Phillip Leyshan v Wyndham City Council
[2013] FWC 7094
•14 OCTOBER 2013
[2013] FWC 7094 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phillip Leyshan
v
Wyndham City Council
(U2013/7274)
COMMISSIONER CRIBB | MELBOURNE, 14 OCTOBER 2013 |
Application for relief from unfair dismissal - valid reason
[1] This decision concerns an application by Mr Phillip Leyshan (the Applicant), under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of his summary dismissal by Wyndham City Council (the Council, the Respondent).
[2] Mr Leyshan gave evidence as did Mr B Parkinson, Branch Secretary, Australian Services Union (ASU) and Mr D Stewart, Team Leader Horticulture, on his behalf.
[3] For the Council, evidence was given by Mr M Boyle, Parks Coordinator; Mr S Walden, Manager Parks; Mr S Lambert, Director Corporate Services; Ms A Dixon, Manager Organisational Development; Ms K Thompson, Chief Executive Officer; Mr M Stabb, Director of Infrastructure and Witness X, the private investigator who undertook the investigation for the LKA Group.
THE ISSUES
Introduction
[4] Mr Leyshan was summarily dismissed for deliberate and wilful conduct (misconduct) 1, for three reasons:
● for making the Statement, on 27 December 2012, to the effect of “I don’t care what you do, just don’t get caught, don’t make me have to explain why you are doing nothing.” (the Statement). 2
for not effectively monitoring and supervising the work output of Mr Walker, one of his subordinates, which resulted in Mr Walker ignoring or failing to perform his duties and responsibilities as an employee. 3
● for breaches of the Council’s Procurement policy in that he had purchased goods or engaged external contractors without raising and obtaining a purchase order beforehand. 4
[5] The first two reasons were given to Mr Leyshan before he was dismissed. These allegations were set out in a Memorandum dated 22 February 2013. 5 There was also a letter of termination, dated 1 March 2013, which set out the allegation which had been found. This was that Mr Leyshan, contrary to his role as a supervisor, had actively encouraged and enabled employees under his direct supervision to disregard of the requirements of their employment.6
[6] The third reason for his dismissal was not put to Mr Leyshan as part of the disciplinary process as the Council only became aware of the alleged breaches of the Procurement policy following his dismissal. 7
[7] It is settled authority that:
“When the reason for termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.” 8
[8] Therefore, in the first instance, the Commission is required to determine whether or not Mr Leyshan made the Statement as alleged.
1. First issue - the Statement
(a) Introduction
[9] It was common ground that, present at the time Mr Leyshan allegedly made the Statement, was Mr Walker and Witness X. Mr Walker was not called to give evidence. Mr Moore stated, during his opening submissions, that the Applicant was unable to call Mr Walker as a witness. This was due to Mr Walker being in Queensland and also being too unwell to give evidence. 9 This explanation is accepted. Both parties made comprehensive submissions about whether or not Mr Walker not being called as a witness by the Applicant invoked the principles in Jones v Dunkel. As I have accepted the explanation given for why Mr Walker is not giving evidence, I decline to draw the Jones v Dunkel inferences as a result.
[10] There is a dispute between the evidence of Mr Leyshan and that of Witness X as to whether the alleged Statement was made. Mr Leyshan stated that the conversation did not occur at all and said that he did not know why Witness X took a photo of him at the Hoppers Crossing cricket oval. Witness X said that Mr Leyshan made the Statement in the depot on his first working day in the furniture crew. Mr Leyshan was said to have been standing on the porch in front of the office with himself and Mr Walker standing on the tarmac.
[11] A third version of the incident was contained in the LKA Report where it was stated that the Statement was made by Mr Leyshan in the afternoon at the soccer oval in Hoppers Crossing.
[12] The evidence before the Commission, in relation to this incident was given by Mr Leyshan and Witness X.
(b) Mr Leyshan
[13] Mr Leyshan’s evidence was that:
● Mr Walker and Witness X pulled up next to him whilst he was at the Grange Reserve soccer oval. 10
● This was said to be purely accidental and not something that he (Mr Leyshan) had initiated. 11
● He was with a representative from City West Water changing the sporting ground from potable to recycled water. 12
● They had just switched off the water meters before going back into the pavilions to ensure there were no crossed pipes. 13
● The City West Water representative was standing next to him just outside of the photo - on the other side of the path. 14
● He presumed that Mr Walker and Witness X were at the oval to check the barbecues at the Grange Reserve. 15
● Mr Walker asked him what he was doing out of the office. 16
● He had leaned over in front of the vehicle window and said what he was doing. 17
● He had not asked Mr Walker what he was doing that day or what he had done. This was because it was a passing visit by them and he was walking back to the pavilion when they drove up. 18
● Mr Walker and Witness X then left 45 seconds – 1 minute later. 19
● Each morning and afternoon, he spoke to his staff at his desk in the office. 20 He said that he was not always behind his desk in the office when he spoke to his subordinates.21
● His staff are required/expected to speak to him at the beginning of each day. 22
● He does not ever stand on the porch to talk to his staff. 23
● He had told Mr Walker, when Witness X was not present, that Witness X would be working with him for the Christmas/New Year break. 24 He did not say this directly to Witness X.25
● He denied then saying to Mr Walker or Witness X words to the effect of the Statement. 26 He also denied making the Statement on any other occasion or to anyone else.27
(c) Witness X
(i) The Statement - 27 December 2012
[14] Witness X gave the following evidence:
● He never worked with the target of the surveillance during the period of 5 December 2012 to 23 January 2013. 28
● He saw Mr Leyshan as an obstacle to getting close to the target. 29
● Witness X believed that Mr Leyshan had stalled him from working with the target. He could not work out why and was suspicious. 30
● Mr Leyshan spoke sharply and rudely to him and he felt intimidated by the way Mr Leyshan looked at him and interacted with him. He felt that Mr Leyshan did not want him to be part of his crew. 31
● He and Mr Walker had arrived at the oval in the ute and Mr Leyshan was there. 32
● They had pulled up beside Mr Leyshan and had got out. The three of them stood around in a group. 33 Mr Leyshan had spoken to Mr Walker but had ignored Witness X.34
● Mr Leyshan and Mr Walker had then walked off and chatted privately. 35
● When they ran into Mr Leyshan at the oval, Witness X did not see anyone with him. It was stated that Mr Leyshan was standing by himself and that there was nobody else there. 36
● He took a photograph of Mr Leyshan at the oval at about 3pm on 27 December 2012.
● There was an error in the LKA Report (on page 10) in respect of Mr Leyshan having made the Statement at about 3pm at the oval. It was said to have been made in the depot in the morning before they left for the day’s work and not at the oval in the afternoon. 37
● On the morning of 27 December 2012, Mr Leyshan said words to the effect that he did not care what they did, just don’t get caught, don’t make me have to explain why you are doing nothing. 38
● Mr Leyshan had further said to Mr Walker words to the effect of that he did not care if we did no work during the day. 39
● With respect to the two different versions in his statement and also a further one in the LKA Report, of what Mr Leyshan had said, he stated that Mr Leyshan had said additional words to the effect of “Don’t have to make me explain why you were doing nothing.” 40
● The LKA Report was incorrect (hearsay) in relation to what Mr Leyshan had said in that it did not include “Don’t have to make me explain why you were doing nothing.” 41
● In the end, Witness X said that Mr Leyshan had walked out of his office, stood on the porch and he and Mr Walker had had a bit of a chat. Mr Leyshan had then said to Mr Walker that he did not care what they did, don’t get caught, he did not want to have to explain himself. 42
● Witness X said that Mr Leyshan may have handed out instructions in the office. However, the conversation between he and Mr Walker, from the porch, was a general conversation. 43
● The reason Witness X had taken a photograph of Mr Leyshan, on 27 December 2012, was to prove that he had been on the oval at that time and that Mr Leyshan was there. This would have helped with writing a report if required. 44
(ii) The LKA Report
[15] Witness X also gave evidence about the LKA Report, as follows:
● The LKA Report contains his weekly surveillance observations for the period from 5 December 2012 until 23 January 2013. 45
● LKA instructed him not to take notes recording each day’s events. He therefore took photographs and videos. 46
● A verbal update was provided to LKA over the phone at the end of each day – typically once or twice a day. In addition, there was further contact during the day if Witness X had seen something important - two – three contracts a day. 47
● The LKA Report was derived from the photographs and videos and what he had told them over the phone. 48
● Each telephone contact was about 1 – 2 minutes but it depended on where Witness X was at the time and what was happening over the course of the day. 49
● There was one final brief update telephone call to LKA at the end of the day and the photographs/videos were then sent through. There was one contact point at LKA for the assignment. 50
● The brief for the assignment was to report on matters about the target of the investigation, particularly allegations of criminal activity. 51
● Everything in the LKA Report was outside the task that Witness X was engaged for. 52
● There were occasions where the behaviour Witness X witnessed was unacceptable in his mind. Witness X decided to film and report it as he believed someone should know about it. 53
● Witness X’s camera was rolling from day 1 of the assignment. 54
● It was agreed that no one told him to take the photographs but said that they were taken so that Council could be aware of what was going on. 55
● Witness X said that the photographs were taken of his own accord. 56
● It was confirmed that the report that was produced did not deal with the allegations that Witness X was asked to investigate. 57
● Witness X had only read part of the LKA Report and did not agree with its contents. Not all of the report was read and Witness X did not write to report. 58
● When Witness X had seen a couple of errors like the oval one, he had glanced through it and then put it aside. It was stated that there was no use reading the report if it was wrong. It was stated that Witness X wanted to teach LKA a lesson about how to do a proper professional job. 59
● Witness X corrected the error on page 10 of the report where it said that Mr Leyshan had made the Statement at about 3pm at the oval. Rather, the Statement was made in the depot in the morning. 60
● It was stated by Witness X that the LKA Report was not a reliable account of his investigation - “it’s wrong.” 61
● With respect to the alleged sale of marijuana by Mr Walker to Witness X 62, Witness X said that there was no sale. It was stated that Mr Walker had never sold Witness X marijuana.63
● Witness X denied setting Mr Walker up and then videoing the scene. 64
● The LKA Report 65 had also not recorded Witness X’s claimed that Mr Walker had said to him “Not as much as I take home” and had told Witness X that if he needed any cleaning products, to help himself.66
● In terms of the difference between Witness X’s evidence regarding the cleaning products issue and the LKA Report, Witness X said that what was in his statement was correct 67 - that Mr Walker had said words to the effect of “Not as much as I take home. If you need some, help yourself.”68
● Another inaccuracy in the LKA Report 69 concerned Mr Walker attending a house on 28 December 2012. Witness X’s evidence was that Mr Walker had told him that he was attending the house to smoke marijuana. The LKA Report stated that Mr Walker was at the house to purchase a marijuana joint. Witness X stated that his version of events was correct.70
(d) Consideration and Conclusions
(i) Mr Leyshan
[16] It was common ground between the Applicant and the Respondent that, if Mr Leyshan as found to have made the Statement, this would constitute serious misconduct. 71
[17] On behalf of the Applicant, it was argued that, due to critical doubts about Witness X’s credibility and that Mr Leyshan’s evidence was unimpeached in terms of his credit, there was no sound basis to accept Witness X’s word over that of Mr Leyshan’s. 72 The doubts regarding Witness X’s credibility were said to concern:
● His inconsistency about what Mr Leyshan allegedly said to himself and Mr Walker - not just during cross examination but also in his evidence-in-chief. 73
● The difference in locations, at which Mr Leyshan allegedly made the Statement between Witness X’s evidence and where the LKA Report located the Statement, including a photograph of Mr Leyshan at the oval. 74
● The spurious reason given for taking the photograph of Mr Leyshan at the oval. This was said to have been “because I could” and also to prove that he was at the oval. 75
● Witness X’s attempt to relocate the place where the Statement was allegedly made was said to be to avoid a risk that there could be a witness (a City West Water representative) who may contradict his evidence. 76
● Witness X’s claim that he was offended by Mr Leyshan’s treatment of him and felt intimidated. This was said to be fanciful and lacking in credibility when Witness X’s age, build and work history were taken into account. 77
● Witness X saw Mr Leyshan as an obstacle to him carrying out his brief and believed that Mr Leyshan was stalling him from getting close to the target for an unknown reason of which he was suspicious. 78
● The false allegation that Mr Walker had sold Mr Leyshan marijuana heads. 79
● Given that Witness X did not feel confined by his specific brief, he decided to embark on a frolic of his own. He also was said to have decided to impugn the credibility of the person whom he saw as suspicious and whom he disliked. 80
(ii) The Council
[18] On the other hand, the Council submitted that it accepted the evidence of Witness X that Mr Leyshan had made the Statement to Mr Walker. 81
[19] It was stated that the making of the Statement directly amounts to Mr Leyshan encouraging Mr Walker to ignore his duties. This was said to be misconduct justifying summary dismissal and a valid reason for the dismissal. 82
[20] It was argued that the test to be applied was “the balance of probabilities” rather than “beyond reasonable doubt”. 83
[21] The Council also contended that it then came down to an issue of credit between Mr Leyshan and Witness X. 84
[22] With respect to the credibility of Witness X, it was contended that:
● In terms of the words actually said by Mr Leyshan, Witness X had stated a number of times that the comment or words to that effect were made. 85
● Witness X was a direct and forthright witness who had criticised a number of aspects of the LKA Report as being inaccurate. He was said to be a person of integrity who was genuinely appalled by the misbehaviour of a number of then Council employees - so much so that he had reported those activities to the LKA Group. Therefore, it would be highly improbable that he had fabricated his evidence. 86
● There was no reason for Witness X to lie or fabricate evidence. This was because he was not an employee of the Council, but a contractor engaged by another contractor. Witness X was not going to gain any personal advantage by informing the LKA Group or giving evidence about the Statement if it were untrue. 87
● When Witness X said that the LKA Report was not accurate, this was with respect to where the alleged Statement was made - not the words that were said. 88
● It was acknowledged by the Respondent that the LKA Report was incorrect in terms of the location of the alleged Statement. However, the Council argued that it was more what was said, rather than where it was said that was important. It was to Witness X’s credit that he had corrected the location, as there was no advantage to him for doing that. 89
● Witness X’s taking of the photograph of Mr Leyshan in the park was said to have been consistent with Witness X’s practice during investigations. 90
● Witness X had denied, fairly and squarely, the preposition that he had changed the location of the Statement to exclude the possibility of other witnesses. 91 Therefore the conspiracy preposition was unsupportable.
[23] The Council acknowledged that, at all times, Mr Leyshan had denied that he had made the Statement. 92 However, it was argued that Mr Leyshan, unlike Witness X, had every reason to deny he made the Statement. If he had admitted to it at any time, it would have been fatal to his continued employment and to this application proceeding.93
(iii) Conclusions
[24] I have carefully considered all of the material before me and I find that it is most probable that Mr Leyshan did not say the words attributed to him by Witness X (the Statement). Mr Leyshan has been consistent in denying that he had said those words to Mr Walker. As part of his written response to the allegations, Mr Leyshan offered to provide a statutory declaration to that effect.
[25] With respect to Witness X, I have seen him and heard his evidence. Normally, it could be assumed that an investigator, such as Witness X, would be impartial with no axe to grind and nothing to gain by not telling the truth. Therefore, where there is a direct conflict between the employee’s and the investigator’s account of events, it would follow that that the investigator’s account should be preferred over that of the employee’s. However, on the basis of Witness X’s evidence, it cannot be said that he had nothing to gain out of maligning Mr Leyshan or that he was impartial. He was clear that the LKA Report was not a reliable account of his investigation and that he wanted to teach LKA a lesson in how to do a professional job. Further, Witness X said that he was disgusted by the behaviour that he witnessed and believed that the Council should be made aware of it. He acknowledged that what he had filmed and reported was outside the task he had been engaged for. In addition, Witness X stated that he felt intimidated by Mr Leyshan. He also saw Mr Leyshan as an obstacle to him getting close to the target and was suspicious of the reason why.
[26] Therefore, in determining on the balance of probabilities, whether or not Mr Leyshan made the Statement as alleged, it is not possible to accept Witnesss X’s version of events over that of Mr Leyshan’s. This is on the basis that Witness X was not impartial and appeared to have an axe to grind in respect of Mr Leyshan. On the other hand, Mr Leyshan has consistently denied making the Statement and offered, early in the process, to provide a statutory declaration to this effect.
[27] Further, in reaching this conclusion, I have also considered the issue of where Mr Leyshan allegedly made the Statement. It was Witness X’s evidence that Mr Leyshan had made the Statement from the porch in the depot in the morning on 27 December 2012. He said that the LKA Report, which stated that the Statement had been made at the oval in the afternoon 27 December 2012 was wrong. Mr Leyshan was very clear in his evidence, that it was not his practice to talk with his employees in the morning/allocate their duties, from the porch. Rather, he was very firm about him doing this from his desk in the office. I have also considered Witness X’s evidence on this issue. However, on the balance of probabilities, I accept Mr Leyshan’s evidence that it was not his practice to give his crew their instructions from the porch.
[28] Accordingly, I find that, on the balance of probabilities, Mr Leyshan did not make the alleged Statement on 27 December 2012 either from the porch in the depot in the morning or at the oval in the afternoon.
2. Second issue - Failure to Discharge his Supervisory Responsibilities by not effectively monitoring and supervising Walker
[29] It was common ground that all of the allegations regarding Mr Walker, except for the allegations of potential illegal activity, were made out.
(a) Mr Leyshan
[30] It was Mr Leyshan’s evidence that:
● At the end of each week, each employee’s work is scheduled for the coming week. 94
● He spent his work days, 50/50, either in the office doing paperwork or out checking sites. This varied each day. 95
● He exercised his supervisory responsibilities by going out, unannounced to the field to see what his employees are up to. 96
● When he is out of the office, he does spot checks on whichever grounds he is on to make sure they are clean or if anything needs to be done. 97
● He gets to look at three to four grounds a day except when his workload is heavy and he might not get out of the office at all in that week. 98
● Every month, he did a safety audit with his seven employees by standing and watching them do a particular task. 99
● He was never told that he had to do additional auditing beyond his spot checks and safety audits. 100 He recalled a meeting with Mr Walden in late December 2012/early January 2013 about the requirements regarding supervisors visiting their employees in the field. He did not recall Mr Walden stating that all supervisors had to meet their crews out in the fields at least twice a week.101
● His employees are required/expected to speak with him at the start of each day and of an afternoon at his desk. 102
● He saw Mr Walker twice a day at the depot or in the office - in the morning and in the afternoon. He agreed that, if he was just relying in those two occasions each day, he would not have much of an idea about what Mr Walker was actually doing out in the field. 103
● He was a Team Leader, Parks for 8 years (supervising about 60 employees) and had been Parks Project Officer for about 2 years prior to his dismissal. 104
● He had had many years of practical experience as a supervisor as well as having undertaken a training course in supervision. 105
● He had visited Mr Walker at least twice a week out in the field. 106 He had not visited Witness X in the same basis even though he was one of his employees.107
● Later he said that he had not visited Mr Walker at least twice a week out in the field. 108 He explained that he saw Mr Walker very rarely in the field. He stated that he supervised the work Mr Walker did by doing spot checks with other officers. Mr Leyshan explained that the spot checks might be in one particular area with Mr Walker somewhere else completely. It was also explained that, since his promotion into his last position, he had commenced supervising his employees work by going out, unannounced, into the field to look at their work.109
[31] In terms of the first allegation against Mr Walker (28 December 2012 - an extended and unauthorised break), Mr Leyshan explained that:
● The only time he saw Mr Walker on that day was when Mr Walker came upon him at the oval. 110
● During their conversation, Mr Walker had asked him what he was doing. He had not asked Mr Walker what he was doing at the park. He had not asked Mr Walker what he had been doing prior to coming to the park or what work he would be doing after the park. 111 This was said to be because it was a passing visit by Mr Walker as he (Mr Leyshan) was walking back to the pavilion.112
[32] With respect to the second allegation against Mr Walker (18 January 2013 - an extended and unauthorised break), it was Mr Leyshan’s evidence that he did not visit Mr Walker or Witness X out in the field that day. He agreed that these were two out of his eleven direct reports whom he did not visit on 18 January 2013. 113
[33] The next allegation against Mr Walker was said to have been Mr Walker taking an extended and unauthorised two hour break on 22 January 2013. Mr Leyshan confirmed that he had not visited Mr Leyshan and Witness X out in the field on that day. 114
[34] In terms of the allegations against Mr Walker concerning his failure to perform his duties as a barbecue cleaner (and therefore Mr Leyshan’s failure to properly exercise his supervisory responsibilities), Mr Leyshan stated the following:
● Regarding the allegation that on 27 December 2012, Mr Walker did not perform any work duties at all - he did not visit Mr Walker or Witness X in the field on that day as he was in a kindergarten. He agreed that he only had two employees out in the field. 115 He stated that he was not their babysitter but agreed he was their supervisor.116
● Regarding the allegation that, on 28 December 2012, Mr Walker visited various parks with dirty barbecues but did not clean them as required - he agreed that, if true, this was a complete abdication by Mr Walker of his duties. Mr Leyshan confirmed that, when he saw Mr Walker and Witness X on that day, it was purely accidental on their part and not something he had initiated. 117
● In terms of the allegation that, on 21 December 2012, Mr Walker and Witness X did not collect any of the rubbish strewn around the barbecue in various parks - it was said that it was Mr Walker’s responsibility to do this, if the rubbish was in the immediate vicinity of a barbecue or around adjoining picnic tables. He confirmed that he did not visit Mr Walker and Witness X on that day. 118
● With respect to the allegation that, on 21 January 2013, Mr Walker and Witness X looked at a number of barbecues but did not do anything - he agreed that, if this was the case, it was an abdication of their duties and responsibilities. Mr Leyshan stated that he had done spot checks on that day but did not bump into Mr Walker or Witness X. 119
[35] Mr Leyshan disagreed that only going out into the field on one of the seven days referred to in the allegations against Mr Walker was a total abdication of his responsibilities as a supervisor. 120 He stated that he preferred doing spot checks to make sure that all of the reserves were clean. He said that he had not done surprise visits on any of the three days it was alleged that Mr Walker did very little. This was partly because he was not their babysitter and because he was also out there looking at other sites as well. It was explained that he was responsible for over 400 reserves, 70 of which have barbecues, and that he trusted his staff. Mr Leyshan acknowledged that trust was reposed in him that he would properly and adequately supervise his subordinates.121
[36] It was also said that, if Witness X had a problem with what he observed, he should have told him and he would have rectified the situation. 122 It was also stated by Mr Leyshan that he understood that, as a responsible and experienced supervisor, he should have been proactive and gone out and supervised his employees rather than just relying on complaints. However, he explained that his remit was broader than just supervising his seven staff. This was because in December and January, he had about 80 kindergartens he had to maintain and 170 playgrounds to check with only three staff. He agreed that, if there were any failings as a supervisor on his part, it was because he had too much on his plate.123
[37] He recounted that he had been asking Mr Boyle for the past four years, just before budget time, for a team leader for his park furniture crews. 124
(b) Mr Boyle
[38] Mr Boyle confirmed that, for the past three to four years, Mr Leyshan had asked for additional resources for his group. 125
(c) Mr Walden
[39] It was Mr Walden’s evidence that:
● In late January 2013, the Council commenced implementation of a phased restructure of the Parks Department. This was described as involving a strengthening of the supervisory layer to improve productivity, quality, etc. 126
● November to December 2012 were the early planning stages but nothing had been formally presented at that time. 127 He was the architect of the restructuring.128
● To this end, he held a meeting with supervisors and also one including team members on 5 February 2013. The supervisors were told that he was looking for a lift in the standards of supervision and work quality and output. 129
● At the time of his dismissal, Mr Leyshan was said to have had seven direct reports and four (sports turf) that he was overseeing, eleven in total. He stood by his statement although it differed from Mr Leyshan’s understanding of how many employees he supervised. 130
● In forming the view that Mr Leyshan should be dismissed he had regard to not only the Statement but also Mr Leyshan’s inadequate supervision. 131
● He had no evidence that, prior to 22 January 2013, Mr Leyshan had been provided with negative feedback or criticism about his work. He stated that he had not given any and did not wish to speculate on what might have happened prior to his arrival. 132
● He agreed that Mr Walker falling asleep at the traffic lights, on 27 December 2012, had nothing to do with Mr Leyshan’s alleged inadequate supervision or otherwise. 133 However it was stated that Mr Leyshan had a responsibility to ensure that his staff turned up in a fit state for work.134
● In terms of Mr Walker’s alleged extended and unauthorised break on 22 January 2013, he did not agree that it was not a product of inadequate supervision by Mr Leyshan. There would have been less likelihood of this happening if Mr Leyshan had created the right culture in the work group. This culture should be based on the supervisor ensuring that their staff did not feel that they could take this extra time by visiting them in the field, measuring the quality and quantity of their work and by having an open dialogue between the supervisor and their employees. 135
● With respect to the allegations that Mr Walker failed to collect rubbish on 31 December 2012, it was stated that perhaps Mr Leyshan did not follow Mr Walker up at appropriate intervals to make sure that he was looking after the whole of the presentation of the area. 136
● He did not think that Mr Leyshan should follow his crew members around permanently. However, Mr Leyshan’s role was said to include ensuring that the work is completed at the required quality standard. Mr Leyshan, as responsible for the output of his group, was culpable for Mr Walker not picking up the rubbish. It was stated that Mr Leyshan needed, through auditing and a visiting regime, to be comfortable that the work was being done in a reliable manner. 137
● He said there was no direction which required Mr Leyshan to visit each of his crew each day in the field. 138 He did not expect Mr Leyshan to have visited all of the playgrounds, parks and barbecues in the facility fortnightly. It was agreed that Mr Leyshan may not, quite reasonably, get to all of the facilities more than once a month or longer.139
● The allegations that Mr Leyshan inadequately or inappropriately supervised Mr Walker were said to fit within the procedure for managing poor performance. 140
● Prior to Mr Leyshan’s dismissal he had not been issued with a warning and no performance improvement plan had been implemented. 141
(d) Mr Lambert
[40] Mr Lambert’s evidence was that:
● In relation to the allegations of misconduct by the employees in the LKA Report, he was seriously troubled as they suggested that Mr Leyshan had neglected his duties by failing to properly supervise the work of those employees. 142
● The most significant issue, among others, in terms of the decision to dismiss Mr Leyshan was him allegedly making the Statement. This had particularly troubled him. Regard was also had to Mr Leyshan’s lack of adequate supervision. 143
● He determined that the conduct of Mr Walker (other than the alleged illegal activities) was one of the factors that established that Mr Leyshan was managing his subordinates in an inappropriate manner. 144
● A performance improvement plan had not been implemented in respect of Mr Leyshan. He was not aware of any warnings having been given to Mr Leyshan. 145
● Mr Leyshan’s alleged lack of supervision was an issue of poor performance, not misconduct. 146
● In relation to the allegation that on 27 December 2012, Mr Walker did not perform any work, it was stated that, as Mr Walker’s supervisor, Mr Leyshan should have been actively checking on his work. This did not include Mr Leyshan sitting behind Mr Walker’s shoulder on that day. Rather, it meant checking his work periodically and meeting him at sites. If Mr Walker had been actively supervised, not doing any work would not have been allowed to take place. He was not aware of anything that Mr Leyshan did or did not do relative to the events of 27 December 2012. 147
● In terms of Mr Walker’s alleged failure to properly clean barbecues on 28 December 2012; his alleged failure to collect rubbish on 31 December 2012 and alleged failure to clean barbecues on 2 and 21 January 2013, it was explained that it was not about specific instances, but rather, a pattern of behaviour. He had formed the view that Mr Walker was not being actively supervised by Mr Leyshan which allowed things to not occur, such as those contained in the allegations against Mr Walker. 148
● With respect to the alleged extended and unauthorised break taken by Mr Walker on 22 January 2013, it was stated that approval should have been sought from Mr Leyshan. As Mr Leyshan had not given such approval, this was said to have been a failure to supervise and also a failure on Mr Walker’s part. 149 If there was active supervision by Mr Leyshan, Mr Lambert was sure that this incident would not have occurred. However, trailing Mr Walker around all day was said by Mr Lambert not to be his idea of supervision. Rather, Mr Leyshan should have regularly checked that the work schedule was being done correctly. If the work was not being done on time, Mr Leyshan would have asked Mr Walker why not. It was stated that Mr Leyshan should have regularly checked up on his employees. Over time, this would have revealed what work was not being done or that employees were not at the sites where they were supposed to be.150
(e) Mr Stabb
[41] Mr Stabb gave evidence that:
● His initial impression of the LKA Report was that Mr Leyshan had seriously neglected his duties by failing to properly supervise the other employees. Having undertaken the disciplinary process, this impression was confirmed. It was said to have been a decisive matter in his mind in deciding that Mr Leyshan should be dismissed. 151
● The aspect of the LKA Report that most concerned him was Mr Leyshan’s alleged making of the Statement. However, in deciding that dismissal was appropriate, he also had regard to Mr Leyshan’s alleged lack of adequate supervision. 152
● He decided that the conduct of the employees contained in the LKA Report established that Mr Leyshan was managing his insubordinate (Mr Walker) in an inappropriate manner. He drew a distinction between the three staff members in the report who were Mr Leyshan’s direct reports and those that were not. Account was only taken of the direct reports. 153
● He did not agree that Mr Leyshan’s alleged lack of supervision was an issue of poor performance and not misconduct. Rather, it was said to be a combination of both. 154 The making of the Statement was said to be misconduct whilst the alleged lack of supervision was an issue of inadequate performance.155
● He was not aware of any warnings having been issued to Mr Leyshan. 156
● It was agreed that there was nothing specific that Mr Leyshan did/did not do which rendered him responsible for Mr Walker falling asleep on 27 December 2012 or for his failure to perform any work on that day. 157
● In terms of Mr Walker’s alleged failure to properly clean barbecues on 28 December 2012, it was stated that Mr Leyshan was expected to follow up, and on a random basis, inspect the quality of the work of his insubordinates. He was not aware of whether or not Mr Leyshan did this on that day. 158
● This was also Mr Stabb’s response in terms of the allegations that Mr Walker failed to collect rubbish on 31 December 2012, failed to clean barbecues on 2 and 21 January 2013 and took an extended and unauthorised break on 22 January 2013. 159
● However it was stated that Mr Leyshan was responsible for the performance of tasks given to Mr Walker on any work day. The expectation was that, at the end of the day, Mr Walker would have performed all of the assigned tasks. The Council’s expectation was that supervisors, on any day, would be out in the field randomly observing the tasks their teams were performing and ensuring the required standard of work. 160
(f) Ms Dixon
[42] It was Ms Dixon’s evidence that:
● Mr Leyshan’s conduct, in allegedly making the Statement in the LKA Report, was of most concern to her. 161
● Her conclusion that Mr Leyshan should be dismissed was also on the basis of his alleged lack of adequate supervision. 162
● Mr Leyshan’s alleged making of the Statement was stated to be misconduct. Also seen as misconduct was Mr Leyshan’s alleged lack of supervision. This was because it had to do with Mr Leyshan’s attitude (misconduct) as a supervisor rather than his performance or skills as a supervisor. 163 She had formed the view that Mr Leyshan had an attitude which constituted gross misconduct on the basis that he had made the Statement as alleged in the LKA Report.164
● The Statement was said to demonstrate an attitude of non active supervision in that Mr Leyshan chose not to put his supervisory skills into practice. The basis for this view was that he was not out on site regularly in his job as a supervisor. Mr Leyshan was said to have demonstrated a deficient attitude and an absence of active supervision by making the alleged Statement and his actions by not being on site regularly. 165
● It could not be recalled if there had been an analysis of Mr Leyshan’s frequency in attending sites or consideration of such. It was agreed that the conclusion that Mr Leyshan was not actively supervising was based on the LKA Report which contained only a number of incidents without an analysis of where Mr Leyshan should have been at any point in time. She was not aware of how many occasions, during the six week period of the investigation, Mr Leyshan failed to be on site when he should have been. 166
● It was confirmed that Mr Leyshan’s alleged lack of adequate supervision was based on the conduct of Mr Walker. 167
● With respect to the allegation that Mr Walker had fallen asleep on 27 December 2012, it was agreed that there was nothing that Mr Leyshan did or did not do which rendered him responsible for this. 168
● In terms of Mr Walker allegedly performing no work on 27 December 2012, failing to clean barbecues properly the next day and failing to collect rubbish on 31 December 2012, it was stated that Mr Leyshan had not created an environment where regular supervision was part of the regime, whereby he was present on site regularly. 169 It was agreed that she had nothing before her which suggested that Mr Leyshan knew that Mr Walker did not do any work on 27 December 2012.170
(g) Ms Thompson
[43] Ms Thompson gave evidence that:
● The Statement allegedly made by Mr Leyshan was a significant matter in her mind when deciding to dismiss Mr Leyshan. 171
● In addition to concluding that Mr Leyshan had actively encouraged/enabled employees to disregard the requirements of their employment (the Statement), she had also concluded that Mr Leyshan had demonstrated an established pattern of poor work performance and inadequate supervision of his subordinates. 172
● Mr Leyshan’s unacceptable performance in managing subordinate employees in an inappropriate manner was viewed as serious misconduct. 173
● She had asked if a warning had been issued to Mr Leyshan (no) but did not exactly ask if a performance improvement plan had been implemented in relation to him. 174
● In terms of the allegation that Mr Walker fell asleep at the wheel on 27 December 2012, it was said to be part of a pattern of behaviour by Mr Walker of not performing his duties. It was then acknowledged that there was no basis for making Mr Leyshan responsible for Mr Walker falling asleep at the wheel or for failing to collect rubbish n 31 December 2012. 175
● Mr Leyshan should have made sure that Mr Walker had cleaned the barbecues by supervising him as he knew what was on Mr Walker’s work schedule and therefore what he should have been doing. Mr Leyshan should have been following systems and processes to ensure that the barbecues were being cleaned. 176 Mr Leyshan should have been following up with employees after they had cleaned the barbecues that day. He should also have visited them on site when they were cleaning barbecues to check that they were being cleaned and to the required standard.177
● She did not know, as the decision maker, that Mr Leyshan did not check with Mr Walker when Mr Walker came back to the depot in the afternoon. There was said to not have been any evidence, one way or the other, as to whether Mr Leyshan had checked. 178 She did not request a report on the audit process that Mr Leyshan followed. She agreed that her conclusion that Mr Leyshan did not have a proper process in place for supervising his subordinates was not based on any substantial examination of what process he actually followed and what he was required to do.179
● She was not aware as to whether or not Mr Leyshan had such a process. 180
● Her conclusion that Mr Leyshan did not have a process or adequate process in place to properly supervise his subordinates was based solely on the contents of the LKA Report. 181
● Based on the LKA Report, there was a pattern of poor performance by Mr Walker and, through the words of the Statement, an attitude on the part of Mr Leyshan that encouraged or did not address Mr Walker’s failings. 182
(h) Considerations and Conclusions
(i) Mr Leyshan
[44] On behalf of the Applicant, it was submitted that this issue did not establish that there was a valid reason for Mr Leyshan’s dismissal for three reasons. The first reason was that, as a matter of fact, there is no proper basis on which to visit responsibility to Mr Leyshan for each of the alleged instances of misconduct or inadequate performance by Mr Walker. 183
[45] In terms of the first incident on 27 December 2012 (falling asleep at the traffic lights), it was argued that Ms Thompson, Ms Dixon and Mr Stabb accepted that there was no basis for making Mr Leyshan responsible for that incident. 184
[46] The second was said to have been that Mr Walker took excessive and unauthorised breaks to attend to personal matters on three occasions. As two of these involved alleged criminal activity, the Applicant put them to one side. The remaining allegation was that, on 22 January 2013, Mr Walker took a two hour break and went out with his wife. It was argued that there was nothing which, on any view, could make Mr Leyshan responsible for Mr Walker taking an extended break. Mr Stabb was said to have accepted this as the case. 185
[47] In terms of the allegations that Mr Walker did not perform any work or particular work, it was contended that the Respondent’s witnesses generally accepted that there was nothing that Mr Leyshan did or did not do that rendered him responsible for these allegations. 186
[48] The second reason why this was not a valid reason for the dismissal was that the Council has sought to reframe or explain Mr Leyshan’s responsibility for Mr Walker’s failings. This was said to have been attempted by Ms Thompson who raised the notion that Mr Leyshan needed to have a process in place to check on Mr Walker’s work. However, Ms Thompson was recalled to have not known whether or not Mr Leyshan had such a process in place. Her conclusion about the absence of an adequate process was based solely on what was in the LKA Report. This was said to simply be a set of claimed observations of what people did on certain days. 187 It was stated that Ms Thompson was unaware that Mr Leyshan had said, during the investigation, that he regularly conducted on the spot checks as part of his auditing. The Applicant contended that, at no time, did the Council direct itself to what supervisory process he followed and whether it was sufficient. The evidence before the Commission was described as establishing that Mr Leyshan had adequate supervisory procedures.188
[49] Mr Walden’s evidence was also highlighted in terms of the number of playgrounds (160), parks (500) and barbecues (60) in the municipality. His evidence was recalled to have been that, even if the Applicant did not get to all of the facilities every month or even longer, that would not have been unreasonable. Further, it was contended that there was no evidence that Mr Leyshan was told that he had to do additional auditing. 189
[50] Reference was also made to Mr Boyle’s and Mr Walden’s evidence regarding the municipality being the largest and fastest growing one in the State. This had resulted in stretched Parks Department staff. Mr Boyle had also confirmed that Mr Leyshan had sought additional staff. 190
[51] The third proposition put on behalf of the Applicant was that, even if the Commission found some failing in Mr Leyshan’s supervisory duties, it did not constitute a valid reason for the dismissal. It was noted that all of the Council’s witnesses agreed that Mr Leyshan was “managing subordinate employees in an inappropriate manner”. This phrase was said to have been taken from the Council’s Conduct and Performance Management policy. A number of these witnesses were recalled to have agreed that the allegation that Mr Leyshan was inadequately or inappropriately supervising Mr Walker was a matter that fell within the managing of poor performance. It was also agreed that this policy does not provide for summary dismissal for inadequate performance unless a performance improvement plan has been implemented or the employee has received a warning. 191
[52] As neither of these preconditions had been met, it was submitted that Mr Leyshan could not be summarily dismissed. Therefore, there could not be a valid reason. 192
(ii) The Council
[53] For its part, the Council contended that the principal reason for Mr Leyshan’s dismissal was his abject failure to properly monitor and supervise the work performance and output of one of his subordinates, Mr Walker. 193
[54] It was acknowledged that, as Mr Walker worked in the field, it was not possible for Mr Leyshan to be actively supervising him in the field. However, Mr Leyshan was responsible for visiting his employees on a regular basis in the field. 194
[55] It was stated that Mr Walden had issued a directive, in January 2013, to his subordinates that they visit their employees out in the field at least twice a week. Mr Leyshan was recalled to have not denied that this directive was issued. In addition, it was stated that Mr Leyshan was responsible for monitoring the quality and quantity of his employees’ work and to have a constant dialogue with them so that behaviour such as Mr Walker’s did not occur. Further, Mr Leyshan was said to be responsible for fostering a work environment where regular active supervision was normal and expected by the employees. 195 The Council submitted that, if Mr Leyshan had created such a working environment, Mr Walker would not have been tempted to behave as he did. Or, at the very least, Mr Leyshan would have been able to identify that Mr Walker was not fulfilling his role and could have acted to remedy the situation. It was recalled that Mr Leyshan’s evidence did not include undertaking regular or programmed visits to see his employees in the field and it was said, therefore, that he did not do this.196
[56] Mr Leyshan’s evidence was stated to have been that:
● He prepared the working schedule for his employees each week and knew, on any given day, the tasks they had been allocated. 197
● He had many years’ practical experience as a supervisor and had been trained in how to perform his supervisory duties. 198
● During cross examination, Mr Leyshan conceded that he had not visited Mr Walker at least twice a week in the field. 199
● He saw Mr Walker twice a day - morning and afternoon - in the depot but rarely saw him in the field. 200
● He would not have much idea of what Mr Walker was doing in the field. 201
● On seven different days when Mr Walker was not performing his duties as required, Mr Leyshan did not visit Mr Walker in the field. However, during the period in question, there were two employees that Mr Leyshan was responsible for - Mr Walker and Witness X. 202
[57] It was argued that the Commission was entitled to conclude that, apart from drawing up the weekly work schedules and undertaking various spot checks, that was the extent of Mr Leyshan’s supervisory duties. This was said to represent a general disregard, by Mr Leyshan, of the importance of those responsibilities. The Applicant’s supervisory behaviour was contrasted with that of Mr Stewart, another supervisor. 203
[58] Illustrative of Mr Leyshan’s general abdication of a process whereby employees would expect that, at any point in time, their supervisor would visit them, was said to be the events at the Grange Reserve Soccer oval on 27 December 2012 (when the Statement was allegedly made). 204 This was because:
● It was Mr Walker who came up to him and asked him what he was doing. 205
● Mr Leyshan did not go to the oval to visit Mr Walker and Witness X. 206
● Mr Leyshan did not ask Mr Walker what work he and Witness X were doing or where they were going after the oval. 207
[59] With respect to Mr Leyshan’s comment that he was not their (his employees) babysitter, the Council argued the following:
● The comment completely disregards any obligation to proactively monitor and supervise employees out in the field by visiting them at least twice a week. 208
● It equates supervision with babysitting which shows Mr Leyshan’s contempt and disdain for that requirement. It was also said to reveal Mr Leyshan’s rejection of his supervisory responsibilities. The comment was stated to characterise Mr Leyshan’s former and current attitude to supervisory matters. 209
[60] Finally, it was argued that Mr Leyshan’s attitude set the background for Mr Walker’s behaviour together with Mr Leyshan’s failure to actively monitor and supervise Mr Walker. 210
(iii) Conclusions
[61] Having considered all of the material and submissions before me, I have formed the view that Mr Leyshan, as Mr Walker’s direct supervisor, was responsible for the completion by Mr Walker of his allocated work to the required standard. That was Mr Leyshan’s role in his position as Parks Project Officer. Therefore, in terms of the failure by Mr Walker to perform his duties appropriately, as his supervisor, Mr Leyshan did not adequately fulfil his responsibility for ensuring that Mr Walker performed his work appropriately and to the required standard.
[62] The Commission views Mr Walker’s activities as very serious matters and in no way condones such behaviour by an employee. The Council’s reaction to the contents of the LKA Report is understandable.
[63] However, the LKA Report, which forms the basis of the decision to dismiss Mr Leyshan, is a one-dimensional snapshot of a six-week period through December 2012/January 2013. The Report is based on the observations of a private investigator, Witness X. The evidence before me is that the Council took the Report on face value and accepted it as if it was gospel. The Council, therefore, did not attempt to “colour in” the details regarding Mr Leyshan’s supervisory approach and practice which is, naturally, not captured by a set of observations made over a six-week period. The Council did not go behind the Report and ascertain, for example, Mr Leyshan’s supervisory practices; how often he visited his employees in the field; what auditing and checking processes he had established and was this a particularly busy period and therefore not representative of what he normally did as a supervisor?
[64] Further, the information contained in the LKA Report was the result of a covert investigation into another employee (not Mr Leyshan). Witness X took it upon himself to record the activities of employees who were not the subject of his brief.
[65] In addition, Mr Leyshan had been in his position of Parks Project Officer for about two years at the time of his dismissal. Presumably, Mr Leyshan had been performing as a supervisor in the same or similar way over that period as he was during the period of the covert investigation. Mr Leyshan’s supervisor was responsible for the way Mr Leyshan performed his role as a supervisor. No issues had been raised with Mr Leyshan in respect of his supervisory performance during his time in this role and no warnings had been issued to him either.
[66] If the information about Mr Walker’s activities had come to light as part of the Council’s normal management processes, under the Conduct and Performance Management policy, the Council would have been required to take a more rounded approach to the issues (including conducting their own investigation), rather than the narrow-cast pathway of simply taking the LKA Report at face value and not looking behind it.
[67] Therefore, although it has been found that Mr Leyshan was responsible for Mr Walker’s failure to fulfil the responsibilities of his role, for all of these reasons, it is not possible to find that this reason constitutes a valid reason for Mr Leyshan’s dismissal.
3. Third issue - Breaches of the Procurement Policy
[68] Mr Leyshan, Mr Boyle and Mr Walden gave evidence in respect of this issue.
(a) Operation of the Procurement policy
(i) Mr Leyshan
[69] With respect to his understanding of how the Procurement policy operated, it was Mr Leyshan’s evidence that:
● He was aware of the Procurement policy and had browsed through it during the training. 211
● He was provided with basic training by the Finance Department in 2011. 212
● When the Procurement policy was introduced in 2011, there was a meeting between Mr Wilson and Mr Collins from the Finance Department and Mr Leyshan. An outcome of the discussion was said to have been that, for urgent jobs that needed to be done before a purchase order could be raised, he was told that he was allowed to do the emergency jobs and raise an order number after that. This was what he had been doing with his emergency jobs. Even though Specialised Road Maintenance (SRM) was not on the list of preferred suppliers, he was also given permission to get the urgent job done and then raise an order number in respect of their services. 213
● He admitted that the A&K Landscaping purchase orders were raised after the work had been done. However, this was because the Conservation Department was supposed to have raised the purchase order.
● An important aspect of his role was to purchase goods and services. It was his responsibility to generate a purchase order for approval by Mr Boyle. 214 He was unaware of his budget.215
● He understood that a verbal quote only was required for works valued at less than $2000.
● The process was to firstly obtain a quote (either verbal or written depending on the cost). The next step was to create a purchase order which set out the supplier/contractor, the goods or services and the cost. The purchase order was then electronically submitted for approval by the appropriate manager (Mr Boyle). Once he was notified that the purchase order was approved, he was then authorised to engage the contractor/buy the goods. 216
● Mr Boyle was responsible for approving the purchase orders he drew up. It was not uncommon for Mr Boyle to take a week to approve them. 217
● Mr Boyle had raised a question about/rejected his purchase orders on about three occasions in the seven years Mr Boyle had been there. One rejection was due to insufficient funds in the budget. 218
[70] He was not aware that 62% of works under his control were completed before a purchase order had been generated. 219
(ii) Mr Walden
[71] It was stated by Mr Walden that the Procurement policy provides that the situation, for reasons of security, safety or health, may be made safe and that, as soon as possible, a purchase order is raised to cover the costs of those works. If there are any further planned works, approval has to be placed for those as well. He explained that “as soon as possible” meant that, on return to the office, a purchase would be entered into the system and that the Co-ordinator (Mr Boyle) would be informed that emergency works had to be undertaken. It was said that, to his knowledge, such information had not been provided by Mr Leyshan to Mr Boyle regarding the anomalies raised in his second witness statement. 220
[72] Mr Walden agreed that, where there is a standing contract and there is a reliable amount of work that is done each month against budget, a work order can be raised to capture the works throughout the month. 221
[73] It was confirmed by Mr Walden that the Procurement policy provides for certain exceptions to the requirement to follow the purchasing order method including for matters of emergency in respect of public health, safety or security as a consequence of an unseen event or occurrence. He expected Mr Leyshan to be diligent in attending to matters of emergency and that, to do so, Mr Leyshan would have to exercise judgement and discretion. 222 Mr Walden agreed that, where works relate to matters of emergency, including public health, security or safety, if the risk has immediacy, those works have to be done urgently. In those circumstances, it was stated that the works would be done before a purchase order had been approved. He confirmed that the Procurement policy did not require a supervisor’s approval prior to engaging in works for matters of emergency.223
[74] It was agreed that he had never told Mr Leyshan directly nor told Mr Boyle to tell Mr Leyshan that Mr Leyshan had to check with Mr Boyle first when deciding whether to make purchases for matters of emergency, including public health, safety or security. Further, he had never issued Mr Leyshan with any guidelines regarding how to determine whether a particular purchase was a matter of urgency. Mr Walden also confirmed that he had never told Mr Leyshan that he had to specifically notify either himself or Mr Boyle after he had made purchases for matters of emergency. What was required when making such purchases was to put in a purchase order after the purchase had been made for that purpose. 224
[75] Mr Walden agreed that the Procurement policy recognises that there may be situations where insufficient quotations are received to satisfy the requirements regarding the obtaining of quotes. These included where insufficient quotes are actually received, where there are few suppliers of the goods or works or where the work is highly specialised. 225 He indicated that he was unaware that some of the purchases proposed by Mr Leyshan were in circumstances where insufficient quotations were unable to be obtained e.g. water meters can only be obtained from the relevant authority.226
[76] It was Mr Walden’s evidence that 62% of all works performed under Mr Leyshan’s control over the previous two years were completed before a purchase order had been generated. Mr Walden’s view was that this was an unacceptable situation that should not have been permitted to occur. 227 With respect to the report, Mr Walden indicated that he had not checked each of the order numbers to confirm the report’s accuracy. Further, he said that he had not checked as to what proportion of the 62% were purchases for matters of emergency. However, he did not accept that all of the 62% were for emergency purposes.228
[77] Mr Walden explained that the Finance Department had provided him with this information from the Council’s financial system and that the financial system had held that information over the past two years. 229 It was Mr Walden’s understanding that there were annual audit reviews of purchasing patterns undertaken by a combination of an internal and external auditor.230 He confirmed that the internal audit process was the internal control used to detect the timing of work performed and purchase order requests. It was agreed that this process did not detect the alleged breaches in this regard.231
[78] With respect to the report regarding the timing of work performed and purchase order requests by Mr Leyshan, it was Mr Walden’s evidence that he had requested Finance to provide him with that report. He further explained that, when they had someone take over Mr Leyshan’s activities, it was found that there were some works which were under way which contractors were asking for purchase orders for. Then, it was further understood that there were works that had been requested that had no purchase order allocated to these works. It was also indicated that he was having difficulty recollecting whether he made a direct request or whether, as part of discussing the procurement processes, when he had found that were not in accordance with the policy, that it was offered. 232
[79] The purpose of the request was said to have been to assist in preparing his statement in this proceeding. It was stated that he had not requested Finance to prepare a similar report dealing with any other of his subordinate employees. 233 Mr Walden stated that he was not aware that he could have asked Finance to prepare such a report at any time during Mr Leyshan’s employment. He said that no one from Finance had advised him that he could get such a report and he was not aware that Finance had this type of information. He was not aware as to whether the Council had engaged an external auditor to audit Mr Leyshan’s procurement activities either before or after his dismissal.234
[80] Mr Walden indicated that Mr Boyle had responsibility for approving the majority of Mr Leyshan’s purchase orders. It was stated that Mr Boyle had responsibility for ensuring that Mr Leyshan went about his purchases in a manner that complied with the Procurement policy. 235
[81] It was agreed by Mr Walden that there was a practice whereby a purchase order for preferred suppliers could be created at the start of each month for a certain amount to be spent with the supplier as needs arose over the course of the month. He confirmed Mr Lambert’s evidence that Specialised Road Maintenance (SRM) is not a designated preferred supplier for the Parks Department. He agreed that there are no preferred suppliers who only provide services to the Council in the maintenance area of the Parks Department. This was said to include the area of turf. 236
[82] With respect to a purchase order for $10,000 that he had approved on 3 January 2013 237, Mr Walden agreed that all he was told when he approved this expenditure was that it was for ‘various works’ but knew that up to $10,000 would go to SRM. He stated that the requirement for such a standing purchase order was understood and Mr Leyshan’s previous history indicated that it would be about $10,000. It was indicated that he did not speak to Mr Leyshan about this particular purchase order.238 Mr Walden confirmed that SRM has a contract with the Council and that it is a recognised or established provider of services. He understood that SRM was engaged by Mr Leyshan to attend to and deal with urgent works, including matters of emergency going to public health, safety or secure security, as required.239 Mr Walden indicated that he had probably received five purchase orders from Mr Leyshan and that he had approved all of them.240
(iii) Mr Boyle
[83] It was confirmed by Mr Boyle that he had only queried a handful of purchase orders submitted by Mr Leyshan. This was because he either wanted more information about a purchase order or because there were budgetary issues. Mr Boyle agreed that there had only been a couple of purchase orders in the last couple of years submitted by Mr Leyshan that he had not approved - for budgetary reasons. 241
[84] Mr Boyle agreed that there was an exception to the purchasing policy, which required a purchase order following a competitive quotation process, and that it was in matters of emergency, including public health, safety and security. 242 As his supervisor, Mr Boyle agreed that he expected Mr Leyshan to act promptly in such situations. This was said to, because of necessity, result in the works being done before a purchase order was approved.243 He stated that he had not told Mr Leyshan that he had to check with him before deciding to make purchases for matters of emergency including public health, safety or security or to advise when he had made such purchases.244 My Boyle indicated that he had not issued Mr Leyshan with any guidelines as to how to determine whether a particular purchase issue was a matter of emergency.245
[85] It was confirmed by Mr Boyle that there were certain exceptions to the requirements in the purchasing policy for obtaining quotes before goods and services are purchased. 246 He agreed that, having worked with Mr Leyshan, there were, from time to time, purchase orders where there were insufficient quotes because the right number of quotes were unable to be obtained.247
[86] When he had received the purchase orders in question from Mr Leyshan, except for Williams Landing and the recycled water meters, Mr Boyle stated that he was not aware that these works had already been completed. 248
(iv) Mr Stabb
[87] It was stated by Mr Stabb that the normal presumption was that the paperwork precedes the actual execution or delivery of the goods and services. He indicated that he would be concerned if the 62% of the work performed under Mr Leyshan’s control over the past two years was not emergency works. It was explained that the Council have been running a system to identify breaches of the policy and have been going through the organisation providing training and support to ensure that employees understand their obligations. The intention was said to be that there would be more vigorous monitoring of purchase orders with appropriate action being taken when there were breaches of the policy. Mr Stabb confirmed that Mr Boyle was responsible for Mr Leyshan’s compliance with the procurement policy. 249
(v) Mr Lambert
[88] With respect to the report regarding Mr Leyshan’s purchase order history 250, Mr Lambert stated that such a report is capable of being produced from the electronic financial system. He confirmed that the report was based on information held by the Finance Department over the previous years.251
[89] He was not aware of similar reports having been produced for other employees. 252
[90] He agreed that Mr Boyle had responsibility for approval of My Leyshan’s purchase orders. No disciplinary action was said to have been taken against Mr Boyle. 253
[91] It was Mr Lambert’s evidence that he understood that, following Mr Leyshan’s dismissal, one of Mr Walden’s officers raised concerns about some specific purchase orders and requested more detailed information. 254
[92] He was not aware of reports, such as the one generated in respect of Mr Leyshan, having been provided to management in the past regarding any other employee. 255
(b) Specialised Road Maintenance
(i) Mr Leyshan
[93] With respect to the various occasions when he had SRM perform works for the Council, Mr Leyshan agreed that, at the time he directed them to perform those services, he had not raised a purchase order. He confirmed that, in those circumstances, he was required to raise a formal purchase order as soon as possible. 256
[94] It was explained by Mr Leyshan that he raised purchase orders following receipt of written quotes. Contractors provided him with a verbal quote at the time and then followed up with written quotes. For the works completed by SRM in December 2012 and January 2013, Mr Leyshan explained that he did not raise the purchase orders until he had received the written quotes. 257 He stated that, generally, he would raise one purchase order at the start of the month that ran for the duration of the month. However, for the works done before Christmas/New Year, he had not done this. This was because it had slipped his mind as there were other things on his mind, for example, over the Christmas month, he spent a lot of time in kindergartens and child care centres as they were shut down for the Christmas/New Year break. Maintenance is performed by contractors on all of their playgrounds and whatever else has been requested over November to January.258
[95] Mr Leyshan said that, if one went back months, one would see a purchase order for $2000 for small jobs like SRM. This was said to be what Mr Collins and Mr Wilson had instructed him to do. 259
(ii) Mr Boyle
[96] My Boyle indicated that he was aware that there was a standing contract between the Council and SRM. He agreed that SRM was often engaged by Mr Leyshan to undertake emergency works and that this was because they did a good job and in a timely way. 260 It was stated that he understood that Mr Leyshan, from time to time, would raise a purchase order in favour of SRM for various jobs to be undertaken over an upcoming month.261
[97] It was said by Mr Boyle that he encouraged Mr Leyshan to raise an order before the works were done. He stated that, if suppliers or contractors had a contract, he would ask his officers to raise a blanket order at the start of the month. The purpose of this was to pick up small jobs that arose across the month. 262 It was Mr Boyle’s evidence that there were no preferred contractors for maintenance or turf in the Parks area.263
[98] Mr Boyle indicated that, because of the increased work pressures, it may take him a couple of days to approve a purchase order. 264
(c) Specific purchasing order anomalies
[99] In terms of the specific anomalies identified by Mr Walden 265, the evidence was as follows:
(i) Williams Landing - VRC Landscapes
A. Mr Leyshan
[100] It was Mr Leyshan’s evidence that:
● A quote had been received from VRC Landscapes (VRC), dated 10 December 2012, for $3500 per month for the slashing of grass. 266
● He denied asking Adam Trainon to also quote for this work or that he had seen his quote for $3200 per month. 267
● Mr Trainon’s quote was not addressed to him but to Mr Boyle and Mr Brooks. 268
He had asked the company who had previously done the work to quote but they had declined. 269
● He and Mr Stewart had shown Mr Boyle the VRC quote and had advised him that the other company had withdrawn. Mr Boyle then gave the go-ahead to the VRC quote. 270 No issue had been raised subsequently with him regarding the work having been given to VRC.271
● What was required for this job was landscaping and not just grass cutting. VRC had previously undertaken this type of work for the Council whereas Mr Trainon had not. 272
● He confirmed that, under the terms of the Procurement policy, he was required to obtain a written quote before the work was undertaken. 273 He also agreed that the work had been performed on 7 December 2012, 3 days prior to receipt of the quote.274
● Under the direction of the Conservation Department, he had authorised VRC to do the work. 275 The work had been done prior to the raising of a purchase order due to the Conservation Department not doing that.276
● He was asked by the Conservation Department to find a contractor who could do this work. He obtained a verbal quote for the work from VRC which he gave to the Conservation Department and told them to raise the order number because it was their job and the cost was coming out of their budget. By the time he asked for a copy of the quote, the job had been done but he raised an order number. 277
● He had personally shown VRC the site as they were already down there doing some mowing. 278
B. Mr Walden
[101] Mr Waldon indicated that, despite a lower quote having been received from Mr Trainon, and the Council having used both Mr Trainon and VRC previously, Mr Leyshan had awarded the work to VRC. This was said to be in breach of the Procurement policy as the work was not allocated to the contractor who offered the best value. 279
C. Mr Boyle
[102] It was recalled by Mr Boyle that, in October/November 2012, he spoke to Mr Leyshan and told him that he wanted to get a contractor in on a temporary basis to provide mowing and horticultural services at Williams Landing until he had drawn up a tender. 280 He had asked Mr Leyshan to make sure that any contractor who quoted on the work was shown the full scope of the work required and understood it. It was recalled that Mr Leyshan had assured him that he had done that.281 He confirmed that Mr Leyshan had shown him the quote from VRC.282 He did not remember Mr Leyshan telling him that the other company that was going to supply a quote had pulled out and the reasons why.283 Mr Boyle did not recall Mr Leyshan showing him the quotation or him giving Mr Leyshan the go-ahead to give the work to VRC.284
[103] With respect to the quotation from Adam Trainon, dated 12 December 2011, Mr Boyle stated that it had not been handed to him by Adam Trainon and that he had not seen it until very recently. 285 He had found it in a manila folder just to the side of Mr Leyshan’s desk.286 He had never spoken to Mr Leyshan about it.287
[104] Mr Boyle agreed that the work that Mr Trainon does is more cutting and mowing whereas VRC do the full suite of landscaping and gardening work. However, he said that Mr Trainon has had some experience in landscaping and has previously performed landscaping works for the Council. 288
(ii) Gleeson’s Road Extension and Mouyong Road Extension, Little River - A & K Landscaping
A. Mr Leyshan
[105] Mr Leyshan’s evidence was that:
● The Conservation Department had asked him to get some grass slashing done at Gleeson’s Road and Mouyong Road. 289
● He told the Conservation Department that he would ask A&K Landscaping (A&K) to give a price as they were doing other grass cutting at Little River for the Council. He obtained a verbal price which he gave to the Conservation Department and asked them to raise an order number. 290 He had authorised A&K to do the work at Gleeson’s Road.291 A verbal quote had come in before he had authorised the work but there was no purchase order raised beforehand.292
● When this was not done, he had asked A&K to send him a copy of the quote. He had then raised an order number. However, the quotes had come in after the work was completed at both locations. 293
● He confirmed that, under the Procurement policy, a purchase order must be approved before the work is undertaken. 294 He did not contact Mr Boyle and tell him that the work had already been performed.295
● Even though it was not Mr Leyshan’s responsibility, the Team Leader Conservation had given him the go-ahead to get the grass slashed as it was high fire season and the grass was very tall. 296
B. Mr Walden
[106] Mr Walden stated that both these works were carried out before the expenditure was approved all the cost was known. Mr Leyshan had raised purchase orders after the council had effectively been committed to the expenditure. 297
(iii) Meter cages - Werribee Tow Bars
A. Mr Leyshan
[107] It was Mr Leyshan’s evidence that:
● He instructed Paul Ryan Plumbing (PRP) (a Council contract plumber) to organise recycled water meters from City West Water and to arrange for some meter cages to be made. Mr Ryan engaged Werribee Tow Bars to design and make the meter cages. 298
● The quote of $3927 for 6 meter cages was said to be reasonable compared with two previous quotes for $1100 and $900 per cage respectively. 299
● The cages were urgent because they were from sites where the water meters had been stolen. 300
● He had spoken to Mr Boyle and told him that water meters had been stolen but that, before they could get replacements, there needed to be water meter cages in place. He also said that they needed to get a supplier and so PRP was engaged and he, in turn, engaged Werribee Tow Bars. 301
● It was agreed that he still needed to raise a purchase order and to have it formally approved. He said that a purchase order was not raised until after the cages had been supplied because he was not aware that they were being constructed so quickly. 302
● Mr Leyshan’s Team Leader had directed that the cages be constructed and, although he has the authority to do the purchase order, he asked Mr Leyshan to raise one. 303
(iv) Installation of recycled water meters
A. Mr Leyshan
[108] Mr Leyshan’s evidence was as follows:
● A plumber was required to fill in the documentation to obtain water meters from City West Water. 304 He engaged PRP for this purpose.305 He did not obtain a quote for Paul Ryan’s filling in of the paperwork ($400) because he is a preferred supplier.306
● The specific cost of the water meters depended on the size of the meter and would not be known until City West Water sent the Council the invoice. 307 It was therefore not possible to obtain a quote.308
● He said that he had no idea what the cost might be of installing the recycled water meters. 309
● With respect to installing the meters, quotes were to be obtained for this. He said that Paul Ryan would not get this job as he only does jobs at an hourly rate for emergency work. Installation of water meters was not emergency work. 310
● With respect to Mr Walden’s statement that he was told by Mr Boyle that Paul Ryan had said to him that he was not required to provide a quote before he commenced, as Mr Leyshan had told him to complete the works at the hourly rate, Mr Leyshan responded that Paul Ryan does not give quotes on urgent/small jobs. Rather, he worked on the basis of his hourly rate as one of the preferred suppliers. However, Mr Ryan would have to quote on the installation of the water meters. 311
[109] He denied telling Paul Ryan, at the time of requesting him to install the water meters, that he was to do it at his hourly rate. 312
B. Mr Walden
[110] With respect to the remaining work at President’s Park, Galvin Park and Watton Street, Mr Walden indicated that this work had not been awarded at or before Mr Leyshan’s dismissal. 313 In terms of Mr Leyshan having told PRP that he could do these works at his hourly rate, Mr Walden stated that this information was based on what Mr Boyle had told him.314
C. Mr Boyle
[111] Mr Boyle confirmed that he had spoken to Mr Ryan of Paul Ryan Plumbing about his dealings with Mr Leyshan in connection with the installation of recycled water meters. Mr Ryan had said that he had sourced the PIC numbers from City West Water on Mr Leyshan’s instruction. He did not know whether Mr Leyshan told Mr Ryan that he could get the PIC number at an hourly rate. 315
(iv) Riversdale Drive footbridge - Specialised Road Maintenance
A. Mr Leyshan
[112] Mr Leyshan stated that:
● He had used SRM previously for a lot of emergency jobs as they could go out on that day and make the site safe. 316
● He had gone out to the site and had ascertained that it was dangerous in relation to rotten boards and holes. This was said to be emergency job. 317
● He had then sent out SRM who provided a verbal quote. As it was an emergency job, he had given the go-ahead. SRM had sent him the invoice after the job had been done. This was consistent with his practice of getting a lot of the urgent jobs done before he raises an order number. 318
● He had raised the purchase order after SRM had provided a verbal quote. The order number would have been drawn up the next day. 319 He confirmed that a written quote, dated 19 December 2012, was received on 1 January 2013 and that he had raised a purchase order on 2 January 2013.320 The repair works were undertaken on 20 December 2013.321 With respect to the delay between when the work was undertaken (20 December 2012) and when he had raised a purchase order (27 January 2013) Mr Leyshan said that he was human and that if he did make a mistake - he made a mistake.322
● He was unsure as to whether he had raised another purchase order prior to the date of the quote. This was because the purchase order on 2 January 2013 may have been for jobs in January to the start of February 2013 as, for some companies, he did all of the purchase orders at the beginning of the month for that month. 323
● He did not think he advised Mr Boyle about this particular urgent job although he did for most of them. 324 He did not advise Mr Walden either.325
[230] In terms of the Applicant’s submission in relation to the alleged differential treatment between himself and Mr Dodson, it was argued that Mr Walden’s evidence was that Mr Dodson had been aware or had been made aware of issues in relation to Mr Sumner’s and Mr Butler’s work performance. Mr Walden had indicated that Mr Dodson had met with the two employees in relation to the adequacy of their work performance prior to Witness X raising the specific concerns in the LKA Report. It was argued that there was no evidence of there being any appreciation of Mr Walker’s misdeeds or actions taken to remedy them on the part of Mr Leyshan. 476
[231] With respect to the submissions by the Applicant about the covert surveillance, it was submitted that the purpose of the surveillance was not to monitor employees in the performance of their regular duties. Rather, it was stated to have been to substantiate or otherwise reports of drug-related activity being undertaken by Council employees during working hours. The Council argued that employees have a right to privacy but that it did not extend to employees being permitted to engage in activities which are contrary to their duties and responsibilities as employees. Further, it was stated that, in terms of the length of the investigation, what the Council was trying to do was to enable the investigator to work with the target. A thorough process needed to be adopted as the allegations were serious. The fact that the investigator did not work with the target was said to not reflect poorly on the Council. 477
(c) Considerations and Conclusions
[232] I have taken account of all of the material before me and I find that the following are relevant in this case:
● Mr Leyshan’s dismissal was the result of covert surveillance of another employee, with whom the investigator did not ever work with during the six-week investigation period. The investigator made the decision, off his own bat, to act outside his brief and to record the activities of employees who were not the target of the surveillance.
● Despite advice to the Council that the investigator had been unable to work with the target but that he had found matters of interest to the Council, the Council continued with the covert surveillance.
● Mr Boyle, Mr Leyshan’s supervisor, does not appear to have been the subject of any disciplinary action in terms of his responsibility for ensuring that Mr Leyshan complied with the Procurement policy.
● Differential treatment between Mr Dodson (supervisor of three of the employees) and Mr Leyshan (supervisor of one of the employees) in that there does not appear to have been any disciplinary action taken against Mr Dodson for a seemingly similar failure to adequately supervise his subordinates.
● The Council’s unquestioning and uncritical reliance on the LKA Report as the basis for the allegations without going behind it or conducting their own investigation as required by their Conduct and Performance Management policy.
● Ms Thompson’s evidence that she had not read Mr Leyshan’s written response at the time she made the decision to dismiss him.
● The personal matters relating to Mr Leyshan’s age; 25 years of service; clean record and the particular financial consequences due to his membership of a defined benefit superannuation fund.
CONCLUSIONS
[233] In all of the circumstances of this matter, and having taken account of each of the factors in section 387(3) of the Act, I determine that, that Mr Leyshan’s summary dismissal was harsh, unjust or unreasonable.
[234] It is noted, on the one hand, that it was found that Mr Leyshan, as Mr Walker’s supervisor, had inadequately ensured that he performed his duties properly and to the required standard. Further, it was found that Mr Leyshan had made two minor, technical breaches of the Procurement policy.
[235] On the other hand, it was found that there was no valid reason for Mr Leyshan’s dismissal. Further, I have taken account of the procedural flaws in the process, including the Council’s uncritical reliance solely on the contents of the LKA Report. I have also taken into account the differential treatment between Mr Leyshan and that of Mr Boyle and Mr Dodson; the fact that Mr Leyshan’s dismissal was “collateral damage” arising out of a covert investigation into a matter totally unrelated to him and the personal and financial consequences of the dismissal for Mr Leyshan.
[236] Therefore, balancing all of these factors, I find that Mr Leyshan’s summary dismissal was harsh, unjust or unreasonable.
[237] Accordingly, it follows that, pursuant to section 385 of the Act, Mr Leyshan has been unfairly dismissed.
REMEDY
[238] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) The FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) The FWC is satisfied that reinstatement of the person is inappropriate; and
(b) The FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[239] With respect to the requirements of s.390, I am satisfied that Mr Leyshan was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that he has been unfairly dismissed (s.390(1)(b)). Further, Mr Leyshan has made an application under s.394 of the Act (s.390(2)).
[240] Section 390(3) states that the Fair Work Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Fair Work Commission is satisfied that reinstatement is inappropriate (s.390(3)(a)). The primary remedy sought by Mr Leyshan was reinstatement.
[241] It was submitted, on behalf of the Applicant, that this is a compelling case for reinstatement and that there is no evidence before the Commission which would satisfy it that reinstatement to Mr Leyshan’s former position is inappropriate. It was argued that there was no proper basis for visiting Mr Walker’s conduct on Mr Leyshan. Further, it was contended that, if the Commission found that there was no valid reason either on the basis of making the Statement or by failures in supervisory performance, the Council’s claim about a breakdown in the trust and confidence falls apart. 478 Continuity of employment and an order for the remuneration lost because of the dismissal were also sought.
[242] On the other hand, the Council argued that it would be inappropriate to reinstate Mr Leyshan to his former position as he was/is totally unsuited to the role. This was because his position required him to proactively monitor and supervise his subordinates out in the field which he failed to do. Further, it was stated that Mr Leyshan had never conceded any failure on his part or accept that he had a responsibility to create an environment which obliged Mr Walker to perform the requirements of his role. Mr Leyshan’s comment: “I’m not their babysitter” was said to encapsulate his attitude to his position. 479
[243] In addition, it was stated that Ms Thompson, Ms Stabb, Mr Walden and Ms Dixon have all lost trust and confidence in Mr Leyshan’s ability to perform the responsibilities of his former position. This provides a proper and reasonable basis for the loss of trust ion the part of the Respondent. 480
[244] It was submitted that, if the Commission was contemplating returning Mr Leyshan to the Council, the only appropriate position would be one which did not require any supervisory responsibilities. However, it was stated that any order to this effect must be on no less favourable terms and conditions than his former position as the Commission has no power to simply order re-employment simpliciter. 481
[245] I have carefully considered the submissions of the parties on this issue. Section 390(3) of the Act states that payment of compensation must not be ordered unless the Tribunal is satisfied that reinstatement is inappropriate. Reinstatement is therefore the primary remedy.
[246] Taking all of the circumstances of this case into account, I find that I am not satisfied that the reinstatement of Mr Leyshan is inappropriate. It was clear that Mr Leyshan wanted to return to work for the Council in his former position. There was no evidence before me of any previous warnings or other disciplinary issues in respect of Mr Leyshan. In addition, because of the manner in which this matter was handled by the Council, Mr Leyshan was never given an opportunity to improve his performance as a supervisor. However, given the finding that Mr Leyshan had inadequately performed his duties as a supervisor in relation to ensuring that Mr Walker fulfilled his responsibilities as an employee, I am not inclined to reappoint Mr Leyshan to his former position as Parks Project Officer.
[247] However, I am prepared to reappoint Mr Leyshan to a non supervisory position in the Parks Department of the Council on terms and conditions no less favourable than when he was the Parks Project Officer. The Council’s witnesses gave evidence that they had lost all trust and confidence in Mr Leyshan’s ability to perform his former role as a supervisor. However, there is nothing before me that would suggest that this would necessarily be the case if Mr Leyshan was reinstated to another position which was not a supervisory role.
[248] Therefore, taking all of this into account, I am satisfied that it is appropriate to order reinstatement of Mr Leyshan, albeit on the terms outlined in the paragraph above.
[249] Section 391(2) of the Act provides that the Tribunal may make an order to maintain continuity of a person’s employment and/or the period of a person’s continuous service with the employer. Having considered all of the material before me, I consider it appropriate to issue an order maintaining Mr Leyshan’s continuity of employment and the period of his continuous service with the City of Wyndham.
[250] Section 391(3) of the Act allows the Tribunal to make an order for remuneration lost or likely to have been lost because of the dismissal. The criteria for determining the amount are set out in 391(4) of the Act, and require the Tribunal to take into account the amount of any remuneration earned or reasonably likely to be earned from employment or other work during the period:
● Between the dismissal and the making of the order, and
● Between the making of the order for reinstatement and the actual reinstatement.
[251] I consider it appropriate to order the City of Wyndham to pay to Mr Leyshan an amount for remuneration for the two periods set out in the paragraph above, less any remuneration earned from employment or other work for the same two periods.
[252] At the time if the hearing, the evidence before the Commission was that Mr Leyshan had been unsuccessful in obtaining alternative employment.
[253] Mr Leyshan is, therefore, requested to provide an update (and details, if necessary) of any income earned since his dismissal, to the Commission and to the Council, further, the Commission does not appear to have any evidence in respect of Mr Leyshan’s salary at the time of his dismissal. Mr Leyshan and the Council are requested to confer and agree on what Mr Leyshan’s salary was at the time of his dismissal.
[254] The information sought is to be provided by close of business on Monday, 21 October 2013. Once this information is to hand, an order will be issued with regard to Mr Leyshan’s continuity of employment and the period of his continuous service with the City of Wyndham together with an amount for the remuneration lost or likely to have been lost.
Appearances:
Mr S. Moore of Maurice Blackburn Lawyers for the Applicant
Mr J. D’Abaco of counsel for the Respondent
Hearing details:
2013
Melbourne.
5, 11 September.
24, 25, 26 June.
16 May.
1 Exhibit A1 at Attachment PL-4
2 Exhibit R13 at paragraph 1 (b) and Exhibit A1 at Attachment PL-4
3 Exhibit R13 at paragraph 1(a)
4 Exhibit R13 at paragraph 2
5 Exhibit A1 at Attachment PL-1
6 Exhibit A1 at Attachment PL-4
7 Exhibit R13 at paragraph 2
8 King v Freshmore (Vic) Pty Ltd Print S4213 at paragraph 23
9 Transcript PN 23
10 Transcript PN 129 and 752 – 753 and 921 and Exhibit A1 at paragraph 21
11 Transcript PN 776 – 777
12 Transcript PN 129
13 Transcript PN 152 – 153 and Exhibit A1 at paragraph 21
14 Transcript PN 154 and 167
15 Transcript PN 129
16 Transcript PN 129, 754, 756 and 921
17 Transcript PN 130 and 921
18 Transcript PN 755, 757 and 918 – 921
19 transcript PN 129
20 Transcript PN 142 – 147 and 815 – 817
21 Transcript PN 819 – 820
22 Transcript PN 146
23 Transcript PN 140, 148, 823 – 825 and 907 – 908
24 Transcript PN 826 and 829 – 833 and 880
25 Transcript PN 139
26 Transcript PN 149, 836 – 837, 841 – 842 and 845 – 846 and Exhibit A1 at paragraph 21
27 Transcript PN 149 – 151 and 847
28 Transcript PN 1216 – 1217
29 Transcript PN 1273
30 Transcript PN 1580 – 1582
31 Transcript PN 1238 - 1252 and Exhibit R3 at paragraph 31
32 Transcript PN 1218 – 1219
33 Transcript PN 1220 – 1223
34 Transcript PN 1223 – 1227
35 Transcript PN 1540
36 Transcript PN 1551 – 1561
37 Exhibit R3 at paragraph 36 and transcript PN 1417 – 1418, 1427 – 1431, 1533 – 1536, 1539, 1541 – 1542 and 1627
38 Transcript PN 1479 – 1480 and 1487
39 Transcript PN 1513
40 Transcript PN 1523 and Exhibit R3 at paragraphs 36 and 44
41 Transcript PN 1523 – 1526
42 Transcript PN 1500 – 1502, 1530 – 1532, 1534 and 1571 and Exhibit R3 at paragraph 44
43 Transcript PN 1544
44 Transcript PN 1562 – 1564 and 1569 – 1570
45 Transcript PN 1213 – 1215
46 Transcript PN 1277 – 1284 and Exhibit R3 at paragraph 16
47 Transcript PN 1285 – 1287 and 1290 – 1294 and exhibit R3 at paragraph 16
48 Transcript PN 1288
49 Transcript PN 1295 – 1298
50 Transcript PN 1299 – 1305
51 Transcript PN 1306 and exhibit R3 at paragraph 8
52 Transcript PN 1307
53 Transcript PN 1308 – 1309
54 Transcript PN 1313
55 Transcript PN 1323 – 1335, 1351 and 1376
56 Transcript PN 1376
57 Transcript PN 1348 – 1350
58 Transcript PN 1410
59 Transcript PN 1419 – 1425 and 1432
60 Transcript PN 1417 – 1418, 1427 – 1431, 1533 – 1536, 1539, 1541 – 1542 and 1627 and exhibit as R3 at paragraph 36
61 Transcript PN 1433
62 As set out on page 15 of the LKA Report
63 Transcript PN 1437 – 1447
64 Transcript PN 1464 – 1469
65 As set out on page 11 of the LKA Report
66 Transcript PN 1590 – 1595
67 Transcript PN 1590 – 1599
68 Transcript PN 1599 and Exhibit R3 at paragraph 46
69 As set out on page 11 of the LKA Report
70 Transcript PN 1602 – 1609 and exhibit R3 at paragraph 47
71 Transcript PN 3762 and 3962
72 Transcript PN 3798
73 Transcript PN 3769 - 3778
74 Transcript PN 3779 - 3782
75 Transcript PN 3784
76 Transcript PN 3788
77 Transcript PN 3789 - 3791
78 Transcript PN 3792 - 3796
79 Transcript PN 3795 - 3795
80 Transcript PN 3797
81 Exhibit R13 at paragraph 21
82 Transcript PN 3963 and Exhibit R13 at paragraph 21, 24 and 26
83 Transcript PN 3964 - 3965
84 Transcript PN 3964 -3965 and Exhibit R134 at paragraph 22
85 Transcript PN 3695 and Exhibit R13 at paragraph 22
86 Transcript PN 3967 and Exhibit R13 at paragraph 22
87 Transcript PN 3968 and Exhibit R13 at paragraph 22
88 Transcript PN 3972 - 3973
89 Transcript PN 3975
90 Transcript PN 2975
91 Transcript PN 3976
92 Transcript PN 3964 and Exhibit R13 at paragraph 22.
93 Transcript PN 3978 and Exhibit R13 at paragraph 23.
94 Transcript PN 112 - 116
95 Transcript PN 133 - 134
96 Transcript PN702 - 703 and 727
97 Transcript PN 50 and Exhibit A1 at paragraph 6
98 Transcript PN 51
99 Transcript PN 53 - 55
100 Transcript PN 56
101 Transcript PN 722 - 726
102 Transcript PN 142 - 147 and 815 - 820
103 Transcript PN 794 - 797
104 Transcript PN 693 - 698
105 Transcript PN 699 and 704 - 721
106 Transcript PN 729
107 Transcript PN 730 - 731 and 734 - 735
108 Transcript PN 739 and 922
109 Transcript PN 923 - 927
110 Transcript PN 752 - 753
111 Transcript PN 754 -759
112 Transcript PN 918 - 921
113 Transcript PN 758 - 763
114 Transcript PN 764 - 766
115 Transcript PN 768 - 771
116 Transcript PN 772 - 773
117 Transcript PN 775 - 777
118 Transcript PN 778 - 782
119 Transcript PN 788 - 793
120 Transcript PN 798 - 800
121 Transcript PN 801 - 805
122 Transcript PN 806
123 Transcript PN 807 - 810 and 909 - 911
124 Transcript PN 811 - 814 and 912 - 917
125 Transcript PN 2813
126 Exhibit R5 at paragraph 16
127 Transcript PN 2161
128 Transcript PN 2163
129 Exhibit R5 at paragraph 17
130 Transcript PN 2167 - 2169 and Exhibit R5 at paragraph s 20 - 22
131 Transcript PN 2371
132 Transcript PN 2265 - 2267
133 Transcript PN 2395 - 2396
134 Transcript PN 2392
135 Transcript PN 2400 - 2403
136 Transcript PN 2404 - 2406
137 Transcript PN 2407 - 2408, 2410 - 2411 and 2421
138 Transcript PN 2409
139 Transcript PN 2412 - 2429
140 Transcript PN 2384
141 Transcript PN 2387 - 2388
142 Transcript PN 1732
143 Transcript PN 1731 - 1232, 1803 - 1806 and 1848
144 Transcript PN 1849 - 1850 and 1998
145 Transcript PN 1858 - 1859
146 Transcript PN 1851
147 Transcript PN 1863 - 1868
148 Transcript PN 1869, 1875 and 1878
149 Transcript PN 1880 - 1882
150 Transcript PN 1883 - 1888
151 Transcript PN 2924 - 2927
152 Transcript PN 3015
153 Transcript PN 3015 - 3020
154 Transcript PN 3021 and 3034 - 3036
155 Transcript PN 3037 - 3038
156 Transcript PN 3042
157 Transcript PN 3044 - 3048
158 Transcript PN 3049 - 3051
159 Transcript PN 3052 - 3058
160 Transcript PN 3182
161 Transcript PN 3250
162 Transcript PN 3304
163 Transcript PN 3306 - 3306, 3346 and 3354
164 Transcript PN 3317 - 3318
165 Transcript PN 3323 - 3331
166 Transcript PN 3332 - 3344, 3355 and 3380 - 3381
167 Transcript PN 2261
168 Transcript PN 3364
169 Transcript PN 3370 - 3371, 3376 - 3379 and 3382 - 3383
170 Transcript PN 3374
171 Transcript PN 3551
172 Transcript PN 3577 - 3578
173 Transcript PN 3591 - 3591
174 Transcript PN 3587 - 3590
175 Transcript PN 3649, 3653 - 3654 and 3639 - 3640
176 Transcript PN 3655 - 3659
177 Transcript PN 3660 - 3661
178 Transcript PN 3662
179 Transcript PN 3672 - 3674
180 Transcript PN 3663 and 3666 - 3669
181 Transcript PN 3671
182 Transcript PN 3670
183 Transcript PN 3799 and 3804
184 Transcript PN 3800 - 3801
185 Transcript PN 3802 - 3802
186 Transcript PN 3803 - 3804
187 Transcript PN 3805 and 3807
188 Transcript PN 3806 - 3809
189 Transcript PN 3810 - 3812
190 Transcript PN 3811
191 Transcript PN 3813 - 3814
192 Transcript PN 3815
193 Transcript PN 3939 and Exhibit R13 at paragraph 9
194 Transcript PN 3942 - 3943 and Exhibit R13 at paragraph 11
195 Transcript PN 3943 - 3947 and Exhibit R13 at paragraphs 11 - 12
196 Transcript PN 3948 - 3950 and Exhibit R13 at paragraphs 12 - 13
197 Transcript PN 3950 and Exhibit R13 at paragraph 13
198 Transcript PN 3950 and Exhibit R13 at paragraph 14
199 Transcript PN 3951 and Exhibit R 13 at paragraph 14
200 Transcript PN 3951 and Exhibit R 13 at paragraphs 14 - 15
201 Transcript PN 3952 and Exhibit R13 at paragraph 14
202 Ibid
203 Transcript PN 3953 - 3954 and Exhibit R13 at paragraph 16
204 Transcript PN 3955
205 Transcript PN 3955 and Exhibit R13 at paragraph 17
206 Transcript PN 3956 and Exhibit R13 at paragraph 18
207 Iibid
208 Transcript PN 3959 - 3960 and Exhibit R13 at paragraphs 15 - 19
209 Transcript PN 3960 - 3961 and Exhibit R13 at paragraph 19
210 Transcript PN 3962 and Exhibit R13 at paragraph 19
211 Transcript PN 187 and 356-357
212 Transcript PN 188 – 189
213 Transcript PN 521-522
214 Transcript PN 359-360 and 375
215 Transcript PN 360 and 369-371
216 Transcript PN 193 – 196, 389-395 and 399
217 Transcript PN 195 and 342 – 344
218 Transcript PN 198 – 200
219 Transcript PN 345
220 Transcript PN 2116 – 2121 and 2644
221 Transcript PN 2131
222 Transcript PN 2468 – 2472
223 Transcript PN 2503 – 2505
224 Transcript PN 2473 – 2477
225 Transcript PN 2494 – 2498
226 Transcript PN 2499 – 2502
227 Transcript PN 2441 – 2443 and Exhibit R6 at paragraph 16
228 Transcript PN 2456 and 2514-2516
229 Transcript PN 2444
230 Transcript PN 2462 – 2466
231 Transcript PN 2506 – 2508
232 Transcript PN 2545 and 2610-2611
233 Transcript PN 2546 – 2547 and 2616
234 Transcript PN 2617-2623
235 Transcript PN 2457 and 2460
236 Transcript PN 2558-2568
237 Exhibit R6 at Attachment SW-25
238 Transcript PN 2518 – 2531
239 Transcript PN 2533 2540
240 Transcript PN 2541 – 2544
241 Transcript PN 2701-2704
242 Transcript PN 2705-2708
243 Transcript PN 2712-2713 and 2744-2745
244 Transcript PN 2716-2717 and 2720
245 Transcript PN2718
246 Transcript PN 2736-2741
247 Transcript PN 2742
248 Exhibit R7 at paragraph 6
249 Transcript PN 3157-3164
250 Exhibit R6 at attachment SW-34
251 Transcript PN 1926-1930
252 Transcript PN 1971 and 1935
253 Transcript PN 1937 and 1939
254 Transcript PN 1973
255 Transcript PN 2011-2012
256 Transcript PN 637-639
257 Transcript PN 681 - 685 and 690
258 Transcript PN 686 - 687
259 Transcript PN 686
260 Transcript PN 2781 – 2783
261 Transcript PN 2784
262 Transcript PN 2784 – 2790
263 Transcript PN 2795 – 2796
264 Transcript PN 2815-2816
265 Exhibit R7 at paragraph 15
266 Transcript PN 205 – 207, 218 and 402 -403 and exhibit R7 at paragraph 15 (a) and Attachment SW-9
267 Transcript PN 209-210 and Exhibit R7 at paragraph 15(a) and Attachment SW-8
268 Transcript PN 216-217
269 Transcript PN 219-220
270 Transcript PN 221 – 224
271 Transcript PN 225
272 Transcript PN 208, 215 and 227
273 Transcript PN 405
274 Transcript PN 405-407
275 Transcript PN 408-409 and 412 and 416 – 419
276 Transcript PN 410)
277 Transcript PN 411 – 414 and 420
278 Transcript PN 414 – 415
279 Exhibit R6 at paragraph 15 (a)
280 Transcript PN 2747
281 Exhibit R7 at paragraph 4
282 Transcript PN 2754
283 Transcript PN 2755 – 2757
284 Transcript PN 2758 – 2759
285 Transcript PN 2660-2770
286 Transcript PN 2825-2829
287 Transcript PN 2771- 2772
288 Transcript PN 2773 – 2775 and Exhibit R7 at paragraph 4
289 Transcript PN 233 and 241 – 242
290 Transcript PN 231 – 233
291 Transcript PN 441-442
292 Transcript PN 443-444
293 Transcript PN 233-234, 428-429, 434 and 440
294 Transcript PN 435
295 Transcript PN 436
296 Transcript PN 235, 237 and 241-242
297 Exhibit R6 at paragraphs 15 (b) and (c)
298 Transcript PN 253
299 Transcript PN 257 – 259
300 Transcript PN 459
301 Transcript PN 460 – 462
302 Transcript PN 463 – 464
303 Transcript PN 465 – 469
304 Transcript PN 252, 254 and 264 – 266
305 Transcript PN 478
306 Transcript PN 484 – 485
307 Transcript PN 266 – 269
308 Transcript PN 269
309 Transcript PN 471 – 476
310 Transcript PN 481 – 483
311 Transcript PN 273 – 274
312 Transcript PN 477
313 Transcript PN 2576 and Exhibit R6 at paragraph 15 (e)
314 Transcript PN 2577-2579
315 Transcript PN 2777 – 2780
316 Transcript PN 276 – 277 and 286
317 Transcript PN 279 – 280 and 284 – 285 and 504 and 507
318 Transcript PN 282 – 283 and 517
319 Transcript PN 288
320 Transcript PN 503, 505 and 647
321 Transcript PN 646
322 Transcript PN 648
323 Transcript PN 508-510
324 Transcript PN 524-525
325 Transcript PN 526
326 Transcript PN 527-528
327 Exhibit R6 at paragraph 15 (f)
328 Transcript PN 293 – 294
329 Transcript PN 295
330 Transcript PN 295 – 296 and 531
331 Transcript PN 530-535
332 Transcript PN 536-537
333 Transcript PN 652
334 Transcript PN 2092 – 2094
335 Transcript PN 2584
336 Transcript PN 2588
337 Exhibit R6 at paragraph 15(g)
338 Transcript PN 300 – 301
339 Transcript PN 302 – 303
340 Transcript PN 657
341 Transcript PN 2097 – 2098
342 Exhibit R6 at paragraph 15(h)
343 Transcript PN 304 – 305 and 658
344 Transcript PN 308
345 Transcript PN 309 – 310 and 543
346 Transcript PN 544-545
347 Transcript PN 659-661
348 Transcript PN 546-547
349 Transcript PN 2101 – 2103
350 Exhibit R6 at paragraph 15(i)
351 Transcript PN 2587 and 2588
352 Transcript PN 312 – 314 and 562
353 Transcript PN 663-666
354 Transcript PN 563-565
355 Transcript PN 561
356 Transcript PN 2107 – 2109
357 Exhibit R6 at paragraph 15(j)
358 Transcript PN 2489 and 2586
359 Transcript PN 2588
360 Transcript PN 315 – 318 and 571 and 669
361 Transcript PN 574-576
362 Transcript PN 669-671
363 Exhibit R6 at paragraph 15(i)
364 Transcript PN 319 – 324
365 Transcript PN 324 and 331
366 Transcript PN 600 - 603 and 606
367 Transcript PN 607 - 608
368 Transcript PN 609 - 610
369 Transcript PN 2111 – 2112
370 Exhibit R6 at paragraph 15(l)
371 Transcript PN 331
372 Transcript PN 611 - 614 and 673
373 Transcript PN 615 - 617 and 674
374 Transcript PN 675
375 Transcript PN 2114 – 2115
376 Exhibit R6 at paragraph (m)
377 Transcript PN 332 – 340, 620, 623 and 676
378 transcript PN 677
379 Transcript PN 678
380 Transcript PN 626-628
381 Exhibit R6 at paragraph (n)
382 (1999) 27 FCR 427
383 [2013] FWCFB 6191
384 Transcript PN 2816 - 3824
385 Transcript PN 3824 - 3825
386 Transcript PN 3826 - 3827
387 Transcript PN 3827 - 3828
388 Transcript PN3828 - 3829
389 Transcript PN 3840
390 Ibid
391 Ibid
392 Transcript PN 3841
393 Ibid
394 Transcript PN 3841 - 3842
395 Transcript PN 3843
396 Transcript PN 3845
397 Transcript PN 3846
398 Transcript PN 3848
399 Transcript PN 3849
400 Transcript PN 4011 - 4015
401 Transcript PN 4016 and Exhibit R13 at paragraph 31(a)
402 Transcript PN 4016 and Exhibit R13 at paragraph 31(b)
403 4017 and Exhibit R13 at paragraph 31(c)
404 Transcript PN 4017 and Exhibit R13 at paragraph 31(c)
405 Transcript PN 4018 and Exhibit R13 at paragraph 31(a)
406 Transcript PN 4019 and Exhibit R13 at paragraph 32
407 Ibid
408 Transcript PN 4020 - 4021 and Exhibit R13 at paragraph 33
409 Transcript PN 4021 - 4022 and Exhibit R13 at paragraph 33
410 Exhibit R6 at attachment SW-34
411 Exhibit R6 at attachment SW-25
412 Exhibit R6 at attachment SW-34
413 Transcript PN 3851 and Exhibit A 10 at paragraphs 37 – 38
414 Transcript PN 3852 – 3853
415 Exhibit A1 at attachment PL –1
416 Transcript PN 4026 and Exhibit R11 at paragraph 18 and Exhibit R13 at paragraph 38
417 Transcript PN 4023 and Exhibit R13 at paragraph 37
418 Transcript PN 4049 – 4051
419 Exhibit A1 at attachment PL –1
420 Exhibit A1 at attachment PL –1
421 Exhibit A1 at attachment PL –4
422 Ibid
423 Ibid
424 Transcript PN 3854 – 3855
425 Transcript PN 3855
426 Exhibit A1 at attachment PL –2
427 Transcript PN 3855 – 3856
428 Transcript PN 3856-3865
429 Transcript PN 3866
430 Transcript PN 3867
431 Transcript PN 3868 – 3870
432 Transcript PN 3871
433 Transcript PN 3872
434 Transcript PN 3874
435 Transcript PN 3874 – 3875
436 Transcript PN 4023 and Exhibit R11 at paragraph 18 and Exhibit R13 at paragraph 37
437 Transcript PN 4024 – 4025 and Exhibit R11 at paragraph 19 and Exhibit R13 paragraph 37
438 Transcript PN 4024 and 4054 and Exhibit R13 at paragraph 37
439 Transcript PN 4040 – 4041
440 Transcript PN 4041 – 4043
441 Transcript PN 4044
442 Transcript PN 4045
443 Transcript PN 4054
444 Transcript PN 4055
445 Transcript PN 4056
446 Transcript PN 4057 – 4058
447 Transcript PN 4059 – 4061
448 Exhibit R9 at attachment AD –1
449 Ibid
450 Transcript PN 3089
451 Transcript PN 3095 and 3098 and 3102 – 3103 and 3105
452 Transcript PN 3107 – 3114
453 (2000) 98 IR 233 at paragraph 16
454 Transcript PN 3877 – 3881
455 Exhibit R11 at paragraph 27
456 Transcript PN 3882 and Exhibit R11 at paragraphs 28 – 29 and Exhibit A 10 at paragraphs 44 – 46
457 Transcript PN 3883 and Exhibit A10 at paragraph 47
458 Ibid
459 Transcript PN 3884 and Exhibit A10 at paragraph 47
460 Transcript PN 3884
461 Transcript PN 3885 and Exhibit A10 at paragraph 47
462 Transcript PN 3885 – 3886 and Exhibit A10 at paragraph 47
463 Transcript PN 3887
464 Transcript PN 3887-3889
465 Transcript PN 3889
466 Transcript PN 3890
467 Transcript PN 3891
468 Transcript PN 3891
469 Transcript PN 3893
470 Transcript PN 3894 and Exhibit A 10 at paragraph 47
471 Transcript PN 3895 – 3896
472 Transcript PN 3897 – 3898
473 Transcript PN 3899
474 Transcript PN 4062 – 4063 and Exhibit R11 at paragraph 31
475 Exhibit R11 at paragraph 33
476 Transcript PN 4064
477 Transcript PN 4067-4068
478 Transcript PN 3903 - 3912 and Exhibit A10 at paragraph 50.
479 Transcript PN 4029 - 4030 and Exhibit R11 at paragraph 37 and Exhibit R13 at paragraphs 40 - 43
480 Transcript PN 4030 and Exhibit R13 at paragraph 44
481 Transcript PN 4031 and Exhibit R13 at paragraph 45 and Exhibit R11 at paragraph 38
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