which provides that in exercising a power or performing a function under the Act an authorised person, which includes an inspector, is subject to the direction of the Authority.[77] There is nothing within the evidence before the Commission which would lead to the view that the directions given to Mr McAuley about the progress of the crocodile investigation were other than in accordance with the Animal Welfare Act (NT) or otherwise contrary to the proper processes of public sector regulatory management.

Mr Trier, the chief executive of the Department of Primary Industry and Resources, gave evidence that he regarded Mr McAuley’s recording of conversations of other staff members as abhorrent, a characterisation entirely consistent with how the Commission has viewed covert voice recordings being made by employees in other matters before it.

The defence is offered by Mr McAuley that the recordings were undertaken for the purposes of protection of his interests. While it has been accepted by the Commission in the past that such may be an explanation, with such determination to be judged objectively in the particular circumstances of the case,[78] the circumstances of this matter do not reasonably lead to a finding in Mr McAuley’s favour. He puts forward that his interests as an inspector were being trammelled through hindrance or obstruction by his superiors. Objectively considered, such simply was not the case. Such directions as are in evidence before the Commission must reasonably be assessed as being in compliance with the rights of the Authority to direct an authorised person pursuant to the Animal Welfare Act (NT).

Mr McAuley also puts forward that the actions of officers within the Department amounted to a breach of public sector obligation and that he made a report to the Public Interest Disclosures Commission to that effect for which he was later punished.

Certainly a finding is available that Mr McAuley had an apprehension or belief that his management were doing things to him against his employment interests or in contravention of their obligations. Such apprehension or belief though is far from a finding that he was entitled to form a view on any objective basis that such things were against his lawful interests. The interactions his managers had with him and the directions they gave him are, objectively considered, balanced, fair and in accordance with what one might regard as proper management of a regulatory officer, such as Mr McAuley.

In relation to an apprehension regarding reprisal action against him for the disclosures he made to the Public Interest Disclosures Commission, it is to be noted that the first of Mr McAuley’s PID complaints was made on 5 September 2016 and the second on 15 November 2016.[79] Correspondence from the PID to DPIR on 23 February 2017 in relation to the first disclosure advised that the agency had not found anything which would show impropriety in the actions or motivations of Dr Rodan, Mr Hutcheson, or Mr Mitchener.[80] In relation to the second disclosure, correspondence from the PID to Mr Curnow on 12 January 2017 identified that the disciplinary action taken by the Department commenced well before the 15 November disclosure and that it did not amount to reprisal action.[81]

Objectively speaking, there is nothing before the Commission which would allow a finding that the recordings made by Mr McAuley were properly for the purposes of protecting his lawful interests.

The Commission has made it abundantly clear over a number of years now that a decision by any employee to record interactions between them and other employees is not to be accepted, bringing with it in matters such as this a real question about the feasibility of reinstatement, even if an unfair dismissal has been found:

“[185] In my view, there could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with management. Although there may be sound reasons why an employee (or an employer for that matter) believes it is necessary to secretly tape workplace conversations, I consider such an act to be well outside the normal working environment and contrary to the well understood necessity for trust and fidelity in the relationship between employee and employer.

[186] Given this demonstrates a complete breakdown in the employment relationship, it cannot militate in favour of reinstatement. The applicant contends that it was reasonable for him to secretly tape the conversations because he felt threatened by the respondent, who had said he would fight him in ‘every court in the land’ and that he was doing so to protect his lawful interests … I am not sure the legislation comprehended the concept of workplace disciplinary action as a reasonable basis for secretly taping conversations or that the conversations themselves were necessary to protect the applicant’s lawful interests.”[82]

There is something entirely different between recording employment conversations and the incursions which may be made upon daily life by a service station camera or the call centre which informs us that they are recording the call for quality and coaching purposes. In both the latter cases we know a recording is being made. We have the option not to participate in the recording, either by not being present at the service station or indicating to the call centre operator that we do not wish the call to be recorded. Or we could, of course, even say to the other party that a condition of our interaction with them is that we will make a recording ourselves.

In a situation in which an employee unilaterally determines they will record other co-workers without informing them that such is the case or seeking their consent undermines to a grave degree the viability of a continued employment relationship. It is entirely foreseeable that the target of a recording, once they find out they have been recorded against their will, may no longer want to work with the person who made the recording.[83] The fact that consent had not been sought or that the other party did not have an opportunity to avoid the interaction must surely be exactly what Mr Trier contended in his allegations to Mr McAuley that an employee’s recording of others was sneaky and abhorrent.

I reject the proposition that somehow departmental officials had permitted the making of secret recordings by Mr McAuley or others. While the guidance given by his superiors on the subject could hardly be regarded as compelling or effective, as a public servant, and formerly as a police officer, Mr McAuley worked within a framework of legislation and standards of conduct which must be regarded through training and experience as instilling in his mind an expectation that at all times he would act properly both in respect to citizens as well as other employees. The recordings made by Mr McAuley were most definitely sneaky, with him being very much aware that they were not in accord with the proper standards of the workplace, whether or not his managers may not have assisted their cause by giving him compelling direction on the subject. When Ms Hunt asks at the start of the recording made on 5 September 2016 at about 1:55 PM “[d]o you think she's going to tell us off for recording it?”,[84] there can be no doubt that the two knew full well that recording the conversation was contrary to Dr Rodan’s expectations for people reporting to her, as well as standards more generally within the workplace. Mr McAuley’s suggestion that the absence of clear direction not to make recordings in the workplace, with his superiors pointing him to an external advisory website which generally addresses the lawfulness of making a recording between two people, but not the question of whether a recording may be made while at work for reason of employment legislation or policy, means that somehow it was acceptable, is both self-serving and disingenuous.

The Commission has forcefully rejected the proposition that it is acceptable to make secret recordings in the workplace:

“[103]Applying ordinary Australian community standards I do not accept that any employee or any employer would be content to have any meeting they were attending secretly tape recorded. The ordinary conduct of personal, business and working relationships in our community is predicated on the basis that if there is to be any record of a meeting it will be agreed in advance. Anything else is quite properly described as sneaky. Its very sneakiness makes it abhorrent to ordinary persons dealing with each other in a proper fashion.”[85]

For these reasons I am satisfied, in relation to the elements of Alleged Breach 2, that the alleged misconduct actually occurred.

Alleged Breach 3 – interaction with Mr Hutchinson on 9 September 2016

The allegation is made by DPIR that Mr McAuley’s interaction with Mr Hutcheson in the first recording made on 9 September 2016 was “an aggressive interrogation of Mr Hutcheson that constituted harassment” contrary to s.49(g) of the PSEM Act.[86]

The CPM Reviews investigation found the allegation to be substantiated finding that “Mr McAuley’s tone and the recording is demanding and insistent”.[87]

The interaction between the two shortly after 8:00 AM is relatively short and is contained within an audio file and a transcript provided to the Commission. Mr McAuley asks Mr Hutcheson whether he has “a quick second” and when rebuffed presses that the matter is urgent. He then raises that he had been told that Mr Hutcheson had a conversation with Mr Mitchener about a disciplinary action against Mr McAuley. Mr McAuley presses questions about whether what he had been told was accurate. When Mr Hutcheson denies that he had any meetings with Dr Rodan in relation to disciplinary action against Mr McAuley, the latter asks “why are you lying to me Ron?” A short time later Mr Hutcheson asks a question about whether a recording is being made and the following exchange ensues (noting that while there are some discrepancies between the audio recording and the transcript, the discrepancies that exist are minor within the overall scheme of the conversation or immaterial and as a result the transcript is reported below without alteration):

“Ron:     Do you have the recorder on you?
Lucas: I'm taking notes, yes.
Ron:     Right, out you go mate.
Lucas: Ron?
Ron:     There we go.
Lucas: I've got some concerns that you need to address.
Ron:     Lucas?
Lucas: Yep?
Ron:     I want you out of here right now mate.
Lucas: Ron, you need to have a conversation with me, come and grab a seat please.
Ron:     I don't have to do this.
Lucas: Come and grab a seat please, I've got some questions to ask you.
Ron:     Mate, I'm telling you right now ...
Lucas: Yeah.
Ron:     To leave this office.
Lucas: Yeah? And I'm telling you, as my director, I've got some questions to ask you.
Ron:     I don't want to hear them.
Lucas: You don't want to hear them? Why not? Have you got something to hide?
Ron:     No.
Lucas: Have you got something to hide Ron?
Ron:     I don't have to explain nothing to you Luke.
Lucas: Have you been lying to me and have you been making and fabricating stuff
up between yourself and Michelle to take unlawful action against me?
Ron:     You're getting a bit out of control I'm telling you right. ...
Lucas: Is this true or not Ron?
Ron:     Out you go mate.
Lucas: Is this true or not Ron?
Ron:     I'll give you five minutes, five seconds to remove yourself from this office ...
Lucas: And then what will happen?
Ron:     Then I will go over and see her and she will remediate that.
Lucas: No worries, I will go and have a chat with Michelle now.
Ron:     Away you go.
Lucas: Thank you.”[88]

The tone of the conversation between the two as evidenced in the audio file is almost like a robust cross-examination being conducted by Mr McAuley, who is not about to be rebuffed or accept being told something contrary to his own understanding or opinion. He presses his questions firmly and repeatedly; Mr Hutcheson does not have an option of not responding to him.

The investigation report relies upon the phraseology within s.49(g) of the PSEM Act for the finding that a breach of the Act has been committed by Mr McAuley. In this regard it considers that, objectively, “Mr McAuley’s behaviour in the conversation was aggressive and intended to intimidate Mr Hutcheson into giving Mr McAuley the information he was seeking”. I concur. The allegation that the interaction with Mr Hutcheson amounted to conduct which breached the provisions of the PSEM Act is made out.

Alleged Breach 4 – whether false and misleading information provided to Mr Hutcheson

This allegation also pertains to the first conversation with Mr Hutcheson on 9 September 2016 and is founded upon the proposition that Mr McAuley was misleading of Mr Hutcheson about whether the conversation was being recorded. The investigation report notes that Mr McAuley’s answer to the question “do you have the recorder on you?” may be answered in either of two ways. Depending upon one’s views about the inclusion of grammar in transcriptions, the response could either be, as set out above, “I'm taking notes, yes” or, in the alternative, “I'm taking notes yes”. In finality the investigation report considers that “[t]he speed of the response does not suggest to me that what he was intending to convey by his words, was ‘I am taking notes and yes, I do have the recorder on me’.”[89]

The investigation report concludes that, notwithstanding that what was said by Mr McAuley may be regarded as a confirmation that he was taking physical notes as opposed to making a recording, Mr McAuley was not responsive to the actual question of whether he had a recorder on him and that his response about taking notes was at best dissembling and at worst an answer designed to deliberately mislead Mr Hutcheson:

“The fact that Mr Hutcheson noted the failure to answer the direct question and drew his own conclusion that Mr Mcauley was recording the conversation, does not make the information any less false or misleading. In the context of the conversation, the answer Mr Mcauley gave could be found to be false and misleading. It is not necessary in the context of disciplinary allegations to show that a person was in fact mislead, to find that the information they were given was misleading.”[90]

The report then concludes by making a finding that Mr McAuley had given a false and misleading answer to a direct question from Mr Hutcheson and that such was in breach of s.49(m) of the PSEM Act.

By the end of the conversation, it is amply apparent that Mr Hutcheson knew he was being recorded by Mr McAuley; that he wanted the interaction ended; and that Mr McAuley should go immediately. It is also likely on the balance of probabilities that Mr McAuley knew those things to be the case as well. By not being explicit about the fact that he was recording the conversation and by saying instead that he was “taking notes”, an altogether different proposition from making a sound recording, Mr McAuley cannot be regarded as having provided complete and accurate information to Mr Hutcheson. As a result I find that the conduct alleged within Alleged Breach 4 actually occurred.

Alleged Breach 5 – withdrawn

It is noted that the Alleged Breach 5, going to the question of whether Mr McAuley disregarded or disobeyed a lawful direction to leave Mr Hutcheson’s office on 9 September 2016, was withdrawn by the DPIR after consultation with the CPM Reviews investigator.

Alleged Breach 6 – email from Mr McAuley to Mr Trier 15 November 2016

Mr McAuley sent an email to Mr Trier on 15 November 2016 which sets out a number of concerns he held, with the details set out in the factual summary above. The email starts with the sentence that “[a]s the chair of the work health safety committee for bio security and animal welfare I am often approached by staff to discuss work place issues”. The correspondence then asserts that since Mr Hutcheson has been the director of the Animal Welfare Branch, Mr McAuley has “been approached by the following employees raising concerns of both misconduct and bullying issues”. It then provides single sentence summaries of matters connected with six named employees.[91]

The allegation made against Mr McAuley in respect of this correspondence is that it contained false and misleading information by making the claim he was the chair of the work health and safety committee and that the six people had approached him to raise concerns about misconduct or bullying by Mr Hutcheson.

The investigation report found that at the time Mr McAuley sent the email he had not been active on the WHS committee for some time; that he had not been the chair of the committee at least since September 2016; and that he had not received the complaints referred to from any of the named people. The investigation concluded:

“6.37 There is material presented above from which a decision maker could conclude that at least several of the comments suggested by Mr Mcauley as having been made to him, were in fact solicited and sought out by Mr Mcauley and Ms Hunt after Mr Mcauley had ceased to work in the BAW.

· In my view, it would be open to a decision maker to conclude that that solicitation was done for the purpose of obtaining information which could be detrimental to Mr Hutcheson, particularly as some of the conversations occurred after Mr Mcauley had ceased to work in the Animal Welfare Branch.
6.38 In my view, it would be open to a decision maker to conclude on the balance of probability that Mr Mcauley’s behaviour in sending the email to Mr Trier, and in his responses to this allegation on 17 January 2017, was:
· conduct designed to harass Mr Hutcheson (in breach of s49(g) of the Act);
· conduct which was disrespectful of Mr Hutcheson (in breach of s49(a) and s5F(b) and Part 2.1 of the Code of Conduct);
· improper behaviour (in breach of s49(f) of the Act); and
· involved the provision, in the course of his employment, of information that he ought reasonably to have known was false and misleading information (in breach of s49(m) of the Act).”[92]

The evidence before the Commission broadly confirms the investigation report’s findings. However, objectively, the pursuit of Mr McAuley in respect of whether or not he was the chair of the committee at the time is an overreach on the part of the Department. While the evidence is that he was not at that point, he had been the chair until very recently. His communication in respect of the reference to being the chair can be read either in the past or present tense. Whereas the Department chooses to read it in the present tense, doing so isn’t exactly tenable. I find there was, on the balance of probabilities, likely no misconduct to be established on the part of Mr McAuley when he put forward that as the chair of the committee he is often approached by staff to discuss workplace issues. It would, of course, be unusual for a chair of a WHS committee to not be approached by staff to discuss workplace issues. Even if he was raising matters of a workplace health and safety nature after his term as chair had ended, there would be nothing particularly wrong in sending a letter to the chief executive about workplace concerns and making reference to having been the chair of the committee.

The evidence though establishes that Mr McAuley was likely being misleading of Mr Trier when he sent the communication in respect of his references to being approached by the named individuals about Mr Hutcheson. The communication was plainly designed to give rise to the impression that each of the people concerned had requested Mr McAuley, in his capacity as chair of the WHS committee, to formally raise with the DPIR the issues referred to. The evidence leads in an entirely different direction to this likely intent on the part of Mr McAuley – while the things he referred to may well have been the subject of gossip, discussion, or even presumed widespread knowledge, there is no evidence that any of the people had authorised Mr McAuley to raise the matters.

Accordingly it may be established, at least in this regard, that Mr McAuley provided false and misleading information to the DPIR in his email to Mr Trier on 15 November 2016.

Alleged Breach 7 – whether harassment in staff meeting held on 9 September 2016

This allegation concerns conduct at the staff meeting shortly after 9 AM on 9 September 2016 which was recorded by Ms Hunt. Mr Hutcheson was not at the meeting but instead working in his office nearby.

The meeting starts with a discussion about investigatory matters and a period of leave for Mr McAuley, with it then quickly turning to the subject of Mr McAuley’s desire for Mr Hutcheson to come out to the meeting and him asking the question of whether he had been stood down. The transcript records the interaction as follows:

“Female: Are you here Friday?
Lucas: Excuse me, Ron?
Ron:     Yeah, what?
Paul:    He might have his headphones in.
Lucas: Can you come out here, please.
Ron:     No, no I'm busy at the moment.
Lucas: Well I've got a question to ask you which is prudent for the whole team to know. Sorry? Well, it's up to you. Have I been stood down? Ron?
Paul:    I don't know about it.
Lucas: Ron.
Paul:    I haven't heard that, mate.
Lucas: Well, it- it- it's coming from him, so ...
Paul:    They'd come through me, wouldn't they?
Lucas: Well no, I just had a conversation with Ron.
Paul:    Oh, no ...
Lucas: I had a conversation before with Ron, so this is what I mean. I'm not -I'm not willing to participate in, um, in- in work if, uh, that's the case. So that's why it doesn't affect the whole team.
Paul:    It does, all right ...
Female:           Well do you want to sort it out and then we'll have a meeting afterwards?
Lucas: Well, it's - it's pretty simple, Ron, if- you, why aren't you willing to come out here and have a chat to everyone.
Paul:    I'll go and talk to him. It's only one outstanding job, the one in [unclear
0:03:26].
Lucas: Yeah.
Paul:    He's on the phone. [Nadir's] with the prosecutor, [Kalano's] with the
prosecutor.”[93]

After moving on to other matters, there is a point in the meeting where Mr Mitchener engages Mr McAuley and Ms Hunt in a discussion about the meaning of the above interaction as well as matters associated with the crocodile investigation.

The investigation into Mr McAuley’s conduct considered whether or not he was being disrespectful or harassing of Mr Hutcheson when he called for him to come out of his office. The investigation report found that being junior to Mr Hutcheson he was disrespectful of Mr Hutcheson in the way that he called for him to come out to the meeting and that he was “self evidently shouting out to Mr Hutcheson”. The investigation report does not accept Mr McAuley’s claim that what is heard on the recording seems loud because the microphone was very close to his mouth.[94] In finality the investigation report made the following adverse findings against Mr McAuley:

“7.8 In my opinion there is a sufficient basis in the material on which a decision maker could find on the balance of probability that the content of the conversation was both disrespectful and discourteous to both Mr Hutcheson and to the other staff who were attending the meeting and who were being used by Mr Mcauley to pursue his allegations against Mr Hutcheson. To that extent the material could support a finding of failing to meet the requirements of the performance and conduct principle in 49(a) and 5F(1).
7.9 Further, there is in my view a sufficient basis on which a decision maker could find that the conversation, its content, loudness and tone, was aggressive and that it was intended to intimidate or coerce Mr Hutcheson into answering Mr Mcauley’s questions in front of other staff members, and to that extent it could support a finding of harassment under s49(g) of the Act.”[95]

In relation to the tone of him speaking to Mr Hutcheson, Mr McAuley put forward in the hearing in this matter that Mr Hutcheson was quite deaf and that given the distance from his office it was necessary for Mr McAuley to speak loudly in order to get his attention and be heard.

The contention about Mr Hutcheson’s state of hearing explains the tone of voice in respect of the first request or two toward Mr Hutcheson. While it may be somewhat rude for someone to call out from a general office area to another person in an office to obtain their attention, even if the other person has hearing loss, that in and of itself hardly amounts to misconduct. However, listening to the audio file clearly leads to the proposition that Mr McAuley wanted Mr Hutcheson to come out to the team and respond to his bidding. The way in which Mr McAuley put his questions was not so much a request, but a demand. Further, he likely wanted to embarrass Mr Hutcheson with any questions which may be asked in the general forum. In the absence of Mr Hutcheson acceding to his demand to come out from the office into the general meeting, Mr McAuley likely thought it a good idea to simply embarrass Mr Hutcheson from afar. That, together with Mr McAuley’s continued level of raised voice toward Mr Hutcheson, amounted to classic bullying behaviour – give me what I want or you will pay the consequences. In this case the consequences to be paid were Mr Hutcheson having to put up with intemperate questions voiced over some distance in front of other staff about matters which were essentially issues that should be discussed privately between Mr McAuley and Mr Hutcheson and possibly Mr Mitchener (as Mr McAuley’s immediate manager).

Accordingly the evidence leads to the finding that Mr McAuley harassed Mr Hutcheson in the course of this conversation.

Alleged Breach 8 – whether Mr McAuley failed to follow a lawful instruction

This allegation relates to directions said to have been given to Mr McAuley about providing information on the conduct of the crocodile investigation. After consideration of the original allegation the investigation report found that the allegation could not be substantiated. As a result the matter was not considered further by the DPIR.

A consideration of the breaches of conduct alleged against Mr McAuley establishes that, with the exception of the two which were withdrawn, the conduct alleged actually occurred. Some of those matters, particularly those relating to Mr Hutcheson, unquestionably have a link to the health and safety of others. The evidence leads to the proposition that Mr McAuley’s conduct had the effect of harassing Mr Hutcheson. It also leads to the proposition that the unfounded complaints he made about Dr Rodan, Mr Mitchener and Mr Hutcheson would, because of their unfounded nature, lead to health and safety effects in relation to those people. I am satisfied that the grounds relied upon by the DPIR for Mr McAuley’s dismissal are made out; that there was misconduct on his part and that alternatives to dismissal would have consequential risks to the safety and welfare of the staff in any future workplace.

The accumulation of the matters established, along with the severity of the issues in question, leads inexorably to the finding that at the time it came to dismiss Mr McAuley the DPIR had a valid reason for his dismissal relating to his conduct, including its effect on the safety and welfare of other employees.

(b) whether the person was notified of that reason

Mr McAuley was notified of the reasons for his dismissal.

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

Mr McAuley was given an opportunity to respond to the reason held by the DPIR for his dismissal.

(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

There was no refusal by the DPIR for Mr McAuley to have a support person in any discussions that were had about the future of his employment. Accordingly this factor is a neutral consideration in my decision.

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

Mr McAuley was not dismissed because of unsatisfactory performance and so this factor is also a neutral consideration in my decision.

(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

The DPIR’s Employer Response Form indicates that at the time Mr McAuley was dismissed the Northern Territory Government employed approximately 20,000 people. There is no evidence before the Commission that the size of the Respondent impacted on the procedures it followed in effecting Mr McAuley’s dismissal.

(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

The evidence in this matter includes that the DPIR had access to and did access dedicated human resource management specialists or expertise in making its decision to dismiss Mr McAuley.

(h) any other matters that the FWC considers relevant

The Commission does not consider there are any other matters which require being dealt with in this decision. In this regard I have considered Mr McAuley’s contentions that he was either being hindered or obstructed as an inspector and that some or all of the actions taken by the DPIR to investigate his conduct amounted to reprisal conduct for having made a complaint to the Public Interest Disclosures Commission. For the reasons expressed in the course of this decision I do not accept the veracity of those arguments.

For the reason that it has been found the DPIR had a valid reason for Mr McAuley’s termination of employment and that there are no other factors which would lead to a finding that his termination was otherwise unfair, it is my finding in this matter that he was not unfairly dismissed.

As a result Mr McAuley’s application for unfair dismissal is dismissed and an order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr L McAuley on his own behalf.
Ms C Osborne, solicitor, Hunt and Hunt, for the Respondent.

Hearing details:

2017.
Darwin:
15 November, 11 December.

[1] Animal Welfare Act (NT) s 26A.

[2] Ibid s 60.

[3] Ibid s 72.

[4] Macquarie Dictionary, Fifth Edition, 1485; Wikipedia, accessed 23 January 2018.

[5] Exhibit A2, Applicant’s Bundle of Documents, Attachment LM-007, responses to allegations investigation 31 May 2017.

[6] See Exhibit R10, correspondence from DPIR CEO to Lucas McAuley, 5 January 2017; Exhibit R26, Respondent’s Bundle of Documents, Attachment DPIR 28, CPM Reviews Report, Part 8.

[7] Exhibit R16, Transcript of conversation between Lucas McAuley and Tom Nichols, 2 September 2017.

[8] Exhibit R4, Response to CPM Reviews by Ray Murphy, 1–3; Exhibit R24, Response to CPM Reviews by Jon Bortoli, 8-9.

[9] Exhibit R26, Attachment DPIR 28 [1.9].

[10] Exhibit R24 Attachment E.

[11] Exhibit R9, Lucas McAuley response to DPIR, 27 October 2016, 2.

[12] Exhibit R17, Transcript of meeting held 5 September 2016, 5–6.

[13] Ibid 7.

[14] Ibid 9.

[15] Ibid 12.

[16] Ibid 14.

[17] Exhibit R4 10.

[18] Exhibit R24 7.

[19] Exhibit A2 Attachment LM-002, email 9 September 2016; Exhibit R26 Attachment DPIR 28 [8.9].

[20] Exhibit A2 Attachment LM-002.

[21] Exhibit R4 Annexure RM4.

[22] Ibid.

[23] Ibid.

[24] Exhibit A2 Attachment LM-004, Letter 16 September 2016.

[25] Exhibit R8, Alleged Breach of Discipline correspondence, 7 October 2016.

[26] Ibid.

[27] Exhibit R5, Brief of Evidence of Alistair Trier, [20].

[28] Exhibit R9.

[29] see Exhibit R26 Attachment DPIR 30, Chronology of Events, reference 14 October 2016.

[30] Exhibit A2 Attachment LM-020, email 24 October 2017.

[31] Exhibit R26 Attachment DPIR 24, email 12 January 2017.

[32] Exhibit R5 [22]–[24]; Exhibit R10 4.

[33] Exhibit R8.

[34] Exhibit R10.

[35] Exhibit R13, Letter from Alister Trier to Lucas McAuley, 3 May 2017.

[36] Exhibit R12, Response from Lucas McAuley to Alister Trier, 31 May 2017.

[37] Exhibit R20, Findings Letter, 11 July 2017.

[38] Exhibit R5 [25]-[27].

[39] Exhibit R22, Termination Letter, 24 July 2017.

[40] Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520.

[41] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 373.

[42] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 [6]-[7].

[43] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [32]; Annetta v Ansett Australia (2000) 98 IR 233 [9]-[10].

[44] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 [15].

[45] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 [22]-[23].

[46] Selvachandran v Peteron Plastics (1995) 62 IR 371 373.

[47] Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

[48] Budd v Dampier Salt Ltd (2007) 166 IR 407 [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 171.

[49] Streeter v TelstraCorp Ltd (2008) 170 IR 1.

[50] Miller v University of New South Wales [2003] FCAFC 180, (2003) 127 IR 432 [64]; Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 1166, (2011) 207 IR 243 [34].

[51] Exhibit R25, Respondent’s Outline of Submissions, [4].

[52] Exhibit R8.

[53] Exhibit R12 2.

[54] Exhibit R16 3.

[55] Exhibit R17 6.

[56] Ibid 25.

[57] Exhibit R4 10.

[58] Exhibit R24 11.

[59] Exhibit R8.

[60] Exhibit R12 3–4.

[61] Ibid 5.

[62] Exhibit R26 Attachment DPIR 28 44.

[63] Ibid 46.

[64] Ibid 48.

[65] Ibid [2.20].

[66] Exhibit R18, Transcript of meeting held 9 September 2016, 2.

[67] Exhibit R26 Attachment DPIR 28 [9.6].

[68] accessed 23January 2018.

[69] Exhibit R14, Transcript of meeting held 12 August 2016.

[70] Exhibit R15, Transcript of discussion held 22 August 2016.

[71] Exhibit R16.

[72] Exhibit R17.

[73] Ibid 14.

[74] Ibid 25.

[75] Exhibit R18 1.

[76] Animal Welfare Act (NT) s 72.

[77] Ibid s 56 (authorised person means an inspector or officer); s 60(3) (subject to the direction of the Authority).

[78] Ferry v GHS Regional WA Pty Ltd[2015] FWC 8552 [87].

[79] Exhibit R25 [77].

[80] Exhibit R26 Attachment DPIR 27.

[81] Exhibit R26 Attachment DPIR 24.

[82] Thomas v Newland Food Company Pty Ltd[2013] FWC 8220 [185]-[186].

[83] See, for example, Thompson v John Holland Group Pty Ltd[2012] FWA 10363 [144].

[84] Exhibit R17.

[85] Lever v Australian Nuclear Science and Technology Organisation[2009] AIRC 784 [103]; finding not disturbed on appeal, [2009] FWAFB 1733.

[86] Exhibit R8 3.

[87] Exhibit R26 Attachment DPIR 28 68.

[88] Exhibit R18.

[89] Exhibit R26 Attachment DPIR 28 74.

[90] Ibid 75-76.

[91] Exhibit A2 Attachment LM-020.

[92] Exhibit R26 Attachment DPIR 28 95–96.

[93] Exhibit R19, second Transcript of conversation held 9 September 2016, 2–3.

[94] Exhibit R26 Attachment 28 98.

[95] Ibid.

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