Stuart Guy v The Geo Group Australia Pty Ltd

[2016] FWC 1628

[2016] FWC 1628

FAIR WORK COMMISSION

DECISION

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

Stuart Guy
v
The GEO Group Australia Pty Ltd
(U2015/9738)

COMMISSIONER CAMBRIDGE SYDNEY, 16 MARCH 2016

Unfair dismissal - summary dismissal - gross misconduct - factual finding of employer proven upon requisite standard - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Melbourne on 28 July 2015. The application was made by Stuart Guy(the applicant) who has been represented by the United Voice (UV), and the respondent employer is The GEO Group Australia Pty Ltd (the employer or GEO).

[2] The application indicated that the date that the applicant’s dismissal took effect was 8 July 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 9, 10 November, and 14 December 2015.

[4] At the Hearing, the applicant was represented by Mr O Fagir, barrister, instructed by Mr S Nguyen from the UV. Mr Fagir called the applicant and two other witnesses who provided evidence in support of the unfair dismissal claim. GEO was represented by Mr A Vernier, barrister, who was instructed by Mr R Casimir from GEO. MrVernier called four witnesses who provided evidence on behalf of the employer, and he also introduced into evidence witness statements from three other individuals.

Background

[5] The applicant had worked for the employer for about 5 years and 8 months. The applicant was employed as a Correctional Officer (CO) level 3. The applicant worked at the Parklea Correctional Centre (Parklea jail or the jail).

[6] Relevantly, the applicant worked in the gatehouse of the Parklea jail where his duties involved, inter alia, the security screening of all persons, (visitors, contactors and staff), who entered the jail. GEO is the contracted operator of the Parklea jail.

[7] The entry or pre-screening area of the gatehouse is separated from the internal or post-screening area by a body scanning portal located alongside a conveyer belt fed “x-ray” or goods scanning machine. These facilities are similar to the security scanning arrangements at airports, except that the scanning portal has clear entry and exit doors so that a person presses a button to gain entry, once inside the door closes behind them before another clear door opens to allow exit from the body scanning portal.

[8] Shortly before 1:45pm on 7 June 2015, the applicant was conducting security screening at the gatehouse for the entry into the jail of two persons, Ms Pearson, an Endorsed Enrolled Nurse (Nurse Pearson), who was involved in health service delivery for inmates of the jail, and Mr Mehrok, a Correctional Officer employed by GEO (CO Mehrok).

[9] On 7 June 2015, the jail gatehouse had a CCTV camera located in the entry (pre-screening) area which monitored the external entry door. The vision recorded by this CCTV camera became evidence in the form of a computer compact disc, identified as attachment RL-2 to Exhibit 9. Since June 2015, at least one additional CCTV camera has been installed in the internal, post-screening area of the gatehouse.

[10] The CCTV vision from the entry area of the gatehouse (RL-2) shows that at 1:42:48, the applicant entered the pre-screening area via a door from the gatehouse office, which is notionally within the secure perimeter of the jail. The applicant opened the external door and at 1:42:53, Nurse Pearson and CO Mehrok can be seen entering through the external door into the pre-screening area of the gatehouse.

[11] In passing, it is relevant to observe that this particular aspect of the gatehouse operational procedure has a very troubling security flaw. Individuals entering the gatehouse come into immediate direct personal contact with a CO who physically opens the external door. That CO then provides a prescribed verbal warning/caution to those seeking entry into the jail, and he or she then proceeds back through the door of the gatehouse office, which is inside the secure perimeter. There is an obvious potential for contraband to be handed between a person entering the gatehouse and the CO who physically opens the external door, and then moves back into the secure perimeter via the gatehouse office. The security screening could be easily subverted because of this direct contact upon entry to the pre-screening area of the gatehouse. The potential for a security breach is further enhanced because when the gatehouse office door is opened it obscures the CCTV view of the external door.

[12] The CCTV recording from 7 June shows that the applicant exited the pre-screening area at 1:43:16, and then Nurse Pearson and CO Mehrok can been seen placing personal items into plastic trays for entry into the “x-ray” scanner machine. The applicant walked through the gatehouse office and around to the post-screening side of the gatehouse where he proceeded to operate the “x-ray” scanner machine as firstly, Nurse Pearson and then CO Mehrok proceeded through the body scanning portal.

[13] Nurse Pearson had a lot of personal items, and she needed three trays to accommodate her possessions which were scanned for entry into the jail by the applicant. CO Mehrok used one tray for his possessions. After Nurse Pearson had placed the trays containing her items onto the belt for entry into the “x-ray” scanning machine, she walked toward the portal, but at 1:43:54, she can be seen taking her sunglasses off her head and returning briefly to the “x-ray” scanning machine to put her sunglasses into a tray for entry into the scanning machine.

[14] At 1:43:59, Nurse Pearson stood at the entry to the body scanning portal and pressed the button for entry. Nurse Pearson can be seen looking through the portal as she waits for the entry door to open. At 1:44:00, Nurse Pearson’s mouth can be seen to move as she appears to say something, and her mouth moves again in the fashion of speech at 1:44:05. She enters the portal at 1:44:10. CO Mehrok approaches the portal at 1:44:21, he hesitates to press the entry button, then at 1:44:25 he presses the button and at 1:44:28 he moves into the portal.

[15] Unfortunately, on 7 June 2015, there was no CCTV surveillance on the post-screening side of the gatehouse. When Nurse Pearson came out of the body scanning portal she confronted the applicant and accused him of removing a $50 note from her purse, which she had placed in one of her trays. The applicant denied that he had taken Nurse Pearson’s money, and an argument ensued. The raised voices of particularly Nurse Pearson were heard in the adjacent gatehouse office, which is separated from the post-screening area by clear glass. The Correctional Supervisor (CS) in the gatehouse office, Mr Maguire, was beckoned by Nurse Pearson to intervene.

[16] CS Maguire entered the post-screening area and he was quickly apprised of the theft allegations made by Nurse Pearson against the applicant. The applicant protested his innocence, and stated, inter alia, that he had only lifted up Nurse Pearson’s coat, which was placed in the first of her trays to move through the “x-ray” scanning machine. Two other COs, including a Ms Church, were also in the gatehouse office at the time, and CO Church was a witness to some of the activities in the post-screening area.

[17] As the allegations of theft and its denial were debated, either CS Maguire, CO Church or the applicant noticed a $50 note lying on the floor under the conveyor belt section of the “x-ray” scanning machine. This discovery was pointed out to the assembled group. The applicant reached down under the conveyer belt and rollers structure, and with the assistance of a scanning wand, he retrieved the $50 note, which was then returned to Nurse Pearson.

[18] Nurse Pearson was not satisfied with merely having her $50 note returned, and she proceeded to the GEO Shift Manager’s office where she made a formal report of the incident, in which she claimed that she had seen the applicant remove the $50 note from her purse. GEO management investigated this allegation of theft, it interviewed all those who were in the vicinity of the gatehouse at the time, and inter alia, it also examined the CCTV recording which was, unfortunately, confined to the pre-screening area of the gatehouse.

[19] Following its investigation, GEO concluded that the applicant had taken the $50 note from Nurse Pearson’s purse, and that such action represented gross and wilful misconduct. Consequently, GEO decided to summarily dismiss the applicant.

[20] The applicant was formally advised of his dismissal which was implemented without notice or payment in lieu of notice, by way of a letter dated 7 July 2015.

The Case for the Applicant

[21] Mr Fagir, who represented the applicant, made verbal submissions which elaborated upon documentary material that had been filed earlier. Mr Fagir submitted that the applicant’s case was entirely based upon a determination as to whether the misconduct involving the removal of the $50 note from Nurse Pearson’s purse, had been proven to the requisite standard required, relevant to the seriousness of the allegation.

[22] Mr Fagir submitted that it was well-established that in cases of summary dismissal for gross misconduct, the respondent bears the onus to prove that the misconduct had occurred. Further, according to the submissions made by Mr Fagir, the standard of proof that applied was that referred to as the Briginshaw 1 civil standard.

[23] It was submitted by Mr Fagir that in any consideration of the circumstances in this instance, a basic assumption should be applied that people don’t generally engage in theft. Further, according to Mr Fagir, there was an inherent improbability that the conduct of the applicant as was alleged, would have occurred. In this regard, Mr Fagir said that the conduct of the applicant as was alleged, was so bizarre and harebrained that it was inherently improbable.

[24] The submissions made by Mr Fagir focused upon detailed aspects of the evidence, which he said ultimately established that there were mechanical and practical difficulties to support the prospect that someone, in this case the applicant, could have unzipped the purse with one hand and taken the money out within the time frame that the events unfolded. Mr Fagir submitted that when all of the evidence of detail about the alleged removal of the $50 note from Nurse Pearson’s purse was carefully considered, it became a physically impossible manoeuvre.

[25] Mr Fagir submitted that the evidence provided by Nurse Pearson was unreliable. In particular, it was stressed that Nurse Pearson did not have a clear view through the portal and she was mistaken in what she saw. Mr Fagir stressed that the allegation made by Nurse Pearson was a matter of a mistake as opposed to a conscious falsehood. It was also submitted by Mr Fagir that a more logical alternative version of the event involved the applicant lifting Nurse Pearson’s jacket, and somehow or another the $50 note fell out during this action. According to the submissions made by Mr Fagir, this more plausible alternate explanation for the $50 note being discovered on the floor was something that Nurse Pearson was unable to accept, because she had resolutely maintained her mistaken view of the incident.

[26] Further, Mr Fagir submitted that there was no successful challenge to the credibility of the applicant, and that the Commission should be prepared to believe his blunt denial of the allegation made by Nurse Pearson. Mr Fagir submitted that minor inconsistencies in respect to the evidence provided by the applicant were matters of little or no consequence.

[27] It was also submitted by Mr Fagir, that any complete and balanced evaluation of the competing propositions regarding the alleged theft of Nurse Pearson’s $50, might ultimately be so finely balanced that the Commission was unable to positively determine what happened. In such circumstances, it was submitted that the onus on GEO had not been discharged to the relevant standard of proof, and therefore the alleged misconduct of the applicant had not been established as fact. Mr Fagir submitted that the Commission could not be satisfied, to the necessary standard, that the applicant, as a long-standing employee, entered into a dishonest and really idiotic scheme in pursuit of $50.

[28] In summary, Mr Fagir submitted that in the absence of any proven misconduct the applicant had been unfairly dismissed, and he should be reinstated together with compensation for any lost earnings.

The Case for the Employer

[29] The employer was represented by Mr Vernier, who submitted that the dismissal of the applicant was not unfair. Mr Vernier made submissions which referred to documentary material that had been filed on behalf of GEO.

[30] The submissions made by Mr Vernier acknowledged that the credibility of the applicant and that of Nurse Pearson would be critical to the outcome of the matter. In this regard, Mr Vernier made submissions which supported the evidence that was given by Nurse Pearson, who he said was a witness who should be believed and that she had given direct evidence of what she saw the applicant do. Against the evidence of Nurse Pearson, it was submitted that the evidence of the applicant was something of an evolving concept which included many contradictions and changes of mind.

[31] Mr Vernier made detailed submissions which analysed the evidence of each of the witnesses. According to the submissions of Mr Vernier, the evidence provided by CS Maguire and CO Church included significant inconsistencies, and was generally implausible as support for the applicant’s version of the event which involved Nurse Pearson’s $50 note winding up on the floor of the gatehouse.

[32] Mr Vernier made further detailed submissions which were highly critical of the evidence provided by the applicant. Mr Vernier made submissions which stressed that the applicant provided evidence about the apparent identification of a blue rectangle on the screen of the “x-ray” machine as the catalyst for his lifting of Nurse Pearson’s coat for the first time during the Hearing. Mr Vernier described the applicant’s evidence regarding the small rectangle on the “x-ray” screen and its potential to be a USB device as astounding, and a moving feast, introducing new matters that had never been raised during his earlier interviews.

[33] Mr Vernier also submitted that the alleged mechanical impossibility of the applicant removing the $50 note from Nurse Pearson’s purse, was not supported by the evidence of the CCTV. According to the submissions of Mr Vernier, the evidence generally did not support the doubt that was sought to be introduced regarding the opening of the zipper on the purse. Mr Vernier’s submissions referred to the timing records extracted from the CCTV recording, which he said supported that there was a lot of time, perhaps as much as 15 seconds, during which the applicant had the opportunity to open the purse and remove the money. Mr Vernier also submitted that there was no physical impossibility or impracticality associated with the opening of the zip on the purse.

[34] It was further submitted by Mr Vernier that the direct evidence from the CCTV recording of the reaction of Nurse Pearson provided strong support for her version of the incident. According to Mr Vernier, it was clear that something happened, and that Nurse Pearson was reacting to it at the time when she said she saw the applicant open the purse and take the money out of it. Mr Vernier submitted that the evidence was strong enough to prove the theft on the criminal standard, let alone on the balance of probabilities.

[35] Mr Vernier also submitted that there was evidence to support that the applicant had a history of dishonesty and that his credibility had been successfully challenged. Alternatively, according to the submissions of Mr Vernier, the evidence provided by Nurse Pearson was entirely consistent, plausible and believable.

[36] In summary, Mr Vernier submitted that the matter did not involve a great deal of law but instead required examination of the evidence of the witnesses, particularly that provided by the applicant and his accuser, Nurse Pearson. Mr Vernier said that when this evidence was properly examined, the applicant’s evidence could not be adopted. Consequently, according to Mr Vernier, GEO had discharged its onus and established the misconduct of the applicant to the requisite standard of proof. Mr Vernier urged that the application for unfair dismissal remedy should be dismissed.

Consideration

[37] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[38] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[39] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

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

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

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

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

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

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

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

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

387 (a) - Valid reason for the dismissal related to capacity or conduct

[40] The determination of this case has involved a requirement to resolve a fundamental factual contest about the alleged removal of $50 from Nurse Pearson’s purse after it had exited from the “x-ray” scanning machine at the jail gatehouse on 7 June 2015. That factual contest has involved the alleged criminal activity of larceny. However, the matter must be determined on the balance of probabilities, the civil standard of proof as it is described, and not the criminal standard, which requires proof beyond reasonable doubt. It is well established that the civil standard of proof should be elevated commensurate with the seriousness of the conduct under examination. However, such elevation of the civil standard does not translate into the criminal standard, and a matter remains to be determined on the balance of probabilities albeit that in more serious cases, a more exacting or stringent satisfaction would be required.

[41] In order to determine what happened in the jail gatehouse shortly before 1:45pm on 7 June 2015, it is necessary to commence by identifying the significant uncontested aspects of the incident. Apart from when the camera view was obscured by the open office door, there could be little contest about the activities of the relevant individuals, which was captured by the CCTV recording. Relevantly, these recorded activities occur between 1:42:48, when the applicant entered the pre-screening area of the gatehouse, and 1:44:28, when CO Mehrok is seen entering the body scanning portal. There was of course, great contest about what occurred during the latter part of that period of time (circa 1:43:59 to 1:44:15) in the post-screening area, outside of the vision of any CCTV camera.

[42] Notwithstanding the absence of CCTV recording, there was no dispute that Nurse Pearson and the applicant were engaged in strong argument over the alleged removal of $50 from her purse. This argument commenced immediately after Nurse Pearson had exited the portal. Further, there was no dispute that firstly; after the applicant, CO Mehrok also exited the portal and moved into the post-screening area, and, secondly; CS Maguire after being beckoned by Nurse Pearson, subsequently left the gatehouse office and went into the post-screening area. There was some uncertainty in the evidence as to whether CO Church joined the assembled group in the post-screening area.

[43] CO Church gave evidence that she spotted the $50 note on the floor and advised the assembled group, while the applicant and CS Maguire said that it was CS Maguire that made the discovery of the $50 note and then told the others. Nurse Pearson thought that the applicant had noticed the $50 note and announced its discovery. Importantly however, and irrespective of whoever made the discovery and precisely where the note was located, there was no dispute that the $50 note had made its way onto the floor of the post-screening area of the gatehouse.

[44] Consequently, the asportation element of the alleged larceny was not in contest. What arose as contest were two distinctly different propositions as to how the $50 note ended up on the floor of the post-screening area of the gatehouse. It is relevant to then contemplate the two competing propositions which emerged as alternative explanations for how the $50 note found its way onto the floor of the post-screening area of the gatehouse.

The Nurse Pearson Proposition - Larceny

[45] The first proposition was that which involved the alleged larceny, as was asserted by Nurse Pearson. On this version, Nurse Pearson said that as she was waiting to enter the portal, she saw the applicant handle her possessions which had come out from that “x-ray” scanning machine. The applicant provided evidence 2 which strongly supported that the mouth movements of Nurse Pearson, which can be seen in the CCTV recording at 1:44:00 and 1:44:05, involved Nurse Pearson calling out words of either or both; “Don’t touch that” and “I saw that”.

[46] Nurse Pearson gave evidence that she saw the applicant handle her items which were in the trays, unzip her purse, take out the $50 note, which he then held folded in his hand as she could see part of the note protruding from his right fist. Upon exiting the portal, Nurse Pearson immediately challenged the applicant and accused him of taking the money out of her purse. There was then an argument about the zip on the purse being substantially open, and clear rejection by the applicant that he was responsible for the state of the zip on the purse. Nurse Pearson rejected the applicant’s protests, and she insisted that she had seen the applicant take the $50 note out of her purse.

[47] On the basis of Nurse Pearson’s version of the incident, the applicant had sufficient time and opportunity to dispose of the $50 note during the period that the argument between himself and Nurse Pearson developed, and which subsequently involved the requested intervention of CS Maguire (and perhaps also CO Church). This proposition would involve the applicant releasing the $50 note and perhaps throwing it either under or towards the back of the conveyor belt and roller structure. The applicant would have had to dispose of the $50 note in this fashion without being noticed by either Nurse Pearson or CO Mehrok, perhaps at a point in time when attention was directed towards beckoning CS Maguire.

[48] There were two particularly significant aspects of challenge to Nurse Pearson’s version of the incident. Firstly, there was said to be insufficient time during which the applicant could have performed a sequence of actions including, lifting the coat, moving or touching other items belonging to Nurse Pearson, then unzipping the purse and removing the $50 note. Secondly, it was asserted that the description that Nurse Pearson had given of the applicant removing the $50 note, made no mention of the use of his left hand, and therefore it was said to be a mechanical impossibility for the zip to be opened with only one hand.

[49] An analysis of the CCTV recording provides for the first of Nurse Pearson’s three trays to have entered the “x-ray” scanning machine at about 1:43:52. About two seconds later, Nurse Pearson is seen moving back towards the tray entry area to return her sunglasses to a tray, and then at 1:43:59, she presses the portal entry button while looking through the portal towards the exit area of the “x-ray” scanning machine. The first mouth movement of Nurse Pearson occurs at 1:44:00 and the second can be seen at 1:44:05. Consequently, the first mouth movement occurred about eight seconds after Nurse Pearson’s first tray entered the “x-ray” scanning machine and the second mouth movement occurred a further five seconds later. Objectively, I consider that this timeframe would have provided sufficient time for the actions that Nurse Pearson attributed to the applicant.

[50] After careful consideration, I am unable to accept the alleged mechanical impossibility of opening the zip with only one hand. If the purse was secured in a tray in a manner where it could not move against the direction of the zipper movement, it would not be difficult to open (and partially close) the wide-toothed zipper of the particular purse in question. In any event, it is not unreasonable to assume that Nurse Pearson simply did not notice whether or not, or to what extent, the applicant may have used his left hand.

The Applicant’s Proposition - A Loose $50 Note

[51] The applicant’s version of the incident of 7 June 2015 emphatically denied the assertion of Nurse Pearson, who said that she directly saw him unzip the purse and remove the $50 note. The applicant said that he lifted Nurse Pearson’s coat out of the first tray because his suspicion had been aroused by a rectangular image that appeared on the “x-ray” scanning machine monitor. Strangely, the applicant made no mention of the rectangular image in either his written report of 7 June 2015 3 or during his recorded interview on 24 June 20154. According to the applicant, Nurse Pearson’s purse was also in the first tray along with the coat, but he said that he did not touch the purse at all.

[52] On the basis of the applicant’s version, the most plausible explanation for why the $50 note was found on the floor of the post-screening area of the gatehouse, is linked to his lifting of the coat. Upon logical extrapolation of this proposition, when the applicant lifted the coat, the $50 note, which may have been insecurely placed in a pocket or otherwise with the coat or the purse, was dislodged by the action of the lifting of the coat, and then it fell to the floor where it was later discovered.

[53] The prospect that a loose or unsecured $50 note fell to the floor at the time that the applicant lifted Nurse Pearson’s coat, was supported by evidence provided by CO Church who, in her statement of 20 June 2015 5 recorded, inter alia, the following:

“I was working on the computer when I noticed Justice Health nurse Liz Pearson walk through the portal, I stood up to talk to her and noticed Correctional Officer Stuart Guy working on the x-ray machine, I saw him lift up Miss Pearson’s coat and I noticed a $50 note fall from the tray onto the floor under the conveyor belt, I walked to the office door to inform her and saw Mr Guy pick up the money from the floor and return it to Miss Pearson…”

[54] This evidence was, quite amazingly, contradicted by CO Church herself during the Hearing, when she relevantly stated:

“…- Mr McGuire had already gone out the door and he was talking to them, and I didn’t know what was going on at the time. It wasn’t until I walked out the door and then I saw money lying on the ground, and I saw Mr Guy bend over and pick it up and handed it.” 6

[55] There are numerous, significant inconsistencies and incongruities in the evidence provided by CO Church, particularly which relate to the prospect that a loose or unsecured $50 note was seen to fall to the ground at the time that the applicant lifted Nurse Pearson’s coat out of the first tray that had emerged from the “x-ray” scanning machine. It is simply unbelievable to contemplate that, if CO Church had seen the $50 note fall “from the tray onto the floor under the conveyor belt” she would not then tell the assembled group about her earlier observation, as an obvious means to settle the argument between Nurse Pearson and the applicant. On careful consideration of the totality of the evidence provided by CO Church I must, unfortunately, reject her evidence in its entirety, as it was completely unreliable.

[56] There is also significant implausibility that the prospect that the $50 note that was found on the floor of the post-screening area of the gatehouse was accidentally or inadvertently dislodged from either Nurse Pearson’s coat or her purse. Nurse Pearson provided convincing evidence which, inter alia, established that she was very careful with her money. It would be highly unlikely that Nurse Pearson would be so careless with her money as to place a loose or unsecured $50 note into a scanning tray along with her coat.

The Vastly More Plausible Proposition

[57] I have undertaken a careful, balanced and objective analysis of the two logical propositions which provide competing explanations for why Nurse Pearson’s $50 note found its way onto the floor of the post-screening area of the gatehouse. This analysis provides for the inescapable conclusion that the vastly more plausible proposition is that involving the larceny, as was alleged by Nurse Pearson. Further, there are other factors, particularly in respect of the credit of the two primary witnesses, which support the conclusion that has emerged from the foregoing analysis.

[58] Unfortunately, I am unable to make positive findings in respect of the credit that could be attached to the applicant’s evidence. Observations of his demeanour as a witness, and the significant inconsistencies and incongruities which are readily apparent from a review of his evidence must, regrettably, impeach his evidence.

[59] There was also the particularly disconcerting exposure of a deliberately misleading statement contained in the applicant’s witness statement, whereby he said:

“I note that on 21 September 2015, I needed to travel urgently to the United Kingdom as my father had become ill.” 7

[60] The applicant did not make any journey to the United Kingdom on or around 21 September 2015, but instead he admitted himself into a detoxification clinic at around this time. Although I can readily appreciate the sensitivities which may be attached to medical issues that might involve addictions, there can be no justification for the creation of a deliberately misleading statement, which was intended to form part of the evidence in proceedings before the Commission. It is highly regrettable that this deliberately misleading statement was not discovered by the relevant individual or individuals at the UV who were responsible for the construction of the applicant’s witness statement. Perhaps this entire matter may have benefited from some more rigorous scrutiny, before those responsible at the UV determined to advance the unfair dismissal claim on behalf of the applicant.

[61] Regrettably, the applicant’s preparedness to make a deliberately misleading statement as part of evidence that would be put before the Commission was both dishonest and foolish. Further, this conduct provided an answer to the question of why he might engage in the brazenly foolish and distastefully dishonest attempt to steal money from a person who was essentially a colleague, and someone who was of clearly limited means.

[62] On the other hand, Nurse Pearson was an impressive, credible witness. She provided the clear impression of being a decent, respectable person, who did not wish any harm upon the applicant, but she had the courage of her convictions, and in simple terms, she knew right from wrong. Nurse Pearson was faced with a difficult situation, and this matter has been understandably upsetting for her. Her resolve and honesty should be commended and unlike other witnesses, she was clearly determined not to have the truth camouflaged, whitewashed or otherwise avoided.

[63] Consequently, there was valid reason for the dismissal of the applicant. The findings of gross and wilful misconduct made by GEO have been verified.

387 (b) - Notification of reason for dismissal

[64] GEO provided written notification of the reason for the applicant's dismissal. No issue was taken by the applicant in respect of the question of notification.

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

[65] GEO provided the applicant with appropriate opportunities to respond. No issue was taken by the applicant in respect of the question of opportunity to respond.

387 (d) - Unreasonable refusal to allow a support person to assist

[66] There was no evidence that the applicant was refused the assistance of a support person during the various discussions and investigations that were held regarding the incident of 7 June 2015. No issue was taken by the applicant in respect of the question of any unreasonable refusal to allow a support person to assist.

387 (e) - Warning about unsatisfactory performance

[67] This factor is not relevant to the circumstances in this instance.

387 (f) - Size of enterprise likely to impact on procedures

[68] The size of the employer’s operation would not have been likely to have a significant impact on procedures surrounding the dismissal of the applicant.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[69] This factor is not relevant to the circumstances in this instance.

387 (h) - Other relevant matters

[70] There was no evidence provided about other relevant matters that may have been appropriate aspects of consideration as to whether the dismissal of the applicant was unfair.

Conclusion

[71] The applicant was summarily dismissed for gross and wilful misconduct involving the larceny incident of 7 June 2015. Following a comprehensive and effective investigation into the allegations which had been raised against the applicant, GEO found the allegations proven to the requisite standard.

[72] Upon full Hearing of the applicant’s claim for unfair dismissal remedy, the findings of gross and wilful misconduct made by GEO have been confirmed by the Commission.

[73] Consequently, the employer dismissed the applicant for valid reason relating to the applicant's conduct. That conduct represented gross and wilful misconduct sufficient to justify summary dismissal.

[74] Therefore, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Mr O Fagir of Counsel and Mr S Nguyen of United Voice for the applicant;

Mr A Vernier of Counsel and Mr R Casimir of The GEO Group Australia Pty Ltd for the employer.

Hearing details:

2015.

Sydney:

November 9 & 10

December 14.

 1 This is reference to the case of Briginshaw v Briginshaw (1938) 60 CLR 336.

 2   Transcript @ PN1497 and Exhibit 5, SG-4 @ paragraphs 147-161.

 3   Exhibit 5 - Annexure SG 2.

 4   Exhibit 5 - Annexure SG 4, see in particular paragraphs 122 and 123.

 5   Exhibit 3 - Annexure NC1.

 6   Transcript @ PN747.

 7   Exhibit 5 @ paragraph 29.

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