Mr Brent Murphy v Independent Broad-Based Anti-Corruption Commission Trading as Ibac - [2025] FWC 2286

[2025] FWC 2286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Brent Murphy
v

Independent Broad-Based Anti-Corruption Commission Trading AS Ibac

(U2025/4311)

DEPUTY PRESIDENT MASSON

MELBOURNE, 7 AUGUST 2025

Application for an unfair dismissal remedy - termination not harsh, unjust, or unreasonable – application dismissed.  

Introduction

This decision concerns an application made by Mr Brent Murphy (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by the Independent Broad Based Anti-Corruption Commission Trading as IBAC (the Respondent) and alleges he was dismissed on 27 March 2025. The unfair dismissal application was lodged by the Applicant on 9 April 2025. No jurisdictional objections to the application were raised by the Respondent in its Form F3 response lodged on 19 May 2025.

Following allocation of the matter to my Chambers on 22 May 2025, directions were issued, and the matter was listed for hearing before me on 22 & 23 July 2025, in advance of which both parties filed material in accordance with the directions. At the hearing, Mr G Dircks of Just Relations, who was granted permission to appear on behalf of the Applicant pursuant to s 596 of the Act, called the Applicant to give evidence. Mr Daniel Fawcett of Counsel who was granted permission to appear on behalf of the Respondent pursuant to s 596 of the Act called several ‘operatives’ of the Respondent to give evidence.

An order was issued on 24 July 2025 dealing with the confidentiality and non-publication of specified matters. The matters that are covered by the order include: the identity and any material that would assist to identify serving surveillance operatives of the Respondent, car registration details of vehicles used by the Respondent’s surveillance operatives, car registration details of members of the public referenced in any material in these proceedings, the location and name of the surveillance operation that occurred on 8 May 2024, and the surveillance techniques deployed by the Respondent and its surveillance operatives. Consequently, serving surveillance operatives have been re-named in this decision using numbers. Streets and suburbs have been re-named as letters of the modern Greek alphabet.

Background and evidence

Applicant’s employment

The Applicant was employed as a surveillance operative with the Respondent, having commenced employment with its predecessor organisation, the Office of Police Integrity (OPI) on 5 July 2010, and then transferred to the Respondent when it absorbed the OPI in 2013. His annual base salary at the time of dismissal was $158,771.08 plus superannuation and he was covered by the Victorian Public Service Enterprise Agreement 2024.[1]

Under cross-examination the Applicant agreed that an essential quality of surveillance operatives was that of being able to place a high level of trust in them and to be able to rely on them to exercise good judgement. He also confirmed that when deployed, an operative would ‘have their colleagues backs’ so long as they were operating legally. He also accepted that an operative who cannot be trusted to do the right thing, cannot be trusted in a surveillance operative role.

Alleged Misconduct

It is uncontroversial that the Applicant was engaged in a surveillance operation on the evening of 8 May 2024 along with several of his colleagues. The operation was under the supervision and control of Operative 65. At around 8.00pm, and immediately prior to the incident that led to the Applicant’s dismissal, the operatives involved in the surveillance operation were each in their respective vehicles in various locations proximate to the person of interest (POI) that was being surveilled while in a house in a new housing estate in Suburb Delta.

Operative 25 was parked in carpark adjacent to a sports field nearby to where the POI was spotted.[2] A Mercedes vehicle being driven by a person not connected with the surveillance operation had also been parked in the carpark at the time and reversed their vehicle (the Mercedes) into Operative 25’s vehicle. Operative 25 went on to the radio used during the operation to report that a car had reversed into her vehicle and that she was getting out to swap details with the Mercedes driver.

The Applicants states he heard Operative 25 say she had been ‘hit hard’[3] although Operative 25 does not recall using those words as it was not a serious collision[4] and nor did any of the other operatives recall those words being used by Operative 25. Operative 65 describes that Operative 25 was calm and did not describe the nature of the impact when she came on the radio.[5] Operative 65 says he went on the radio and asked whether any of the operatives could get eyes on Operative 25 to make sure she was safe and ok[6] to which the Applicant responded he would do so and parked kerbside approximately 5-10 metres from the car park entrance from which position he was able to see Operative 25.[7] Operative 65 confirmed during cross examination that there was no alarm in Operative 25’s voice when reporting the collision over the radio and explained that the normal protocol in the event of an accident is to get eyes on the operative and for the operative involved to exchange details as one would normally do.

Operative 25 was questioned on the language she had used when describing the carpark collision over the radio. She stated that she could not recall saying there was a ‘big thud’ when questioned during the formal investigation. Operative 27 when cross examined could similarly not recall describing that he heard Operative 25 report a ‘solid thump’ when interviewed during the formal investigation of the incident.

When questioned on his evidence in respect of the reported collision, the Applicant remained adamant that Operative 25 reported being ‘hit hard’ despite no other operatives recalling those words being used by Operative 25. He also clarified that a ‘heated’ discussion he observed between Operative 25 and the Mercedes driver after the collision was more likely to have lasted been 15-20 seconds rather than the 4-5 minutes he had stated in his 12 February 2025 response to the investigation findings.[8]

Following the collision, Operative 25 got out of her vehicle to exchange details with the other driver. She says she did not activate a ‘mayday’ procedure because it was a minor collision.[9] During her initial conversation with the driver of the Mercedes, Operative 25 says she saw the Applicant in her peripheral vision parked kerbside approximately 5-10 metres from the carpark entrance.[10] Following her conversation with the Mercedes driver, Operative 25 went back to her car to retrieve her driver’s license as well as a pen and paper to write details down. Shortly after going back to her car, she looked up and realised the Mercedes driver had driven off as she saw the Mercedes driving out of the carpark.[11]

Following Operative 25 reporting the carpark collision, Operative 65 states he drove past the carpark, observed Operative 25 standing at the rear of her vehicle. He then drove on without stopping as the Applicant came on the radio and advised he had Operative 25 under observation.[12] Operative 65 says he then continued to drive in an eastward direction approximately 500 metres to the end of Alpha Road, made a right hand turn into Beta Drive which went south for 150m, then west for 150m and then north for approximately 150m before rejoining Alpha Road. Operative 65 described by reference to a map of the area[13] where he parked his vehicle in Beta Drive. He states that he ‘ended up parking in Beta Drive at the point where the alignment of the roadway turns abruptly from East-West to North, about 150m from the intersection with Alpha Road’. [14]

The Applicant states that after arriving and parking kerbside adjacent to Operative 25 after the carpark collision, he observed Operative 25 conversing with the Mercedes driver. He then saw the other driver walk briskly away from Operative 25, get into his car, exit the carpark and drive away. By this point the Applicant believes he had turned his headlights on to obtain the Mercedes’ registration number[15] which he says he got as the Mercedes exited the carpark. He says the Mercedes took off fast travelling east along Alpha Road and that he thought it appropriate to keep the vehicle in view while he called the incident in.[16] Operative 25 confirmed that the Applicant immediately took off after the Mercedes when it left the carpark.[17]

When cross examined in relation to the events of 8 May 2024, Operative 25’s recollection was that her conversation with the Mercedes driver lasted 4-5 minutes and happened around 8.30pm. She stated that there were no other cars in the area that she saw, there was no squealing of tyres when the Mercedes left the carpark fairly quickly, that the Applicant followed the Mercedes when it left the carpark and both vehicles were out of sight after about 50m.

The Applicant states that following the Mercedes was an instinctive thing to do and that he felt that failing to do so would have exposed him to criticism for allowing a driver who damaged an IBAC vehicle to simply drive off. He says he drove east along Alpha Road for 250m and kept the Mercedes in sight until it turned right at the most westerly intersection of Alpha Road and Beta Drive at which point he says he was able to communicate events on the radio after a 20 second attempt to get on air. The Applicant denies that he chased the Mercedes.[18]

The Applicant was questioned why he followed the Mercedes in circumstances where he stated that his key priority after the collision was the welfare and safety of Operative 25. He accepted that Operative 25 might have been injured but he had made the decision to leave Operative 25 based on his observation and judgement that Operative 25 was uninjured. He accepted however that he could have checked on Operative 25 but did not do so. He accepted that during the formal investigation interview he had described the Mercedes driver to be a ‘crook’ or ‘shitbag’ after engaging in a hit and run[19] but resisted the proposition put to him during cross examination that he followed the Mercedes because he was angry at its driver.

Operative 65 states that shortly after parking his car in Beta Drive, the Applicant came on the radio requesting that a registration number be written down for the Mercedes, also noting the colour and make of the vehicle. Operative 65 states that the Applicant also advised that the vehicle had ‘taken off’ or ‘taken off into a side street’. Operative 65 says he asked the Applicant whether he could follow the Mercedes at a safe distance to see if it went to a nearby address but at no stage directed or instructed the Applicant to chase or aggressively follow the other vehicle.[20] Operative 68 confirmed during cross-examination that he heard Operative 65 ask over the radio whether someone could get an address for the Mercedes driver.

The Applicant claims that Operative 65 directed him to follow the Mercedes to which he replied to Operative 65 that he didn’t think it was a ‘follow’ as the driver was driving ‘abruptly’. Operative 65 stated during cross examination that he could not recall hearing the Applicant say it was not a ‘follow’. While denying that he chased the Mercedes, the Applicant concedes that he made an illegal right turn from the right side of the median strip on Alpha Road into Beta Drive. He says he did so due to feeling pressured to comply with Operative 65’s instruction to follow the vehicle and that he would not have made that manoeuvre if he had been aware that Operative 65 was parked in Beta Drive.[21]

The Applicant was further pressed during cross-examination on why he followed the Mercedes when he had already obtained the registration number when the Mercedes exited the carpark. He maintained that he followed the Mercedes because of an instruction from Operative 65 although he accepted that he had made the decision to follow the Mercedes before he received the alleged instruction from Operative 65 and wanted to keep the Mercedes in sight. The Applicant accepted that turning into Beta Drive when following the Mercedes required him to execute an illegal right had turn from the wrong side of the median strip on Alpha Road. He estimated that he travelled on the wrong side of the road for approximately 15-20m.

The Applicant accepted that he was required to follow the road rules and that there was no exemption to that requirement. When further pressed, he conceded that that he had done the wrong thing by executing an illegal right hand turn into Beta Drive but rejected that his actions created risk or that breaking the road rules was inherently unsafe. The Applicant maintained that any oncoming vehicles would have been visible by their lights and there were no pedestrians in the area at the time he executed the illegal right-hand turn. He agreed however that pedestrians would be less visible in the dark. He described his conduct as a misjudgement and that he erred in the moment.

According to Operative 68, Operative 65 came on the radio and made a request to the whole team that they try and put an address to the Mercedes.[22] Following this, he recalls someone coming on the radio and calling out a description of the vehicle, and either a partial or full registration. He confirmed he heard the Applicant state “I’ve gone pretty hard on him” or “I’ve pushed right up on him”[23]. Operative 81 also recalls Operative 65 asking the team to see if they could do a ‘loose follow’ and ‘put an address to the driver’ which he says meant discreetly following the vehicle. He also recalled the Applicant coming on the radio a little later and stating he ‘went a little hard on him so let him go’[24] in describing his following the Mercedes. Operative 27 also recalls Operative 65 asking the team if anyone can put the car to an address which meant following it to an address and subsequently hearing the Applicant state that he had come on to the vehicle ‘pretty hard’.[25]

When questioned on the radio transmissions, Operative 25 confirmed she heard the Applicant use words to the effect that he had ‘gone hard’ in following the Mercedes. Operator 27 also confirmed during cross examination that he heard the Applicant say he had ‘gone hard’ or similar words which he understood to mean the Applicant was catching the vehicle. Operative 68 when cross examined also stated he heard the Applicant use words to the effect that he was ‘on him pretty hard’ when referring to following the Mercedes.

After following the Mercedes into Beta Drive, the Applicant states he observed a set of taillights at the bottom end of Beta Drive but was hesitant to follow as the Mercedes was not part of the actual surveillance job. He says he then travelled south and then east in Beta Drive as it curved around, then turned into Delta Street from the east and slowly searched as he had no other vehicles matching the Mercedes. He rejected Operative 65’s evidence that he was closely pursuing the Mercedes in Beta Drive and claimed that he did not know where Operative 65 was at the time and did not see his vehicle parked in Beta Drive even though it would have been visible if its lights were on as claimed by Operative 65.

During cross-examination, the Applicant agreed that he had not been told to chase the Mercedes by Operative 65 but rejected that he had chased or sped after it when following the Mercedes into and along Beta Drive. He agreed that he could have told Operative 65 that it was dangerous to follow the Mercedees but says he tried to convey that to Operative 65 when he said he did not think it was a ‘follow’ before he executed the illegal right hand turn into Beta Drive. He further stated during cross examination that he was not prepared to speed even though he had executed an illegal right-hand turn. In relation to other operatives’ evidence on statements he had made over the radio of having ‘gone pretty hard’ or ‘pushed up on it’ in describing his following the Mercedes, the Applicant rejected during cross examination that he had made the comments attributed to him. The Applicant strongly denied speeding at any time on Alpha Road or Beta Drive, states he drove with due care and diligence and estimates his speed was 40k in what was a 50k zone.[26]

Operative 65 rejected the Applicant’s evidence regarding his pursuit of the Mercedes. He states that in response to Operative 65’s question as to whether the Applicant could follow the vehicle, the Applicant responded that he had been “pretty aggressive with him” and words to the effect that the other driver knew he was being followed. Operative 65 says he then immediately saw the Mercedes with the Applicant’s vehicle close behind traveling in Beta Drive, both going at a speed estimated by Operative 65 to be approximately 70k in a 50k zone. Operative 65 estimated the gap between the vehicles as one car length and deduced that in following the Mercedes the Applicant had made an illegal right hand turn from Alpha Road into Beta Drive.[27] Shortly after seeing the Applicant pursuing the Mercedes, the Applicant came on the radio and advised he had lost the Mercedees to which Operative 65 responded that the Applicant should let him (the Mercedes) go.[28]

During cross examination, Operative 65 agreed that he had asked the Applicant to follow the Mercedes. He went on to state that the Applicant could have declined to follow the Mercedes as it is common surveillance practice for an operative to determine if they can safely follow a vehicle. He conceded that in hindsight he should not have asked the Applicant to follow the Mercedes because at the time he was unaware of the speed and location of the Mercedes.

Operative 65 also stated when questioned on his parked location in Beta Drive, that he had his engine idling and lights on at the time as he felt it would have drawn attention to himself if he had parked in the dark in a quiet suburban street. He explained that because of the position he parked, which was facing westward just before the apex in the bend of Beta Drive as it turned north towards Alpha Road, he did not see the Mercedes and the Applicant until they got to the bend travelling in the opposite direction to which he was parked. Operative 65 explained that he was able to see the registration number of the Mercedes as it rounded the bend by the wash of his headlights across the roadway and rejected the proposition put to him that because of the position he was parked he couldn’t have seen the registration plate of the Mercedes.

When further questioned on why he parked in Beta Drive, Operative 65 stated that he had just driven to the end of Alpha Road and decided that rather than do a U-turn, he turned right into Beta Drive and decided to park in that street. He agreed that he had not called out his position on the radio. When the Mercedes and the Applicant passed his parked position, he estimated their speed to be approximately 70k but accepted that was only an estimate and could have been inaccurate. He rejected the proposition put to him that he was not in fact located in Beta Drive at the time the Applicant followed the Mercedes right from Alpha Road into Beta Drive. As to why he didn’t call out on the radio when the Applicant passed his parked position in Beta Drive, Operative 65 states that events happened quickly and very shortly after the vehicles passed his parked position, the Applicant came on the radio and said he had lost the other vehicle. He further stated that he didn’t see where the Mercedes went to after the Applicant transmitted that he had lost it.

Operative 68 states that he then saw the Mercedes driving back along Alpha Road at speed, went around another vehicle on the wrong side of the road, then made a left turn thru a red light at Gamma Road and accelerated away.[29] The Applicant confirmed that he heard reports over the radio of the Mercedes driving back along Alpha Road and then ‘busting a dead red light’ at the intersection of Alpha Road and Gamma Road.[30]

Operative 65 confirmed that he debriefed his team, excluding the Applicant who was not present, on 13 May 2024 in relation to the 8 May 2024 events and clarified expectations regarding road rule compliance. He stated that he didn’t talk about the specifics so as not to contaminate the memories of the operatives.

Policies and procedures

As well as being contrary to the Road Safety Road Rules and the Victorian Public Service Code of Conduct[31] (the VPS Code of Conduct), the Applicant’s conduct was said by the Respondent to be in breach of the IBAC Surveillance Policy[32] (the Surveillance Policy) and the IBAC Surveillance Unit Vehicle Usage Procedure[33] (the Vehicle Usage Procedure).

The Surveillance Policy relevantly states that ‘Surveillance is conducted in a manner that considers risks to IBAC, employees, investigations and within the relevant legislation, codes of conduct and IBAC policies, procedures, guidelines, or work instructions’.[34] The Surveillance Policy goes on to set out the policy requirements including that ‘Surveillance is performed in accordance with legislation, policy, guidelines, procedures and work instructions’.[35] The Vehicle Usage Procedure relevantly states at clause 11.1.14 that ‘The health and safety of IBAC members and the public is the priority in all circumstances. Do not do anything that will place yourself, other members, or the public at risk’.[36]

The Applicant accepted that surveillance operatives are not covered by any exemptions from the road rules and are personally responsible for any breaches of the road rules.[37] The Applicant went on to state that as far as he was aware, no disciplinary action was ever taken against any surveillance operatives for receiving infringement notices for breaching the road safety rules. He also claimed that there had been serious accidents involving surveillance operatives, but no disciplinary action had been taken against those involved.[38]

The Applicant further claimed that operatives would routinely breach the road rules by speeding as a necessary part of their surveillance operations and that operatives have never been disciplined because of such speeding or to his knowledge been subject to any other disciplinary action arising from other breaches such as going through red lights or using a mobile phone while driving.[39]

Operative 65 confirmed that the Respondent’s employees had never had an exemption from road rule compliance, denied that there had been any significant accidents where operatives have been at fault and that there was no legal basis for operatives to breach the road rules. He further states that operatives are responsible for any road rule infringement and having checked the records, established that there have been 6 traffic infringements and 13 parking fines incurred by operatives over the past three years.[40] As to other employees that may have breached road rules Operative 65 stated during cross examination that he was not aware of any other employees having been dismissed for road rule breaches although he was aware of disciplinary action being taken against one employee although he could not recall the particular action taken.

Other operatives stated that the Respondent’s policies make clear that they are not to breach the road rules and that there is no pressure from management to breach road rules in performance of their duties.[41] It was accepted however that operatives may inadvertently exceed the speed limit at times, but if caught would be personally liable for any infringement notice.[42] Where the conduct of an operative was deliberately reckless or negligent, Operative 81 expressed the view that such employee would be subject to scrutiny and disciplinary action.[43]

Investigation and dismissal

Following the events of 8 May 2024, Operative 65 sent an email[44] to his immediate manager Mr G Henry about what had occurred. Operative 65 specifically stated the following:

“…

(a)during the surveillance operation, I informed the Applicant that if he could follow the other vehicle at a safe distance to see if they were going to a nearby address, to do so;
(b)I observed the other vehicle travel past me 'at speed' in Beta Drive, 'followed closely' by the Applicant;
(c)the Applicant had informed me that he had been 'pretty aggressive' in his driving and it would have been obvious to the driver of the other vehicle that the Applicant was following him;
(d)I told the Applicant to 'let him go', meaning to cease following the other vehicle; and
(d)a short time later, Operative 68 observed the other vehicle to be overtaking other vehicles at speed on Alpha Road in a 'dangerous and reckless manner'

…[45]

On 10 May 2024, Operative 65 states he took the opportunity of having a conversation with the Applicant during a mobile surveillance operation and told him that he had reported the 8 May 2024 incident to surveillance management. During the course of the conversation in which the Applicant claimed to have been helping a colleague during the incident, Operative 65 states the Applicant reacted negatively and made a number of comments including the following:

“…
(a)I had deliberately stitched him up;

(b) he is going to get a blister because of this;

(c)he will deny that he followed the other vehicle as it’s my word against his;

(e)that he does not trust me any longer…

…’[46]

The Applicant confirmed that he had a conversation with Operative 65 on 10 May 2024 and states that Operative 65 conceded to him that he had ‘fucked up’ and reported to surveillance management that the Applicant had chased the car following Operative 25’s ‘collision’ during the operation on 8 May 2024. The Applicant states he responded to Operative 65 during their 10 May 2024 conversation that there was obviously a miscommunication between them during the incident as at no stage did he chase the car and he had only been concerned at a colleague’s safety and welfare. The Applicant says he also told Operative 65 during their conversation that he could only see the allegations as a stitch up, that he believed management had made up the allegation as a direct response to the Applicant reporting his safety concerns to WorkSafe, that he did not trust Operative 65 and would like to be transferred to Team 2.[47]

In replying to the Applicant’s evidence, Operative 65 agreed that at one point in their 10 May 2024 conversation he had said he had ‘fucked up’ but it was in the context of describing the timing of his conversation with the Applicant, not at having reported the 8 May 2024 incident. Operative 65 says he made the comments because he was reflecting on whether he should have debriefed with the Applicant directly after the incident.[48]

Operative 65 sent an email to Mr Henry on 10 May 2024 advising that he had not yet had an opportunity to debrief his team after the events of 8 May 2024 but would do so on 13 May 2024. He also reported details of his conversation with the Applicant on that day in the email.[49] Operative 65 debriefed his team on 13 May 2024 and in doing so emphasised that staff of the Respondent do not have an exemption from complying with the road rules.[50]

On 15 May 2024, the Applicant sent an email to Mr Vera Berardone who is employed in HR by the Respondent. In the email the Applicant made allegations that he had been bullied in the performance of his duties. In the email he also described events of 8 May 2024 in the following terms;

‘…
Assist co-worker at collision scene where driver didn’t exchange details.
On 9 May 2024 whilst operational deployed on a subject of Operation XXXXX , within team 1 of IBACS name surveillance unit I volunteered to assist with the welfare of a team member, Operative 25, that had been parked in the carpark of a soccer field in Alpha Road, Suburb Epsilon, after she had stated she had ‘been hit hard by a reversing car and that she was getting out to swap details’ on the team radio.
I promptly attended my co-worker’s location and kerbside parked my covert vehicle about 5 metres away on Alpha Road (also 5 metres away from the nearest driveway exit) so she felt safe and comfortable (dark, quiet and isolated location) but without the other driver noticing my presence as to not aggravate a situation. My priority was Operative 25’s safety. I observed Operative 25 and the other driver interact and then Operative 25 reaching into her drivers’ door, when the other driver, a physically large man, walked briskly back to his car, reversed quickly and drove out of the carpark abruptly without exchanging details and without Operative 25 noticing.
As I saw what was happening, I activated my headlights and moved forward slightly to obtain the vehicles registration number in my vehicle’s headlights. This vehicle took off fast and abruptly south through the estate on the southern side of Alpha Road and promptly out of my sight within the estate. Simultaneously as this unfolded, I was unable to communicate on the team radio as the subject of our surveillance actions were being called for about 20 seconds. Once I was able to get on ‘air’ I communicated ‘Urgent’, I gave the registration number of the vehicle, that it had decamped and the direction south within the estate. My manager immediately asked me to follow the car to which I replied
he was driving abruptly and that I had been close to him when he took off so I don’t think it would be a follow. At know time did I chase this vehicle as my priority was the welfare of my co-worker. The vehicle was seen by another team member ‘busting a dead red light’ at Gamma Road when Operative 65 advised the team to let him go.
…’[51]

The Applicant was cross-examined with respect to the 15 May 2024 memorandum and gave the following evidence. He agreed the memorandum constituted a formal complaint regarding Operative 65’s behaviour towards him and that the complaint included serious allegations which were ultimately found to be unsubstantiated. He agreed that in making a complaint it was important to be honest and report fairly and accurately. He also accepted that the account included a level of detail in relation to events on 8 May 2024 but omitted key details about his following the Mercedes and executing an illegal right hand turn into Beta Drive. He resisted the proposition put to him that he omitted key details of that evening in order to give a false impression of events and disagreed that an accurate account would have undermined his complaint about Operative 65.
The Applicant was subsequently stood down on 30 May 2024 pending completion of an independent investigation into the events of 8 May 2024. He was notified of the allegations on 17 September 2024[52] in correspondence from Mr Delwen Granville, Director – People and Culture. He was subsequently contacted by McGrathNicol on 25 October 2024 which had been engaged to conduct the investigation. Details of the allegations were included in McGrathNicol’s correspondence of 25 October 2024 and were that he:

“…

· drove an IBAC vehicle in a manner that placed you, other surveillance team members and the public at risk in contravention of IBAC Surveillance Operations Policy (Clauses 5 and 7), IBAC Surveillance Unit Vehicle Usage Procedure (Clause 11.1.4) and the Road Safety Road Rules 2017 (Rules 20 and 135); and
· made a false statement in official correspondence contrary to the VPS Code of Conduct Clause 3.1.
…”

The Applicant was interviewed by McGrathNicol on 20 November 2024, and the outcome of the independent investigation was communicated to him on 21 January 2025 in correspondence[53] from Mr Granville. The Applicant was relevantly advised the following in relation to the allegations;

‘…
IBAC has carefully considered the findings. It accepts the findings and is deeply concerned by these findings.
In relation to the first allegation (that you drove an IBAC vehicle in a manner that placed yourself, other surveillance team members and the public at risk), you were found to have operated an IBAC vehicle at excessive speed, at an unsafe distance to another vehicle, and for a period, on the wrong side of a carriageway. This proven conduct has contravened IBAC's Surveillance Operations Policy and Surveillance Unit Vehicle Usage Procedure, and the Road Safety Road Rules 2017 (Vic).
Your conduct was unsafe and demonstrated that you were unable to exercise sound judgement and decision-making in undertaking your duties. This is a concern for IBAC because the environment in which surveillance operatives work is often stressful, demanding and fast-paced. Surveillance operatives also sometimes work independently and without direct supervision. As such, it is critical that IBAC has confidence that its surveillance operatives are able to exercise sound judgement and maturity when making decisions during a surveillance operation.
IBAC is also significantly concerned by the finding that you made a false statement in official correspondence in relation to your actions during the surveillance operation on the night of 8 May 2024. IBAC, as an integrity agency, expects its staff to be honest, truthful and act with integrity. Making a false statement in official correspondence in relation to your actions on the night of 8 May 2024 is inconsistent with that expectation and serious.
As a staff member of IBAC, and in particular as a surveillance operative, there is a heightened expectation and requirement for good judgment, honesty, trustworthiness and maturity.
In light of the above, IBAC is proposing to terminate your employment as the discipline outcome.
…’[54]

The Applicant was provided with an opportunity to provide a response to the findings and proposed termination of his employment by 4.00pm on 5 February 2025. The Applicant subsequently provided a written response on 12 February 2025. The termination of the Applicant’s employment was confirmed in correspondence[55] sent to the Applicant by Mr Granville on 27 March 2025. The letter of termination confirmed that the Applicant’s dismissal would take immediate effect and that he would be paid four weeks’ pay in lieu of notice as well as his statutory leave entitlements.

Operative 65 was cross examined on the Applicant’s performance and the disciplinary process. He confirmed that he had no role beyond being interviewed and had no input into the either the Applicant’s suspension or disciplinary action decisions. He also confirmed that prior to the Applicant’s dismissal he held no concerns regarding the Applicant’s performance. Evidence given by the other operatives in relation to the Applicant’s performance included that he was a good, experienced operative, was a team player, his performance was up there with the best, that he had defused an attack on a colleague at one point and that his performance and skills were excellent.

The Applicant was questioned about his post-dismissal conduct of failing to return his work diaries which he accepted included confidential information. He accepted that he was formally directed to return the diaries on two occasions, 15 & 22 April 2025, with which direction he did not comply. He justified his conduct on the basis that he wished to maintain the diaries to assist in preparation for these proceedings and conceded that in doing so he was acting in his own interests.

Post-employment income

The Applicant states that he has sought and obtained some alternate employment since his dismissal. He says that up until 30 June 2025 he had earned $7,112,92 from bus driving work. He further states that he has established a home maintenance business but has not earned any income through that business yet.[56] The Applicant confirmed during his evidence in chief that he had not earned any further income since filing his second witness statement.

Has the Applicant been dismissed?

A threshold issue to be determined in this matter is whether the Applicant has been dismissed from his employment. The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute, and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

Initial matters

Having found that the Applicant was dismissed with the meaning of s 386(1) of the Act, I am now obliged under section 396 of the Act, to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

Relevant to the determination of the preliminary matters I am satisfied that;

· the Applicant was dismissed on 27 March 2025 and filed his unfair dismissal application on 9 April 2025, that latter date being within 21 days of the date of his dismissal;
· at the time of the Applicant’s dismissal the Respondent employed approximately 285 employees and is therefore not a small business employer within the meaning of s 23 of the Act;

· the Applicant commenced employment with the Respondent on 5 July 2010 and at the time of his dismissal had been employed for a period of over fourteen years, that period being more than the minimum employment period of six months;

· the Applicant’s annual base salary was approximately $158,771.08 and he was covered in his employment by the Victorian Public Service Enterprise Agreement 2024; and

· the Applicant was not dismissed due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application and it is to that I now turn.

Was the dismissal harsh, unjust, or unreasonable?

Section 387 of the Act provides that, considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)?

In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[57] and should not be “capricious, fanciful, spiteful or prejudiced.[58]” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer.[59]

In cases relating to alleged misconduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[60] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[61]

The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[62] In cases such as the present where a serious allegation is made, the Briginshaw standard applies so that any findings, if made, of the misconduct alleged are not made lightly;

“The standard of proof remains the balance of probabilities but 'the nature of the issue necessarily affects the process by which reasonable satisfaction is attained' and such satisfaction 'should not be produced by inexact proofs, indefinite testimony, or indirect inferences' or 'by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”[63]

I now turn to the grounds of misconduct that the Respondent submits establishes a valid reason for the Applicant’s dismissal. The two grounds relied on by the Respondent are as follows;

(1)The Applicant operated a motor vehicle in a manner that generated significant risk to the public’s safety during a surveillance operation on 8 May 2024.

(2)The Applicant was dishonest about what occurred during the surveillance operation on 8 May 2024.

Whether Applicant operated a motor vehicle in a manner that generated significant risk to the public’s safety on 8 May 2024

It is not contested that on 8 May 2024, several surveillance operatives of the Respondent including the Applicant and his Manger (Operative 65) were engaged in a surveillance operation in Suburb Epsilon concerning a POI. Operative 25 was participating in the operation and was positioned in a public carpark off Alpha Road adjacent to a sports field. She reported at approximately 8.30pm that a member of the public unrelated to the surveillance operation had reversed and collided with her parked vehicle. Operative 25 reported the incident over the radio following which the Applicant drove to and positioned himself in close proximity approximately 10 metres from the carpark entry/exit point, was within direct eyesight of her and was parked kerbside on Alpha Road so that he could establish she was unhurt and safe. Shortly after the collision occurred Operative 65 also drove past the position of Operative 25, saw she was standing at the rear of her vehicle and that the Applicant was parked kerbside within eyesight and in close proximity to Operative 25. Operative 65 did not stop, drove on and parked in a nearby street.

It is also uncontroversial that after an initial exchange between Operative 25 and the driver of the Mercedes who had both got out of their vehicles after the collision, Operative 25 went back to her car to get her driver’s license, a pen and paper to exchange details. It was when she went back to her car that she looked up and saw the Mercedes leaving the carpark ‘fairly quickly’. This was also observed by the Applicant who then turned on his lights, obtained the vehicle registration details as the Mercedes left the car park and then immediately followed the Mercedes.

There is some contest over how Operative 25 reported the collision to her colleagues on the radio. The Applicant gave evidence that Operative 25 used the words of having been ‘hit hard’ in describing the collision although no other operatives recalled her using that language. Operative 65 described Operative 25 as showing no sign of alarm when she reported the collision. Operative 25 did however report during the formal investigation that followed the incident that the collision involved a ‘solid thump’ although when cross examined on this could not recall describing it in those terms during her interview.

I find the Applicant’s recollection of how Operative 25 described the collision as unreliable. No other operatives reported hearing the language attributed by the Applicant to Operative 25. The Applicant also gave evidence that his primary concern as a result of the radio report of the collision involving Operative 25 was her safety. His subsequent conduct in immediately driving off in pursuit of the departing Mercedes as it left the scene of the collision belies the Applicant’s stated primary concern of Operative 25’s safety. While claiming that he judged Operative 25 to be uninjured following the collision, he accepted during cross examination that he could have checked on her but did not do so before driving off. In these circumstances I find the Applicant’s evidence regarding the described nature of the collision and his key priority of Operative 25’s welfare and safety to be disingenuous.

The Applicant then followed the Mercedes when it left the carpark and travelled in an eastward direction on Alpha Road. Significantly, he did so prior to receiving what he claimed to be an instruction from Operative 65. He explained his decision as instinctive and that had he not followed the vehicle he believed he would have been exposed to criticism for allowing a driver that had damaged a vehicle of the Respondent to simply drive off. The Applicant resisted the proposition put to him that he was angry at the Mercedes driver for leaving the collision scene without exchanging details. I found the Applicant’s evidence on this point unconvincing. When interviewed during the investigation, he described the Mercedes driver as a ‘crook’ and a ‘shitbag’ which is strongly suggestive that the Applicant was at the very least displeased with the driver leaving the scene and he held a negative view of that behaviour. Coupled with his prioritisation of following the Mercedes when it left the scene over checking on Operative 25’s welfare, I regard his behaviour as more than just instinctive. Rather, it was impulsive at the very least, if not motivated by anger. My view on this is reinforced by the Applicant’s subsequent conduct.

I am satisfied that after leaving his parked position, the Applicant followed the Mercedes down Alpha Road for approximately 250 metres before executing an illegal right turn into Beta Drive as he followed the Mercedes which also executed an illegal right-hand turn. It is around this point that the Applicant was able to get on the radio and report that the Mercedes had left the carpark and that Operative 65 asked the Applicant and other operatives as to whether they could follow the Mercedes and get an address on the driver. I accept that the Applicant was requested by Operative 65 to follow the Mercedes although the request was made after the Applicant had already commenced following the vehicle.

The Applicant claimed that the execution of the illegal right-hand turn was not unsafe as the streets were quiet and had there been any vehicles he would have seen their lights. The Applicant’s resistance to the proposition put to him that a breach of the road rules was inherently unsafe and his description of the illegal right-hand turn as simply a misjudgement was striking. The execution of an illegal right hand turn in a darkened, quiet, and narrow suburban street has the clear potential to place members of the public, including unlit pedestrians, at risk and for the Applicant to contend otherwise shows an impressive lack of insight. Nor does the request by Operative 65 for the Applicant to follow the Mercedes excuse or justify the behaviour. Operative 65’s request did not constitute a direction to take all necessary steps, be that lawful or unlawful to follow the vehicle. To suggest that the request pressured the Applicant to break the law is utterly rejected as all operatives, including the Applicant, understand that they are required to comply with road rules and do not enjoy an exemption from such compliance. The Applicant’s conduct was consistent with my earlier finding that he acted impulsively, if not angrily, in following the Mercedes.

After Operative 65 passed the scene of the carpark collision involving Operative 25, he gave evidence that he drove to the end of Alpha Road, turned right into Beta Drive, drove along Beta Drive, and parked approximately 150 metres from where Beta Drive rejoins Alpha Road. Parked where he was, Operative 65 was unable to see the Mercedes and the Applicant’s vehicle when they both executed an illegal right turn into Beta Drive and was only able to see them when they came around the bend on which he was parked immediately prior to, facing in the opposite direction to which the Mercedes and Applicant were driving. He gave evidence that when the two vehicles passed his parked position, he estimated they were travelling at approximately 70k but conceded that was an estimate and could have been incorrect. In any case, he stated that the Applicant was only one car length behind the Mercedes.

The Applicant rejected Operative 65’s evidence that he was closely pursuing the Mercedes and refers to his comments over the radio that he did not think it was a ‘follow’ after having been requested to follow the Mercedes. Operative 65 could not recall the Applicant stating it was not a ‘follow’. The Applicant further claimed that he was following the Mercedes at distance as requested by Operative 65 and that when he drove around Beta Drive he did not see Operative 65, casting doubt as to whether Operative 65 was in fact parked in Beta Drive as stated by him. Added to that doubt according to the Applicant was that Operative 65 had not come on the radio to advise his position in Beta Drive nor alerted the Applicant to the fact of him having passed Operative 65 when the Applicant drove down Beta Drive after the Mercedes. Operative 65 explained his silence at this point because it happened quickly and the Applicant came on the radio almost immediately advising that he lost the Mercedes to which Operative 65 responded to let the Mercedes go.

The Applicant also submits that a careful calculation of time and distances travelled by both Operative 65 and the Applicant after the initial collision in the carpark involving Operative 25, should lead to a conclusion that Operative 65 was not parked in Beta Drive as he claimed. Doubt is also raised as to why Operative 65 left his engine running and lights on while parked in Beta Drive. What emerged from the cross-examination of witnesses is that their memories of the time of various events and distance was flawed. The detailed mathematical analysis relied on by the Applicant does not in my view assist to resolve the evidentiary conflict. As to the motivation of Operative 65 keeping his engine running and lights on while parked in Beta Drive was to see the Mercedees number plate rather than the stated reason is simply speculation on the part of the Applicant.

The final simple point I would make on the Applicant’s attempt to discredit Operative 65’s version of events is that if Operative 65 was not in Beta Drive as contended by the Applicant, how would Operative 65 have known that the Applicant drove down that road in the direction described by Operative 65 and as confirmed by the Applicant. There is no evidence that the Applicant described over the radio which side street he had driven in to when following the Mercedes and nor did any other operative see him execute the illegal right-hand turn into Beta Drive.

Returning now to a key point of difference between the Applicant and Operative 65’s evidence, which is whether the Applicant was closely pursuing the Mercedes as it sped away from the carpark and into Beta Drive, I prefer the evidence of Operative 65 for the following reasons.

Firstly, I found Operative 65 to be credible in his evidence. His evidence was consistent with the report he made to Mr Henry on 9 May 2024 and the responses he provided when formally interviewed during the investigation. He also made appropriate concessions when giving evidence including in relation to his estimate of the speed at which the Applicant was travelling while following the Mercedes. It is also significant that Operative 65 raised the Applicant’s conduct directly with him on 10 May 2024, subsequently reporting to Mr Henry the conversation including the Applicant stating to Operative 65 that he would deny he followed the other vehicle and that it was Operative 65’s word against his. Operative 65’s consistent version of events along with his contemporaneous records support his version of events.

Secondly, I found the Applicant to not be a witness of strong credit. He appeared unwilling to make appropriate concessions. For example, he declined to accept that a breach of road rules was inherently unsafe or that his execution of an illegal right-hand turn into Beta Drive was any more than an error in judgement. His unwillingness to make appropriate concessions cause me to distrust his evidence where there is a conflict with the evidence of other witnesses. Further, he could not or was unwilling to properly explain why his own description of the events of the evening of 8 May 2024 in his 15 May 2024 email to Ms Berardone were at best incomplete, if not dishonest, in that he omitted any details of his pursuit of the Mercedes. I will return to this point later in this decision.

Thirdly, I have already found that the Applicant’s pursuit of the Mercedes after it left the carpark was impulsive, if not based on anger, and that he executed an illegal right hand turn into Beta Drive. That conduct is difficult to reconcile with the Applicant’s evidence that he was calm and following at distance. If that is the case, it is hard to understand why the Applicant felt compelled to execute an illegal right-hand turn. The execution of an illegal right-hand turn was consistent with the Applicant’s impulsive decision to pursue a driver he described as a ‘crook’ and a ‘shitbag’ and to do so closely. The Applicant’s admitted conduct of immediately following the departing Mercedes, leaving Operative 25 without checking on her and then executing an illegal right-hand turn cannot in my view be reconciled with his claim that he drove with due care and diligence behind the fleeing Mercedes at a speed of 40-50k and did not closely pursue it.

Fourthly, while the Applicant denied making such comments, a number of the operatives gave evidence of the Applicant reporting over the radio that he had ‘gone hard’ or was ‘on him pretty hard’ in describing his pursuit of the Mercedes. While slightly different versions of what was said by the Applicant were reported by the other operatives, there was enough similarity in the language attributed to him to establish that the Applicant was describing an aggressive pursuit of the Mercedes. His denial of having used that or similar language is simply not credible. On the Applicant’s own evidence, the Mercedes left the carpark travelling fast. In those circumstances the Applicant would have had to also drive quickly to come up on the Mercedes ‘hard.’

Fifthly, shortly after the Applicant lost sight of the Mercedes as it drove around Beta Drive, it was seen driving back down Alpha Road in a westerly direction at speed, at one point driving on the wrong side of the road while overtaking another vehicle before going through a red light at the corner of Alpha and Gamma Road. The behaviour of the Mercedes Driver was in my view consistent with a belief he was being followed and seeking to flee the scene as quickly as possible. This inferentially supports that the Applicant had at one point been closely pursuing the Mercedes.

For the aforementioned reasons I am satisfied that after the Mercedes exited the carpark on Alpha Road, it turned left into Alpha Road and drove in an easterly direction for approximately 250m before executing an illegal right-hand turn with the Applicant in close pursuit after he also executed an illegal right-hand turn. I am further satisfied that at the point where the Mercedes and the Applicant passed by Operative 65’s parked vehicle, the Applicant was still pursuing the Mercedes and was only one car length behind. While Operative 65’s estimate of the speed of 70k may be inaccurate, I accept that the Applicant’s close pursuit of the Mercedes, whether at 70k or at a lesser speed would constitute reckless and unsafe driving behaviour. The Applicant lost sight of the Mercedes somewhere in Beta Drive following which the Mercedes left the area at speed, travelling at one point on the wrong side of Alpha Road before going through a red light on the corner of Alpha and Gamma Road.

The above-described conduct of the Applicant was not directed or authorised by Operative 65. It was contrary to the Road Safety Rules, the VPS Code of Conduct, the Surveillance Policy, and Vehicle Usage Procedure. It posed an imminent risk to the health and safety of the Applicant and members of the public. I am comfortably satisfied that the behaviour constitutes serious misconduct and establishes a valid reason for dismissal.

Whether Applicant was dishonest about what occurred during the surveillance operation on 8 May 2024

Following the incident on 8 May 2024, the Applicant filed a complaint in relation to his Manager, Operative 65, on 15 May 2024 when he sent an email to Ms Berardone. While the email set out the detail of his complaint against Operative 65, it also included a lengthy description of the 8 May 2024 incident. It is noted that the timing of the complaint and the detailing of the 8 May 2024 events followed the Applicant being advised by Operative 65 on 10 May 2024 that he had reported the incident to management. It was clear that by including the detail of the 8 May 2024 incident in the email to Ms Berardone, the Applicant took the opportunity of putting his side of the story. However, in putting his side of the story, the Applicant left out critical details of the incident and plainly misrepresented what had occurred. This can be seen in the following passage:

“…
This vehicle took off fast and abruptly south through the estate on the southern side of Alpha Road and promptly out of my sight within the estate. Simultaneously as this unfolded, I was unable to communicate on the team radio as the subject of our surveillance actions were being called for about 20 seconds. Once I was able to get on ‘air’ I communicated ‘Urgent’, I gave the registration number of the vehicle, that it had decamped and the direction south within the estate. My manager immediately asked me to follow the car to which I replied he was driving abruptly and that I had been close to him when he took off so I don’t think it would be a follow. At know time did I chase this vehicle as my priority was the welfare of my co-worker
…”

As evident from the above extract of the statement, at no stage did the Applicant state that he followed the Mercedes when it left the carpark prior to being asked by Operative 65 to follow the vehicle. Nor did he describe how he executed an illegal right hand turn into Beta Drive and then closely pursue the Mercedes for a distance in Beta Drive. The Applicant’s description of the incident was clearly intended to convey to the reader a version of the events that was favourable to him. It was however a patently false and misleading narrative. His inability to properly explain during cross-examination why he left out the critical details of the incident spoke volumes of his motivation is omitting them. I am satisfied that his description of the incident on 8 May 2024 in the 15 May 2024 email to Ms Berardone was dishonest.

The Applicant’s dishonesty was also foreshadowed by him during his conversation with Operative 65 on 10 May 2024 when he told Operative 65 that he would simply deny that it happened and that it was his word against Operative 65. A contemporaneous note from Operative 65 sent to Mr Henry later on 10 May 2024 supports Operative 65’s evidence on this conversation which I accept. I also accept the Respondent’s submission that it is the principal independent agency charged with upholding integrity in the Victorian public service. The Applicant’s dishonesty is utterly inconsistent with the values of the Respondent which includes the following 'we hold ourselves to the same high standards that we expect of others' and 'we take responsibility for our behaviour, decisions and actions'.[64]

It follows from the foregoing that I am satisfied that the Applicant’s conduct of pursuing the Mercedes vehicle on the evening of 8 May 2024 in the manner that he did while on a surveillance operation and then dishonestly detailing the incident in an email on 15 May 2024 constitutes serious misconduct. Whether considered separately or together the conduct establishes a valid reason for the Applicant’s dismissal and given the gravity of the conduct, this weighs strongly in favour of a finding that the dismissal was neither harsh, unjust, or unreasonable.

Notification of the valid reason – s 387(b)

Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,^{^[65]} and in explicit,[66] plain and clear terms.[67]

The reasons relied of for dismissal, which I have found constituted a valid reason for dismissal, were articulated in explicit, plain, and clear terms in the letter detailing the allegations provided on 25 October 2024 and in the letter detailing the outcome of the investigation provided on 21 January 2025. This weighs in favour of a finding that the dismissal was not unfair.

Opportunity to respond to any reason related to capacity or conduct – s 387(c)

An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[68]

The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.[69] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[70]

The Applicant was notified of the allegations in correspondence on 25 October 2024, was interviewed as part of the investigation on 20 November 2024 and responded to the investigation findings and proposed termination of his employment on 12 February 2025. I am satisfied that the Applicant was provided with an opportunity to respond to the reasons relied on by the Respondent in dismissing him. This weighs in favour of a finding that the dismissal was not unfair.

Support person – s 387(d)

Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. The Applicant accepts there was no refusal to allow a support person to be present at discussions relating to his dismissal. This weighs in favour of a finding that the dismissal was not unfair.

Warnings regarding unsatisfactory performance – s 387(e)

The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.

Impact of the size of the Respondent on procedures followed – s 387(f)

The Respondent’s Form F3 response indicates that at the time of the Applicant’s dismissal the Respondent employed approximately 285 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g)

The evidence in this matter indicates that the Respondent had access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.

Other relevant matters – s 387(h)

The Applicant submits that there a number of matters that weigh in favour of a finding of harshness. Those matters are his length of service, the significant impact of the dismissal on his personal and economic situation and the differential treatment of other staff who breached road rules during the course of performing their duties.

The Applicant was employed by the Respondent and its predecessor, the OPI, for a period of almost 15 years which is a significant period of service. I also note that he has not been subject to any previous disciplinary action, his supervisor held no concerns regarding his performance prior to his dismissal, and he was clearly well regarded by his colleagues. The Applicant’s length of service and blemish free disciplinary record weigh in favour of a finding that the dismissal was harsh.

As to the impact of the dismissal on the Applicant’s personal and financial situation, I accept that the Applicant’s loss of secure employment and an annual income of $158,771 is likely to have a profound impact on him, at least in the short term. That said, it is difficult to identify how the Applicant’s circumstances are different to those of other employees confronting loss of employment. That observation is made in circumstances where apart from evidence of the limited income earned by the Applicant since his dismissal, there was no other evidence led by the Applicant going to his prospects in securing comparable employment. I am not persuaded on the limited evidence before me that the impact on the Applicant’s personal and financial situation is a matter that weighs in favour of a finding of harshness.

Turning next to the alleged differential treatment of other staff who have incurred road traffic penalties. It is uncontroversial that surveillance operatives do not enjoy an exemption from an obligation to comply with the road rules. It is also clear that surveillance operatives have received infringement notices from time to time. Operative 65 also gave evidence that he was aware of only one other employee who had faced disciplinary action for a traffic infringement, and that disciplinary action while not specified fell short of dismissal.

On its face it might appear that the Applicant has been singled out for special treatment for his driving behaviour. The Commission does not however have the benefit of any evidence going to the nature of the traffic infringements other surveillance operatives may have received. In these circumstances it is simply not possible to assess whether the Applicant has been treated more harshly in relative terms. It is also the case that the hypothetical circumstance of an employee receiving a traffic infringement for travelling at 5k over the speed limit is a vastly different circumstance to the Applicant’s conduct on which I have made findings in the present matter.

The Applicant made a conscious decision to follow another vehicle, drove on the wrong side of the road to execute an illegal right hand on a darkened street, and then pursued the other vehicle in an unsafe manner. These circumstances are qualitatively different in terms of the gravity of the misconduct when contrasted with the hypothetical example of a low-level speeding fine. The last point to be made is that the Applicant’s driving behaviour on which I have made findings was only one ground that I have found established a valid reason for his dismissal. His subsequent dishonesty of which I have also made findings establishes a valid reason in its own right. I am consequently not persuaded that there has been differential treatment of the Applicant, but in any case the reasons for his dismissal were two-fold, his driving conduct and dishonesty.

From the foregoing, I am satisfied that the Applicant’s length of service and employment record are matters that must be weighed in assessing whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?

I have made findings in relation to each matter specified in s 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.¹⁰⁵

As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to his conduct has been established and that the dismissal process followed by the Respondent was procedurally fair. The dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed and as such, these matters weigh neutrally in my consideration of whether the dismissal was unfair. The Applicant’s length of service and employment record weigh against a finding that the dismissal was not unfair. The weight I attach to those matters is not however sufficient to displace the gravity of the misconduct and what was a procedurally fair process.

It follows from the above that having considered each of the matters specified in s 387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable.

Conclusion   

Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s 385 of the Act.   The application is consequently dismissed. An Order will be separately issued giving effect to my decision

DEPUTY PRESIDENT

Appearances:

G Dircks for the Applicant.
D Fawcett for the Respondent.

Hearing details:

2025.
Melbourne:
June 22, 23.

[1] AE525755

[2] Exhibit R6, Witness Statement of Operative 25, dated 27 June 2025, at [9]

[3] Exhibit A1, First Witness Statement of Brent Murphy, dated 6 June 2025, at [40]

[4]Exhibit R6 at [10]

[5] Exhibit R10, Witness Statement of Operative 65, dated 27 June 2025, at [[14]-[15]

[6] Exhibit R10, at [18[

[7] Exhibit A1, at [42]

[8] Exhibit R2, Email from Applicant to Delwen Granville, dated 12 February 2025

[9] Exhibit R6, at [12]

[10] Exhibit R6, at [13]

[11] Exhibit R6, at [14]

[12] Exhibit R10, at [20]

[13] Exhibit R10, Attachment 1

[14] Exhibit R10, at [20]

[15] Exhibit A1, at [48]-[49]

[16] Exhibit A1, at [50-[51]

[17] Exhibit R6, at [15]

[18] Exhibit A1, at [52]-[54]

[19] Exhibit R1, Transcript of Applicant Interview, dated 20 November 2025, at p12

[20] Exhibit R10, at [22]-[24]

[21] Exhibit A1, at [59]-[64]

[22] Exhibit R9, at [17]

[23] Exhibit R10, at [19]

[24] Exhibit R13, Witness Statement of Operative 81, dated 27 June 2025 at [12]-[14]

[25] Exhibit R8, Witness Statement of Operative 27, dated 27 June 2025, at [17], [20]

[26] Exhibit A1, at [73]-[74]

[27] Exhibit R10, [25]-[30]

[28] Exhibit R10, at [31]

[29] Exhibit R9, Witness Statement of Operative 68, dated 27 June 2025, at [22]

[30] Exhibit A1, at [69]-[71]

[31] Exhibit 17, Victorian Public Service Code of Conduct

[32] Exhibit R19, IBAC Surveillance Policy

[33] Exhibit R18, IBAC Surveillance Unit Vehicle Usage Procedure

[34] Exhibit R19, at clause 5.

[35] Ibid

[36] Exhibit R18, at clause 11.1.14

[37] Exhibit A1, at [24]

[38] Exhibit A1, at [25]-[26]

[39] Exhibit A1, at [31]-[37]

[40] Exhibit R10, at [48]-[53]

[41] Exhibit R25, at [20]

[42] Exhibit R6, at [19], Exhibit R10, at [25]-[26]

[43] Exhibit R81,Witness Statement of Operative 81, dated 27 June 2025, at [17]

[44] Exhibit R10, Annexure 3

[45] Ibid

[46] Exhibit R10 at [39-[42]

[47] Exhibit A1, at [84]-[92]

[48] Exhibit R10, at [44]

[49] Exhibit R10, Annexure 4

[50] Exhibit R10, at [46]-[47]

[51] Exhibit R20, Email from Applicant to Vera Berardone, dated 15 May 2024, titled ‘Brent.M – Workplace Bullying as a Result of Employee Health and Safety Concerns’

[52] Exhibit R21, Letter from Delwen Granville Applicant, dated 17 September 20-24, titled ‘Notice of confidential workplace investigation’

[53] Exhibit R22, Letter from Delwen Granville to Applicant, dated 21 January 2025, titled ‘Outcome of confidential workplace investigation and proposed discipline outcome’

[54] Ibid

[55] Exhibit A1, Annexure BM3, Letter from Delwen Granville to Applicant, dated 27 March 2025, titled ‘Notice of Termination’

[56] Exhibit R2, at [33]

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

[58] Ibid.

[59] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[60] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213

[24].

[61] Ibid.

[62] Ibid.

[63] Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34.

[64] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[66] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[67] Ibid.

[68] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[69] RMIT v Asher (2010) 194 IR 1, 14-15.

[70] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

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