Wenman v Derwent Valley Council
[1997] IRCA 13
•05 February 1997
DECISION NO:13/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether employee’s conduct in using the respondent’s steel to have gates constructed and erecting those gates at his home prior to making any arrangement to replace the steel amounted to misappropriation of the steel and misconduct - whether there was evidence of prejudice towards the employee because of his sexual preference - PROCEDURAL FAIRNESS - whether there was any evidence of a decision to terminate before the final meeting with the employee and a full opportunity to defend himself
Workplace Relations Act 1996 ss 170DB, 170DC, 170DE(1), 170DF(1)
Briginshaw v Briginshaw and Another (1938) 60 CLR 336
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Victoria & Ors v The Commonwealth (1996) 66 IR 392
Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996)
Thomas v Lynch (unreported, IRCA, Wilcox CJ, 20 December 1996)
Schaale v Hoechst Australia Ltd (1993) 47 IR 249
Cooke v The Royal Melbourne Hospital (unreported, IRCA, Millane JR, 2 August 1995)
Nicolson v Heaven and Earth Gallery Pty Ltd, 1 IRCR 199
Gibson v Bosmac Pty Ltd (1995) 60 IR 1
DONALD JOHN WENMAN - v - DERWENT VALLEY COUNCIL
No. TI 1194 of 1995
Before: Judicial Registrar Millane
Place: Melbourne (heard in Hobart)
Date: 5 February 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
TI 1194 of 1995
B E T W E E N :
DONALD JOHN WENMAN
Applicant
A N D
DERWENT VALLEY COUNCIL
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 5 February 1997
THE COURT ORDERS BY CONSENT THAT:
The title of the respondent is amended to “Derwent Valley Council”.
AND THE COURT FURTHER ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
TI 1194 of 1995
B E T W E E N :
DONALD JOHN WENMAN
Applicant
A N D
DERWENT VALLEY COUNCIL
Respondent
Before: Judicial Registrar Millane
Place: Melbourne (heard in Hobart)
Date: 5 February 1997
REASONS FOR JUDGMENT
The forty-two year old applicant seeks reinstatement to his position as the respondent’s storeman. This position was held by him from 1989 until 18 July 1995 when he was terminated, he contends, in contravention of the Workplace Relations Act 1996 (the Act). It was argued by the applicant that there had been no proper investigation of the circumstances relied on to terminate his employment before the decision to terminate was taken. It was also asserted, without relying on section 170DF(1) of the Act, that the respondent was prejudiced and discriminated in its decision making process because the applicant was then living in a relationship with another male, James Bruce White (White), who also happened to be one of the New Norfolk Council counsellors. The discrimination was said to relate to the applicant’s sexual preference. Essentially the allegations made by the applicant were confined to alleged contravention of sections 170DE(1) and 170DC of the Act as well as seeking compensation in lieu of notice pursuant to section 170DB of the Act.
As a result of a statutory amendment in 1996 the title of the New Norfolk Council was amended to the Derwent Valley Council. It was agreed by the parties that the Derwent Valley Council is the proper respondent against which entity any orders of this Court should be made. Accordingly, the first order by consent made in this proceeding is that the title of the respondent is amended to “Derwent Valley Council”.
The Derwent Valley Council defended the proceeding arguing that its summary dismissal of the applicant on 18 July 1995 was justified and was effected on a procedurally fair basis. The reason for the termination was a breach of trust relating to his misappropriation of a set of steel gates constructed at the council’s depot from steel belonging to the council.
THE WITNESSES
The following witnesses were called by the respondent:
- Peter Raymond Walker (Walker), a fitter, who was a contractor to the council at the relevant time and supplied steel to it;
- Ian Stephen Preece (Preece), the respondent’s manager of physical
services, who was at the relevant time a works supervisor;
- Mark Donald Griffiths (Griffiths), a financial adviser, who was formerly employed by the respondent as its general manager;
- Paul Gregory Winter (Winter), who was formerly employed by the respondent as its director of technical services;
- Ken Fisher (Fisher), a ward aide, who was a transport sub-contractor to the respondent at the relevant time; and
- Les Spiteri (Spiteri), unemployed, who was previously employed by the respondent as its town foreman.
The applicant gave evidence and called the following witnesses:
- White, a former New Norfolk Council councillor and manager of the Derwent Travel Agency until September 1995;
- Anthony Edward Crosswell (Crosswell), a storeman/driver, formerly employed with the respondent in its Skillshare program;
- Richard Parker (Parker), a former New Norfolk Council councillor during 1995 and the current proprietor of Derwent Travel Agency; and
- Roydon Leslie Howard (Howard), a former New Norfolk Council councillor during 1995.
BACKGROUND INFORMATION
As a storeman the applicant worked at the council depot. His duties included ordering materials such as the steel used by the council in its works. In this case during the first half of 1995 the council was engaged in the construction of steel boom gates for use in its local works. At that time a Skillshare program was in progress; involving the council in using extra Skillshare labour to complete its various projects, including the construction and installation of steel boom gates at various council locations. The applicant’s part in this process was to complete job orders for any materials and goods required both for the construction works and for the additional employees engaged on the projects.
It was not disputed that the applicant was responsible for ordering the steel used to fabricate the gates before June 1995. However, there was no evidence given to contradict his contention that he was not responsible for determining the overall quantity of the steel ordered for the boom gate project. Any ordering of materials by him was done, he said, in accordance with instructions given to him as to quantity by other employees engaged in the various projects.
At the time of the alleged incident the applicant and his partner, White, were the owners of a property at Molesworth, which property needed gates to stop traffic turning onto the bridge leading to the house and to contain the applicant’s dog.
It was common ground that a substantial amount of a quantity of steel ordered by the applicant for the construction of council boom gates in the first part of 1995 was used by council employees in May 1995 during council time to construct a set of ranch-style gates known as “Don’s gates”. These gates were, on 7 June 1995, transported to the applicant’s home by a council sub-contractor, Fisher, who was involved in the transport and erection of the council boom gates on the same day. The sub-contractor did not charge the applicant any fee for the transport and delivery of the gates. It was also not disputed that the earliest date from which any attempts were made by the applicant to order replacement steel was 29 June 1995, after the applicant had been questioned about the gates by senior council staff. The thrust of the applicant’s case was that, at all relevant times, he had permission from the acting foreman, Paul Harris, for council employees to construct the gates and it was always his intention to replace the steel used but because he was very busy at work and because of certain personal circumstances which occurred from about 17 June 1995 onwards, he had not given the replacement of the steel any priority until reminded to do so.
In this case the respondent carried the burden of proving that the reasons relied on for terminating the applicant amounted to valid reasons. Bearing in mind the gravity of the allegations made against the applicant, the standard of proof to be met by the respondent was that referred to by the High Court in Briginshaw v Briginshaw and Another (1938) 60 CLR 336 at 362 where Dixon J. said:
“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and the consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”
It is not the case that the respondent is required to show on the balance of probabilities that the applicant intended to keep the gates without paying for the steel. The applicant accepted at hearing that he had an obligation and at all times understood that he had an obligation to replace the steel and, therefore, the existence of the intention to make good the use of the council materials is, if accepted, a mitigating circumstance to be considered when determining the seriousness of the conduct alleged and the reasonableness of the disciplinary action taken.
At the time the gates were constructed and, at the time they were delivered to the applicant’s home on 7 June 1995 (whether he instructed the sub-contractor Fisher to move them or not), the applicant knew that the materials had not been accounted for. Nevertheless he proceeded to install the gates at the property owned by him and White. Whatever intention he may have had for the future, at that time there was a misappropriation of council materials and property in the sense that he wrongfully appropriated the gates for his own use when the gates were still the property of the council. Objectively speaking, this means that there was misconduct and this Court must decide whether this, in all the circumstances, justified termination. In doing so it is necessary to consider the meaning of the phrase “valid reason” by reference to a number of authorities in this Court. The seminal authority is that of Justice Northrop in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 where he says:
“Section 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: "2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason."
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). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.”
Since the High Court handed down its decision in Victoria & Ors v The Commonwealth (1996) 66 IR 392, further authorities have emerged in this Court endorsing Justice Northrop’s interpretation and adding the following observations:
“Neither counsel made any submissions on the question whether the phrase "valid reason" used in sub-s170DE(1) of the Act imposed a requirement that in all the circumstances a termination of employment at the initiative of an employer not be unjust or unfair. The terms of the Act suggest that such a construction is arguable. Section 170CA of the Act states that the object of Div 3 of Pt VIA is to give further effect to the Termination of Employment Convention ("the Convention") the text of which is set out in Schedule 10 of the Act. Art 8 of the Convention requires a contracting party to the Convention to ensure that a worker who has been dismissed is entitled to challenge that dismissal in an appropriate tribunal if the worker considers that his or her "employment has been unjustifiably terminated" and pursuant to Art 9 of the Convention that tribunal is to be empowered "to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified".”
(See Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996)).
“As I understand Lee J’s view, it is that the validity of the employer’s reason cannot be divorced from its effect on the employee. It is not enough that there is a reason for the termination that is defensible from the employer’s point of view. The reason must be one that makes the termination “justified”, after taking into account the effect of the termination on the employee.”
(See Thomas v Lynch (unreported, IRCA, Wilcox CJ, 20 December 1996)).
A GENERAL CHRONOLOGY OF EVENTS
May 1995
•The applicant discussed gate designs generally with Walker during the week May 12 to 19.
•The applicant allegedly discussed the construction of the gates at least with Crosswell and agreed on a design for ranch-style gates.
•Paul Harris, the acting foreman, allegedly authorised the use of council labour; namely, Crosswell and another Skillshare employee, Maddox to construct gates.
•Steel parts for the gates were cut and laid out in the depot yard and shown to the applicant before he went on leave.
19 to 29 May 1995
• The applicant was away on a rostered day off and leave.
29 May 1995
•The applicant returned to work and found the gates completed and waiting in the council depot.
•Spiteri approached the applicant and asked him to obtain a price for a private purchase of steel at which time it is alleged by the applicant that he also discussed the price of the purchase of steel for his project with at least the supplier Tubemakers. Spiteri denied hearing any discussion about the pricing of steel for the applicant at the relevant time.
7 June 1995
•During the afternoon the gates were transported to the applicant’s home on the vehicle of the sub-contractor, Fisher, with the assistance of Crosswell and Maddox.
15 & 16 June 1995
• The applicant and Crosswell erected the gates at the applicant’s home.
17 June 1995
• The applicant sought medical treatment for a swollen eye.
Between Monday, 17 June and 29 June 1995
•In this period the applicant experienced a number of personal problems which included -
(a) the removal of a cyst from his back;
(b) the death of White’s brother from a drug overdose; and(c)the ill health of the applicant’s mother who allegedly suffered a number of heart attacks.
•In the same period the applicant was required to attend a training course and was carrying a significant work load.
29 June 1995
•The respondent received an anonymous telephone complaint alleging that the applicant had used council labour and material to construct his gates. There was also an allegation made in respect to the use of asphalt by another council employee. The allegation against the second employee was subsequently shown to be incorrect.
•Winter telephoned the applicant and informed him of the complaint concerning his use of council labour and material to construct gates.
• Winter went on leave for one week.
•The applicant contacted Walker regarding the supply of steel to cover the steel used in the construction of the gates. There was a dispute as to whether any order was placed with Walker for steel particularly when there was no understanding of the amount required to replace that used.
5 July 1995
•The applicant completed a private works instruction, or what was commonly referred to throughout the hearing as a private works order (Exhibit A3), requesting the council to provide the labour to construct gates and agreeing to pay for same. At the same time there was no private works order or instruction sought for the council to provide materials in respect to the gates. The completed private works order was signed and authorised by a council employee named Gary Choveaux.
Early to mid July 1995
• Winter and Preece both spoke to the applicant about the complaint.
• Griffiths was made aware of the complaint against the applicant.
•Preece spoke to Walker about the applicant’s claim that he had ordered the steel for the gates through Walker.
13 July 1995
•The applicant alleges that he spoke to Walker by telephone to ask him about the order he alleges he made for steel on 29 June 1995. This telephone call was not put to Walker in cross-examination.
Approximately 11.30am, 13 July 1995
•An interview of the applicant was conducted by Griffiths and Winter. Prior to the interview the applicant was informed that he may have representation at the interview, although there is a dispute as to when he received that advice. Griffiths made records of the interview (Exhibits R2 and R3).
13 July 1995 (p.m.)
• The applicant spoke to Walker again regarding supply of the steel.
13 July 1995 (12.15p.m.)
•Walker ordered steel at the applicant’s request (Exhibit R1) for an amount of steel that did not represent the amount actually used.
Between 13 and 17 July 1995
•Griffiths spoke to Walker regarding the applicant’s allegation that he ordered steel from Walker on 29 June 1995.
•Griffiths spoke to Harris who allegedly denied that he authorised the use of the council employees’ labour and time to construct gates.
14 July 1995
•Walker allegedly went to see the applicant at the Derwent Travel Agency, owned and operated by the applicant and his partner, White. White allegedly spoke to Walker because Walker was agitated and said that senior council staff had been to see him about the ordering of the steel.
•White initiated a discussion with Griffiths and alleges that during the discussion Griffiths, amongst other things -
(a)expressed an opinion that the applicant had stolen the material from the council;
(b) told White the applicant’s employment would be terminated; and
(c) told White that his, White’s, relationship with the applicant had been causing Griffiths and some members of the council embarrassment.
•Griffiths spoke to the police about the allegation concerning the applicant.
14 July 1995 (p.m.)
•Parker, who subsequently purchased the applicant’s travel business, Derwent Travel, in December 1995, telephoned Griffiths and suggested that the applicant should not be terminated. He agreed that Griffiths did not say during that conversation that he intended to terminate the applicant.
•Howard alleges that Griffiths told him that the applicant would be sacked. It was not put to Griffiths at any time that he met with Howard on that evening or that he spoke the words he has alleged to have spoken to Howard.
17 July 1995
•A further interview was conducted by Griffiths and Winter with the applicant and the applicant’s solicitor, Senator Eric Abetz.
•During the interview on 17 July, the applicant was given an opportunity to set out matters to do with his personal circumstances which he says contributed to his delay in ordering replacement steel. Both Griffiths and Winter made a record of that meeting.
•The applicant telephoned the council’s executive officer and requested that he raise a private workers order for the supply of the steel. Griffiths, when told of this, refused to authorise the private works order.
17 & 18 July 1995
•The applicant was informed of the refusal to authorise the private works order.
•Griffiths prepared letter of termination (Exhibit R7) summarily terminating applicant’s employment and applicant was given the letter and terminated.
THE EVIDENCE
Because the respondent carried the initial burden of proof it was required to call its witnesses first and at that time those witnesses were cross-examined at length, particularly, in relation to what occurred at the two interviews conducted with the applicant and also, particularly, with regard to when the first order for replacement steel was made by the applicant.
When the applicant gave his evidence during the latter part of the hearing he was generally unable to recall what was said during the two critical interviews on 13 and 17 July 1995. He also gave evidence of matters to do with ordering of steel from Walker, which matters were not put to Walker in cross-examination.
Insofar as there was any issue as what was discussed and raised at each meeting, I have accepted the evidence of the witnesses Griffiths and Winter who both kept some record of what transpired. Neither suggested that any record they kept was a verbatim transcript of the meeting. I do not accept the applicant’s counsel’s submission that there are significant differences between the record kept by Griffiths and that kept by Winter concerning the 17 July 1995 meeting. If both documents are read carefully the sense and the substance of what occurred at that meeting is similar, even though it is recorded and expressed in different words.
It has been said that employers when investigating allegations of misconduct are not required to undertake the task with the skill of lawyers and policemen (see Schaale v Hoechst Australia Ltd (1993) 47 IR 249, Cooke v The Royal Melbourne Hospital (unreported, IRCA, Millane JR, 2 August 1995), Nicolson v Heaven and Earth Gallery Pty Ltd, 1 IRCR 199). Nevertheless, an employer must act reasonably and conduct an investigation at a level which reflects the gravity of the conduct alleged.
Putting to one side the allegation that Griffiths prejudged the applicant in deciding to terminate him before the second and last interview on 17 July 1995, as well as the further allegation relating to Griffiths’ alleged prejudice against the applicant because of his sexual preference, I am satisfied that the steps taken by Griffiths as the general manager and the person undertaking the investigation sufficiently covered the issues to enable the employer to make a decision, both as to the objective truth of the allegations made against the applicant and the appropriateness of any disciplinary action taken.
In arriving at the conclusion that the records kept by Griffiths and Winter should be treated as reliable in the sense that they represent an attempt by each man to record the various matters that arose in the discussion on 17 July 1995, I am influenced by the fact that at the interview on that date the applicant was represented by his solicitor, Senator Eric Abetz, who in the absence of any explanation to the contrary, I have assumed was in a position to give evidence of any recollection of or record he may have kept of this very important final interview. Both Winter and Griffiths are no longer employed by the respondent. In Griffiths case his contract was not renewed allegedly as a result of what was referred to as the “political fall-out” from his decision to terminate the applicant when White and other councillors strenuously opposed this course. I accept that the circumstances generating the non-renewal of his contract on one view suggest that it is unlikely that in giving his evidence for the respondent he was motivated by any particular loyalty to the respondent.
Another matter influencing my decision to accept that in the main the evidence given by the respondent’s witnesses was more reliable than that, particularly of the applicant, was that there were numerous inconsistencies between the evidence given by the applicant and his own witnesses. For instance, he was adamant that he told Paul Harris that the employees were to build the gates in their own time not council time. He explained to the Court that this meant during morning tea and lunch breaks. Harris is no longer employed by the respondent and he was not called to give evidence by either party. From the respondent’s side it was apparent that, whilst Griffiths was not happy about the issue of whether there had been permission given to use council labour in council time, having been allegedly told by Harris that he had not given this authorisation, because there was an unresolved conflict on this issue it was not relied upon as a reason to terminate the applicant. The three matters set out in the letter of termination clearly relate to first, the alleged breach of the applicant’s position of trust in handling the respondent’s materials, secondly, the failure to replace the steel used before the council commenced conducting its enquiries into the anonymous complaint made against the applicant and, thirdly, the fact that the applicant had removed the gates from the council depot and had them erected on his own property without seeking approval from the council beforehand and without taking any steps to activate an order for replacement steel.
Crosswell was called by the applicant to give evidence and he agreed that authorisation had been given by Harris for he and Maddox, the other Skillshare employee, to construct the gates, however, he was unable to recall any indication from the applicant that they were to perform this work outside council time. I found the applicant’s suggestion that the employees were to construct the large gates during lunch and tea breaks implausible.
Further, on the issue of whether the applicant had given the sub-contractor, Fisher, “the nod” on 7 June 1995 to remove the gates, it was alleged by the applicant that he was approached by Crosswell and informed that the gates were at the applicant’s home. When he enquired as to how they found his home Crosswell allegedly told him that he had a friend who lived on a property in the same area and he had seen the applicant’s car and dog at the applicant’s property on previous occasions. Crosswell gave no evidence to corroborate the applicant on this lastmentioned matter. In my view the lack of corroboration on this issue and the unlikelihood of the sub-contractor initiating the transporting of the steel gates, lead to the conclusion that the removal of the gates came about as a result of instructions given by the applicant who then had no authorisation from the respondent to take the gates and erect them at his property.
In relation to the evidence of the applicant and Crosswell, I had some difficulty with the assertion from both men that when they originally discussed the design and construction of the gates in the week preceding the applicant’s leave from 19 to 29 May 1995, it was agreed that the applicant would provide Crosswell with a measurement for the entrance of the gates and Crosswell would work out the quantity of the material required to construct the gates and advise the applicant of this. The applicant’s evidence suggested that his understanding of the arrangement was that he would be advised of the quantity of material needed and he would order it, presumably as his own order and pay for it. Crosswell, on the other hand, told the Court that the arrangement was that the gates were to be constructed out of council steel ordered for the respondent’s other jobs where it was scrap or “new stuff” and Crosswell was to provide the applicant with a list of what was used to allow the applicant “... to make remittance for it”. No evidence was given as to when any measurement was provided to Crosswell, much less whether any list of materials was forthcoming. Although Crosswell alleged that he made a written list of the materials used he was unable to say what happened to that list.
It was agreed that Crosswell helped the applicant erect the gates at the applicant’s home during the weekend 15 and 16 June 1995 following the delivery of the gates to the applicant’s home on 7 June 1995. Again there was no evidence given as to why the applicant did not then ask Crosswell for the list of materials used in circumstances where Crosswell was the only person who had any real knowledge of the quantities involved.
Apart from demonstrating some inconsistency in the applicant’s case, the evidence of Crosswell has some relevance to the question of whether, as claimed by the applicant, he at all times intended to replace the steel used. This evidence is important on the issue of intention because all of the applicant’s actions directed to ordering or obtaining steel from Walker occurred in the period on or after 29 June 1995, after he had been approached by Preece and Winter and was informed that there had been an anonymous telephone complaint.
I have already expressed the view that the applicant’s conduct in arranging for the construction of the gates from council owned steel without any arrangement for replacing that steel at a date no earlier than 29 June 1995, amounted to misconduct in the sense that he well knew that he had an obligation to do this and failed to act before he was prompted to by the complaint about his actions.
In determining whether the reasons given for termination provided sound, defensible or well founded reasons for termination and whether the termination was justified in all the circumstances, it is necessary to look at the circumstances the applicant alleges existed at the relevant time and to consider the allegations both that the decision to terminate was prejudiced and was made prematurely, before any further matters were discussed with the applicant at the final meeting on 17 July 1995.
On the evidence I am satisfied that there was at termination a valid reason or reasons for termination. The applicant held for some years a position of trust; in that he was entrusted with the ordering and distribution of council materials for council works. There was evidence to indicate that there was some history amongst employees of pilfering of council materials and the “borrowing” of council tools over a long period. Notwithstanding this history, it was not argued that these matters excused the applicant’s behaviour in not acting to replace the steel immediately or raising a private works order and thereby obtaining authorisation for the use of the steel before appropriating it for his own use. I am not satisfied that the decision to terminate was inconsistent with the obligation Griffiths had to protect the respondent’s property and ensure that employees did not engage in the unauthorised use of council materials. There was clearly a system in place for employees to have the council perform work on their behalf using council materials subject to an agreement to pay for these materials and the employee’s request being authorised in the signing of a private works instruction.
Further I am satisfied that it was not an illogical or capricious response in the circumstances described for Griffiths to terminate the applicant’s employment by reference to his conduct in using council steel and taking delivery of the gates (as well as installing them) when they were essentially the property of the council and when no arrangement was in place to pay for the steel used. I make this observation on the basis that even if I accept, as was alleged by the applicant, that Fisher was not instructed by him to deliver the gates but in fact did it at his own initiative, once the applicant found out the gates had been delivered on 7 June 1995 he took no steps between that date and 29 June 1995 to rectify the situation. The matters relating to his personal circumstances all appear to have occurred from 17 June 1995 onwards and I am unable to accept as being reasonable the applicant’s assertion that he was too busy to make arrangements to order the replacement steel from 29 May 1995 when he returned to work from leave until 29 June 1995.
I am not satisfied that there is evidence of prejudice against the applicant because of his sexual preference when Griffiths made the decision to terminate. Even if I accept the allegations White made concerning his conversation with Griffiths on 14 July 1995, it is apparent from that conversation that the words Griffiths is alleged to have used, if he used them at all, may refer to the fact that there was some embarrassment caused to Griffiths and other council members by an employee and a councillor having gates constructed and erected in the circumstance which occurred in this case. Given the anonymous complaint and the fact that the gates were erected at the home of a councillor, this would not be an unreasonable observation to make. In saying this I have kept in mind that Griffiths denies that any of these matters arose in the conversation with White as well as denying any statement to White that he, Griffiths, intended to terminate the applicant’s employment. Another matter I took into account in determining whether there was any substance to the allegation that the applicant’s sexual preference had played some part in the decision to terminate, was the absence of any history of prejudicial statements or conduct on the part of Griffiths directed towards the applicant or White in the years preceding the termination when both Griffiths and the applicant were employed by the Council.
Griffiths was clearly the person responsible for the investigation and was the one in whom the power resided to hire and fire employees. He undertook that task whilst being placed under some pressure from White and other councillors, who all seemed to have had a view on what decision Griffiths should make even though they were not privy to all the enquiries made. One matter which makes it unlikely that Griffiths did express any concluded view on termination to White and the other councillor Howard, was that there was no evidence given that at the meeting on 17 July as might be expected the applicant or, at the very least, his legal representative raised either of the issues White says were raised with him during his conversation with Griffiths.
In cross-examination Griffiths made it clear that as a result of his discussions with Walker and the applicant he formed the view that the applicant had not been truthful when he said he had ordered the steel from Walker on 29 June 1995. Walker denies this order was made on that date and says that the only order he received was on 13 July 1995 and that is when he raised the written order (Exhibit R1). The written order shows that the order for steel was placed at 12.11pm on 13 July 1995, which would have followed the meeting with Griffiths and Winter because the applicant was not at any time prior to that meeting, or subsequently it seems, certain of what quantity of steel he required. In fact, the order placed shows that even as of 13 July 1995 he was not able to instruct Walker properly as to the quantity of steel required. I am satisfied that it is probable that no actual order was placed until after the meeting on 13 July 1995 and, to protect himself, the applicant sought to convey the impression to the respondent that the steel had been ordered at an earlier time when there was no real prospect of him giving any proper instructions to place an appropriate order. Because of these circumstances, it was not unreasonable for Griffiths to conclude that the applicant was not entirely candid when each of the interviews were conducted with him.
In considering whether the termination was one that was justified I am satisfied that it was regardless of whether or not the applicant’s evidence is accepted that from the beginning he always intended to make good the use of the steel.
SECTION 170DC - PROCEDURAL FAIRNESS
Much of what I have said in the preceding section has bearing on the question of whether the applicant was given a reasonable opportunity to respond to the allegations made.
In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 the Chief Justice of this Court made the following observations on the operation of section 170DC:
“... In Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243 I discussed the significance of section 170DC. I observed that the section imposed an important limitation on an employer’s power of dismissal. Ordinarily, before being dismissed for reasons related to conduct or performance an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical common sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern this is enough to satisfy the requirements of the section. ...”
In my view the two interviews gave the applicant ample opportunity to provide the explanations he did as well as raise matters in mitigation. Accordingly, I am not satisfied that the applicant has discharged the burden he carried at hearing of showing that there was a failure to comply with the provisions of section 170DC of the Act.
SECTION 170DB - COMPENSATION IN LIEU OF NOTICE
Because of the matters relating to breach of trust in the handling of council property, in my view this is a case where it was unreasonable to require the employer to continue the employment as a storeman handling goods during the notice period. Accordingly, this is not a case where it is appropriate to make an order for damages pursuant to section 170EE(5) of the Act.
The order I propose to make is that the applicant’s application be dismissed.
MINUTES OF ORDERS
THE COURT ORDERS BY CONSENT THAT:
The title of the respondent is amended to “Derwent Valley Council”.
AND THE COURT FURTHER ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding nineteen (19) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 5 February 1997
Solicitors for the Applicant: Legal Aid Commission of Tasmania
Appearing for the Applicant: Mr R. Browne
Solicitors for the Respondent: Jennings Elliott
Appearing for the Respondent: Mr B. McTaggart with Mr Cooley
Date of hearing: 2, 3 & 4 December 1996
Date of judgment: 5 February 1997
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