Moreton Bay Regional Council v Moorhead

[2014] ICQ 13

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Moreton Bay Regional Council v Moorhead [2014] ICQ 013

PARTIES:

MORETON BAY REGIONAL COUNCIL
(appellant)
v
MARK MOORHEAD
(respondent)

CASE NO/S:

C/2014/10

PROCEEDING:

Appeal

DELIVERED ON:

20 May 2014

HEARING DATE:

17 March 2014

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – WHEN APPEAL LIES – where the Commission found a witness not to be a witness of credit – where the appellant submitted that this finding was contrary to incontrovertible facts – whether any such facts appeared on the record

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – WHAT CONSTITUTES – where the respondent attended the TAB during work hours – where he was asked where he had been by an internal investigation and initially lied, suggesting that he had been to an ATM – where this version of events was questioned, and he accepted that he had lied – whether these matters entitled the appellant to summarily terminate the respondent’s employment, irrespective any other circumstances – whether the Commission’s findings were so unreasonable as to amount to an error of law

INDUSTRIAL LAW – QUEENSLAND – APPEALS – WHEN APPEAL LIES – where the Commission found that it would not be impracticable to reinstate the appellant – where the appellant submitted that the Commission misapprehended the facts – whether the Commission so erred – whether the Commission’s findings were so unreasonable as to amount to an error of law

Industrial Relations Act 1999, s 77, s 78(3), s 341(1)

CASES:

Byrne v Australian Airlines (1995) 185 CLR 410; [1995] HCA 24, cited
Concut Pty Ltd v Worrell (2000) 75 ALJR 312; [2000] HCA 64, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Jones v Brite Services [2013] FWC 3392, referred to
McGrath v Sydney Water Corporation [2013] FWC 793, referred to
Minister for Immigration v Li (2013) 87 ALJR 618; [2013] HCA 18, applied
Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, applied
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21, cited

APPEARANCES:

C J Murdoch on behalf of the appellant, instructed by Minter Ellison
The Respondent appeared on his own behalf

Introduction

1. Mr Moorhead was employed by the Council to perform park maintenance. On 9 September 2013 he, in the company of other employees, visited the TAB at Kippa-Ring. They did this during working time. When they emerged they were confronted by Council supervisors and told to go back to a Council office. The five employees concerned met to discuss what they would say in the meeting which was to occur. They all agreed that they would tell the same lie when asked where they had been at the relevant time.

1. In his discussion with Ms Barwin (the Council’s HR Operations Manager) Mr Moorhead denied that he had been to the TAB. He told her that he had gone to an ATM. She then said words to the effect: “Let’s be clear, you need to tell the truth.” Mr Moorhead then recanted and admitted that he had been to the TAB.

1. An internal investigation and show-cause process then took place and the respondent was dismissed on 25 September 2013. He was paid one week’s wages in lieu of notice. The dismissal letter contained  the following passage:   

“I consider that your visit to the Kippa-Ring T.A.B. and the shopping centre which it is located [sic] outside of your designated work site and break time, without approval is unacceptable. Furthermore your initial denial of this incident … demonstrates a lack of understanding about the seriousness of the incident, and shows no regard for your obligations as an employee.

It has been determined you have breached your responsibilities as an employee to carry out your duties with integrity and honesty whilst giving priority to your official duties over personal duties during your prescribed work time.”

1. The respondent sought reinstatement, on the grounds that the dismissal was unfair in all of the circumstances. He was successful before the Commission.

1. The Council now appeals pursuant to s 341(1) of the Industrial Relations Act 1999. The appellant can only succeed if it successfully demonstrates an error of law, or an excess, or want, of jurisdiction.

1. The appellant raises three grounds of appeal.

Ground 1 – Regular visits to the TAB

1. The first ground is that the Commission erred in law in determining that a factual allegation—viz., that the respondent had regularly attended the TAB during work hours—was not established to the requisite standard. This was evidence which became known to the appellant after the dismissal. It was evidence which, if accepted, could be used to damage the credibility of the respondent. More importantly, it was evidence which the Council could call to support its decision to dismiss Mr Moorhead.[1]

   [1]Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359; Concut Pty Ltd v Worrell [2004] HCA 64; (2000) 176 ALR 693.

1. This matter is dealt in the Commission’s reasons at [24]-[32]. In determining that the allegation was not established, the Commission had regard to:

(a)        The evidence of Mr Damien Summers, a former employee of the appellant who was dismissed on the same day as the respondent and for the same reasons;

(b)        The evidence of Mr Christian Hanckel, an employee of the appellant. . He saw some other employees of the appellant park nearby and visit the TAB; and

(c)        A number of daily diaries.

1. The Commission found that Mr Summers’ evidence was unreliable. The Commissioner stated: “I do not find him to be a witness of credit.” The appellant disputes this finding. The principles to which an appellate court must have regard in setting aside a primary decision-maker’s assessment of a witness’s credibility were set out by the High Court in Rosenberg v Percival.[2] McHugh J considered that an appellate court:

   [2](2001) 205 CLR 434.

“[38]      …could not set aside the trial judge's finding on the bare ground that he did not give sufficient weight to matters that the judges of the [appellate] Court thought assisted [a party]'s case.  In Devries, Brennan and Gaudron JJ and I also said:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact.  If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." (citations omitted)

[39]       To similar effect are remarks of Deane and Dawson JJ in Devries.  Their Honours said that, "consistently with the obligation to make full allowance for the advantage which the trial judge had enjoyed, the Full Court could properly overturn the trial judge's finding only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open" to make the finding that he did.” (citations omitted, emphasis added)

Mr Summers

1. Mr Summers’ evidence was based upon his statutory declaration which became an exhibit. He was cross-examined on its contents. His statutory declaration includes the following passages:

“Consistently about three times per week, during work time but not during smoko or lunch break, [a group of employees including Mr Summers but not including the respondent] left [the] workplace and drove to the Kippa-Ring TAB, parked, and went into the TAB to place bets. …

It was also common that when we were at the TAB that the ‘chipper’ crew of Terry Casey and Mark Moorehead [sic] would also be there. I estimate this was about 50% of the time. I saw Mark Moorehead [sic] and Terry Casey both regularly placing bets when we were at the TAB together. My observation is that Mark Moorehead [sic] was fully involved in the activity.”

1. In cross-examination Mr Summers stated that he had contacted the Council of his own volition around one week after his employment had been terminated. When asked why he had given a statement, he said that he “believed there’s a culture within the council and someone had to stand up and say something about it.”[3] When asked directly how many times he had seen the respondent at the TAB, he answered: “I estimate 50 per cent of the time.”[4] When pressed, he specified: “10 or more times.” When asked by the Commissioner if he could be more precise, he responded: “No, it’s throughout the year.” He went on to suggest that he had, himself, been to the TAB only once per week, and that he would have seen Mr Moorhead half of the time. When taken to his statement, he said that he had in fact been to the TAB three times per week.[5]

   [3]T 1-42.

   [4]Ibid.

   [5]T 1-43.

Mr Hanckel

1. Mr Hanckel also provided a statutory declaration which formed the basis of his evidence. He stated that, while on annual leave, he saw the truck from which Mr Summers ought to have been working on three consecutive Fridays between 6 August 2013 and 27 August 2013 parked not far from the TAB. He stated that he saw a truck from which the respondent may have been working on one of these occasions.

The Diaries

1. Diaries were produced before the Commission, which gave some indication of the respondent’s whereabouts on some of the Fridays when Mr Hanckel saw one or other truck parked near the TAB. Diaries were produced relating to Friday 16 August 2013, Friday 23 August 2013 and Friday 30 August 2013. No diary was produced for Friday 9 August 2013.

1. The diary relating to 16 August showed the respondent to have been with a casual employee that day. The appellant submits that this is evidence of nothing more than the identity of the employee with whom the respondent worked on that day. I do not consider that interpretation to be reasonably open to dispute.

1. The diary relating to 23 August showed that some—not all—addresses at which the respondent worked were in Burpengary, at some distance from the Kippa-Ring TAB. It also showed the respondent being assigned to the same truck as Mr Casey. I accept that the diary demonstrates no more than this.

1. The diary relating to 30 August showed that the respondent and Mr Casey worked in separate trucks that day. It also shows that some—not all—of the addresses at which the respondent worked were at North Lakes, once again at some distance from Kippa-Ring. I accept that this diary, too, demonstrates no more than this.

1. The appellant infers from the Commission’s reasons that where the appellant was not listed in one of the daily diaries as being with Mr Casey, or was listed as being away from the Kippa-Ring area at some time, the Commission concluded that he did not attend the TAB on this day. For the reasons that follow, I do not accept that this is a fair reading of the Commission’s reasons.

Consideration

1. The Commission was not satisfied that the respondent had been shown to have attended the TAB on dates other than 6 September 2013. (There was one other occasion to which the respondent admitted, but that was when the respondent had been a casual employee.) This conclusion was reached because Mr Summers was found not to be a witness of credit. Without accepting the evidence of Mr Summers, the evidence showed, at its strongest, that on one Friday in August, a truck that the respondent may have been working from was parked in the vicinity of the Kippa-Ring TAB. Unless the Commission’s finding as to a witness’s credit is overturned, this conclusion was plainly open; indeed, the only evidence that the respondent did in fact attend the TAB regularly was that of Mr Summers.

1. In determining that it had not been established that the respondent had regularly attended the TAB, the Commission did not make a finding in respect of the credibility of Mr Summers that flew in the face of incontrovertible facts, as the appellant suggests. It is true that the evidence of Mr Summers is not inconsistent with that of Mr Hanckel and that of the diaries as a matter of strict logic. Nonetheless, the Commission had the advantage of observing Mr Summers as he gave his evidence, which was in certain respects uncertain, unclear, and contradictory. Mr Summers did not give a credible explanation for his sudden willingness to assist the appellant in improving its culture following his dismissal for what was, on his own admission, sustained misconduct. His version of events is not clearly corroborated in any material respect. The Commissioner’s finding is based on evidence which was not “‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”.

Was the dismissal harsh?

1. The second ground of appeal raised by the appellant is that the Commission erred in law in determining that the dismissal was harsh. It is submitted that the lie told to the investigation entitled the appellant to summarily dismiss the respondent. It was also submitted that the Commission’s approach to the question was so unreasonable as to amount to an error of law, and that it erred in failing to consider the evidence of Mr Summers as in the case of Byrne v Australian Airlines.[6] The Commission disbelieved Mr Summers. It has been determined, above, that it was entitled to do so. For this reason, the use to which the evidence of that witness might have been put need not be considered.

   [6](1995) 185 CLR 410.

Lies

1. It is not a matter of dispute that when asked where he had been on the afternoon of the 6 September 2013, the appellant lied to the internal investigation. Instead of admitting having been to the TAB, he said that he had been to a National Australia Bank ATM nearby. When challenged on this he admitted the truth.

1. There is no doubt that the respondent’s lies to his employer were unacceptable, and he has admitted as much on a number of occasions, including in his submissions in this Court. The Commission took the lie, along with other relevant matters, into account in reaching its decision that the dismissal was harsh. The appellant has placed considerable reliance on this point. Indeed, it was the Commission’s view that this emphasis distracted the appellant from a full consideration of the relevant circumstances, considered at an appropriate remove.[7]

   [7]Decision at [45].

1. The appellant referred to Jones v Brite Services,[8] a decision of the Commonwealth Fair Work Commission. In that case, Deputy President Gostencnik said:

“[57]A failure by an employee to honestly answer reasonable questions put to the employee by the employer about alleged workplace or work related conduct will be a valid reason for dismissal if the failure to answer honestly destroys the relationship of trust and confidence between the employer and employee.” (emphasis added)

[8][2013] FWC 3392.

1. The appellant characterised the respondent’s lie as “an act which strikes at the heart of the employment relationship,” referring to the case of McGrath v Sydney Water Corporation.[9] The gravity of misconduct occasioning dishonesty in the employment relationship is not, of course, a matter of dispute. The question that the Commission was required to resolve was, rather, that of whether or not the appellant’s conduct was, in fact, such as to destroy the relationship of trust and confidence between the employer and the employee. The Commission concluded that it did not. The appellant’s submissions in this Court have, unfortunately, failed to give this question any sustained consideration. Instead, it has been submitted that lies per se ought, as a matter of law, to amount to grounds for dismissal, irrespective of the other circumstances of a particular case.

   [9][2013] FWC 793 at [398].

1. It may be the case that many, if not most, lies told to an investigation into employee misconduct will indeed destroy any relationship of trust and confidence that may have existed. In each case, however, such a determination must be made in the light of all of the circumstances, in the manner provided for by law. In the present case, it was open to the Commission to find that the respondent’s lie was not so serious as to justify dismissal in the circumstances. The Commission correctly considered that the respondent’s untruthfulness was not maintained. When the true version of events was put to him, he acknowledged the actual course of events. The Commission also considered his remorse, his work history, the disciplinary action taken in similar cases, and that the appellant appeared to have acted upon a misapprehension of the respondent’s assessment of his own conduct.

1. I note in passing that in spite of the respondent’s untruthfulness, the fabricated version of events that he put forward, as agreed with other employees, did not in fact amount to a denial of misconduct. Whether at the NAB or the TAB the respondent was away from his work outside of break time. On one view, it matters little what the employee was in fact doing, once it is established that it was something other those tasks that he was paid by the appellant to complete.   

1. This ground of appeal fails.

Unreasonableness

1. The appellant submits that the Commission’s finding that the appellant’s decision to dismiss the respondent was harsh and that reinstatement was not impracticable was unreasonable, so as to amount to an error of law. The approach that a court should take in considering matters of this nature was discussed by a joint majority of the High Court in Minister for Immigration v Li.[10]  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. But, this analysis cannot be used as a cloak to hide what is, in truth, a merits review. In that case, Hayne, Kiefel and Bell JJ noted that:

[66]       … there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

[67]       In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object.  The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less.  The legal standard of reasonableness must be the standard indicated by the true construction of the statute.  It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. (citations omitted, emphasis added) 

[10]Minister for Immigration v Li (2013) 87 ALJR 618 at [65]-[76].

1. The appellant claims that the discretion that is structured by s 77 of the Industrial Relations Act 1999 is that which was abused. The Commission had regard to the matters set out in that section of the Act. By s 77(d) it was entitled to consider “any other matters the commission considers relevant.” The appellant has not demonstrated that the Commission abused its discretion.

1. The appellant seems also to submit that the Commission’s finding that it would not be impracticable to reinstate the respondent was unreasonable. This argument must fail for the same reasons.

Impracticability

1. The appellant’s third ground of appeal was that in finding that it was not impracticable to reinstate the respondent, the Commission erred in the way anticipated by the High Court in House v The King,[11] in that:

   [11](1936) 55 CLR 499.

(a)        It failed to take account of a material consideration;

(b)        It acted upon a wrong principle; and

(c)        It mistook the facts.

1. No material consideration was nominated by the appellant in its submissions to this Court. No wrong principle was identified. The appellant submits that the Commission did not have regard to the evidence of Mr Alan Williams, who was “shaken by how casually they all [i.e. the workers] lied to the investigation having been told how important it was to tell the truth.”[12]

   [12]Exhibit 8 at [68].

1. The Commission’s findings on this point appear in the following passage:

“[55]     The Council is a corporate employer and thus there must be evidence from the relevant managers holding the view that trust and confidence has been lost in Mr Moorhead and an assessment made as to the effect of this on the workplace.[13] The primary evidence as to the Council’s loss of trust and confidence was given by Ms Barwin and Mr Hitzman. To this end, their evidence mainly focussed on the effect of Mr Moorhead’s lie and collusion with other employees.

[56]      The Commission accepts that senior officers of the Council would be concerned about the fact an employee initially lied about their conduct. However, in my view, this concern does not lead inescapably to the conclusion that trust and confidence is incapable of being restored. More important is the view of the local management and there was an absence of evidence on this point, although I accept that there is some concern about the effect on other employees and the culture of the workplace were Mr Moorhead to be reinstated.” (some citations omitted, emphasis added)

[13]Callahan v Graphic Impressions [2014] FWC 437 at [94].

1. I do not accept that the evidence of Mr Williams is inconsistent with the Commission’s findings. Further, the Commission took into account the respondent’s remorse and commitment to abide by the appropriate Code of Conduct, as well as features of the workplace management structure that now exists in the Parks division of the appellant. Importantly, the Commission found that:

“[59]     The loss of trust and confidence must be soundly and rationally based and it is important to scrutinise the claim by the Council that reinstatement is impracticable because of the loss of trust and confidence. I consider that part of the Council’s view is not soundly based. In this regard I refer to the undue weight given by the Council to the lie initially told by Mr Moorhead and its failure to give appropriate weight to his admission, remorse, and previous unblemished employment record.

[60]      Taking all of these matters into account, the Commission is of the view that with appropriate supervision and in light of the commitment made by Mr Moorhead, that trust and confidence in the employment relationship is capable of being restored.” 

1. The Commission was entitled to reach the decision that it did. The appellant has failed to demonstrate an error of law of the type referred to in House v The King.

Conclusion

1. Instead of demonstrating that the Commission did not proceed according to law, the appellant has sought in each of its grounds of appeal to re-agitate the merits of this particular case. Each of the grounds of appeal fails. The appeal is dismissed.