Mark Maynard v The Geo Group Australia Pty Ltd T/A Junee Correctional Centre
[2010] FWA 3459
•30 APRIL 2010
[2010] FWA 3459 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mark Maynard
v
The GEO Group Australia Pty Ltd T/A Junee Correctional Centre
(U2009/14514)
COMMISSIONER ROBERTS | SYDNEY, 30 APRIL 2010 |
Termination of employment - admissibility of evidence.
[1] This decision concerns an application by Mr Maynard pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief for alleged unfair dismissal by the GEO Group Australia Pty Ltd t/a Junee Correctional Centre (GEO or the Company). The application was the subject of unsuccessful conciliation on 18 January 2010 and a mention and programming hearing was conducted on 24 February 2010. An arbitration was then scheduled to commence on 13 April 2010 in Wagga Wagga. Subsequently, Mr Maynard’s representative requested that the hearing dates for the arbitration be vacated to allow the hearing of a threshold issue concerning the admissibility of part of the evidence to be brought by GEO. The relevant part of the evidence is what I will term for convenience sake ‘the video evidence’. Accordingly, a hearing was conducted in Wagga Wagga on 13 April 2010 to deal with the evidence issue only. Mr Maynard was represented by Mr J Davis of the Liquor, Hospitality and Miscellaneous Union (LHMU) and GEO was represented by Mr S Meehan of Counsel, instructed by Mr R Casimir.
Background
[2] Mr Maynard was employed by GEO from 1994 until his employment was terminated on 19 October 2009. The reason given for termination was that Mr Maynard had allegedly breached a number of GEO policies and protocols as a First Responding Officer in incidents on 1 and 16 July 2009. Mr Maynard was initially suspended on pay whilst an internal investigation was conducted. That investigation brought down its Report on 22 September 2009 and the Applicant was then dismissed on 19 October. Mr Maynard appealed the termination decision through GEO’s internal appeal process. That internal appeal was dismissed on the ground that Mr Maynard’s treatment of an inmate on 16 July 2009 amounted to gross misconduct. Mr Maynard then filed the current application with Fair Work Australia on 9 December 2009. He denies all allegations of wrongdoing.
[3] The video evidence which is the subject of this decision formed a major part of GEO’s decision to terminate Mr Maynard’s employment.
Extension of time
[4] Mr Maynard’s application was filed outside the 14 day time limit provided for in subsection 394(2)(a) of the Act. Subsection 394(2)(b) of the Act allows for an extension of time to be granted subject to the requirements of ss.394(3).
[5] In this case, GEO does not object to an extension of time and the parties proceeded with negotiations and case preparation on that basis. In all the circumstances, I am satisfied that this is a case where time should be extended and I find and order that time should be extended until the actual date of lodgement of the substantive application.
[6] Ms J Duck (a GEO Correctional Officer) gave sworn evidence for Mr Maynard and submitted a witness statement 1 and an affidavit2. Mr T Dentrinos (a GEO Correctional Supervisor) also gave sworn evidence and submitted a witness statement3 and an affidavit4. Mr R McAuliffe (GEO’s Intelligence Manager) gave sworn evidence for GEO and submitted a witness statement5. Mr J White (GEO’s Acting Correctional Supervisor) also gave sworn evidence for GEO and submitted a witness statement6. A statement by Mr S Preece, a Lecturer of Photography in the Faculty of Built Environment at the University of New South Wales concerning technical matters relating to the video evidence was tabled7.
Ms Duck
[7] It was Ms Duck’s evidence that the video evidence was accessible to many officers and managers at the Centre as the cabinet containing the memory stick was readily accessible. Ms Duck has worked at Junee since January 2000 and was union delegate from 2000 to 2008.
[8] I have no reason to doubt the veracity of Ms Duck’s evidence but that evidence did not go to the central point to be decided by me.
Mr Dentrinos
[9] Mr Dentrinos’ witness statement was in very similar terms to that of Ms Duck. His further evidence largely dealt with the reliability of video evidence in interpreting the events recorded and the technical methodology by which the video evidence in question was obtained.
[10] I have no reason to doubt the truthfulness of Mr Dentrinos’ evidence but it adds little for my consideration of the issue to be determined.
Mr McAuliffe
[11] Mr McAuliffe’s evidence concerned the integrity of the video evidence of 16 July 2009. Under cross-examination, Mr McAuliffe agreed that the video evidence in question wasn’t obtained by methods approved by the Custodial Policies and Procedures of the NSW Department of Corrective Services. I am satisfied that the evidence of Mr McAuliffe was truthful.
Mr White
[12] Mr White’s evidence concerned the technical aspects by which the video evidence was obtained and the integrity of that video evidence. In cross-examination, Mr White said that his only role was to place the camera containing the video evidence inside a locked cabinet. 8 In earlier examination in chief, Mr White agreed that the padlock to the cabinet could be unlocked using keys which fitted other locks within the prison.9 I have no reason to doubt the truthfulness of MrWhite’s evidence.
Mr Preece
[13] Mr Preece’s statement and report dealt with the integrity of the video evidence. It was his opinion that he “… could not find anything to suggest that a linear edit had been performed (that is to have material or data removed). The motion appears to be smooth (for the nature of the file) and the images and audio to have continuity from the start of the video to the end. Given the nature of the file, to remove any material would result in an obvious discontinuity (or jump) of both video and audio motion.”
[14] Mr Preece’s report also contained the following relevant statement:
“I Mr Stephen Preece, acknowledge for the purpose of, Rule 31.23 of the Uniform Civil Procedure Rules 2005 that I have read the expert witness code of conduct in Schedule 7 to the said rules and agree to be bound by it.”
[15] Although Mr Preece was not sworn, Mr Davis was given an opportunity to question him by telephone link. Nothing detrimental to the report arose from Mr Davis’ questions and I accept Mr Preece’s report as reliable expert evidence.
Submissions
Mr Davis
[16] Mr Davis filed written submissions 10. Those submissions relevantly said:
“To a large degree the company officers relied on this footage to form an opinion which resulted in the Applicant's dismissal. The applicant understands the respondent intends to rely on these files in this matter as indicated in their Employer Response filed with FWA;
Whilst under section 591 of the Fair Work Act, Fair Work Australia is not bound by the rules of evidence and procedure, it ought to have regard to the admissibility of evidence before it when forming a view about a matter as important as the termination of an employee's employment;
The Applicant submits that the video evidence of the CERT hand held camera should not be admitted into evidence for reasons which set out below;
The evidence sought to be brought by the respondent in the form of video files for the incidents of 1 and 16 July was improperly obtained, it was tainted by the way it was obtained and it cannot be relied upon. Section 138 of the Evidence Act 1995 says:
Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The evidence was improperly obtained because it was obtained in a way that is specifically forbidden by the policy of the Department of Corrective Services (DCS) policy;
Compliance with this policy is mandatory for the Respondent. However, it is apparent that in the use of the CERT hand-held cameras in July 2009, the Respondent was in breach of the Policy. That is, it sought to create evidence on 1 and 16 July which was improperly obtained; …
Section 138 of the Evidence Act allows improperly obtained evidence where ‘the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.’ The uses of force on 1 and 16 July 2009 led to the filing of reports on behalf of a number of the officers involved, internal investigations, responses to charges on the part of the applicant and appeals. In other words, there is a large amount of evidence which is available to FWA in dealing with the present application. This weighs against admitting evidence which is obtained improperly. The matter can be adequately heard without the video evidence;
The video evidence was obtained in a deliberate act of impropriety. It is reasonable to assume the company knew the DCS Policy stated only DVD recordable cameras were to be used, but it ignored the policy. It decided to use cameras which recorded in a way that allowed editing after the event; …
The ease with which files may be edited if not managed according to the DCS Policy is alarming, given the matters at stake in a Correctional Centre. The company could reasonably be expected to have deliberately resisted the Policy for its own ends. Nobody else stands to gain;…”
Mr Meehan
[17] Mr Meehan filed written submissions 11. The written submissions relevantly said:
“Reliance by the Applicant upon s.138 of the Evidence Act 1995 is… misconceived. Fair Work Australia is empowered to inform itself in relation to any matter before it in such manner as it considers appropriate; s.590(1) of the Fair Work Act2009.
There is no suggestion by the Applicant that the video footage has in any way been interfered with and does not depict the events as they in fact occurred.
It is true that the camera upon which the footage was captured was not of a type that used a DVD as the recording medium, and thereby was not a type of camera that was approved for use under the Department of Corrective Services Custodial Policy and Procedures then in force. However the Applicant's submission that the video evidence was obtained in a deliberate act of impropriety is without foundation.
The threshold for admission of evidence before the Tribunal is its relevance to facts in issue in the proceedings. There is no suggestion by the Applicant that the video footage is not relevant. It is clearly relevant to the determination of whether or not the Applicant engaged in the conduct alleged against him and which was relied upon by the Respondent to dismiss him.
The appropriate course is for the Tribunal to receive the video evidence and in the context of all the evidence led in the substantive proceedings accord such weight to the video evidence as it considers appropriate.”
Conclusions and Finding
[18] The parties largely addressed themselves to the video evidence of the 16 July 2009 incident but it was common ground between them that the admissibility question would equally apply to the video evidence of 1 July also. An important concession was made by each side early in proceedings. Firstly, Mr Davis does not assert that the video evidence in question was the subject of any editing or other form of tampering. Mr Davis and his witnesses were at pains to allege that the video evidence was capable of being tampered with due to the technology used. Such allegations are not persuasive in this case as no tampering is alleged. For his part, Mr Meehan conceded that the method by which the evidence was obtained was not in accordance with instructions issued by the NSW Department of Corrective Services. Accordingly, what I have before me is video evidence the technical integrity of which is not under challenge, but which was obtained using a technical methodology in breach of Departmental instructions. I cannot find any basis for Mr Davis’ claim that the evidence was obtained in a deliberate act of impropriety. The admitted fact that GEO did not follow the instructions of the Department of Corrective Services is a matter between GEO and that Department and is not a factor to influence my decision making. In fact, even if I was bound by the Evidence Act, I would not have reached a different decision in this matter.
[19] Section 591 of the Act provides:
“591 FWA not bound by rules of evidence and procedure
FWA is not bound by the rules of evidence and procedurein relation to a matter before it (whether or not FWA holds a hearing in relation to the matter).”
[20] The discretion of Fair Work Australia to admit the evidence is not contested.
[21] I must make it clear that I have not viewed the video evidence and therefore have not been influenced one way or the other by its content when making this decision. In my view, in the light of Mr Davis’ concession and the terms of Mr Preece’s report, the video evidence of both 1 July and 16 July 2009 should be allowed into evidence and I so find. Its probative value is yet to be determined and the evidence could possibly be exculpatory of Mr Maynard. My decision to allow the admission of the video evidence should not be seen to be of itself detrimental to Mr Maynard’s application. The value of the video evidence remains to be determined and my ruling on its admissibility does not exclude future possible arguments by Mr Davis regarding the interpretation of same as per the evidence of Mr Dentrinos.
[22] The issue before me has been a narrow one and I have excluded from my consideration any evidence and materials relating to the merit of Mr Maynard’s substantive application.
Accordingly, I find that the video evidence under consideration should be admitted and Mr Maynard’s application for relief will now proceed to arbitration.
COMMISSIONER
Appearances:
J Davis of the Liquor, Hospitality and Miscellaneous Union for Mark Maynard.
S Meehan, of Counsel, with R Casimir for GEO Group Australia Pty Ltd.
Hearing details:
2010.
Wagga Wagga:
April 13.
1 Exhibit Maynard 1.
2 Exhibit Maynard 2.
3 Exhibit Maynard 3.
4 Exhibit Maynard 4.
5 Exhibit GEO 1.
6 Exhibit GEO 2.
7 Exhibit GEO 3.
8 Transcript PN311.
9 Transcript PN297.
10 Exhibit Maynard 5.
11 Exhibit GEO 5.
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