Mr Andrew Jess v GM Holden Ltd T/A Holden

[2011] FWA 3091

Note: Appeals pursuant to s.604 (C2011/4742, C2011/4743) were lodged against this decision - refer to Full Bench decision dated 4 November 2011 [[2011] FWAFB 7604]for result of appeal.

[2011] FWA 3091

FAIR WORK AUSTRALIA

DECISION

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

Mr Andrew Jess
v
GM Holden Ltd T/A Holden
(U2010/15385)

Mr Chris Barton
v
GM Holden Ltd T/A Holden
(U2010/15386)

Mr Frank Campanella
v
GM Holden Ltd T/A Holden
(U2010/15387)

COMMISSIONER ROE MELBOURNE, 26 MAY 2011

Termination of employment –summary dismissal.

[1] The matter arises from three applications filed on 27 December 2010 under s 394 of the Fair Work Act 2009 (the Act) by Andrew Jess, Chris Barton and Frank Campanella (the Applicants) for relief in respect to their termination of employment from GM Holden Ltd T/A Holden (GM or the Respondent).

[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed by way of hearing. A directions conference took place on 28 April 2011. Hearings took place on 2, 3, 4, 5, 6, 10, 12 and 19 May 2011. An inspection took place at the Holden Proving Ground in Lang Lang, Victoria on the afternoon of 5 May 2011.

[3] The Respondent argued that the Applicants should be excluded from proceedings until they had given their evidence. The Applicants argued that as parties they had a right to be present throughout proceedings to give instructions and to hear all aspects of the case against them. Having considered submissions on this matter I made the following decision at the commencement of proceedings.

“I heard initial submissions from the parties in respect to the request on behalf of the applicants that the applicants be able to be present throughout the proceedings and the alternative request of the respondent that the applicants be excluded until they've given their evidence. I requested that the parties provide me with any cases or points they wished me to consider in respect to this matter by lunchtime on 29 April 2011.

I received and considered some additional points which were provided on behalf of both the applicants and the respondents. I am persuaded by the submissions for the applicants that generally natural justice requires that a party is entitled to be present throughout the proceedings even if that party is to be called as a witness.

If an applicant were excluded, there would be nothing to prevent the representative of the applicant, either in questioning or in obtaining instructions, from canvassing any issues raised in cross-examination of another of the applicants with the applicant. In fact this may be necessary to ensure natural justice.

This would make the risk to the veracity of the evidence of the later applicants similar, whether the applicants were excluded or not, hence the significant possible prejudice to the respondent from the applicants being present would be greater familiarity with and notice of the likely lines of cross-examination which may confront the applicants who give later evidence.

I will not order that the applicants be excluded. However, the applicants may wish to consider excluding themselves, as I might find that there is greater veracity to their evidence if they do not have the benefit of following the detail of earlier cross-examination as it occurs. However, this is a matter entirely for the applicants and their representatives.” 1

[4] The Applicants then elected to exclude themselves from proceedings until they had given their evidence.

[5] At the hearing the Applicants were represented by Mr Alix Sachinidis of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) together with Ms R Nelson of counsel. The Respondent was represented by Mr M Follett of Counsel together with Ms S Audsley from Freehills and Ms Natalie Kalanoski of GM.

[6] Evidence was given for the Applicants by:

• Mr Jess, an engineering tradesperson employed by GM from 1999 until his dismissal. Mr Jess was employed at the Proving Ground scrap yard from late 2008 until shortly before his dismissal. He was responsible for the work in the scrap yard from mid- 2009 onwards. 2



• Mr Chris Barton, employed at the Proving Ground for 31 years until his dismissal. Mr Barton had been working in the maintenance area since 1995 and had been the leading hand in the area since 2000. 3



• Mr Frank Campanella, employed at the Proving Ground for 14 years until his dismissal. Since 2007 Mr Campanella worked in the Maintenance Department as an “odd jobs man”. His major responsibility was in the carpentry area and his work area was the carpentry workshop in the maintenance area. 4



• Mr Glenn Hardie, a Load Data Acquisition Engineer employed at the Proving Ground from 1994 to 2009. Mr Hardie gave evidence of the work the maintenance team did in support of product development including work on steering gear and that it was common for components to be left over following such work. 5



• Mr Albert Jolly, a mechanic at the Proving Ground and AMWU shop steward and OHS representative. 6



• Mr Leslie Milkins, Leading Hand in the Durability Area at the Proving Ground. Mr Milkins gave evidence that he organised mechanics to remove parts from vehicles to be scrapped for future use in the maintenance of onsite support vehicles. Some of these items were stored in the Maintenance Department or at the “Top Depot”. 7



• Mr Glenn Oram, AMWU Organiser responsible for the Proving Ground. 8



• Mr Robert Schmidt, a shop steward at the Proving Ground who was a support person at an investigation interview with Mr Jess.



• Mr Paul Gibney, appeared as a result of a summons. He is a professional engineer in the vehicle performance group at the Proving Ground and has approximately 20 years service with GM.



• Mr Eric Lindsay Hanson, appeared as a result of a summons. He worked in the scrap yard prior to Mr Jess from 2001 to 2007.



• A statement from Mr Stanway, who was the scrap yard coordinator from 2006 until June 2009, was provided with the submissions of the Applicants. However, Mr Stanway was not available for cross examination and consequently I have had no regard to his statement.

[7] Evidence was given for the Respondent by:

• Mr Vito Giaimo, Manager Holden Proving Ground & Test Laboratories. Mr Giaimo was the Manager most actively involved in the investigation of the Applicants which led to their dismissal. 9 There were 16 Attachments to Mr Giaimo’s Statement. I excluded one further Attachment, which was accepted as a submission but not as evidence.



• Ms Jessica Snow, a Senior HR Advisor employed by GM from December 2005 until December 2010. Ms Snow provided HR support for the investigation which led to the dismissal of the Applicants and was present at all of the relevant interviews of the Applicants and other employees during the investigation. Ms Snow gave evidence that her major role in the investigation was taking notes of the interviews. Many of those notes and photographs shown to the Applicants are attached to Ms Snow’s Statement. 10 There are 8 Attachments to Ms Snow’s submission.



• Mr Perry Heaton, National Security Manager for GM. 11



• Mr Brian Lee, Manager Investigations and Brand Protection for GM. Mr Lee was the main person directly involved in the investigation process along with Mr Giaimo. 12



• Mr Richard Butler, Director Integration & Safety, Proving Ground and Test Labs, for GM. Mr Giaimo reported to Mr Butler and Mr Butler was the person who made the decision to dismiss the Applicants having heard the report from the investigation team. Mr Butler was not directly involved in the investigation process. 13



• Mr Brian Hill, Senior Group Leader, Stores and Maintenance for GM. Mr Hill was the immediate supervisor of Mr Chris Barton. Mr Chris Barton was the leading hand for Mr Campanella so Mr Campenalla reported to Mr Chris Barton. When Mr Jess worked in the scrap yard he reported directly to Mr Hill. Shortly before his termination Mr Jess was moving to the maintenance team where he also reported to Mr Chris Barton. 14



• Mr Darren Smales, Area Manager Proving Ground Operations for GM was the immediate supervisor of Mr Hill and Mr Smales reported to Mr Giaimo. 15

[8] GM, through Ms Snow, provided notes of an interview conducted with Mr Ryan Barton, who was at the time of the investigation employed by a maintenance contractor to GM working at the Proving Ground, Knight FM. Mr Ryan Barton is a son of Mr Chris Barton. The notes of the interview were taken by Ms Snow. 16 Mr Ryan Barton was summonsed to attend the hearing by GM, however, during the proceedings GM decided not to call Mr Ryan Barton. I allowed AMWU the option to reopen their case to call him but they decided not to. I have had regard to the notes of interview of Ryan Barton. I regard the evidence of Mr Ryan Barton as quite central to the case, however, neither party wanted to put that evidence to the test of cross examination.

[9] The parties agreed and I am satisfied that the Applicants were summarily dismissed at the initiative of the employer, there is no suggestion of a redundancy, the employer is a large employer, and the employment of each of the Applicants is governed by a collective agreement made and approved pursuant to the Workplace Relations Act 1996. Each of the Applicants had been employed by the employer for a period of more than six months. I am satisfied that the Applicants are protected from unfair dismissal under the Fair Work Act 2009.

[10] Each of the Applicants was employed by Holden at its Proving Ground at Lang Lang in Victoria.

[11] None of the Applicants were subject to any performance issues prior to the investigation that led to their dismissal. In fact, the evidence was that the work of the Applicants and the initiative that they showed in their work was highly regarded.

[12] GM alleges that each of the Applicants was “directly involved in a criminal enterprise to steal car components.” GM did not produce any evidence that establishes that anything has been removed from the Proving Ground or that any of the Applicants removed any car components from the Proving Ground. GM did produce evidence which they say establishes that the Applicants accumulated car components within the Proving Ground contrary to policies, practices and procedures and for which there was no business purpose. They also produced some circumstantial evidence which they say demonstrates that this was done with the intent to steal. GM also alleges that the Applicants were not honest during the investigation process and that there are inconsistencies in their evidence which support a conclusion that they were intending to steal the components.

[13] If I am satisfied to the requisite standard of proof that an employee was storing parts with the intent to take them off site without authorisation this constitutes a valid reason for summary dismissal. Furthermore, it would only be if there were significant mitigating factors that a dismissal in these circumstances could be found to be harsh, unjust or unreasonable.

[14] GM accepted that if the Applicants are found to be not involved in an attempt to remove parts and were not dishonest then the terminations are likely to be unfair. 17

[15] The requisite standard of proof in these matters is the balance of probabilities. However, this is a case where the principles established in the Briginshaw case apply. 18 Given the gravity of the consequences flowing from a decision that the allegations are proved in this matter “reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.” As a consequence “weight is given to the presumption of innocence and exactness of proof is expected”.19 It is clear that the allegations in this case could not be made out beyond reasonable doubt. Despite the allegation that this was a criminal enterprise GM have not asked the police to investigate or pursue the matters.

[16] I have carefully considered all of the evidence and the submissions. The Exhibits in this matter run to thousands of pages and the hearing ran over 8 days. I have therefore not attempted in this decision to summarise all of the evidence or specifically respond to all of the submissions.

[17] GM accepted that the established approach in the Tribunal is that GM needs to prove to my satisfaction, as an objective fact, that the misconduct relied upon actually occurred, rather than that GM had a reasonable belief that it occurred at the time of the dismissal, after conducting a sufficient inquiry. GM “formally submitted” that I should instead consider the alternative approach. I made it clear during proceedings that I intended to remain bound by the established authorities in this Tribunal and its predecessor. I also agree with the established approach. I have not considered further the “formal submission” in this matter. In my view there is nothing particularly unusual about this case. There are no novel legal issues raised by this case. This case unlike some others is really about the evidence; that is, whether having evaluated all of the evidence I am satisfied that the misconduct actually occurred or not.

The duties of the Applicants.

[18] The Proving Ground is a secure vehicle development, testing and validation facility, from vehicle concept to final validation. Almost every vehicle and vehicle component that enters the Proving Ground ultimately ends up scrapped. However, some parts are removed from vehicles in the Proving Ground for use in various tests, for maintenance work including for maintenance of vehicles used for general work within the Proving Ground (hack cars), or for the construction of testing rigs. These parts do not leave the Proving Ground. The impression given by the initial GM submissions and by some of the GM evidence was that the removal of parts was a rare event. However, it became clear from the evidence that it was in fact quite common. On limited occasions there are also specific requests to provide parts which are removed and sent to other parts of GM operations. Some vehicles used in the Proving Ground are provided by donation to community organisations such as the State Emergency Services.

[19] It was not in contention that detailed paper work and authorisation was required for the entry and exit of vehicles and components to and from the Proving Ground. It was also not in contention that the destruction of vehicles and associated components was also required to be closely supervised, authorised and documented. What was in contention was the extent to which the removal of parts for internal Proving Ground use from cars destined to be scrapped by Mr Jess, was approved and documented and was required to be approved and documented. What was also in contention was the extent to which Mr Frank Campanella and Mr Chris Barton were required to deal with car components and materials from scrapped cars in their duties, and the extent to which it was reasonable for them to store and retain such parts.

[20] During the time periods most directly relevant to the Applications, Mr Jess worked in the Scrap Yard, Mr Campanella worked in the Maintenance Department at the Proving Ground as a carpenter (and odd jobs man), and Mr Chris Barton worked in the Maintenance Department as the Leading Hand. Mr Campanella reported to Chris Barton, and Mr Jess reported to Mr Barton’s direct report, Brian Hill.

[21] The Maintenance Department was located near the scrap yard and the store and not far from the administration area and other buildings where engineers conduct tests on vehicles and components. Mr Jess was classified at level 6, the highest level in the GM trades structure. He was assisted in the scrap yard by other employees. Associated with the Scrap Yard was a compound for vehicles which had been through the scrapping process and were awaiting crushing and destruction. This compound is known as the graveyard. Crushing and destruction generally occurs a few times each year once a large number of vehicles for crushing have been accumulated.

[22] Mr Jess’ job was to scrap vehicles and sort and scrap all associated components and materials in accordance with established procedures. Mr Barton’s job was to supervise and engage in general maintenance activities, and Mr Campanella’s job was to engage in general maintenance activities. GM produced position descriptions for the various roles but the Applicants gave evidence that they had never seen these documents. Having considered the evidence including the documents, I have no reason to doubt the evidence of the Applicants in this respect.

Duties of Mr Campanella

[23] There was not much dispute about the nature of the work performed by Mr Campanella. He did not have mechanical or electrical trades’ skills. He generally did not require car parts in his work. He did utilise scrap timber and other materials from scrap bins in various maintenance and construction jobs around the Proving Ground. He did drive various vehicles including the Tip Truck and did on occasion drive the Tip Truck off site to collect materials for road and other maintenance.

Duties of Mr Chris Barton

[24] There was some dispute about the nature of the work performed by Mr Chris Barton. GM was at pains to downplay the extent of work on car parts which was performed by Mr Barton, and the AMWU, on behalf of Mr Barton, was at pains to demonstrate the wide extent of such work. GM in outlining its case said that it was not part of his job function to possess car components. Mr Barton gave evidence that this work constituted between 60% and 80% of his work time. Mr Giaimo in his statement said that work involving car parts was incidental. Mr Giaimo said: “Primarily his role was about supervision of the maintenance team and grounds maintenance function”. “Given Mr Barton’s skill’s he would on occasion be requested by an engineer or technician to modify an exhaust for use in a particular test.” “ ..(he) was from time to time involved is assisting other departments at the Proving Ground with modifying and or fabricating vehicle components and equipment/fixtures.” 20

[25] The evidence, including from the inspection, demonstrates that Mr Barton did perform a considerable amount of work building rigs for various tests on car parts and on modification of car parts for various tests conducted by engineers. The evidence also supported the contention that Mr Barton, with his team, utilised car parts and scrap materials in the various maintenance jobs around the Proving Ground such as the repair of pumps. The evidence also supported the contention that Mr Barton and his team also utilised various car parts to maintain the unregistered vehicles, “hack cars”, which they utilised in their maintenance work around the Proving Ground.

[26] The cross examination of Mr Giaimo confirmed that Mr Giaimo was not aware of most of the important projects which had been undertaken by Mr Chris Barton and the maintenance team utilising car parts. Mr Giaimo did accept that this work had been performed by Mr Chris Barton and the maintenance team utilising car parts. Mr Smales confirmed that the work had been undertaken by the maintenance team. It may well be that Mr Barton has somewhat exaggerated the proportion of his time involved in work with car parts but I am satisfied that his evidence is much closer to the truth than the evidence of Mr Giaimo. I am satisfied that Mr Barton’s work with car parts was not incidental or peripheral to his role but did in fact constitute a substantial proportion of his work time. The evidence of Mr Smales tended to support this conclusion.

[27] At various points in the investigation interviews and during the Tribunal proceedings Mr Chris Barton emphasised that he was not the supervisor but was only the leading hand of the maintenance crew. The evidence of Mr Hill, which I accept, was that as Mr Barton’s direct supervisor he never went to the maintenance depot to speak to him. I am satisfied that Mr Chris Barton was conscientious, proud of his work, had a “can do” attitude and indirectly discouraged others from interfering in the work of the team. He made it clear that he didn’t need guidance from others. In my judgment Mr Chris Barton was very much in charge of the team and very little would have happened in his team and in the workshop of which he was not aware. GM management over a number of years let Mr Barton get on with his job without much interference or guidance. The lack of understanding of the work of the maintenance crew exhibited by Mr Hill and Mr Giaimo reinforces this conclusion I have drawn from consideration of the totality of the evidence. Of the GM witnesses I found Mr Smales to be the most knowledgeable and reliable, and his evidence also supports this conclusion.

Duties of Mr Jess.

[28] Mr Jess produced a booklet, 21 in conjunction with Mr Stanway who was the previous coordinator of work in the scrap yard, which explained the work requirements in the scrap yard. Mr Jess gave evidence that this reflected the procedures as they had been carried out by his predecessor. Both GM through Mr Hill and Mr Giaimo, and Mr Jess gave evidence that this booklet was an accurate overview of the scrapping process. However, Mr Jess gave evidence that there were important matters missing from the booklet.

[29] The Booklet included the following requirement in respect to the “Process Scrap Cars”: “All parts removed from vehicles need to be entered into parts log book located in store”. 22 The log book located in the store for the period 2006 to 2010 was produced in evidence.23

[30] GM witnesses, including Mr Giaimo and Mr Smales, who established the system in 2004, claimed that only leading hands, supervisors, engineers or technicians could authorise parts removal in this log book. However, an examination of the log book reveals that this is not the case. A significant proportion of the items in the log book over the period since 2006 were authorised by Mr Stanway or Mr Jess who were not leading hands, supervisors, engineers or technicians. Under cross examination Mr Smales confirmed that a number of other employees who were not in this category also authorised the removal of items in the log book. Given the long history of this practice, its public nature, and the lack of any evidence that it was challenged by managers, I cannot accept that employees should be disciplined for such a practice.

[31] Mr Hill and Mr Smales also signed the log on a number of occasions. I am satisfied that they were therefore aware that it was the usual practice for Mr Stanway and Mr Jess as the responsible workers in the scrap yard to authorise parts removal. Mr Smales gave evidence in cross examination that he had not noticed the other signatures on the occasions that he signed the log. 24 I was not convinced by this evidence. Mr Smales as the direct supervisor of the scrap yard workers for most of the relevant period would also have been aware that he was only been asked to approve parts removal occasionally. If only supervisors, leading hands, engineers and technicians could authorise removal then he would have expected to be called upon more often. It is clear that no action was taken by management to check that the 2004 system was operating as Mr Smales and Mr Giaimo said it should be. If, as was argued by Mr Giaimo, it was so critical to the security of operations at the Proving Ground then surely some check would have occurred. Furthermore, this evidence gives weight to the contention that management, and Mr Giaimo and Mr Hill in particular, did not have detailed knowledge of practices in the Proving Ground more generally.

[32] Mr Jess gave evidence that he and Mr Stanway decided that it was more convenient to operate a duplicate log book located at the scrap yard itself. This practice had been in operation for approximately two years. The duplicate log book was the same as the log book in the store except that instead of having an authorisation column and a signature column the duplicate log book only had an authorisation column. In the log book located in the store the same person always signed as appeared in the authorisation column. Mr Jess gave evidence that the column was removed so as to make the other columns wider and the form easier to read and to use. Mr Jess regarded the signature column as unnecessary duplication. I accept the veracity of this evidence.

[33] GM through Mr Smales, Mr Lee and Mr Giaimo implied that there was a further difference between the two log books, namely that in the stores log book both the supervisor of the acquirer of the part and the authoriser of its removal must approve the removal and or sign the log. Mr Smales said that three persons must be involved. However, an examination of the stores log book since 2006 demonstrates that it is common for the name of the acquirer to be written in the log by the same person who authorises the removal. That is there is no separate signature from the acquirer. This is exactly the same situation with the duplicate log book created by Mr Jess and Mr Stanway. The managers accepted this was the case in cross examination. The preponderance of the evidence also supports a finding that it was not custom and practice for the acquirer to seek approval from someone else before requesting a car part provided that there was a proper business purpose.

[34] Mr Jess said that another reason for the creation of the duplicate log book was to avoid having to go from the scrap yard to the store to collect and return it every time it was required. Mr Hansen confirmed that the book did not leave the store and so he had to go from the yard to the store every time he had to remove a part. 25 Mr Jess also claimed that on one occasion when the book was needed it could not be found at the store. I accept this explanation although it is not a particularly strong reason. GM said that Mr Jess had to collect the key for the scrap yard from the store each morning and then return it each night and so there was no saving of effort. However, at the time the duplicate log book was created Mr Jess said that the practice was to collect the scrap yard key in the morning and then unlock the yard, immediately return the key and then leave the yard unlocked for the rest of the day. After Mr Hill became the supervisor, a year after the duplicate log book was created, he directed that the scrap yard must be locked when unattended and therefore the key must be collected in the morning and returned at night. I also accept this evidence.

[35] Having considered all the evidence I am satisfied that the duplicate log achieved the same purpose and essentially the same level of protection, traceability and accountability for GM as the log located in the store. Under cross examination Mr Giaimo conceded this and that the breach of process in creating the new log was not a serious problem. The creation of the duplicate log book was one of the reasons given for the termination of Mr Jess. I do not find the creation and use of the duplicate log book to be a valid reason for disciplinary action against Mr Jess, let alone his termination without notice.

[36] A few entries in the log were not complete. Mr Jess gave evidence that this was because inadequate information was given by the acquirer or person requesting the part. I accept this evidence. Mr Jess cannot be held responsible for the actions of the acquirer of the parts in circumstances where there is no evidence that their role was investigated.

[37] Prior to the scrapping of a vehicle, a Vehicle Write off Form and a Vehicle Scrapping Worksheet would be completed. 26 The steps in the Vehicle Scrapping Worksheet were similar to the steps set out in the procedures booklet produced by Mr Jess.27 One of the reasons given for the dismissal of Mr Jess was his failure to accurately complete the Vehicle Scrapping Worksheet by failing to record removed components. I am not satisfied that the recording of removed components is a part of that form.

[38] Mr Giaimo gave evidence that there was also a “Proving Ground Parts Scrapping Procedure”, 28 however, Mr Jess gave evidence that he had never seen this document before. There was no evidence that this procedure was known by employees and used. The document was not put to Mr Jess during the interviews. I accept the evidence of Mr Jess and I am not satisfied that this procedure was in use at the Proving Ground.

[39] However, there is one issue about the removal of parts which is contrary to the procedures in the booklet created by Mr Jess and which I am satisfied is potentially more serious and that is the evidence from Mr Jess and others that certain parts were removed from vehicles and no entry was made in the log in respect to these items. I consider this matter in the next section Policy and Practice concerning storage and removal of parts.

The impact of the extent of GM knowledge of the Applicant’s duties

[40] The fact that Mr Giaimo was clearly not aware of the extent of work utilising car parts by Chris Barton and his team and his lack of understanding of the procedures in the scrap yard gives weight to the contention that he did not have detailed knowledge of the practices at the Proving Ground in respect to the management of car parts. This brings in to question his judgment in determining that the Applicants should be dismissed due in part to the breach of procedures of which he had inadequate knowledge. There was clear evidence from all of the GM witnesses involved in the investigation and the decision to dismiss the Applicants, that Mr Giaimo and Mr Lee provided the key input into the decision to dismiss the Applicants. Mr Giaimo was regarded as the subject expert. Mr Lee did not work at the Proving Ground and he also did not have a detailed knowledge of the practices at the Proving Ground in respect to the management of car parts. Mr Hill and Mr Smales were not directly involved in the investigation, in conducting the interviews, or in the decision.

Policy and practice concerning storage and removal of parts.

[41] I accept the evidence of GM that the Proving Ground is a closed system; that is; nothing which goes into the Proving Ground for testing should come out of the Proving Ground without specific reason and authority. I also accept the evidence of GM that should parts or vehicles from the Proving Ground get into the general market outside the Proving Ground this has the potential to significantly harm GM. There could be significant liabilities to GM should such a part fail or lead to an accident. There could be significant loss of competitive advantage should intellectual property rights be compromised. In some cases products can only be tested at the Proving Ground on condition that they remain at the Proving Ground until destroyed.

[42] GM in its submissions tended to put the issue of traceability and the closed system together as a single matter but the evidence suggests to me that they are two separate but related matters.

[43] The issue of traceability is really about parts which are used in the testing of vehicles and vehicle parts. It is often necessary to keep information about what goes in and what goes out of vehicles being tested and to keep this information for future record. When a part is removed from or fitted to a vehicle involved in a test procedure the engineers involved need to trace those parts and there is an Identification of Removed Parts procedure utilised. 29 The objective of this procedure is “to ensure adequate identification of parts removed from test vehicles.” There was no convincing evidence that this procedure applied to the vehicles which were being scrapped in the scrap yard.

[44] It is clear that within the Proving Ground it has been common practice to use parts from vehicles and other scrap for construction of test rigs, maintenance of unregistered cars used internally, maintenance of equipment, buildings and grounds, and to assist the engineers in various tests or experiments. This is not inconsistent with a closed system if you trust your employees and you have reasonable perimeter security. In my view, the evidence suggests that GM did have reasonable trust in the employees and reasonable perimeter security and hence allowed this internal practice to occur without tight regulation.

[45] I am satisfied that it was custom and practice prior to the dismissals for some employees to use standard items like jacks and tyres inside the Proving Ground without always providing documentation which could trace the origin.

[46] Mr Giaimo downplayed the extent to which parts were reused and widely distributed and kept lying around in various work areas within the Proving Ground.

[47] Mr Smales was the GM witness who had the most direct and long standing experience of what actually occurred at the Proving Ground. Mr Smales readily accepted what the GM submissions and other GM witnesses resisted. Mr Smales accepted that car parts were widely distributed, frequently used to save resources, and were commonly sourced directly from the scrap yard and not just from the store. 30 These parts might be used by the maintenance team but also by a number of other engineering and testing teams throughout the facility. Mr Smales regarded the scrap yard as part of the store in the management of parts required for reuse in the Proving Ground.31

[48] Mr Smales accepted that car parts tended to be accumulated in various work areas and that regular clean ups had been required. This would clearly not be required if all car parts were destroyed or returned to the store immediately after use. Mr Smales gave evidence that a large clean up had occurred after the end of the investigation which led to the Applicants’ dismissals. Mr Smales gave evidence that a large clean up had also occurred shortly before the inspection by the Tribunal although Mr Smales said that this was related to cleaning up prior to rebuilding works and audits on site not the inspection.

[49] There were two main sources of these parts. Firstly, from cars in the scrap yard, and secondly, parts ordered through the store mainly to support testing activities by engineers in various parts of the Proving Ground.

[50] With two important exceptions, Mr Smales’s evidence about the use of parts was generally consistent with that of the Applicants, Mr Gibney, Mr Milkie, Mr Hardie and Mr Hansen. 32 The first exception was that Mr Smales was insistent that there was a requirement to document all parts removed from scrapped vehicles and the AMWU witnesses were either silent on this question or gave evidence that in some cases it was the custom and practice to remove parts without entering it in one of the log books. The second exception was that Mr Smales said that it was proper practice for left over parts to be returned to the store or destroyed, however, his evidence about general housekeeping and the accumulation of parts tends to significantly qualify this second point.

[51] Mr Smales also accepted that the maintenance team made extensive and innovative use of car parts and materials and that this practice saved GM money and assisted the operations. Mr Gibney, Mr Milkie, Mr Hardie and Mr Hansen also supported this evidence.

[52] The inaccurate “spin” that Mr Giaimo put on this issue in my view undermined the credibility of his evidence and the investigation.

[53] The evidence of Mr Gibney was particularly convincing in demonstrating that the accumulation of parts by the maintenance team, in the scrap yard and in some other work areas in the expectation that they might be reused was established and accepted practice. Mr Gibney also gave evidence which I accept that parts were exchanged between various workers to meet business needs. 33

[54] Mr Gibney gave his evidence despite the fact that he was clearly very worried about the implications giving evidence might have for his future career. Mr Giaimo gave evidence that he told Mr Gibney that he could be in breach of a confidentiality agreement he had signed if he gave evidence in these proceedings. Mr Gibney gave evidence in the Tribunal that Mr Giaimo said that he would be in breach of the confidentiality agreement if he gave evidence in these proceedings. 34 I tend to accept the evidence of Mr Gibney, however, even if Mr Giaimo’s evidence is correct his actions had the affect of discouraging Mr Gibney from giving evidence to this Tribunal and in my judgment they were designed to do so.

Removal of parts from scrap yard without documentation

[55] I am satisfied from the evidence and from observation during the inspection that the removal from the scrap yard and the use of things like car badges and car radios for workshops and for tool boxes and presentation trophies was commonplace and tolerated. I am also satisfied that the removal of car mats was also tolerated. Mr Giaimo gave evidence, which was not put to the Applicants, that approximately 12 months ago he issued a communication advising that car mats were not to be reused in durability test vehicles. 35 This is not a directive to stop the removal or use of mats generally. The evidence does not demonstrate that the removal of these items was generally recorded. Such parts when removed were often not labelled.

[56] Mr Smales gave evidence that he had a mat from the scrap yard in the company vehicle allocated to him for work and private use and he did not know if it was documented. Mr Giaimo gave evidence that he had a car seat and a car badge in his office which he had brought with him from Fishermans Bend. Mr Giaimo accepted that the use of car radios and car badges removed from cars in the scrap yard was an acceptable practice and one which he accepted was beneficial to GM through increased pride and job satisfaction. There is one “workshop radio” on the log but no reference to car badges on the log. In just one workshop that we visited on the inspection there were at least four workshop radios. Assessing all of the evidence on this matter I am satisfied that it was custom and practice for badges, radios, and mats to be removed and distributed without documentation.

[57] The evidence was not contested that the hack cars are generally maintained (e.g. tyres, lights, brakes) 36 using parts from scrap cars. Given that this had been ongoing and examining the totality of the evidence, I am satisfied that these practices were recognised and tolerated.

[58] I am satisfied that fire extinguishers were routinely removed from scrap cars and scrapped or placed in the store and that this was sometimes without documentation.

[59] I am also satisfied that when parts from vehicles were removed for these purposes and were then surplus to requirements at a later date the parts were not necessarily scrapped but were sometimes kept in case they might be useful later on.

[60] It is clear that in the graveyard the cars are very close together. Getting a scrap car in the grave yard raised to get underneath it in order to remove something is not a simple process. There are snakes, spiders and other discouraging elements. On the inspection we observed a big warning sign about snakes on the entrance to the grave yard. It is obvious that for more frequently or likely to be used elements, they would be much more easily removed at the time of scrapping, that is before they go to the graveyard. It is commonplace that workers tend to work around formal processes where an alternative approach is seen to be less cumbersome and more effective. I therefore prefer the evidence of the AMWU witnesses to the evidence of the GM witnesses on this point. I am satisfied that GM tolerated a practice where certain items were removed as part of the scrap yard process prior to vehicles going to the graveyard where those items were likely to be required by others in the Proving Ground or by others elsewhere in GM at some future time.

[61] Mr Hansen gave clear evidence that supported the evidence of Mr Jess that some parts were removed prior to vehicles going to the graveyard and were stored where it was judged that they were likely to be required in the future. 37

[62] The evidence of Mr Hansen was that when he was in charge of the scrap yard work he removed tyres and rims without documentation. He also removed thermal couplings which were required from time to time by the Powertrain section at the Proving Ground without documentation. In addition to these items Mr Hansen said that: there were “other parts taken from vehicles that were reused, with no paperwork” but that was “not a common thing”. 38

[63] Mr Giaimo gave evidence 39 that Mr Porcianko who worked in the scrap yard and was trained by Mr Jess had told investigators that Mr Jess had told him that components were not to be removed unless there was a specific request. I do not accept this evidence firstly, because it is hearsay and contradicts the direct evidence of Mr Jess, and secondly, because it is implausible. Mr Porcianko must have been aware of the items stored in the scrap yard.

[64] Since Mr Hansen left a new Vehicle Scrapping Worksheet has been introduced. 40 That worksheet is a list of steps in the scrapping process and the first of those steps is “remove parts if instructed by work instruction for alternative use”. I read this to mean that a worker should check to see if there are any instructions to remove any parts before moving to the next step in the scrapping of the vehicle. I do not read this as regulating the removal of parts or its documentation.

[65] I am not satisfied that employees and management understood the introduction of this worksheet as overriding established practice in respect to the removal of these common items.

[66] I found the evidence of Mr Chris Barton and Mr Campanella to be unsatisfactory on this matter. Mr Jess said in his interview that the only items he provided to maintenance were those for use in the hack cars. 41 Mr Milkins also gave evidence of items being removed from vehicles to service hack cars. Mr Campanella gave evidence that he grabbed 2 jacks he required to lift a compressor from the scrap yard.42 However, on other occasions in the interviews and in the proceedings Mr Barton and Mr Campanella both said that they never just went and got things from the scrap yard. Mr Gibney gave evidence that sometimes “maintenance” did come and just collect materials from the scrap yard. I am satisfied that on occasion Mr Barton and Mr Campanella directly took parts and materials from the scrap yard without documenting them. Mr Barton referred in his evidence in proceedings to only one exception which was Mr Campanella getting the material to fix the seat on a fork lift. Mr Barton in the proceedings gave evidence that the components to keep the hack cars going came from the store or the Top Depot and never directly from the scrap yard but then on another occasion Mr Barton gave evidence that he took batteries from the scrap yard for the hack cars.43

[67] I am satisfied that Mr Barton and Mr Campanella were not the only employees who took items directly from the scrap yard. Mr Jess said that “sometimes people help themselves”. 44 I do not find it plausible that no one in middle management was aware of what was happening.

[68] Mr Smales gave evidence that he regarded the scrap yard as part of the central store in the sense that if maintenance or engineers in other parts of the Proving Ground had need to reuse a part then they would go to the store or the scrap yard and request it. It might therefore seem logical to record the details of the parts removed and stored in the scrap yard not at the time of removal but at the time they are required for use and are then taken from the scrap yard. Until that point it would not be possible to put the details of the acquirer of the part in the log book. However, it is equally true that unless the part that has been removed has been properly marked with the details of the vehicle from which it has been removed at the time it is removed, it would not be possible to complete the required details in the log book when the part was eventually required to be taken from the scrap yard. This perhaps explains why parts that have been removed in anticipation of future use have often not been properly recorded. The evidence suggests that most of the stored items were not marked with the details of the vehicle from which they came.

[69] There were obvious problems with the practice of failing to record a number of items removed from cars and kept in the scrap yard. It was contrary to the practice as set out in the booklet developed by Mr Jess. Mr Jess had an understanding that correct practice expected by GM was that items should generally be recorded on the log. I am also satisfied that he was also aware that by custom and practice a few items were regularly and traditionally removed and stored without documentation. I accept that under his predecessor Mr Stanway the list of items commonly removed expanded to include brake callipers and jacks because they had been required by engineers in testing. I accept that there was a practice of removing fire extinguishers and returning some of them to the store. There were a few other items removed and stored under his predecessor such as safety triangles and cargo nets which Mr Jess also removed and then stored or scrapped. However, I am satisfied that Mr Jess removed items without documentation which went beyond this list.

[70] There was no policy issued by GM and no advice to Mr Jess concerning the policy to be followed, however, I am satisfied that Mr Jess knew that completing the log for the removal of items with only limited exceptions was a clear expectation of GM. The AWMU submit that this was not a clear written policy, however, I am satisfied that the existence of the log and the custom and practice around the log make the expectation clear and reasonable.

[71] The evidence also supports a conclusion that scrap materials, such as wood and metal from scrap bins, were reused without documentation by maintenance in various work related activities including construction of various test rigs. This was also accepted custom and practice.

Return of items left over from testing.

[72] Mr Barton and the Maintenance Department assisted engineers with tests and the construction of rigs for tests. When they did so parts were ordered by engineers from the store or obtained from the scrap yard or externally. Mr Smales accepted that there was not always a detailed work instruction to maintenance setting out how to do the job. Mr Barton and the Maintenance Department used their initiative and worked out how to get the job done. 45 Mr Gibney’s evidence supported this. There would sometimes be parts left over.

[73] Mr Hill, Mr Giaimo and Mr Smales, as the relevant managers, gave no evidence that suggested that there had been any training or direction to Mr Barton on how to do his job and in respect to the handling of parts in particular.

[74] When Mr Barton modified car components he did so for engineers in other departments so there was no requirement to store such components at the maintenance depot. In fact there were other dedicated storage locations for modified components being utilised in testing. However, I accept that on occasion there were components left over from such work and he sometimes retained these items in case he might need to use them to build test rigs or in other maintenance work around the Proving Ground. This is consistent with the evidence of Mr Gibney. Mr Barton during the investigation interview said that generally for test parts or rigs the parts come from the engineer and when finished the engineers get it back or if left over then it goes to store or to scrap. 46 However, in evidence in the proceedings Mr Barton said that it was more common for him to retain left over components.

[75] AMWU witnesses said that sometimes it is not clear when a particular project is actually finished and sometimes it is not clear if it might reoccur. In my view this is a legitimate explanation for the accumulation of various materials around the site in workshops, drawers, and storage spaces. I was not convinced by the evidence of Mr Giaimo that there was a clear and well understood policy against this practice. Mr Giaimo and Mr Smales said that when parts were left over following testing or other activities the policy was that they should be destroyed or returned to the store. This is a logical and understandable objective; however, there was no clear documentation that supported this “policy” produced in evidence. I am satisfied that it would not be reasonable to discipline an employee for failing to return a left over item in these circumstances.

The allegations.

The holes in the perimeter fence

[76] GM gave evidence that in about late 2009, approximately 5kms from the main operations area of the Proving Ground, about 1km by foot and 3km by road from a Maintenance Shed called the “Top Depot”, holes were located in the cyclone fencing surrounding the Proving Ground. The holes enabled pedestrian traffic to pass in and out of the Proving Ground, and the holes evidenced pedestrian traffic in and out. The holes were repaired. The AMWU did not dispute that a significant hole in the fence had been discovered but they disputed the location and gave evidence that the hole was close to the main operations area of the Proving Ground.

[77] Mr Heaton gave evidence that there were two different areas of the fence where holes had been discovered, one close to the main operations area and the second one closer to the “Top Depot”. Mr Heaton’s evidence was that the hole was caused by the weather and not by deliberate damage to the fence.

[78] Having weighed up the evidence I think it more likely than not that there was a hole discovered in the fence not far from the Top Depot as contended by GM.

[79] I am satisfied that GM had good reason to be concerned that materials may be being removed from the Proving Ground and that their concerns were heightened by the existence of the hole in the fence. GM suggest that the hole in the fence near the Top Depot gives weight to the suggestion that the Top Depot was being used as a staging post for theft of parts from the Proving Ground. I am satisfied that this is plausible, however, it is by no means sufficient evidence to establish this hypothesis, particularly given that GM was aware that the hole was not made by deliberate human action.

The tyre marks under the tip truck tray.

[80] In late October 2010, the underneath of the tray on the tip-truck used by the Maintenance Department at the Proving Ground was found to have four car tyre markings on it. It was not disputed that the marks evidenced that four car tyres had been stowed under the tip-truck tray out of ordinary sight, hidden between the two chassis rails. The tip-truck was driven in and out of the Proving Ground through the security gate, in the ordinary course of business, by members of the maintenance team under the effective control of Mr Chris Barton.

[81] It is clear that the GM investigation was based on an assumption by GM that the tyre marks and any associated smuggling activity was recent. This is evidenced by the fact that the records of the truck’s movements and the drivers of the truck were collected for the previous four months. 47 Mr Lee and Mr Giaimo confirm that these records were used to determine which employees to interview at the start of the investigation.

[82] Mr Heaton in the initial interview with Chris Barton when questioning him about the tyre marks said “Referring to Picture 9, shows that this was quite recent”. 48 In the initial interview with Mr Jess on 10 November Mr Giaimo in asking Mr Jess about the tyre marks said “The imprint suggests that the marks are very recent”.49

[83] The Tribunal undertook an inspection during proceedings and the marks were still clearly visible. GM witnesses accepted that the tyre marks were just as distinct as they had been when discovered in October 2010. GM witnesses accepted that this meant that the tyres could have been under the tip truck tray six months or longer before the marks were discovered and that it was possible that they had been under the tray for a reasonable period of time to make such long lasting marks. 50 The GM investigators reasonably acted on the assumption that the tyre marks were proof of recent theft, however, we now know that is by no means certain.

[84] The AMWU in cross examination of GM witnesses raised the hypothesis that the tyres had been placed there to reduce the noise of the tip truck around the Proving Ground. None of the Applicants raised this hypothesis during the investigation interviews nor during their evidence before the Tribunal. No other AMWU witnesses raised this hypothesis. None of the GM witnesses had heard this hypothesis before and I am satisfied that it was not raised during the investigation. I do not accept this hypothesis and conclude that it is more likely than not that the tyres have been stolen but that it is impossible to judge when or how often it occurred.

Parts found in Mr Jess’ work area - scrap yard and scrap yard hack car.

[85] In the Scrap Yard where Mr Jess worked, significant quantities of car components were “stockpiled” in a small ATCO hut that was part of Mr Jess’ work area. Generally these components do not appear on the log book of authorised removed parts located in the store nor on the duplicate log book located in the scrap yard. GM contends and I accept that many of these components had been removed by Mr Jess from cars that were later crushed. In a few cases GM was able to positively identify that a particular stored part had come from a vehicle which had been recently scrapped by the scrap yard.

[86] GM contends that the removal of the parts was contrary to standard procedures of which Mr Jess was aware. GM contends that Mr Jess had no business with or need for the components. Mr Jess said that he removed many of the components as he judged from his experience that they were likely to be required for future use by various departments at the Proving Ground and or because it had been the custom and practice of his predecessors to do so. Mr Jess said that this had been the practice prior to him having responsibility for the scrap yard work. There were some parts which he said he had no knowledge about and some which he believed had been in the hut before his appointment to work in the scrap yard.

[87] Various car components were located in the scrap yard’ “hack car”, which he and others who worked in the scrap yard used to drive around the Proving Ground. GM argued that Mr Jess had no business with or need for these components.

[88] GM particularly focused on a number of items removed from a Mustang and a Captiva car. The Mustang was imported into Australia duty free on the basis that it was to be used for testing purposes only. It was obviously important to GM that no parts from this vehicle left the Proving Ground. 51 A subwoofer, an amplifier, badges and manuals from a Mustang were found in the hack car.

[89] The AMWU contend that Mr Jess provided reasonable explanations for many of the components found. Mr Jess said that it was his intention to take some of the items in the hack car to the store. The AMWU contend that it is a reasonable hypothesis that other employees were responsible for those items which Mr Jess could not properly explain.

[90] The scrap yard was not particularly secure. The practice prior to Mr Hill becoming the supervisor, about 12 months prior to the termination, was to leave the area unlocked and unattended at times.

[91] A significant proportion of the parts found in the office or the car are also parts of the same type as those which are properly documented on the logs of parts removed. This includes an accelerator pedal, a brake pedal, car mats, a Bluetooth module, brake callipers, tow bar, tyre jack, callipers, airbox cover, aerial, space saver, fog lamp, facia and grill, and an oil cap. This supports the evidence for the Applicants that the items stored were items which were required by others. It also supports the contention that the items should have been recorded since they were recorded on other occasions.

Items found in the scrap yard office

[92] The scrap yard was regarded by Mr Smales as part of the store and engineers and other employees would seek and obtain parts from the scrap yard for various projects. I accept the evidence of Mr Jess that as part of the scrapping process all loose items were to be removed from the vehicles including aerials, batteries, safety triangles, cargo nets, fire extinguishers, jacks and jacking kits, spacer wheels, loose filters, mirror covers and the like.

[93] It is my judgment that it was not easy to obtain some parts from vehicles once they were in the graveyard for the reasons I have detailed earlier. I have therefore concluded that it was custom and practice to remove some items which it was anticipated might be required based on the experience of regular requests.

[94] I am also satisfied that the storage of some parts in the ATCO hut, also known as the scrap yard office was not a secretive activity. It was a reasonably heavily trafficked area. The hut was very small and was open with windows so its contents were clearly visible. I am satisfied that Mr Jess did not believe that he was doing anything which was likely to get him into trouble with GM management by storing the items that he did in the scrap yard office.

[95] Mr Jess had only been responsible for the scrap yard for about one year. I therefore accept the evidence Mr Jess gave in the interviews that a number of the items in the scrap yard office had been put there by other employees including those who came before him. Items such as the plastic grill, the tow kit, Cadillac rims, and accelerator pedal fall into this category. I also accept his evidence that he retained brake callipers, jacks, fire extinguishers, cargo nets, lock nuts and safety triangles because that had been the custom and practice implemented by his predecessor Mr Stanway.

[96] Mr Giaimo gave evidence that lock nuts weren’t required whereas Mr Jess gave evidence that the Durability Section required them on occasion. I did not find that Mr Giaimo had reliable knowledge about work requirements and I prefer Mr Jess’ evidence. However, I did not find Mr Jess’ evidence about why the lock nuts were in a packet convincing. 52

[97] I accept that in a scrap yard there will be materials around that are waiting to go somewhere else including to scrap bins but employees will not have got around to moving them. In this regard I accept the explanation that a head rest, a switch assembly, and a pedal found were destined to be scrapped and that fire extinguishers and wheel nut covers were collected and were to be returned to the store. The inspection showed that fire extinguishers in the store were not all labelled with vehicle origin and that it was possible to return them to the store without going through the store office. I am also not concerned about a speaker and some wheel caps for the reasons dealt with earlier.

[98] Mr Jess had a few items which he had brought with him when he transferred from Fishermans Bend to the Proving Ground. I accept his explanation for retaining this limited amount of equipment in anticipation that he might use it in a future maintenance role.

[99] Mr Jess said that the steering wheel found was wanted by someone and put aside but then not collected. I find this plausible. Mr Jess said that he had kept a radio box because Joe Cociano was after one once. I find this a plausible explanation.

[100] Mr Jess said that he kept the remote controls and headphones because CVO (Company Vehicle Operations) have cars that use this equipment and they ask for it. He said that he had recently sent them some of this equipment at their request. There was no evidence from GM to counter this allegation. If it is true that Mr Jess was sending these parts to this group then either this must be an acceptable practice or it would lead to a more serious and wider investigation. In the absence of any evidence to the contrary I accept the explanation given by Mr Jess.

[101] GM accepted that Paul Clarke had requested Brembo brake callipers for use on show cars as stated by Mr Jess in the interviews. There are brake callipers recorded on the removed parts log. I accept the explanation for the retention of these items.

[102] I accept Mr Jess’s evidence that he had requests for tow kits and that he had to provide tie downs to VPG. He also said that there was a request for car mats.

[103] Mr Jess in the interview said that he had removed inflator kits in response to a request from the N&V area. When pressed he suggested it might have gone to Henry Wienlich but he was not certain. Then GM advised that Henry Wienlich does not work in N&V. He then clarified that Mr Weinlich had been working in the same area as N&V.

[104] Mr Jess said that he put aside a Differential because it was of a particular type in case it was needed. I accept this explanation.

[105] Mr Jess said that he removed engine covers on occasion. In the proceedings there was evidence that the clips on engine covers often break when the covers are removed and hence engineers had need for them and asked for them from the scrap yard. I accept this explanation.

[106] Mr Jess says that he removed or asked others to remove badges for use on workshop and mechanics tool boxes. This was consistent with custom and practice.

[107] Mr Jess was not able to give any explanation for an auto fan heater, a first aid kit, a fog lamp and a pedal. It is entirely plausible to attribute this to poor housekeeping or to the actions of other employees. I accept that it might be useful to retain a first aid kit in the scrap yard.

[108] I am satisfied that there is insufficient basis to conclude that Mr Jess removed items and stored them in the scrap yard for an improper purpose. I am satisfied that Mr Jess removed and stored some items which should have been recorded on the log without recording them.

Items found in the scrap yard hack car

[109] Mr Jess said in the investigation interview that he had removed a subwoofer and an amplifier from a Mustang. As discussed earlier the practice of using radio parts for workshop radios without documentation was custom and practice. Hence little can be made of Mr Jess having radio parts in the hack car. I am also satisfied that Mr Jess could have moved the radio parts into the car by himself despite the contrary view of Mr Giaimo. Mr Smales agreed that it was possible for Mr Jess to have moved the parts himself. 53 However, Mr Jess says that he unplugged the two parts in order to move them into the car and then reconnected them once in the car. I find it odd that he would have reconnected the items prior to further use but I do not regard this as particularly significant.

[110] Mr Jess said that either he or another employee would have removed the badges from the Mustang. 54 He was asked if he had removed anything else from the Mustang and he said no. The manuals from the mustang were then found in the back seat pocket of the hack car. I accept that Mr Jess may well have thought that he answered the question truthfully in that it would be easy to forget about the manuals or to not regard them as a car part. However, his explanation that he wanted to use the manual case to store his pencils is not convincing.

[111] There were a number of items found in the hack car which could be used by employees in the scrap yard. For example a toolbox, cutters, tow rope, wire and a tarp.

[112] There were a number of items similar to those found in the scrap yard hut and for which I accept there is a satisfactory explanation. These include an air filter cover, safety triangles, a speaker grill, together with the car mats and fire extinguishers destined for scrap or store.

[113] I accept that number plate screws could be accumulated as part of the scrapping job and do not find their presence surprising.

[114] Mr Jess said that CVO made requests for aerials. There were some items which he said had been there from before his time such as the tarp and window switches. I accept this evidence. I also accept the evidence that sometimes an engine computer is needed to put in cars to make them run.

[115] There were a significant number of items in the hack car which Mr Jess said he had no idea how they got into the car or where they came from and this properly raises suspicions. However, the car was not hidden and the contents were clearly visible through the windows of the wagon. The car was not for the exclusive use of Mr Jess but was used by other employees who worked in the scrap yard.

Electrical Connectors found in the scrap yard hack car.

[116] One of the items found in the scrap yard hack car is of particular significance. This item is a number of electrical connectors. This item was not shown to Mr Jess. Having reviewed all the evidence I am satisfied that this item was removed from vehicles in the scrap yard and was destined to be scrapped but Mr Campanella asked Mr Porcianko, who also worked with Mr Jess in the scrap yard, to retain the electrical connectors or put them to one side.

[117] In the interview with Mr Campanella on 25 November 2011, Mr Campanella said that he did not know what the items were. In his statement in these proceedings he recalled that he told Mr Porcianko not to throw them out as they could be used in maintenance. Mr Campanella said that the photograph shown to him was not clear, however, the actual photograph shown to Mr Campanella of this item was produced in proceedings 55 and I am satisfied that it was reasonably clear. Given that Mr Campanella is not a mechanic or an electrician and that the item was not found in his work area and that the photograph of this item was not in a context with which he was familiar it is possible that this initial response of Mr Campanella was genuine. However, I consider it more likely, but by no means certain, that Mr Campanella did know what the item was at the time he was shown the photograph.

[118] It was only after the dismissal that he was advised of the identity of the person who had said that Mr Campanella asked him to retain the item.

[119] The fact that Mr Campanella asked for the electrical connectors, which were of no obvious use to him or the Maintenance Department, to be put aside for the Maintenance Department is of significance. The evidence is clear that electrical work is not performed by the Maintenance Department at the Proving Ground.

[120] Unless it was common practice for employees to ask for items to be put aside, it would be surprising for Mr Campanella to ask another employee to put something aside if he was planning to steal it. However, the evidence concerning the electrical connectors does provide a link between parts in the scrap yard and to the accumulation of car parts in areas under the control of maintenance and to Mr Campanella and to Mr Chris Barton as the person in charge.

[121] The evidence concerning Mr Campanella’s request to Mr Porcianko to retain the electrical connectors for maintenance does not in my view stand against Mr Jess. There is no evidence about where Mr Porcianko put the electrical connectors when Mr Campanella made the request. He could well have put them in the hack car. Mr Jess was not asked about the connectors in the interviews and so we don’t know if he was aware the item was in the hack car. In fact the issue of the connectors underlines that not everything in the hack car was necessarily known to or the responsibility of Mr Jess. The evidence also illustrates that other employees asked for or removed items from the scrap yard without the involvement of Mr Jess.

Parts found in Mr Campanella’s work area

[122] A search of Mr Campanella’s work area (the Carpenter’s Workshop) in the Maintenance Department revealed a range of car components. Other employees can access the Carpenter’s Workshop but Mr Campanella is the only employee who regularly works in that area. Some of the items were found behind shelving. GM says that this is evidence that they were being hidden. However, given that many similar items were in full view and the crowded nature of these spaces, I am not satisfied that there is any convincing evidence of a serious attempt to hide the existence of vehicle components in the Carpenter’s Workshop. GM argues that Mr Campanella had no clear work requirement for most of the components.

[123] The first thing Mr Campanella said in the interview when shown a picture of the area was that “it was a picture of my workshop”. 56 I am satisfied, having regard to the length of his service, that generally Mr Campanella can be regarded as being responsible for what is in the Carpenter’s Workshop. Mr Campanella gave evidence that he had not been required to perform carpentry jobs between early June 2010 and the inquiry in October 2010.57 However, I am satisfied he was still responsible for the workshop and was still working in the area.

[124] I am satisfied that Mr Campanella did use car badges to prepare trophies for departing employees. I am satisfied that Mr Campanella did use car audio equipment for the construction of a workshop radio(s). I am satisfied that these were accepted practices. I am satisfied that Mr Campanella could have a use for car jacks to lift certain items as part of his work.

[125] I accept Mr Campanella’s explanation in respect to the speaker box.

[126] Mr Barton and Mr Campanella stated or implied that the LED lights found in the Carpenter’s Workshop 58 were left over from use on the job to provide warning lights on the ride and handling track.59 The original interview of Mr Campanella on this point is rather ambiguous. The inspection during the proceedings revealed that the lights used on the ride and handling track were of a completely different size to those found in the workshop.

[127] Mr Campanella gave evidence that he did not have use for the car mats, however, later he suggested that he might have some use for them when spray painting. I suspect that this later evidence may have been prompted by what Mr Barton had said. 60 I am satisfied that Mr Campanella had no particular use for car mats and the fact that he had a significant number of mats in his work area is suspicious. I am not satisfied that there is sufficient evidence to conclude that Mr Campanella removed the mats from the Proving Ground after the start of the investigation as suggested by GM.

[128] There was some inconsistency in the evidence of Mr Campanella about whether there were 4 gas struts or 2 gas struts but I think this is likely due to misunderstanding. However, Mr Campanella in the notes of the initial interview said that the struts had been in the workshop for 3 or 4 years as he intended to use them to prop up the cupboard but had not got around to it yet. In the proceedings he said that the notes of the interview were incorrect and that he had said two or three months not three to four years. Mr Barton had said that Mr Campanella had raised the matter about three months ago. I doubt that Ms Snow as the note taker would have made such an error.

[129] I do not accept Mr Campanella’s explanation in respect to the car mats, the LED assembly or the gas struts.

[130] Having considered the evidence I have concluded that there is also no satisfactory explanation for items such as a consol lamp, house wiring, fuel pump, gear knob, and aerials in the Carpenter’s Workshop.

[131] The unexplained items do not constitute a “treasure trove” of marketable commodities. I take into account that workshops are often untidy; that I have concluded that housekeeping and control of parts was by no means as rigorous as GM suggested; that the occasional item could find its way into another workspace without the person responsible being aware; and the natural tendency of workers to hang on to items that come their way. However, despite this I conclude that there were too many car parts in the Carpenter’s Workshop for which Mr Campanella is responsible for which there is no satisfactory explanation. I conclude that Mr Campanella was accumulating parts that he should not have had in the workshop and for which he had no work related use. I also conclude that Mr Barton would also have been aware of what was in the workshop.

Fit out of contractors van including suspicious drawer

[132] Mr Campanella assisted in the construction of storage shelves and drawers for the van utilised by Ryan Barton. Ryan Barton is Chris Barton’s son and he worked for a contractor to GM at the Proving Ground, Knight FM. On occasion Ryan Barton drove his van in and out of the Proving Ground through the security gate in the ordinary course of his business. GM contends and I accept that, originally the van remained in the Proving Ground but Ryan Barton had asked for, and was granted, approval to take his van on and off site.

[133] Mr Campanella says that Mr Chris Barton gave him authorisation to assist with the construction of the shelves and drawers. The fit out was completed by April 2010. There is significant conflict in the evidence of Mr Chris Barton, Mr Ryan Barton and Mr Campanella about exactly what Mr Chris Barton authorised, what work was conducted by Mr Campanella and the extent to which GM materials were utilised in the construction. However, there is no contest that Mr Campanella did measure up and cut the materials and provide some other assistance.

[134] Mr Campanella and Mr Chris Barton gave evidence that Mr Giaimo was aware of the work being undertaken with the assistance of Mr Campanella and did not intervene to say that the work should not occur. Mr Chris Barton gave this evidence in the interview whereas Mr Campanella only raised this in the proceedings. I am sceptical about Mr Campanella’s evidence on this point. Mr Chris Barton gives evidence that Mr Giaimo swore in saying that he did not want to know what Mr Campanella and Mr Ryan Barton were up to when he saw that work was being carried out on the van. Mr Giaimo denies that he was aware of the construction and denies that he would ever have used swear words to an employee in this sort of situation. Having considered all the evidence I do not accept this explanation as to why the alleged conversation did not occur. I am satisfied that Mr Giaimo is capable of swearing in the manner suggested.

[135] I am unable to determine if Mr Giaimo observed that the work on the van was occurring or not. However, even if Mr Giaimo did observe that Mr Campanella was assisting Mr Ryan Barton in some way in the van that does not establish that Mr Giaimo in any way approved the use of GM materials in the work or the details of the fit out to be constructed. I am confident that Mr Giaimo was not aware of the nature of the fit out or of the GM contribution to the work.

[136] Mr Campanella and Mr Ryan Barton constructed two drawers for the van. A box was constructed with the floor of the van as the base of the box covering about two thirds of the floor area of the van from the back of the drivers cab towards the rear. One drawer (378x680x1232 mm) filled the entire area of the box and the other drawer (378x680x430 mm) was less than half the length of the first drawer but was essentially identical in its other dimensions. The front of both drawers looked identical with the same handles which had been constructed by Mr Campanella and Mr Ryan Barton using scrap GM metal from cars. The screws were counter sunk and similarly placed in both drawers. The larger drawer was set on a number of casters so that it could be pulled in and out in the grooves of the corrugated but carpeted van floor. The other drawer was set on two slides.

[137] GM contended that when the shorter drawer was placed in the box it created a significant cavity behind the drawer in the back of the box. To anyone looking into the van from the back there would be no discernable difference whether the small or the large drawer was in the box. The gap down the side of the drawer where the wheels of the van intruded was built out using a piece of wood. I accept the evidence of Mr Campanella that this was not sinister but is simply demonstrative of tidy work. There was uncontested evidence that Mr Campanella took pride in performing quality work. His work in using scrap materials had been celebrated in an internal GM publication. 61 However, it is a fact that as a result, it would be very difficult to detect the cavity when the smaller drawer was in place without fully removing the drawer. GM said that the construction was designed to smuggle car parts from the Proving Ground. Mr Ryan Barton, Mr Campanella and Mr Chris Barton deny that this was the intention.

[138] Mr Campanella and Mr Ryan Barton say that the original intention was to create a box the full length of the van but that the drawer was then too big to manipulate and or that the pressure on the back of the drawer would be too great when it was pulled out of the box. Mr Campanella and Mr Ryan Barton say that the drawer was shortened and the shorter drawer created from the remaining materials which is why they were of similar dimensions. It is plausible that the large drawer was originally planned to be longer and that it may have been cut back. Despite the submissions of GM to the contrary I am satisfied that the evidence of Mr Ryan Barton and Mr Campanella on this point was reasonably consistent throughout the investigation and the proceedings. Mr Campanella gave confused evidence about whether it was the drawer was cut down or whether it was the wood for the drawer that was cut down prior to construction. However, cutting down the large drawer does not automatically create the short drawer. In fact an additional front and the back piece would have to have been cut, measured and fitted after the drawer was cut down. So I do not find it plausible that the short drawer would have been created unless there was a clear use for it.

[139] The notes of interview with Ryan Barton 62 record that he said that a GM saw was used in the construction and GM provided the materials including the casters, ply board, glue, brackets, nuts and bolts, and handles. Ryan Barton says that the shorter box was kept “so that the cleaners could use it for storage.” Ryan Barton says that the construction was a joint effort with Frank Campanella. He says that Frank assisted with the making of the brackets, the handles, and fitting the casters. Ryan Barton says that Frank Campanella suggested that he get the casters from the mezzanine of the Maintenance Department area.

[140] Mr Campanella gave evidence that he measured and cut the wood and helped by holding things during the construction. Mr Campanella’s evidence that he added the piece of wood at the side to be neat revealed that he did in fact do more and that he was trying to give the impression of lesser involvement in his earlier answers. Mr Campanella denied that GM materials were used apart from the saw and the scrap metal for the handles. Mr Campanella specifically claimed that he saw Mr Ryan Barton bring in and supply some of the materials that Mr Ryan Barton says he got from the GM Maintenance workshop. Mr Campanella denied that he provided the casters and says that Mr Ryan Barton told him that the smaller drawer was intended to be placed as an additional storage box in front of the other drawer in the box. Mr Campanella says that Mr Chris Barton authorised his work helping Mr Ryan Barton fit out the van.

[141] Mr Chris Barton denied in the investigation interviews that he authorised the work by Mr Campanella on the van fit out. It was clear from the investigation interviews and the evidence in the proceedings that Mr Chris Barton knew more about the construction than he initially revealed. In the proceedings Mr Chris Barton said that he did authorise Mr Campanella to help out.

[142] The shorter drawer was discovered by the GM investigators not in the van but in a shipping container located at the Top Depot some 5 kilometers from the maintenance workshop and the main operational area of the Proving Ground. Ryan Barton says that the larger drawer was specifically for storing fragile lights. However, he says it was never used for this purpose and that after the fit out he and Mr Campanella used the van to transfer the lights and then stored them at the Top Depot. There was no explanation for this change. I agree with the submission of GM that this adds weight to the contention that the Top Depot was being used as a staging area to smuggle parts out of the Proving Ground.

[143] It is my assessment that no reasonable explanation has been given as to why the smaller drawer was not located in the van but was located at the Top Depot. Mr Campanella and Mr Ryan Barton suggested that the drawer was being kept there for future use. If it was built to put tools or other materials in then why wouldn’t it be in the van, even if it is was not being fully utilised at this stage? If it was for the cleaners’ use then why wasn’t it being utilised for that purpose? It is hard to understand why Mr Ryan Barton and Mr Campanella have such different explanations for the use of the short drawer. If the drawer was to be used for the cleaners or to be put on the carpet in front of the big drawer in the van why were slides built under the small drawer? I am satisfied that the drawer was to be used for an improper purpose and Mr Ryan Barton and Mr Campanella were seeking to hide this fact.

Mr Jess

[248] To Mr Jess’ credit, right from the start of the first interview he admitted that he was stockpiling certain items and specifically referred to jack equipment, wireless headphones for CVO, brake callipers for Paul Clarke in design, and space saver wheels. 90 I found the explanations given by Mr Jess as to why he was stockpiling these items to be convincing.

[249] The items stored in the scrap yard hut and the hack car were not hidden and it is in an area central to operations at the Proving Ground. I am satisfied that employees other than Mr Jess took things directly from the scrap yard. There is no strong linkage between the type of items found in the scrap yard hut and car and the items found in the Top Depot or the Carpenter’s Workshop.

[250] An electrical cord with Mr Jess’ tag on it was found at the Top Depot. All the evidence is consistent that this cord was used by Mr Jess when he had worked at Fishermans Bend. Mr Jess gave evidence that he did not bring the cord with him to the Proving Ground but there were other Fishermans Bend items he brought with him when he moved to the Proving Ground and they were located at the scrap yard. It was the evidence of Mr Barton that he brought the cord back with him with other items he collected from Fishermans Bend. I regard this coincidence as suspicious and providing a possible link between the activities of Mr Jess and those of Mr Barton and Mr Campanella. Mr Jess said that he had not seen the lead since he left Fishermans Bend until shown the photograph of it at the Top Depot. Mr Barton said that Mr Jess may have seen it when he brought it back from Fishermans Bend but he said this was just an assumption and he had no direct evidence. On balance I accept the evidence of Mr Jess that he had not seen the lead since he left Fishermans Bend. 91

[251] Mr Giaimo claims that the union delegate, Mr Schmidt, who supported Mr Jess during the interview, said after the interview that “he’s not doing himself any favours” referring to Mr Jess’ responses to the questions. 92 Mr Schmidt gave evidence strongly denying that this occurred. I prefer the evidence of Mr Schmidt in respect to this matter.

[252] In respect of policy and procedures I have found that:

• There was no position description of which Mr Jess was aware.



• Mr Jess’ supervisors provided no direction or guidance in respect of parts removal policy.



• Mr Jess’ supervisors were aware that Mr Jess was signing off the parts removal on the log.



• The creation of the duplicate log was reasonably explicable and did not reduce traceability and accountability.



• It was custom and practice for a limited number of items to be removed without documentation and this predated Mr Jess being in charge.



• The incomplete entries on the log were not the responsibility of Mr Jess alone.



• Mr Jess was aware that with a few exceptions items should be recorded on the log and that he failed to record items which he removed and stored.



• Mr Jess acknowledged that he should have recorded these items at the interviews and in the proceedings.

[253] Some of the linkages suggested by GM between Mr Jess and Mr Campanella and Mr Barton and the intent to steal parts are not possible to sustain given the fact that the parts control process at the Proving Ground was not as strict as suggested by Mr Giaimo.

[254] I did not find that the evidence supported the judgments that Mr Giaimo and others had made about Mr Jess’ demeanour and level of cooperation. I did find some of Mr Jess’ answers in respect to a couple of items unsatisfactory as detailed earlier. Mr Jess was unable to explain a number of items in the hack car and this was also suspicious. However, I find that Mr Jess’ behaviour in respect to this is consistent with him being extremely concerned at the consequences of his failure to properly record items removed.

[255] I have found that there is no evidence of a clear link between Mr Jess and the activity of Mr Campanella and Mr Barton in respect to the storing of parts at the Top Depot, in the Carpenter’s Workshop or the use of the Knight FM van or tip truck.

[256] I accept that some of the parts found probably came from the scrap yard. I am satisfied that Chris Barton and Frank Campanella did get parts from the scrap yard on occasion. However, the practices in respect to the removal, distribution and documentation of parts from the scrap yard was not rigorous enough to be able to show that Mr Jess was responsible for providing these parts to Mr Barton and Mr Campanella for a sinister purpose. The evidence, including that in respect to the electrical connectors, leads me to be satisfied that it is likely that some of the parts were directly taken from the scrap yard without Mr Jess’ involvement. It is likely that Mr Jess provided parts to Mr Barton or Mr Campanella from the scrap yard such as tyres for hack vehicles but I am not satisfied that if that occurred he knew it was for an illegitimate purpose.

[257] There is no evidence that Mr Jess or any other employee had taken the scrap yard hack car to the Top Depot. The maintenance workshop and the scrap yard are adjacent so it is not essential to utilise a vehicle to move between those two locations.

[258] There is no evidence that Mr Jess provided any of the parts to Mr Barton or Mr Campanella found in the Top Depot or stored in the maintenance workshop.

[259] There is no evidence that Mr Jess was involved in a criminal enterprise with Mr Barton and Mr Campanella. In response to various questions Mr Barton often mentioned the role of Mr Campanella and vice versa. Their answers demonstrated a close linkage between them in respect to the management and storage of parts and equipment. However, neither of them link Mr Jess to their enterprise in their answers.

[260] The only linkage is Mr Jess’ electrical cord from Fishermans Bend found at the Top Depot. For reasons discussed earlier I am satisfied that this does not provide any significant linkage.

[261] There is insufficient evidence to suggest that the parts stored in the ATCO hut in the scrap yard were stored by Mr Jess for the purpose of stealing them.

[262] There is sufficient evidence to suggest that the removal and storage in the hut of some of these items was consistent with custom and practice. There is sufficient evidence to link many of the items to a possible legitimate GM related purpose. It is possible that some of the items in the hack car were destined for the store or for scrap bins.

[263] The charges made against Mr Jess in respect of the new log he created and in respect to the Vehicle Scrapping Worksheet are unwarranted.

[264] Mr Jess’ behaviour during the investigation does not provide the basis for a finding of dishonesty warranting disciplinary action.

[265] Overall the failure to record items consistent with the acknowledged proper procedure and the nature of some of the items found, particularly in the hack car, do create a suspicion and a reasonable hypothesis that it was done for an improper purpose. However, I am satisfied that this suspicion is not sufficient to find on the balance of probabilities that Mr Jess intended to remove these items or have them removed by others from the Proving Ground.

[266] Mr Jess’ inappropriate conduct in this respect is reasonably serious in that the maintenance of proper records of what is removed is an important part of his responsibilities in the scrap yard. Although there was no formal written policy Mr Jess knew that the items should have been recorded on the log.

[267] However, I do not regard the inappropriate conduct as being serious enough to provide a valid reason for termination, let alone termination without notice, in view of the facts that:

• I am satisfied that GM management knew that the proper process in respect to the management of parts was not being followed generally in the Proving Ground.



• The failure to follow proper processes in respect to parts was not confined to Mr Jess.



• Mr Jess’ supervisor did nothing to counsel him or check on the practices being used.



• There was no clear written GM policy.



• Mr Jess was not hiding what he was doing - the parts were clearly visible in both the hut and the hack car and the area is part of the main activity centre at the Proving Ground and is frequented by other employees.



• Mr Jess was not the only person who used the hack car or the ATCO hut or put items into them.



• Mr Jess had a good employment record with GM.



• Mr Jess admitted in the interviews with the investigators that he had done the wrong thing in respect to the failure to properly document parts removal and that he would be prepared to rectify the problem in the future.

Mr Campanella.

[268] I regard the following evidence of Mr Campanella as unconvincing:

• The evidence in respect to the fit out of the Knight FM van and the small drawer in particular. This is the most important evidence.



• The evidence concerning the reason why there was so much electrical equipment and parts at the Top Depot and the inconsistency between Mr Barton and Mr Campanella’s evidence as to how the equipment got there.



• The explanation for the LED lights in the Carpenter’s Workshop.



• Mr Campanella had no work related reason for almost all of the car parts in the Carpenter’s Workshop.



• Mr Campanella’s evidence about the gas struts in the Carpenter’s Workshop.



• In the initial interview Mr Campanella said that there were “no other parts in the (Top Depot) shed” other than the wheels for the rodeos and the differential which he said had been used for the barrier shed work.

[269] I have found that Mr Campanella did request another employee to set aside the electrical connectors from the scrap yard for the use of the Maintenance Department. I am satisfied that Mr Campanella and the Maintenance Department had no legitimate use for these parts.

[270] I have found that Mr Campanella used GM resources (casters, board, etc) and facilitated a contractor, Mr Ryan Barton, to utilise GM resources in the fit out of the Knight FM van. This use of resources was inappropriate and was not authorised. Mr Chris Barton authorised the use of his time in this project. No one in authority authorised the use of GM materials. Even if Mr Chris Barton turned a blind eye to the use of the GM materials Mr Campanella would have known that the use of these materials was not and could not be authorised by Mr Chris Barton.

[271] I have found that the construction of the small drawer was not for a legitimate purpose. I am satisfied on the balance of probabilities that the box was to be used to smuggle materials from the Proving Ground. In arriving at this conclusion I take into account the lack of any reasonable alternative hypothesis. I can see no reason why Mr Campanella would say that Mr Ryan Barton had told him the purpose was to store his equipment in the van and for Mr Ryan Barton to say that the purpose was to give the cleaners something in which to store things if it was not to cover up the true purpose of the drawer. The inconsistencies in the evidence between Mr Ryan Barton and Mr Campanella reinforce this conclusion. I can see no reason why the drawer would be put at the Top Depot if it was to be used for either of the purposes suggested. I am satisfied that Mr Campanella was aware of this purpose.

[272] I have found that Mr Campanella stored car components in the Carpenter’s Workshop many of which he had no use for in his work for GM. I am satisfied that the storage of these components was not for a legitimate purpose. The inconsistencies and inadequacy of Mr Campanella’s responses in respect to a number of the items (e.g. mats and LED) strengthens this conclusion.

[273] I have found that Mr Campanella knew what was stored in the Top Depot and was involved in tidying up some of the materials at the Top Depot, the electrical components and equipment in particular. I am satisfied that Mr Chris Barton requested Mr Campanella to move these items to the Top Depot and I do not accept Mr Campanella’s denial of this. Mr Campanella knew that there were inappropriate items stored at the Top Depot and did nothing about it despite the risk to GM. Mr Campanella also assisted Mr Ryan Barton to store materials at the Top Depot when he must have known that this was inappropriate given that the contractors had storage allocated close to the main operational area of the Proving Ground.

[274] I do not find that GM has established to an adequate standard of proof that Mr Campanella was involved in taking or intended to actually take parts from the Proving Ground. However, I do find that GM has established to an adequate standard of proof that Mr Campanella knew about plans to remove parts and did nothing about it and also provided some indirect assistance through the construction of the drawer and through the inappropriate storage of components.

[275] I do not find Mr Campanella’s behaviour during the investigation to be dishonesty which in itself constitutes a valid reason for dismissal.

[276] I believe that these findings are sufficient to constitute a valid reason for dismissal.

Mr Chris Barton.

[277] As discussed earlier I regard the following evidence of Mr Chris Barton as unconvincing:

• The evidence surrounding the fit out of the Knight FM van and the small drawer in particular.



• The evidence of Mr Barton that he did not get parts from the scrap yard himself.



• The evidence concerning the reason why there was so much electrical equipment and parts at the Top Depot.



• The reasons why non-bulky items were stored at the Top Depot rather than in the maintenance workshop area.



• The explanation for the LED lights in the Carpenter’s Workshop.



• The lack of a satisfactory explanation as to why Ryan Barton’s door consumables were located at the Top Depot.



• The reasons why there was inadequate documentation of the items removed from Fishermans Bend.



• The initial denial that there were car parts at the Top Depot other than the differential and tyres for the hack cars.



• The attempt to disguise the fact that there was only one key to the locked container at the Top Depot.



• The claim that Mr Barton asked to move the container closer to the maintenance workshop.



• The claim that the alternators and starter motors at the Top Depot had been there for 8 years.



• The reason why the tyres were at the Top Depot rather than near the maintenance workshop.



• The reason why he knew what was not in the camera boxes when he said that he had not opened them and did not know who was responsible for them.

[278] I have found that Mr Barton was responsible for the maintenance group and was aware of its activities including those of Mr Campanella and was responsible for and knew what was in the Top Depot.

[279] I have found that Mr Chris Barton was aware of the activity of Mr Ryan Barton and Mr Campanella in respect to the fit out of the Knight FM van and the construction of the smaller drawer.

[280] I have found that Mr Chris Barton must have been aware that inappropriate items were stored in both the Top Depot and the Carpenter’s Workshop and did nothing about it.

[281] I have found that Mr Chris Barton was responsible for the tie rods in the drawer in the maintenance workshop. These items should have been returned to the store and Mr Barton was aware that this should have been done. I am not satisfied that Mr Barton intended to steal the tie rods.

[282] I have found that the charge that Mr Chris Barton stored GM equipment at the Top Depot inappropriately and with intent to remove it from the Proving Ground has not been established to the required standard of proof. In particular I am not satisfied that Mr Barton intended to steal the press drill.

[283] I have found that Mr Chris Barton stored car components and electrical equipment and components at the Top Depot some of which he had no use for in his work for GM. Mr Chris Barton must have known that this was inappropriate. The inconsistencies and inadequacy of Mr Barton’s responses in respect to a number of the items strengthens this conclusion.

[284] I have found that Mr Barton knew what was stored in the Top Depot and did nothing about it despite the risk to GM. Mr Chris Barton also assisted Mr Ryan Barton to store materials at the Top Depot when he knew that this was inappropriate given that the contractors had storage allocated close to the main operational area of the Proving Ground.

[285] I do not find that GM has established to an adequate standard of proof that Mr Barton was involved in taking or intended to actually take parts from the Proving Ground. However, I do find that GM has established to an adequate standard of proof that Mr Barton knew about plans to remove parts and did nothing about it and also provided some indirect assistance through the inappropriate storage of components at the Top Depot and facilitating the fit out of the van.

[286] I do not find Mr Barton’s behaviour during the investigation in itself to be dishonesty which in itself constitutes a valid reason for dismissal.

[287] I believe that these findings are sufficient to constitute a valid reason for dismissal.

Notification of reasons for dismissal and opportunity to respond.

[288] For reasons discussed earlier I am satisfied that the Applicants were notified of the reasons for dismissal and were given an opportunity to respond. I had some concerns in respect to the way in which the reason for dismissal concerning the electrical connectors was advised to Mr Campanella but this problem is not sufficient to make the termination unfair.

Were the Applicants refused access to a representative?

[289] For the reasons discussed earlier I am satisfied that the Applicants were not refused access to a representative.

Unsatisfactory performance?

[290] The terminations do not relate to unsatisfactory performance and there were no warnings given.

Was the size of the employer’s undertaking and or the lack of human resource management specialists likely to impact on the procedures followed?

[291] The employer is large and has access to human resource management specialists. This did not impact on the procedures followed.

Other relevant matters.

[292] I have previously referred to the importance of the Brigenshaw principles in this case given that the accusation is of a criminal enterprise to steal from the employer in a situation where there is no evidence that anything has actually been taken from the Proving Ground.

[293] I regard the long length of service of each of the Applicants to be a relevant factor.

[294] I regard the otherwise excellent record of employment of each of the Applicants to be a relevant factor. There have been no prior disciplinary or performance issues. The work of the Applicants has been praised.

[295] I regard the age and regional location of Mr Campanella and Mr Barton as relevant factors as they will have difficulty obtaining equivalent employment.

Were the dismissals harsh, unjust or unreasonable?

Mr Jess

[296] I have found that there is no valid reason for the termination of Mr Jess. His termination is harsh, unjust and unreasonable.

Mr Campanella

[297] I have found that there is a valid reason for the termination of Mr Campanella. There are a number of factors I have referred to which potentially make the dismissal harsh. However, given that I am satisfied that Mr Campanella knew about and facilitated plans to steal from the employer in circumstances where there are potentially very significant risks to the employer if parts find their way into the general market I cannot find that the dismissal was harsh, unjust or unreasonable. The Application in respect of Mr Campanella is dismissed.

Mr Barton

[298] I have found that there is a valid reason for the termination of Mr Barton. There are a number of factors I have referred to which potentially make the dismissal harsh. However, given that I am satisfied that Mr Barton knew about and facilitated plans to steal from the employer in circumstances where there are potentially very significant risks to the employer if parts find their way into the general market I cannot find that the dismissal was harsh, unjust or unreasonable. The Application in respect of Mr Barton is dismissed.

Remedy in respect to Mr Jess.

[299] I have carefully considered the submissions of the AMWU and GM in respect to remedy.

[300] I am satisfied that the relationship between Mr Jess and GM is not irreparably broken. The quality of Mr Jess’ work for GM has been acknowledged. There have been no previous performance or conduct issues. I am satisfied that GM is a large and sophisticated employer and capable of making the relationship work. I am sure that GM will acknowledge that the policies and procedures in place in respect to the management of car parts particularly in the scrap yard were inadequate. Mr Jess acknowledged in the investigation interviews and in the proceedings before the Tribunal that he had done the wrong thing. Mr Jess made it clear that he was prepared to follow appropriate policies and procedures. I have no reason to doubt that Mr Jess would follow the new policies and procedures which I am confident GM has either already introduced or will introduce to improve the integrity of the parts management system at the Proving Ground.

[301] The Fair Work Act 2009 (Section 390(3)) provides:

“FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[302] I am not satisfied that reinstatement is inappropriate. Therefore I cannot order compensation and must order reinstatement which will apply from the date of this order.

[303] Having determined to make an order for reinstatement I must consider the provisions of Section 391.

“Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[304] I will order that the continuity of employment and continuous service with the employer be maintained. I can see no reason why that is not appropriate.

[305] The AMWU provided evidence that Mr Jess has lost wages of $23,000 in the period since the dismissal. Mr Jess’ pay slip shows a weekly rate of $1462.90. 93 Mr Jess says he was not employed from 10 December 2011 until 30 March 2011, a period of 16 weeks. The loss is therefore $23,406.40. There was no challenge to this evidence. In the circumstances I think it appropriate to reduce this amount in recognition of the fact that the inappropriate conduct of Mr Jess in not following appropriate procedures contributed to the dismissal. In all the circumstances I propose to reduce the amount to be paid in recognition of lost wages by 40%. I will order $14,043.84, less appropriate taxation, be paid in recognition of lost wages. I expect that the parties will make appropriate arrangements in respect to statutory entitlements paid at the time of the dismissal, however, I will provide for leave to apply for variation to the order should there be issues concerning this which are not resolved within 28 days.

[306] I consider it appropriate that Mr Jess be reappointed to the position in which he was employed immediately before the dismissal or to an alternative position at the Proving Ground that fully utilises Mr Jess’ skills and qualifications and is at the equivalent classification level. I provide for the possibility of an alternative position for two reasons: firstly, because I note that Mr Jess was working in the Maintenance Department not the scrap yard immediately prior to his dismissal and, secondly, because it is possible that there has been some restructuring at the Proving Ground since the dismissal. I propose to order that in the event that there is disagreement over the suitability of an alternative position the parties are at liberty to apply for a variation to this order should this not be resolved within 28 days.

COMMISSIONER

Appearances:

Mr Alix Sachinidis of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union together with Ms R Nelson of counsel for the Applicants.

Mr M Follett of Counsel together with Ms S Audsley from Freehills and Ms Natalie Kalanoski of GM for the Respondent.

Hearing details:

2011

Melbourne

May 2, 3, 4, 5, 6, 10, 12 and 19

 1   PN9 to PN13.

 2   Exhibit AMWU 3.

 3   Exhibit AMWU 1.

 4   Exhibit AMWU 7.

 5   Exhibit AMWU 11.

 6   Exhibit AMWU 13.

 7   Exhibit AMWU 12.

 8   Exhibit AMWU 10.

 9   Exhibit GM 3.

 10   Exhibit GM 10.

 11   Exhibit GM 12.

 12   Exhibit GM 16.

 13   Exhibit GM 13.

 14   Exhibit GM 15.

 15   Exhibit GM 14.

 16   Exhibit GM 8.

 17   Respondent’s Final Submissions at para 5.

 18 (1938) 60 CLR 336.

 19   Ibid at paras 362 to 363 per Dixon J.

 20   Exhibit GM 3 at para 57.

 21   Exhibit GM 15, attachment BJH1.

 22   Ibid, point 25 on page 4 of the Booklet.

 23   AMWU 6.

 24   PN 9223.

 25   PN5178.

 26   Exhibit GM 3, attachments VG3 and VG4.

 27   Exhibit GM 15, attachment BJH1.

 28   Exhibit GM 3 at paras 37 and 38.

 29   Ibid, attachment VG5.

 30   PN9441 to PN94422.

 31   PN955 and PN9081.

 32   PN9659 and PN9593 to PN9597.

 33   PN1965 and PN1979.

 34   PN2036 and PN2100 to PN2104.

 35   PN6111 to PN6114.

 36   AMWU 12.

 37   PN5180.

 38   PN5217 to PN5218.

 39   Exhibit GM 3 at paras 131 to 132.

 40   Ibid, attachment VG4.

 41   Exhibit GM 10, attachment JS5.

 42   Ibid, attachment JS6.

 43   Ibid, attachment JS7.

 44   Ibid, attachment JS5.

 45   PN9552.

 46   Exhibit GM 10, attachment JS7, answer to photo 5.

 47   Exhibit AMWU 14.

 48   Exhibit GM 10, attachment JS1, Interview of 29 October Chris Barton.

 49   Ibid, attachment JS4 at page 3, Interview Mr Jess 10 November 2011.

 50   PN7560 and PN8236.

 51   Exhibit GM 3 at para 42.

 52   PN2874 to PN2895.

 53   PN9537 to PN9548.

 54   PN39 to PN3416.

 55   Exhibit GM 9, photo 45.

 56   Exhibit GM 10, attachment JS6.

 57   Exhibit AMWU 7, attachment 2.

 58   Exhibit GM 10, attachment JS7, images 48 and 49.

 59   See for example Exhibit AMWU 7, point 25 of Mr Campanella’s statement.

 60   PN4351 to PN4359.

 61   Attachment to Exhibit AMWU 7.

 62   Exhibit GM 8.

 63   Exhibit GM 14, attachment to the statement of Mr Smales.

 64   PN9527.

 65   PN5933.

 66   Exhibit GM 10, attachment JS6.

 67   Ibid, attachment JS1.

 68   PN1103 to PN1121.

 69   Exhibit GM 10, attachment JS2.

 70   GM Submission at para 17 and the Statements of Snow, Lee and Giaimo.

 71   Exhibit GM 9.

 72   Exhibit GM 10, attachments JS4, JS6 and JS7.

 73   Exhibits GM 4, GM 6 and GM 7.

 74   Exhibit GM 5.

 75   Exhibits GM 1 and GM 2.

 76   Copies of the ones shown in the interview are found at Exhibit GM 10, attachment JS4.

 77   Exhibit GM 10, attachments JS4, JS6 and JS7.

 78   As demonstrated by GM 9.

 79   Exhibit GM 10, attachment JS6, photos 38 to 41.

 80   Exhibit GM 3 at paras 107 and 111.

 81   Exhibit GM 10, attachment JS4.

 82   Ibid, attachment JS3, 29 October 2010.

 83   PN2010.

 84   Exhibit AMWU 14.

 85   Exhibit AMWU 1 at para 55, and Exhibit GM 3.

 86   Exhibit AMWU 14.

 87 [2008] 170 IR at [73].

 88   Exhibit GM 10, attachment JS6, question concerning photograph number 41.

 89   GM Final Submissions at paras 29 to 35.

 90   Exhibit GM 10, attachment JS4 at page 2, Interview with Mr Jess 10 November 2010.

 91   Ibid, attachment JS7.

 92   Exhibit GM 3 at para 122.

 93   Exhibit AMWU 4.

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