Warner v Commissioner of State Revenue

[1997] IRCA 269

DECISION NO:269/97

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - VALID REASON - conduct - public servant - vandalism of employer’s property - wrongful activation of fire alarm - conduct outside of work - alcohol - unsatisfactory employment history

Workplace Relations Act 1996 (formerly Industrial Relations Act 1988)
Ss 170DB, 170DE1, 170EA,

Public Sector Management Act 1994 (WA)
Ss 80, 81, 83, 86, 92

Hussein v Westpac Banking Corporation (1995) 59 IR 103
Jupiters Ltd v Thirkettle and McGinness (Unreported, IRCA No. 258 of 1997,
      Madgwick J, 25 July 1997)
Kenefick v Australian Submarine Corporation (1995) 62 IR 107
Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370
Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371
Wadey v YWCA Canberra, (Unreported, IRCA No 542 of 1996, Moore J
      12 November 1996)
Westen v Union des Assurances de Paris (Unreported, IRCA No 660 of 1996,
     Madgwick J, 17 December 1996)

Jeremy WARNER -v- COMMISSIONER OF STATE REVENUE
WI 1255 of 1996

BEFORE:        R. D. FARRELL JR
PLACE:           PERTH
DATE:              16 September 1997

IN THE INDUSTRIAL RELATIONS      )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          

No. WI 1255 of 1996

BETWEEN:  

Jeremy WARNER
  Applicant

AND:  

COMMISSIONER OF STATE REVENUE
  Respondent

MINUTE OF ORDERS

BEFORE:                 R. D. FARRELL JR

PLACE:  PERTH

DATE:  16 September 1997

THE COURT ORDERS THAT:

1. Within 14 days of the date of this order, the Respondent pay to the Applicant damages of a sum equal to four (4) weeks’ wages pursuant to section 170EE(5) of the Workplace Relations Act (1996), less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.

Note:    Settlement and entry of Orders is dealt with by Order 36 of the  Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

WI 1255 of 1996

BETWEEN:

Jeremy WARNER
Applicant

AND:

COMMISSIONER OF STATE REVENUE
Respondent

REASONS FOR DECISION

16 September 1997  R. D. FARRELL JR

This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application was originally for reinstatement or, in the alternative, compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Jeremy Warner (“Mr Warner”), by the respondent, the Western Australian Commissioner of State Revenue (“the Commissioner”).

The representative of the Applicant then indicated at a directions hearing that reinstatement was no longer sought, and the application was amended accordingly. However, the Applicant sought to amend the claim at the beginning of the hearing to restore the claim for reinstatement.

I reserved my decision on the application to amend until I had determined the merits, being of the view that such an application should be dealt with in a manner analogous to an application for an extension of time within which to apply, taking into account the merit of the claim, any prejudice to the respondent and the explanation for the need to amend.

The Events of Friday 23 February 1996

Mr Warner was an acting assessor of stamp duty with the Department of State Revenue (“the Department”). His work as an assessor was generally of a good standard. He had been employed as a public servant since February 1987. On 20 May 1996, his employment was terminated summarily by the Commissioner on the grounds of misconduct, with the Commissioner having had regard to previous breaches of discipline by Mr Warner.

The incident which resulted in Mr Warner’s dismissal occurred on the evening of Friday, 23 February 1996.

The Department had, until that date, operated from historic premises known as the Central Government Buildings in Barrack Street, Perth. The Department was moving over that weekend to modern premises elsewhere in the city, and its personnel therefore spent much of that Friday packing up in readiness for the move.

Informal arrangements were made by the employees for after work drinks to mark the occasion. The employees contributed funds for the purchase of alcohol and from about 3:00 pm many of the workforce began to congregate in the central assessing area for drinks as their work for the day concluded. Impromptu cricket matches took place in the corridors. It seems that the Assistant Commissioner responsible for Stamp Duties, Mr Ric Davies, was briefly in attendance. While it was not an official work function, it would appear that the responsible officers of the Department did not object to the staff having drinks on the premises.

Mr Warner participated in this festive activity. He had had several drinks at a nearby hotel during his lunch break, which he says was his usual practice. He estimates he consumed four or five middies (ie 285 millilitre glasses) of Matilda Bay beer - a mid-strength brew. He drank more at the office in the course of the afternoon and evening. As a result, he became increasingly drunk, to the point where one of his colleagues describes him as having been “paralytic”. Mr Warner agrees he wouldn’t have been legally able to drive, but notes that he could walk.

As the evening progressed, members of staff gradually left, until only about ten employees remained. As more alcohol was consumed, the behaviour of some of those employees who remained degenerated into skylarking. The evening ended with one of the employees setting off a fire extinguisher and chasing other employees with it, and also with the setting off of a fire alarm on the ground floor, with the result that the fire brigade attended the premises. The alarm was activated at 6.46pm. It was a remote alarm connected to the Central Fire Station, and could not be heard at the Central Government Buildings.

Mr Warner concedes that his memory of his actions that evening is hazy as a result of his state of intoxication. However, he admits that he deliberately broke a glass panel at the front of the fire alarm. He does not concede that he activated the fire alarm.

Initial Inquiries by the Assistant Commissioner

The Assistant Commissioner, Mr Ric Davies, made initial inquiries into the incidents in the following week.

In a memorandum dated Thursday 29 February, 1996, Mr Davies reported to the Commissioner that:

“I ...spoke with Mr Warner and he indicated that he was not responsible for setting off the alarm but had cut his finger on the glass which had been broken by some other party”.

Mr Davies confirmed in his evidence that this had been Mr Warner’s initial response when Mr Davies had asked him whether he was responsible for setting off the alarm. He says Mr Warner had told him he had cut his finger while feigning to push the button on the fire alarm. Mr Davies says he later heard from another employee, Mr Paul Kelly, that Mr Warner had admitted on the night to breaking the glass on the fire alarm. Mr Davies also spoke to a number of other employees who were present that night.

Mr Davies says his memorandum to the Commissioner was based upon notes he dictated of his interviews with the employees, which notes were discarded after the memorandum was written. Mr Davies maintains that the account in the memorandum of Mr Warner’s initial response that another party had broken the glass was therefore based upon his contemporaneous note of their conversation.

Mr Warner was the final witness in this matter and gave evidence after hearing the evidence of the other witnesses, including Mr Davies. Mr Warner says that Mr Davies didn’t appear to be taking any notice of what Mr Warner said when Mr Warner first spoke with him. Mr Warner says that, from the outset, he admitted to Mr Davies that he had broken the glass, but that he denied setting off the alarm. He believes Mr Davies may have misunderstood, equating a denial of setting off the alarm with a denial of breaking the glass. Mr Warner argues that it would have been pointless to lie to Mr Davies about breaking the glass, because Mr Warner had announced the fact that he had broken the glass to the others present at the time.

I accept Mr Davies’ evidence that Mr Warner initially denied breaking the glass. I do so because I find that it is more likely than not that, due to his state of intoxication, Mr Warner did not have a recollection of breaking the glass, nor of his later disclosure of the fact to others that night. I will refer to further evidence in due course which supports such a finding.

After their initial discussion, Mr Davies asked Mr Warner to provide him with a written statement. Mr Warner did so on 27 February 1996. The statement included the following account:

“Whilst standing around in a group, talking, I jokingly stated to Jim Krajancich that I was going to set off the fire alarm, to which I headed off towards where the panel was located. By the time Jim had caught up with me, I had broken the glass cover and was feigning to press the button. As Jim had thought this was not a good idea he grabbed my right arm and swung it away from the panel, in doing so preventing the triggering of the alarm and lacerating my right index finger, which was bleeding profusely...”

When asked by Mr Davies to provide further information, Mr Warner responded that he could not do so.

The other employees made statements in writing to Mr Davies, which were tendered into evidence. Much of their content is hearsay, and I have regard to them only to the extent that they affected Mr Davies’ recommendation to the Commissioner.

The statements support a conclusion that Mr Warner cut his finger after one of the other employees, Mr David Hall, had discharged the fire extinguisher.

Mr Krajancich stated that he could not honestly state that he actually saw Mr Warner break the glass on the alarm or that Mr Warner was able to put any pressure on the button to activate the fire alarm.

Another employee, Ms Rosetta Versaci, stated that she had heard that Mr Warner had broken the glass “earlier”; she did not know when.

Mr Kelly stated that he bandaged Mr Warner’s finger, and that Mr Warner had admitted to breaking the glass on the fire alarm but stated that he had not actually hit the button.

Mr Davies’ enquiries with Mr Warner and with the other officers present at the time led him to recommend to the Commissioner that disciplinary action be initiated against Mr Warner under the Public Sector Management Act 1994 (W.A.), the legislation prescribing the disciplinary procedures applicable to Mr Warner as a Western Australian public servant.

Public Sector Management Act 1994 (W.A.)

I will here set out or summarise the relevant provisions of the Public Sector Management Act 1994 (W.A.) and the Public Sector Management (General) Regulations 1994 (W.A.) referred to later in these reasons.

Section 80: Breaches of discipline, paragraph (c), provides that an employee who commits an act of misconduct commits a breach of discipline.

Section 81: Procedure when breach of discipline suspected, provides that:

“(1)An employing authority may, when it suspects that a person has committed a breach of discipline whilst serving as an employee in its public sector body and has given the person such notice in writing of the nature of the suspected breach of discipline as is prescribed, give the person a reasonable opportunity to submit an explanation to the employing authority.

(2)After having given the respondent the reasonable opportunity referred to in subsection (1), the employing authority may... investigate or direct another person to investigate... the suspected breach of discipline in accordance with prescribed procedures...”

Regulation 16: Prescribed procedures for the purposes of section 81(2) of the Act, provides for the necessary written notifications to the respondent.

Section 83: Powers of employing authority... after investigation of alleged breach of discipline, subsection (1), provides that:

“If, following the investigation of an alleged breach of discipline under section 81, an employing authority... finds, whether as a result of its own investigation or that of a person directed under section 81 (2) (a), that -

(a)a minor breach of discipline was committed by the respondent, that employing authority may in accordance with prescribed procedures -

(i)        reprimand the respondent;

(ii)       impose on the respondent a fine...; or

(iii)      both reprimand and impose the fine... on the respondent;

(b)a serious breach of discipline appears to have been committed by the respondent, that employing authority shall cause the respondent to be charged in accordance with prescribed procedures with having committed that alleged breach of discipline...”

Section 86: Procedure when charge of breach of discipline is brought, provides that:

(1)       A charge under Section 83 (1) (b)... shall:

(a)       be in writing;

(b)contain the prescribed details of the alleged breach of discipline; and

(c)require the respondent to indicate within such period of not less than 7 days as is specified in the charge whether or not he or she admits or denies the charge.

(2)A respondent charged under Section 83 (1) (b)... shall admit or deny the charge within the relevant period referred to in subsection (1) (c).

(3)...if a respondent admits a charge under subsection (2) and the employing authority finds the charge to be proved, the employing authority -

...(b)        may -

...(i)        reprimand the respondent;

(ii)       transfer the respondent...;

(iii)      impose on the respondent a fine...;

(iv)      reduce the monetary remuneration of the respondent;

(v)       reduce the level of classification of the respondent; or

(vi)      dismiss the respondent...”

Original Charge Laid and then Withdrawn

On 1 March 1996, on receipt of Mr Davies’ memorandum, the Commissioner charged Mr Warner with:

“1.Committing an act of misconduct under section 80(c) of the Act, in that on 23 February 1996 you did wilfully break the glass on the fire alarm situated on the ground floor Central Government Buildings, Barrack Street entrance. Your action resulted in the Fire Brigade having to attend. This not only wasted their resources, it placed lives at risk and brought the Department and the public service into disrepute.

2.Committed an act of misconduct under section 80(c) of the Act, in that on 27 February 1996 you initially advised the Assistant Commissioner that you were not responsible for breaking the glass on the fire alarm. This was a dishonest act and is in breach of the Public Service Code of Conduct.”

On 7 March 1996, Mr Warner responded, admitting to breaking the glass on the fire alarm, denying setting off the alarm and denying advising the Assistant Commissioner that he was not responsible for breaking the glass.

The charges were later withdrawn when Mr Warner’s union, the Community and Public Sector Union, raised an apparent failure by the Commissioner to comply with the prescribed disciplinary processes.

Investigation of Suspected Breach of Discipline by Mr O’Donoghue

The Commissioner then issued a “Notice of Suspected Breach of Discipline” to Mr Warner on 28 March 1996, in the following terms:

“I ...advise that I have decided to recommence inquiries into the incident which occurred on 23 February 1996 in Central Government Buildings and resulted in property being damaged and the Fire Brigade attending the premises.

It is alleged that you wilfully broke the glass on the fire alarm situated on the ground floor of Central Government Buildings on the 23rd of February 1996.

In accordance with Section 81(1) of the Public Sector Management Act 1994 I require you to provide me with your explanation with respect to this incident...”

On 10 April 1996, the Commissioner directed Mr Ramon O’Donoghue, the Department’s Acting Principal Investigations Officer, to conduct an investigation into the matter in accordance with Section 81(2) of the Public Sector Management Act 1994. He directed Mr Richard Dawe to assist in the investigation.

Mr O’Donoghue and Mr Dawe reviewed papers and records and conducted interviews with everyone they could identify who had knowledge of the incident, including Mr Warner. The other employees interviewed included Mr Jim Papathanassiou and Mr John Cornelius, to whom Mr Davies had not spoken.

Notes of these interviews and statements prepared based upon those notes were tendered into evidence. Again, much of the content is hearsay, and I have regard to them only in so far as they were relied upon by the investigators as the basis for their findings.

Mr Cornelius stated that he had followed Mr Warner into the hallway when Mr Warner left the group. Immediately before, Mr Warner had waved the small hammer usually attached to the fire alarm, saying “I’m going to use it”. Mr Cornelius saw Mr Warner use the hammer to break the glass on the fire alarm. Mr Cornelius then left the building. It seems Mr Cornelius was not present when Mr Hall set off the fire extinguisher.

Another employee, Mr Jenkins confirms that he saw Mr Warner with the hammer while in the company of the group at some time before the fire extinguisher was set off.

Mr Papathanassiou noted that the small hammer was later found in the central assessing area covered in powder from the fire extinguisher, also indicating that the hammer must have been used before Mr Hall set off the fire extinguisher.

Mr Krajancich stated that, given his proximity when Mr Warner cut his finger, he did not believe Mr Warner broke the glass at that time.

Mr Warner’s interview indicates confusion in his account of events. At first, he deduced from the fact that the hammer was later found covered with fire extinguisher powder that he broke the glass and then cut his finger when pulled away by Mr Krajancich before Mr Hall set off the fire extinguisher.

When advised of the statements of the other employees, he conceded it was possible that he cut his finger after Mr Hall set off the fire extinguisher, but was reluctant to concede that he had approached the fire alarm on two separate occasions; once alone when he broke the glass, and again pursued by Mr Krajancich when he cut his finger.

Mr O’Donoghue made a written report of his findings and recommendation to the Commissioner on 30 April 1996. The findings of the investigation were that:

·   Mr Warner wilfully broke the glass in the fire alarm

·   Breaking the glass activated the alarm, sending a signal to the fire brigade

·   Mr Warner’s act was an act of misconduct and thus a “breach of discipline” under section 80(c) of the Public Sector Management Act, and

·   Mr Warner’s act was a “serious breach of discipline” for the purposes of section 83(1)(b) of the Public Sector Management Act.

Mr O’Donoghue’s recommendation was that Mr Warner be charged under Section 83(1)(b) of the Public Sector Management Act and that the procedures set out in Section 86 of that Act be followed.

Admission of Charge of Breaking Glass on Fire Alarm

On 2 May 1996, the Commissioner called Mr Warner into his office and personally issued him with a letter charging him under Section 83(1)(b) of the Public Sector Management Act with “committing a breach of discipline by committing an act of misconduct under Section 80(c) of the Act, in that on 23 February 1996 you wilfully broke the glass on the fire alarm situated on the ground floor of Central Government Buildings.”

Mr Warner responded by letter on 9 May 1996, admitting to “wilfully breaking the glass on the fire alarm situated on the ground floor of Central Government buildings.”

Determination of Penalty

On 10 May 1996, the Commissioner wrote to Mr Warner:

·   noting that Mr Warner had been formally warned on two previous occasions that any further transgressions may result in his dismissal;

·   setting out the penalties prescribed in Section 86(3) of the Public Sector Management Act; and

·   inviting Mr Warner “to explain in writing why the penalty of dismissal should not be applied in this instance.”

The Commissioner agreed to meet on 16 May 1996 with Mr Owen Wood, of the Union, who acted on behalf of Mr Warner. Mr Wood sought leniency for Mr Warner. He pointed to the fact that the incident occurred outside business hours and the fact that Mr Warner had family responsibilities. He suggested that the matter was not of such substance as to warrant dismissal.

The Commissioner responded that Mr Warner’s act of “vandalism” was viewed seriously as it followed offences for “lying” and “stealing”, and that Mr Warner had shown he was “incorrigible” in that the previous warnings had not changed his behaviour. The earlier incidents referred to by the Commissioner are considered later in these reasons.

The Commissioner also pointed out to Mr Wood that Mr Warner had at no stage shown any remorse.

On 17 May 1996, Mr Warner wrote responding to the Commissioner’s invitation to explain why the penalty of dismissal should not be applied. The letter includes the following:

“Firstly, I have since realised the serious anxiety caused by my actions on the 23 February 1996. I offer my sincere apologies and would like to make restitution in full.

While I accept that my actions were wrong, I had been consuming a reasonably high level of alcohol to celebrate moving to our new Head Office. I had never intended to cause any damage or bring any discredit to the Department.

Further, I have worked in the Department for nearly 10 years. I like the job and like working with the members of our team on the counter in stamp duty collection. I also believe I am a good competent worker committed to the position and I strongly desire to remain in my position.

In addition, I financially support a spouse and young child who would be severely disadvantaged if the penalty of dismissal were to apply. My financial situation is further eroded by my rental commitments each week.

I reiterate my deepest regret over the incident and ask that you look at my circumstances favourably.

I make the personal commitment to you that in future I will not involve myself in any issue of a negative nature that requires you attention.

Finally, I would be prepared to avail myself to the internal professional counselling service to assist me in any behavioural adjustment the service may advise.”

In evidence the Commissioner, Mr Alastair Bryant, said that he believed that the letter lacked sincerity because it went through “almost verbatim” the things the Commissioner had told Mr Wood that Mr Warner had not done, in terms of showing remorse and offering restitution. Mr Warner says that while Mr Wood assisted in the drafting of the letter, Mr Warner put down in the letter what he wanted to say. Mr Warner says the ideas contained in the letter were his own, not Mr Wood’s.

The letter was delivered by Mr Warner in unfortunate circumstances. Mr Warner was absent from work on 17 May 1996 and did not report his absence to his supervisor, Mr Gary Thomas, until 2.00pm. Mr Warner was required to attend work from, at latest, 9.30am. Mr Warner rang Mr Thomas at 2.00pm to say that he had just woken up and wouldn’t be in for the day. Later, at about 4.00pm, Mr Warner came in to deliver his letter to the Commissioner. He told Mr Thomas that he had had a “big night at the casino”, and showed Mr Thomas some gambling chips. Mr Thomas admonished Mr Warner at the time, having already sent a memorandum to his manager about Mr Warner’s failure to follow the appropriate protocols on this occasion.

Mr Warner concedes that he had been drinking at the casino the night before, saying that he had “been under a bit of stress at the time”.

The Commissioner says this further incident indicated that Mr Warner wasn’t making any serious attempt to redeem his behaviour, but says no emphasis was placed on it in determining the appropriate penalty in relation to the charge.

On Monday 20 May 1996, the Commissioner called a meeting of the Department’s Executive Committee, comprising the six Assistant Commissioners and some additional senior officers of the Department. Also present was Mr George Lenyk, the Department’s Human Resources Manager. Mr Lenyk had prepared a briefing note with relevant materials which summarised Mr Warner’s record of service and included his comments in mitigation. It recommended a penalty of dismissal, on the basis that:

·   Transfer would merely move the problem;

·   Further demotion was not possible as Mr Warner was a Level 1 officer;

·   A previous reduction of salary had not improved his behaviour; and

·   Dismissal recognised the seriousness of the offence, taking into account past warnings and opportunities.

The Commissioner consulted with the Committee concerning the appropriate penalty. There was no dissent from Mr Lenyk’s recommendation.

Following that consultation, the Commissioner decided to proceed to terminate Mr Warner’s employment. He did so summarily, being of the view that Mr Warner’s conduct had been sufficiently serious to warrant immediate dismissal.

Mr Warner was presented that day with a notice of dismissal, effective immediately. He was paid his accrued entitlements, but received no pay in lieu of notice. The Commissioner said in evidence that he didn’t believe Mr Warner could be trusted in the office, not only in the sense of doing his work correctly but in terms of the safety of other officers. His entitlement to notice would otherwise have been four weeks.

Contentions Concerning Valid Reason for Termination

Mr Warner had the right under Section 80I (1) of the Industrial Relations Act 1979 (W.A.) to appeal to the Public Services Appeal Board from the decision of his employer that he be dismissed. Mr Warner has instead made application to this Court, claiming that his dismissal was unlawful due to an alleged breach by the Commissioner of Section 170DE(1) of the then Industrial Relations Act 1988 (C’th), which requires that there be a valid reason for the termination of an employee’s employment.

The Commissioner contends that there was a valid reason connected with Mr Warner’s conduct for the termination of Mr Warner’s employment. Under Section 170EDA(1)(a) of the Act, the onus is on the Commissioner to prove it.

The Commissioner contends that the valid reason for Mr Warner’s dismissal was Mr Warner’s conduct in wilfully breaking the glass of the fire alarm at his work premises. He says this conduct was a valid reason for Mr Warner’ dismissal given:

·   that it was a deliberate act of vandalism

·   the previous poor record of Mr Warner in respect of breaches of discipline;

·   the disrepute that such action can bring to the Department and the Public Sector; and

·   the danger that could have resulted to the fire brigade, general public and staff.

Some of these issues arguably do not arise unless it is assumed that Mr Warner’s action in breaking the glass had the result of summoning the fire brigade.

Did Mr Warner Summon the Fire Brigade?

Mr Warner contends that the Commissioner has not proved that Mr Warner actually activated the fire alarm, rather than merely breaking the glass. While breaking the glass in itself constituted deliberate damage to his employer’s property, Mr Warner would contend that it would be more akin to, for example, deliberately breaking a window.

In his report to the Commissioner, Mr O’Donoghue stated that:

“The Fire Brigade advise that the breaking of the glass of that type of alarm activates the alarm, sending a signal to the brigade”.

Mr Davies, in his earlier preliminary report, had noted that:

“A representative from the West Australian Fire Brigades was contacted and advised that the DBA was a pressure type alarm and the breaking of the glass automatically releases the button which triggers the alarm. Consequently there is no need to physically push the button. This means that Mr Warner’s actions of breaking the glass, which he has admitted to in his report, set off the alarm.”

Mr Davies explained in evidence that he understood the button to be spring loaded, so that rather than there being a need to depress the button, on the breaking of the glass the button would pop out to activate the alarm.

The Commissioner therefore made his decision on the assumption that, whether Mr Warner was aware of it or not, the mere act of breaking the glass in fact automatically had the effect of summoning the fire brigade. It was only late in the hearing of this application, after obtaining further information from the fire brigade, that counsel for the Commissioner conceded that the alarm would not automatically be triggered by merely breaking the glass. The Commissioner now contends that it was likely but not certain that breaking the glass had the effect of depressing the button and setting off the alarm.

Mr Warner contends that this misapprehension on the part of the Commissioner was significant.

Given Mr Warner’s admission that he broke the glass, questions of fact arise as to whether Mr Warner activated the alarm, thus summoning the fire brigade and, if he did, whether it was done intentionally.

Three witnesses gave direct evidence in relation to Mr Warner’s dealings with the fire alarm. They were Mr Cornelius, Mr Kranjancich and Mr Warner himself.

Mr Cornelius, an assessor in the stamp duties division of about eight years’ standing, gave evidence consistent with his statement to Mr O’Donoghue. He says Mr Warner had had too much to drink. Mr Warner had come into the group of employees drinking in the central assessing area and waved the hammer from the fire alarm. Someone asked him, “What are you going to do with it?” He responded, “I’m going to use it”.

Mr Warner then left the area, heading towards the fire alarm. Mr Cornelius, who was concerned, decided to follow him. When Mr Cornelius entered the relevant corridor, Mr Warner was already at the fire alarm. Mr Cornelius saw him hit the glass with the hammer, saying the glass broke with a “popping” sound. Mr Warner did not appear aware of Mr Cornelius’ presence. Mr Cornelius suggests this was due to Mr Warner’s intoxication. Mr Cornelius says he kept walking and exited the building to go home.

Mr Kranjancich was an assessor in the stamp duties division of about ten years’ standing. He also gave evidence consistent with his earlier statement. Mr Kranjancich recalls that, at some time after Mr Hall set off the fire extinguisher, Mr Papathanassiou called out to Mr Kranjancich to stop Mr Warner from setting off the alarm. Mr Kranjancich saw Mr Warner heading towards the alarm. He agrees that Mr Warner could have been joking. He pushed Mr Warner’s hand away from the button, causing Mr Warner to cut his finger on the broken glass. In his opinion, if Mr Warner touched the button at that time, it would have been only a slight touch.

Mr Warner says that he is “pretty certain” he didn’t touch the button at the time he cut his finger, but it is possible he did so. The finger was cut at the first joint.

It is interesting to note that Mr Cornelius gave evidence of approaching Mr Warner in the week after the incident to return to him a spectacle case Mr Warner had lent on the night of the incident. He says that Mr Warner had no recollection of having lent it.

Having considered the evidence, I find that Mr Warner left the group some time before Mr Hall set off the fire extinguisher and used the hammer to break the glass. He returned to the group in the central assessing area, and left the hammer there. Later, after Mr Hall had set off the extinguisher, Mr Warner again approached the alarm in such a way that Mr Kranjancich believed he was going to activate it. This caused Mr Kranjancich to try to stop him, resulting in injury to Mr Warner’s finger.

In most of his statements and in parts of his evidence, Mr Warner appeared to conflate the breaking of the glass and the cutting of his finger into the same event, when clearly they occurred at different times. On the first occasion he was asked, he denied breaking the glass at all. Mr Cornelius’ evidence concerning the spectacle case lends support to the proposition that he had no recollection of at least some events that evening.

I find that it is more probable than not that Mr Warner has very little, if any, actual recollection of his actions on that evening, due to his state of intoxication. I therefore find that his evidence concerning those matters has been largely or wholly reconstructed from what he has since learnt from others. Thus, he initially denied breaking the glass. Then, he later acknowledged breaking the glass, having since learnt from others that he had already admitted doing so at the time.

I also find on the evidence before me that it is more likely than not that Mr Warner’s actions resulted in the fire alarm being activated. There is evidence that he broke the glass on one occasion with a hammer, which might have activated the alarm, and that he had his finger near the button on a later occasion when he concedes it is possible that the button was activated. If Mr Kranjancich was involved on the latter occasion, then it was due to no fault on his part. Clearly, the alarm was activated and there is no evidence of anyone else having been near it.

In any event, I do not accept that the breaking of the glass can be equated with merely breaking a window. Whether or not Mr Warner had formed the intention to activate the alarm, had the glass not been broken, the button could not have been pushed. It should have been clear to him that in choosing to meddle with the alarm, it was a possible consequence that it would be activated, even if inadvertently. In my view his actions were, if not deliberate, at least reckless, and he must bear responsibility for the fact that the fire brigade were summoned.

I note that the Commissioner expressed the view that, had it been merely a window that was broken, in his view, it would still have been a serious breach of discipline, being an act of vandalism.

Relationship of Conduct to Employment

Mr Warner contends that his behaviour that evening was not sufficiently related to his employment to justify his dismissal.  It took place after hours, and in a social context.  Certainly,  had Mr Warner and his workmates moved on from their work premises that night, so that Mr Warner had instead broken the glass on a fire alarm at a hotel, for example, then it is far less likely that his behaviour could be regarded as grounds for dismissal from his employment.

The test in cases involving conduct outside of work is whether or not the conduct has a relevant connection to the employment: Hussein v Westpac Banking Corporation (1995) 59 IR 103.

Mr O’Donoghue’s report notes that there was “no degree of relevance to Mr Warner’s job”.  This is correct in the sense that Mr Warner’s propensity to get drunk and then do foolish or irresponsible things does not reflect on his ability to perform his usual duties.  It is thus to be distinguished from the facts in Hussein v Westpac Banking Corporation, where fraudulent activity on the part of a bank officer outside of work was clearly relevant to his employment duties.

There is, however, a relevant connection between the conduct complained of and the employment, in that the conduct:

·   occurred at the work premises;

·   involved damage to the employer’s property;

·   resulted in the fire brigade attending the work premises, thus bringing the Department into “disrepute”;  and

·   occurred in the company of other employees.

The complicating factor is the fact that Mr Warner was intoxicated. It is unlikely that the conduct would have occurred had he not been intoxicated. He became intoxicated in the course of a social occasion, where responsible officers of the Department had acquiesced to the consumption of alcohol on the premises.

It is arguable that in those circumstances, the Commissioner cannot require the same standard of behaviour from his employees that he might expect had the consumption of alcohol not been so condoned.

It does not follow, however, that even such a relaxed standard of behaviour would encompass destruction of Departmental property or tampering with a fire alarm.  Nor does acquiescence in drinking equate with acquiescence in drunkenness leading to irresponsible behaviour.

In my view, Mr Warner is not entitled to elude responsibility for his conduct on the grounds that he had lowered his inhibitions by voluntarily becoming intoxicated, even where drinking was permitted.

Relevance of Unsatisfactory Employment History

Mr Warner contends that the unsatisfactory aspects of his earlier employment history should not have been taken into account by the Commissioner in taking the decision to dismiss him, because his conduct on the evening of 23 February 1996 did not constitute a recurrence of his prior unsatisfactory conduct. It was, rather, unsatisfactory conduct of a different sort.

In January 1994, Mr Warner had been charged under the relevant public service disciplinary process with misappropriating government monies while performing his duties as a Stamp Duties Assessor.  He pleaded guilty to the charge, and the penalty imposed by the then Acting Commissioner was that he be regressed from his position as a level 2 employee to become a level 1.9 employee.

The amount misappropriated was $129 and restitution was made. Mr Warner’s cashiering float had been found to be short.  He was not charged with stealing on the basis that that charge would have required proof beyond reasonable doubt that Mr Warner took the money for his own purposes.  Mr Warner says that the float was short because he informally permitted clerks from legal firms to pay him later for small amounts of stamp duty in order to assist them. The Commissioner says this claim was not substantiated by the Department’s enquiries, but would not have altered the charge in any event.  His recommendation written at the time refers to a “slim doubt that surrounds the reason for the offence”.  In his evidence, he said he chose not to investigate further and press the stealing charge in order to benefit Mr Warner, because had they followed it up further and there was “overwhelming evidence” to suggest that the matter was stealing.

The Commissioner says that misappropriating government monies was one of the most serious offences possible in a taxing authority, and that the State Revenue Department as a taxing authority, requires that its employees be people of the “utmost integrity” who are “absolutely beyond reproach”. However, the Commissioner decided to give Mr Warner a second chance, believing that Mr Warner would understand the seriousness of the offence and learn from it.

He concluded at the time, however, that Mr Warner was “untrustworthy”, and that the trust between Mr Warner and his supervisors would be difficult to restore.  In reaching this conclusion he took into account a still earlier charge of being absent from duty without leave for an hour and three quarters after lunch on Thursday 7 May 1992.  Mr Warner had admitted that charge and had been reprimanded.

On that occasion, Mr Warner had been drinking at a hotel at lunch time.  He had returned to “clock on” after lunch, and then immediately returned to the hotel.

Mr Warner had returned to work an hour and three quarters later.  He was seen returning, and was asked where he had been by Mr Elson, his then supervisor.  Mr Warner falsely claimed to have been at an appointment with another government department.  He did not admit that he had been at a hotel until Mr Elson returned to ask Mr Warner for the telephone number of the person with whom he had claimed to have had the appointment.

There were also some other minor transgressions relating to excessive sick leave and failures to notify of absence from work, sometimes related to excessive flexi-time.

In July 1995, Mr Davies had made a submission to the Commissioner that Mr Warner be permitted to “act” in a level 2 position.

Mr Davies and Mr Warner met with the Commissioner to discuss the proposition. The Commissioner advised Mr Warner that he would be permitted to return to acting in a level 2 position, but warned Mr Warner that if he was involved in any act of dishonesty, whether in his official duties or in any other matter related to his work, then the Commissioner would exercise the maximum penalty available in disciplining him.

The incident on 23 February 1996 occurred some seven months later.

As I have suggested above, Mr Warner could be said on this occasion to have gotten drunk and then engaged in foolish and irresponsible conduct.

While alcohol also played a part in one of the earlier incidents, I agree that the conduct with which Mr Warner was charged on this occasion, namely, the wilful breaking of the glass of the fire alarm, was not an act of dishonesty, nor a recurrence of the absenteeism or departures from proper work procedures with which he had previously been charged.

Mr Warner’s unsatisfactory employment history is not, therefore, relevant to whether or not his conduct on 23 February 1996 gave rise to a valid reason for his dismissal.

That is not to say Mr Warner’s employment history would necessarily have no relevance in any decision to dismiss.  Where an employer has a valid reason to dismiss an employee, it is obviously appropriate that they review the employee’s employment history when deciding whether or not to proceed to dismiss, rather than impose some lesser sanction.

Relevance of Mr Warner’s Initial Denial

I have accepted Mr Davies’ evidence that Mr Warner initially denied breaking the glass on the fire alarm. It might be argued that this denial amounted to dishonesty such that it was a recurrence of prior unacceptable conduct, in which case Mr Warner’s employment history would be relevant in establishing a valid reason for dismissal.

The first difficulty with this proposition is the fact that, while it formed part of the original charge, the reframed charge omits any reference to such an allegation of dishonesty. Mr Warner might fairly argue, therefore, that he was not given the opportunity to defend himself against this allegation.

The broader difficulty is the state of Mr Warner’s recollection. If, as I have found, he had little or no recollection of the events, then it is perhaps understandable that he initially denied breaking the glass, given that he had no recollection of doing so.  The only respect in which he might be said to have been dishonest is in positively denying the allegation and asserting that someone else had broken the glass, rather than admitting that he had little or no recollection of the events in question.

Public Sector Disciplinary Requirements - was the penalty of dismissal available?

In Jupiters Ltd v Thirkettle and McGinness (Unreported, IRCA No. 258 of 1997, Madgwick J, 25 July 1997), Madgwick J confirmed that where an award imposes legal obligations on the employer with respect to the termination of an employee, a failure to act according to that legal obligation means that the employer could not be said to have a valid reason for the termination.

The Public Sector Management Act similarly imposes legal obligations on the Commissioner with respect to the termination of the employment of public servants for whom he is the “employing authority”.

Mr Warner contends that the Commissioner did not comply with the disciplinary process prescribed by the provisions of the Public Sector Management Act because the breach of discipline should not have been characterised by Mr O’Donoghue as “serious”.  Whether or not the breach of discipline can properly be said to be “serious” is important, because the range of penalties for a minor breach of discipline do not include dismissal: Section 83(1)(a) of the Public Sector Management Act.

Mr Warner thus contends that, given this alleged failure to act according to his legal obligations, the Commissioner similarly could not be said to have a valid reason for the termination.

According to Mr O’Donoghue’s report to the Commissioner, his characterisation of Mr Warner’s breach of disciple as “serious” for the purposes of Section 83(1)(b) was explicitly based upon:

·   the previous poor record of Mr Warner in respect of breaches of discipline.

·   the disrepute that such action can bring to the Department and the Public Sector.

·   the danger that could have resulted to the general public and staff.

In his evidence, Mr O’Donoghue said that, in isolation, Mr Warner’s breach wasn’t “overly bad”, but that it was part of a pattern. In other words, he had regard to Mr Warner’s employment history.

Despite his statements to Mr Wood during their meeting, the Commissioner accepted in evidence that an employee’s employment history would not be relevant to the assessment of the seriousness of the breach, but would only be relevant to the determination of the penalty for the offence. In my view, that is correct in Mr Warner’s case, given that this was not in any meaningful sense a repeat offence. An employee’s employment history could in some circumstances be relevant to the assessment of the seriousness of the breach (or, for the purposes of Section 170DE(1) of the then Industrial Relations Act 1988, the consideration of whether a valid reason for termination exists) where a breach which might otherwise be minor is repeated to an unacceptable extent despite appropriate warnings.

Mr O’Donoghue’s evidence left me with the clear impression that he would have classified the breach of discipline as minor rather than serious if this had been Mr Warner’s “first offence”.

In his evidence, the Commissioner said he agreed with Mr O’Donoghue’s assessment that the breach of discipline was “serious”.  He nominated the fact that it was an act of “vandalism” as an additional reason for regarding it as “serious”. The Commissioner’s position was that if this had been Mr Warner’s “first offence”, then the breach of discipline would still have been classified as “serious” rather than “minor”, though the Commissioner may not then have gone on to choose dismissal as the penalty.

However, the Commissioner added that if Mr O’Donoghue and Mr Dawe had come to the conclusion that Mr Warner’s behaviour was a minor rather than a serious breach of discipline, then the Commissioner would probably have been constrained by the penalties available under Section 83 of the Public Sector Management Act dealing with minor breaches, which penalties do not include dismissal.  He says it did not exercise his mind because it did not happen.

Does Mr O’Donoghue’s error in taking Mr Warner’s employment history into account mean that the Commissioner failed to comply with the disciplinary process prescribed by the provisions of the Public Sector Management Act?

While Section 81(2) provides that the employing authority (viz the Commissioner) may direct another person to investigate the suspected breach of discipline, Section 83 refers to the employing authority’s (ie the Commissioner’s) finding that it was a minor or a serious breach. While the finding may result from another person’s investigation, it is the Commissioner’s finding which determines the range of penalties available.

The Commissioner agreed with Mr O’Donoghue’s conclusion but for additional reasons, placing more weight on the fact that Mr Warner’s conduct included vandalism of departmental property.

It can be noted in this context that Section 92 of the Public Sector Management Act provides that if an employee is convicted of a “prescribed offence”, then the employing authority can take action to dismiss the respondent as if the respondent had admitted to a charge under section 86(2). Regulation 22 provides that the prescribed offences include “wilful damage to, or destruction of, the property of others”.   While no criminal charges were laid in Mr Warner’s case, these provisions give some support to the proposition that vandalism could properly be regarded as a serious breach of discipline, punishable by dismissal.

In the circumstances, therefore, I am satisfied that the Commissioner has met his obligations under the Public Sector Management Act.

Whether Valid Reason for Termination

I am also satisfied, on balance, that Mr Warner’s conduct in breaking the glass of the fire alarm, which I have found was likely to and did result in the fire alarm being activated and the fire brigade being summoned, was a valid reason for the termination of his employment for the purposes of Section 170DE(1) of the then Industrial Relations Act 1988.

In Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371 at 373, Justice Northrop held that:

“In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1)... The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly...”

Decisions of this Court have confirmed that the phrase “valid reason” embraces concepts of justice and fairness: eg Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 per Lee J, and Westen v Union des Assurances de Paris (Unreported, IRCA No 660 of 1996, Madgwick J, 17 December 1996).

But in Wadey v YWCA Canberra, (Unreported, IRCA No 542 of 1996, Moore J, 12 November 1996) Moore J stated:

“It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by or on behalf of the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of section 170DE(1). In putting it this way I am not attempting to depart from the views expressed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd [1995-96 62 IR 371] which have been referred to with approval on a number of occasions since...”

In Kenefick v Australian Submarine Corporation (1995) 62 IR 107, Wilcox CJ expressed a similar view at first instance, in a part of his reasoning which was not, as I read it, reversed on appeal. Having cited Selvachandran v Peteron Plastics Pty Ltd with approval, Wilcox CJ went on to add:

“...I think it follows that the reason must be genuine, that there must be a causal relationship between the reason and the termination and that the termination must be a logical response to the employee’s capacity or conduct or the employers operational requirements. Of course, there is often more than one logical way of dealing with a problem. While the subsection requires the employer to establish that the termination was a logical way of dealing with the problem of employee capacity or conduct, or operational requirements, that gave rise to it, it does not require proof that this was the only logical course. The subsection was designed to inhibit capricious terminations, not to put the Court in the employer’s managerial chair”.

While other employers might have responded differently to Mr Warner’s conduct, I accept that it would be just, reasonable and defensible for an employer to choose to respond to such conduct by dismissing the employee, regardless of his or her employment history.  Vandalising an employer’s property in circumstances which lead to the summoning without cause of the fire brigade is a valid reason for the termination of an employee‘s employment.

In deciding whether to act on that valid reason, an employer might have regard to whether the employee had been satisfactory in all other respects. An employer might often choose not to rely upon a valid reason for dismissal, despite being entitled to do so.  In Mr Warner’s case, his employment history was such that the Commissioner saw no reason not to proceed to dismiss him.  Whether or not the Commissioner’s decision might be said to be “harsh” is no longer relevant, since subsection 170DE(2) has been held invalid.

Accordingly, I will dismiss the application insofar as it is based upon Section 170DE(1).

If I am wrong with regard to whether Mr Warner’s conduct constituted a valid reason for dismissal, I can indicate that I would not have ordered reinstatement or more than nominal compensation in any event.

In assessing the remedy that is appropriate, the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened.

The evidence as to the events on 17 May 1996, when Mr Warner was absent from work without notification and, apparently, without good reason, would lead me to conclude that his employment was likely to have been terminated for a valid reason soon after in any event.  The absence would seem to have been at the very least a ”second offence” and thus a serious breach of discipline, given previous charges relating to unauthorised absences.

Alleged Inconsistent treatment

Mr Warner contends that it is relevant that David Hall, the employee who set off the fire extinguisher, was not dismissed.

The setting off of the fire extinguisher resulted in dry bicarbonate soda being sprayed throughout the Central Assessing area, affecting a number of computer terminals which required cleaning.

Mr Hall approached Mr Davies on the next working day to admit to setting off the fire extinguisher.  He immediately apologised for his conduct, offering to meet the cost of any damage.  He was judged by Mr Davies to be genuinely remorseful.  There was no evidence of an unsatisfactory prior work history.

Given that it has been held that the phrase “valid reason” embraces the concepts of justice and fairness, it is an essential element of fairness that like cases be treated consistently; indeed, Section 8(1)(c) of the Public Sector Management Act affirms the principle that “all employees are to be treated fairly and consistently”.  An unfair failure to treat employees consistently might render unjustified or indefensible a dismissal that would otherwise be justified or defensible, and render invalid what would otherwise be a valid reason for dismissal.

However, I am satisfied that there were sufficient differences between the actions and responses of the two employees to justify the difference in their treatment.  Based upon the evidence before me concerning the fire-extinguisher incident, I am inclined to the view that it would have constituted a valid reason for dismissal.  It was not, however, unfair for the Commissioner to choose not to dismiss Mr Hall while dismissing Mr Warner, given the differences in their immediate responses and their work histories.

Section 170DB

The applicant contends that as an employee of more than five years’ standing, he was entitled under Section 170DB of the Act to four weeks’ wages in lieu of notice, given that he was summarily dismissed.

Such compensation instead of notice would be payable under that section unless the employee is guilty of misconduct of a kind such that it would be unreasonable to require the employer to continue the employee’s employment during the notice period.

I find that it would not have been unreasonable in this case.  It was unlikely that Mr Warner would have engaged in further such acts of vandalism in the ensuing four weeks.  The fact that, in the end, the Commissioner chose not to rely upon Section 82 of the Public Sector Management Act which provides for suspension without pay pending an investigation of a suspected breach of discipline, indicates that he did not regard it as unreasonable that Mr Warner continue his employment for a limited period.

I will therefore order that the Commissioner pay Mr Warner damages equal to four weeks’ wages for the breach of Section 170DB.

I certify that this and the preceding 21 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:
Dated:  16 September 1997

APPEARANCES

Representative appearing for the applicant:         Mr F. Furey
  Community and Public Sector Union

Counsel appearing for the respondent:                 Mr Lundberg

Solicitors for the respondent:  Crown Solicitor for the State of Western Australia