Xavier Kirk v Department of Primary Industries
[2013] FWC 752
•4 FEBRUARY 2013
[2013] FWC 752 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Xavier Kirk
v
Department of Primary Industries
(U2012/8707)
COMMISSIONER GOOLEY | MELBOURNE, 4 FEBRUARY 2013 |
Application for unfair dismissal remedy.
[1] Mr Xavier Kirk (the Applicant) was employed by the Department of Primary Industries (the Respondent) from 14 May 2007 until his employment was terminated on 30 May 2012.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed.
[3] Mr Charles Morgan was given permission to appear for Applicant and Mr Val Gostencnik was given permission to appear for the Respondent.
[4] Mr Maurice Moore the Applicant’s supervisor and Mr Kimball Shepherd, an organiser with the Australian Workers’ Union gave evidence for the Applicant and the Applicant gave evidence on his own behalf. Mr Andrew Wernert, District Planning Manager, Department of Sustainability and Environment; Ms Maxine Williams, Senior Employee Relations Advisor, People and Culture; Mr John Balfour, Director of Invasive Plants and Animals Operations; Mr Andrew Crocos, Project Manager, Wild Dogs Program; Mr Ian Campbell, Acting Senior Wild Dog Controller; Mr Matthew Beach, Wild Dog Controller and Mr Greg Ivone, Acting Biosecurity Area Leader – Wild Dogs, North-East Region of Victoria gave evidence for the Respondent.
Jurisdiction of Fair Work Australia
[5] There is no dispute that the Applicant is a person who was protected from unfair dismissal. The Fair Work Commission has the jurisdiction to determine the application.
Background
[6] The Applicant was employed as a wild dog controller. Relevantly for the purpose of this application his duties involved laying traps 1 and shooting wild dogs caught in the traps. He was required to ensure his traps were fit for purpose; in particular he was required to ensure that the traps were of a certain standard2 and he was required to wax his traps3. He was also required to lay poisonous baits.4
[7] The Applicant’s employment was terminated for misconduct. 5 Three allegations made by the Respondent were substantiated by the Respondent.
Allegation 1: That on Monday 18 July 2011 [the Applicant] failed to comply with the label direction for the use of the 1080 bat product, De-K0 and the Directions for UNS Of 1080 Pest Animal Bait Products in Victoria. This failure resulted in the poisoning of two dogs under [his] control, resulting in the death of one of the dogs.
Allegation 2: That on or around Thursday 12 May 2011, [the Applicant] shot a wild dog in a tap with the incorrect calibre firearm. In undertaking this action you failed to comply with standard operating procedures for the destruction of wild dogs, proper use of firearms and reasonable and lawful directions.
Allegation 3: That over a period of time [the Applicant] has failed to maintain equipment (leg hold traps) to the required standard so as to prevent unnecessary injury to trapped wild dogs. In doing so, [he] breached section 30 of the Prevention of Cruelty to Animals Act 1994 (POCTA Act) and related Regulations. 6
[8] In relation to allegations 1 and 2 there are no substantial factual disputes as the Applicant was the only person present when these incidents occurred.
Allegation 1
[9] On 18 July 2011 the Applicant took two trap dogs with him on a bait run. The dogs were not secured and were able to get into the bait. As a consequence the dogs were poisoned and one of the dogs died. These facts are not disputed. The issues in dispute are as follows:
(1) Was the Applicant given an order by his supervisor not to take the dogs with him?
(2) Did the Applicant breach procedures when he failed to secure the dogs and the bait?
Allegation 2
[10] In March and April 2011 the Department of Sustainability and Environment was conducting a scientific study of wild dogs. (the Razorback project). 7 The Applicant was involved in the Razorback project. The wild dogs were required to be trapped, fitted with a radio tracking research collar, have a DNA sample taken and then released. The wild dogs were released using a catch pole.
[11] If a collared wild dog was caught in a trap the Applicant had been instructed not to shoot the dog but to release the dog.
[12] On 12 May 2011 the Applicant shot a collared wild dog that had been caught in a trap.
[13] The Applicant saw the dog in the trap whilst he was driving. He stopped his car 50-100 metres from the dog. The Applicant said the dog was going ballistic in the trap and he did not think it was safe to get any closer. Using his .243 rifle he shot the dog and killed it with one shot. 8 The Applicant then approached the dog and saw that it was a collared dog.9 He said he could not see the collar from the car.10
[14] He then called Mr Campbell and told him that he had shot a collared dog.
[15] These facts are not in issue.
[16] Much of the evidence in this matter went to the question of whether it would have been safe for the Applicant to release the dog. However that is not the relevant question as on the Applicant’s own evidence the question of releasing the dog was not a consideration. On his own evidence he did not see that the dog was collared. If this evidence is accepted then the issues are:
(1) Given he was aware that there were collared dogs should he have got closer to the dog so that he could accurately assess whether the dog was collared? and
(2) Did he shoot the dog in accordance with the policies and procedures of the Respondent?
[17] If he did see the dog was collared then the issue is:
(1) Was the direction to not shoot the collared dog a lawful and reasonable direction?
Allegation 3
[18] The issues to be determined are:
(1) Did the Applicant fail to maintain his traps.
(2) Did the Applicant lay non compliant traps.
[19] The evidence in this matter was extensive and I do not propose to summarise it in this decision. I will focus on the issues identified and the evidence relied upon by the parties in relation to these issues.
The Evidence - Allegation 1
[20] On 18 July 2011 Mr Campbell bought the 1080 bait for the Applicant. 11 It was his evidence that he saw the Applicant put the bait in his truck and saw that he had two dogs with him. One was the Applicant’s trap dog and the other was Mr Moore’s trap dog. He told the Applicant that “he didn’t think it was a good idea to take trap dogs baiting because it [was] too dangerous as they can get into bait. [He] said it [was] a risk [the Applicant] didn’t have to take. You only have to make one mistake and it’s all over. [He] told Xavier to take his dogs home.”12
[21] In evidence in chief the Applicant denied that this conversation took place and to support this evidence he said that he was not at the depot that morning and to support this claim he tendered a purchase declaration for the purchase of the bait. 13 It was his evidence that he could not have been at the depot because he bought the bait. His evidence was emphatic that he was not at work on that morning and was not told not to take the dogs.
[22] In cross examination the Applicant initially persisted with his evidence that he was at the store on the 18 July 2011. 14 It was only after it was put to the Applicant that the form disclosed that he had not purchased the bait that his evidence changed and he acknowledged that he must have attended the depot.15 He then acknowledged that he could not recall the conversation with Mr Campbell.16 This evidence goes directly to the Applicant’s credit. Only when confronted with conflicting evidence did he acknowledge that he could not recall what occurred on that morning.
[23] By contrast Mr Campbell’s evidence was unequivocal. I accept his evidence that he told the Applicant not to take the dogs with him. It was his evidence that some three weeks earlier he had advised the Applicant not to take the dogs with him when he went baiting. He was clear in cross examination that on 18 July 2011 it was not advice he had given the Applicant but a direction. 17
[24] The Applicant gave evidence that he was familiar with the label on the 1080 bait product and he had seen the document titled “Directions for Use of 1080 Pest Animal Bait Products in Victoria (the Directions).” 18
[25] The label makes it clear that this product must be stored away from animals.
[26] The Directions provided at section 4.7 that “steps (e.g. restraint, muzzling) must also be taken to ensure that domestic dogs or other domestic animals do not gain access to 1080 pest animal bait products or poisoned animal.” 19 The Directions provided that the bait must be stored “in a secure and safe manner in such a way that unauthorised persons, pets or livestock cannot have access to 1080.”20
[27] In cross examination the Applicant said that the bait was in the back of the vehicle with the lid on. It was his evidence that he didn’t think a dog could get the lid off if it was put on securely. 21 He accepted that it was a possibility that he had not secured the lid.22
[28] The Applicant accepted that he had not complied with the standard operating procedures that applied to the use of 1080 bait. 23
[29] It is not disputed that the Applicant did not in any way restrain his dogs both when he was driving and when the vehicle was stationary. 24 Mr Moore gave evidence that prior to this incident the instruction from the Respondent was that dogs on the back of the work vehicle had to be secured.25
[30] It is not disputed that the Respondent did not have a position on taking trap dogs when baiting. 26 It was Mr Crocos’s evidence that either the dogs should have been secured or the bait should have been secured so that the dogs could not access the bait.27
[31] The Applicant agreed with this. 28 The Applicant described what happened as an accident.29
[32] I do not consider that this incident was simply a mistake. 30 The Applicant was negligent when he failed to secure the dogs and the bait. He had been told not to take the dogs with him. He knew he was required to ensure that the dogs did not get the bait. He took no steps to prevent that happening and as a result the dogs were poisoned and one died. While I accept the Applicant did not intend this to happen his disregard of his supervisors instructions as well as the instructions for use of 1080 bait was negligent.
The Evidence - Allegation 2
[33] The Applicant had been instructed to release any collared dogs caught in traps. While he was not told where the collared dogs were on this day 31 he knew that the dogs could travel significant distances in a day.32 He knew that before shooting any wild dog he should check to see if it was a collared dog. On this occasion the dog was trapped and “going ballistic”33. The Applicant was in his vehicle and it was the Applicant’s evidence that he did not consider driving closer the dog to get a better look at it.34 In cross examination he said this was because he could see rocks, sticks and logs.35
[34] It was the Applicant’s evidence that he shot the dog from the distance because it was going ballistic and it needed to be humanely destroyed as quickly as possible, the terrain was difficult and he could not tell how well it was tangled up. 36 It was the Applicant’s evidence that he did not consider it safe to get any closer to the trapped dog.
[35] Mr Wernert did not accept that it would have been unsafe to get closer to the dog 37 however even accepting that the Applicant considered it unsafe to get closer to the dog the Applicant “could have and should have sought assistance to approach the wild dog (including to determine if it was collared). If no communication facilities were available at the site, he could have left the site to make the necessary contact.”38
[36] Mr Wernert did not accept that the Applicant could not see the collar on the dog given he observed the dog through the rifle’s telescopic sights. 39
[37] The Applicant is issued with two guns, one is a .22 magnum which is for shooting dogs at close range and one is a .234 rifle which is designed for shooting dogs at a distance. The normal practice is to shoot trapped dogs with the .22. 40 However on this occasion the Applicant was only carrying his .234 rifle.41 He accepted that it was a requirement that he carry the two guns.42 It was also his evidence that he rarely carried the two guns.43
[38] It was the Applicant’s evidence that it is up to him to decide which weapon to use. 44
[39] The standard operating procedure for ground shooting for wild dog control in Victoria (SOP) provides as follows:
(1) The objective is to fire at the closest range practicable in order to reduce the risk of non-lethal wounding. To reduce the risk of non-lethal wounding, a wild dog should only be shot when:
- It can be clearly seen and recognised
- It is within the effective range of the firearm and ammunition being used; and
- A humane kill is probable.
(2) For a rifle the target animal must be stationary. 45
[40] As the Applicant only had the rifle with him it was incumbent on him to not shoot the dog unless it was stationary. On his own evidence the dog was going ballistic and was not stationary when it was shot. 46 While it was not in dispute that the dog was killed with one shot the dog was not dispatched in accordance with the SOP.
[41] The Applicant gave evidence that he had never been instructed that he could only use his .234 rifle to shoot wild dogs that are at large. 47 However he accepted that trapped dogs must be shot with a .22 rifle.48 Mr Moore could not recall any instruction on this 49 but it was his evidence that it was a recommendation.50
[42] Mr Wernert gave evidence that wild dog controllers are required, when shooting wild dogs, to use a weapon that is fit for the purpose. It was his evidence that for trapped wild dogs this is a .22 rifle. 51 It was his evidence that “shooting a wild dog from a distance of 50-100 meters, as [the Applicant] claims to have done, increases the likelihood that he would not have been able to kill the wild dog with just one shot. Much more so if the dog was behaving as erratically as [the Applicant] indicated.”52
[43] Mr Campbell gave evidence that wild dog controllers were instructed to “dispatch trapped dogs with a small armed rifle – a .22 magnum. You do that from close range, optimally 6-10 feet away, with only one shot to the head.” 53
[44] It was his belief that the Applicant could have seen the collar using the rifle scope. It was his view that the Applicant “could have driven down with the vehicle closer to the wild dog to see if it was caught in the trap, pulled up near the wild dog quietly and given the dog time to settle.” 54
[45] It was his evidence that he had no concerns getting within two-three metres of a trapped wild dog. It was his evidence that from six metres the wild dog controller could see if the dog was properly caught in the trap.
[46] Mr Crocos gave evidence that wild dog controllers are issued with two guns, one for long range shots. It was his evidence that a more accurate “and hence more humane shot” is achievable if the shot is taken within five metres of the trapped dog. This shot should be taken with a .22 rifle. It was his evidence that the .245 rifle is for shooting dogs at large. 55
[47] Mr Crocos also formed the view that the Applicant would have seen the collar on the dog through his telescopic sight. It was his view that the Applicant was closer to the dog than he described because he did not see that the Applicant could have shot the dog so accurately without being closer than 50-100 metres. Mr Crocos concluded that the Applicant had deliberately shot a collared dog. 56
[48] If the Applicant had felt unsafe, Mr Crocos said he should have called his supervisor 57 even if he had to leave the dog to make contact.58
[49] Mr Crocos also stated that the Applicant was obliged to have the two guns with him. 59
[50] It is not contested that after the Applicant shot the dog and saw that it was wearing collar that he took steps to immediately contact his supervisor. The Applicant did not attempt to hide his conduct.
[51] I find in relation to this incident that the Applicant disregarded the direction to carry the two guns with him. The SOP does not make it clear that the wild dog controllers were only permitted to shoot a trapped dog with the .22 rifle. However the Applicant was not in any position to determine what was the appropriate weapon to use in these circumstances as he only carried one gun with him.
[52] I am unable to find on the balance of probabilities that the Applicant knew that the dog was a collared dog when he shot the dog.
[53] However I find on the balance of probabilities that the Applicant did not take reasonable steps to determine if the dog was a collared dog. He was under clear instructions to release collared dogs. That carried with it an obligation to determine if any trapped dogs were collared and, if safe to do so, to release them. If it was unsafe to do so he should have contacted his supervisor for further instructions.
[54] I do not accept that there was any reason why the Applicant needed to act quickly. Yes the dog was distressed because it was caught in a trap but the evidence established that this was a normal response and that the dogs calmed down after a while. The Applicant could have driven closer to the trapped dog to get a better look at the dog before he shot it. While I accept that the Applicant’s safety was a prime concern, the evidence supports the conclusion that he could have got closer to the trapped dog safely and had he done so he would have seen it was a collared dog.
[55] I do not accept the evidence of Mr Moore that it is not sensible in the circumstances to get less than 50-100 metres from a trapped dog. Mr Moore based his assessment on the Applicant’s description that the terrain was rough. 60 However I accept Mr Campbell’s evidence that the Applicant could have safely driven closer to the trapped dog. Further Mr Moore’s evidence was that he wouldn’t get closer than 50-100 metres because the trapped dog might pull its leg out of the trap suggests that wild dog controllers should always shoot the trapped dogs from at least 50 metres. At this distance they would have to use the .234 rifle. One wonders then why the .22 was issued to wild dog controllers. Mr Moore’s evidence is contrary to the evidence of Mr Campbell. Further it is inconsistent with the SOP. I accept the submissions of the Respondent that Mr Moore’s evidence should be seen in light of his desire to paint the Applicant’s conduct in the best light. Where his evidence conflicts with that of Mr Campbell I prefer Mr Campbell’s evidence.
[56] Given the Applicant was only carrying the .234 rifle which is used for long distance shooting, apart from checking if it was a collared dog, he had no need to get closer to the trapped dog. However he did act contrary to the SOP in shooting the dog whilst it was still moving. The fact that he did humanely kill the dog does not alter the fact that he was not following the correct procedure.
[57] In not taking reasonable steps to determine if the dog was a collared dog the Applicant acted contrary to the instructions to release collared dogs. The question of whether it would have been safe to release the dog does not have to be determined. If he had determined it was a collared dog and he formed the view that it was unsafe to release the dog he was obliged to contact his supervisor and not shoot the dog. By not taking the reasonable steps available to him at the time meant this issue of whether he could safety release a trapped wild dog did not arise.
[58] I do not accept the submissions of the Applicant that his conduct was excusable because he was not given “any instructions on how to release a wild dog from trap alive, nor provided with any specialised equipment.” 61 This would have been a relevant consideration if the Applicant had seen the dog had a collar and shot it anyway. However that is not the case here.
The Evidence - Allegation 3
[59] During the time Mr Moore was the Applicant’s supervisor there were no issues with the Applicant’s performance.
[60] Mr Ivone gave evidence that there was an issue with the Applicant not waxing his traps. 62 It was his evidence that the Applicant only complied with the direction to wax his traps when Mr Moore returned to work.63
[61] The Applicant’s evidence about allegation 3 was equivocal. He concentrated on the reference to section 30 of the Prevention of Cruelty to Animals Act 1994 (POCTA Act) and related Regulations and denied any knowledge of these provisions. He also stated that he was not aware of the “period of time” it was alleged he failed to maintain his traps over and he said he was never told his traps were deficient or told the required standard. 64
[62] In examination in chief the Applicant said he had not been informed about what specific equipment he had failed to maintain 65 and had not been told he had failed to maintain specific leg hold traps.66
[63] In cross examination the Applicant accepted that he did not need to be told what the required standard was. 67 He also gave evidence that he attempted during the Razorback project to lay a trap that was not to the standard.68
[64] The Applicant gave evidence that he did not remember being spoken to about his failure to maintain his traps. 69 However in cross examination he accepted that he understood the conditions of use for leg traps and he was aware of his responsibilities to ensure that he complied with the conditions.70 Further he accepted that the state of his traps was one of the reasons he did not get an increment.71
[65] In cross examination he accepted that Mr Beach saw him preparing to lay some traps and Mr Beach told him that he couldn’t lay the traps because they were non-compliant as they did not have a rubber. 72
[66] It was his evidence that he was not provided with the rubbers to replace the worn rubbers. 73 He said he asked for new rubbers but his requests were ignored.74
[67] This evidence is not supported by any other witness. 75
[68] The Applicant denied laying non compliant traps but did not deny having non compliant traps in his possession. Mr Beach gave evidence that he saw the Applicant’s traps in position and they were non compliant. 76
[69] I do not accept the Applicant’s evidence that he was not provided with rubbers to replace worn rubbers on his traps. I accept the evidence of Mr Beach that the Applicant laid non compliant traps. Counsel for the Applicant suggested that Mr Beach’s evidence was inconsistent and that he had told the Victorian Government Solicitor that he “could not confirm whether [the Applicant] proceeded to place that trap in the field.” 77 That submission misrepresented Mr Beach’s evidence. In his witness statement he said that he “observed that some of his traps, including on the back of his ute, were missing the rubber padding on the jaws, which had worn out from wear and tear.”78 What he couldn’t be sure about was whether the trap he spoke to the Applicant about was then used by the Applicant.79
[70] I find on the balance of probabilities that contrary to his obligations the Applicant did not maintain his traps. Further I find on the balance of probabilities that the Applicant laid non complaint traps on one occasion.
The Response of the Respondent to the Incidents
[71] The incidents which formed the bases of allegations 1 and 2 occurred in May and July 2011. On 20 July 2011 the Respondent conducted a work practice review of the Applicant. On 29 August 2011 his Performance Management Online (PMO) was conducted. The outcome of this review determines if an employee receives a pay rise. Those reviews identified the poor maintenance of his traps and his failure to comply with SOP’s when shooting as some of the areas where the Applicant’s performance was unsatisfactory. The PMO also dealt with the shooting of the collared dog. 80 As a result the Applicant did not receive his annual increment.81
[72] On 29 July 2011 Mr Wernert asked the Applicant to attend a meeting to discuss the poisoning incident. The Applicant advised he wanted his union representative present at the meeting. Consequently Mr Wernert sought advice from Human Resources and was told that he should ask that the issue be dealt with by a formal investigation. 82
[73] On 5 August 2011 Mr Wernert advised the Applicant that there would be a formal investigation into the incident 83 however it wasn’t until 19 October 2011 that the Applicant was advised that the formal investigation had been initiated.84 The Victorian Government Solicitors (VGS) were appointed in September 2011 to conduct the investigation. At the meeting on 19 October 2011 the Applicant was provided with a copy of a letter formally advising him of the allegations.85
[74] The VGS provided a copy of their report to the Respondent in January 2012 and having reviewed the report the Respondent formed the view that the Applicant’s conduct was misconduct and given the serious nature of the misconduct it formed the preliminary view that the Applicant’s employment should be terminated. 86
[75] On 8 February 2012 the Respondent wrote to the Applicant setting out the findings and the proposed disciplinary recommendation and invited him to respond. 87
[76] On 13 February 2012 Mr Sheppard, the Applicant’s union representative, advised the Respondent that the alleged conduct was not misconduct and the issues should be treated as performance issues and sought a review of the findings under the Public Administration (Review of Actions) Regulations 2005 and asked the matter be referred to the Public Sector Standards Commissioner. 88 After being advised by the State Services Authority that such a review is usually conducted after a final decision had been made, on 20 February 2012 Mr Sheppard asked the Respondent for a copy of the VGS report.89
[77] The Applicant was provided with a redacted copy of the report on 27 February 2012 and by 9 March 2012 the Applicant had provided his response to the findings and recommendations. Due to absences of key personal a decision to terminate the Applicant’s employment was not made until 15 May 2012 but the Applicant was not advised until a meeting was held on 30 May 2012. 90
[78] The Applicant remained at work throughout this period. There were two subsequent issues raised with the Applicant by Mr Wernert during this period. Mr Wernert spoke to the Applicant about driving an unroadworthy vehicle 91 which the Applicant continued to drive after being told not to. Further the Applicant was spoken to by Mr Wernert about not completing data entry before going on leave.92 These matters were not included in Mr Wernert’s evidence in chief and were not put to the Applicant.
[79] Mr Ivone gave evidence about a complaint from a landholder sent on 23 January 2012. He was not cross examined on this.
Was the termination of employment harsh, unjust or unreasonable?
[80] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:
s387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
[81] Submissions were made that the conduct engaged in by the Applicant was serious misconduct. However the issue for determination by the Commission “is not whether the conduct in question amounted to serious misconduct at common law but whether it gave rise to a valid reason for the termination of employment.” 93
[82] A valid reason is sound, defensible or well founded. 94
[83] I have found that the allegations relied upon by the Respondent are substantiated. I find the conduct demonstrated an ongoing refusal by the Applicant to follow the reasonable directions of the Respondent. He was told not to take the dogs on the bait run and he did so. He was required by law to have the dogs secured when driving and he did not. He was required to ensure the dogs could not get the poison and he did not. He was required to carry two guns with him and he did not. He was not to shoot a collared dog. While I have found he did not deliberately shoot the collared dog, he did not take the necessary steps to check if the dog was a collared dog. He was required to maintain his traps and he did not. When considered together they provide a valid reason for the termination of the Applicant’s employment.
s387(b) whether the Applicant was notified of that reason;
[84] The Applicant was notified of the reasons before the decision to terminate his employment was made. 95
s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[85] While the Applicant complained that the failure to provide him with a full copy of the VGSO report, the Applicant was given an opportunity to respond. 96
s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;
[86] The Applicant was allowed to have a support person present. 97
s387(e) if the dismissal related to unsatisfactory performance by the person—whether he had been warned about that unsatisfactory performance before the dismissal;
[87] The Applicant submitted that the issues complained of were performance issues and the DPI Wild Dog Controllers Agreement 2009 (the Agreement) that applied to the Applicant required a particular approach to be followed by the Respondent. The Applicant contended that the Respondent mistakenly treated the conduct as misconduct issues. Mr Sheppard, the Applicant’s union representative, considered the complaints should have been dealt with under the Agreement as performance issues rather than as misconduct. No dispute was lodged by the Applicant or his union under the Agreement about the characterisation of the conduct.
[88] I was not taken to the Agreement in evidence or in submissions by the Applicant.
[89] The Agreement at clause 18 defines misconduct and unsatisfactory work performance as follows:
“18.3.1 Meaning of misconduct
Misconduct includes:
18.3.1.1 a contravention of a provision of the Public Administration Act 2004 (Vic), the regulations to that Act, a binding code of conduct or a provision of any statute or regulation that applies to the Employee in the Employee’s employment;
18.3.1.2 improper conduct in an official capacity;
18.3.1.3 a contravention, without reasonable excuse, of a lawful direction given to the Employee as an Employee by a person authorised to give the direction;
18.3.1.4 an Employee making improper use of his or her position for personal gain; and
18.3.1.5 an Employee making improper use of information acquired by him or her by virtue of his or her position to gain personally or for anyone else financial or other benefits or to cause detriment to the public service or the public sector.
18.3.2 Meaning of unsatisfactory work performance
An Employee's work performance is unsatisfactory if the Employee fails to perform to the required standards or expectations of their role.”
[90] I accept that misconduct and performance can overlap.
[91] However the Agreement at paragraph 18.7.3 provides that unsatisfactory work performance can be managed under section 18.8 which deals with misconduct. 98
“18.7.3 Referred unsatisfactory work performance matters
The employer may at any time elect, where there is reasonable cause, to manage the Employee’s performance in accordance with clause 18.8 instead of this clause 18.7 where the Employer determines that it would be more appropriate for the Employee’s performance to be managed with clause 18.8. Any matters that have arisen under the process in clause 18.7 may be considered in the process pursuant to clause 18.8.”
[92] I am unable to find that the Respondent did not comply with its obligations under the Agreement. While the Applicant’s conduct, for example in failing to maintain his traps, may in isolation look like unsatisfactory work performance when looked at in the context that there was no issue that he knew what was expected of him and my finding that the pads were available, not replacing the pads ceases to be an unsatisfactory work performance issue and becomes a failure to comply with lawful directions. Allegations 1 and 2 also involved failure to comply with directions and obligations. In both allegations 1 and 2 the Applicant knew what was required of him and he failed to comply with those requirements.
[93] In any event I am not required to determine if the conduct was misconduct or unsatisfactory performance as defined in the Agreement as the Respondent was entitled at any time to deal with poor work performance under clause 18.8 of the Agreement.
s387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
[94] The Respondent is a large employer. Despite this it took 10 months to conduct and investigation and make a decision.
s387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;
[95] The Respondent had dedicated human resources management specialists.
s387(h) any other matters that FWA considers relevant.
[96] The Applicant had worked for the Respondent for five years and until 2011 there is no evidence that there were any issues with his performance. His supervisor Mr Moore spoke highly of his work ethic and attitude to his job. 99 This is stark contrast to the evidence of Mr Campbell who supervised the Applicant in Mr Moore’s absence. He found that the Applicant was difficult to manage.100 Mr Campbell considered that the Applicant was only willing to do things the way Mr Moore had taught him and was unresponsive to any changed approach.101
[97] Mr Ivone who was Mr Campbell’s supervisor from November 2011 until his dismissal also found the Applicant difficult to manage. 102 This period was after the Applicant was on notice that his conduct was being investigated.
[98] The Respondent took 10 months to investigate these issues during which time the Applicant continued to work. The major incidents relied upon by the respondent, namely shooting the collared dog and allowing the trap dogs to get access to the poison, occurred in May and July, 2011. Both incidents were discussed at the Applicant’s performance review and were relied upon to justify denying the Applicant an increment. There was no evidence that the Applicant was told in those meetings that the conduct was so serious that his employment was at risk. There was no evidence that the Applicant was at this time instructed to take both his guns with him, nor was the issue of shooting a moving dog raised. The failure to maintain his traps never gave rise to a written warning and neither did he get a warning about laying non compliant traps.
[99] The Applicant submitted that the Respondent by its delay had condoned the behaviour and could not now rely on it to justify the termination of his employment. I accept the submissions of the Respondent that the authority relied upon by the Applicant to support this submission is not relevant to these proceedings. The Applicant was not summarily dismissed and the Respondent did not have full knowledge of all the facts that led it to determine to terminate the Applicant’s employment.
[100] It is surprising that an investigation of what were mainly uncontested events took so long to investigate. Further no explanation of the delay was provided. Ms Williams was not cross examined on the reason for the delay in this investigation. However the mere fact that the Applicant remained on duty is not sufficient to establish that the Respondent waived its right to terminate the Applicant’s employment.
[101] It cannot be said that the Respondent condoned the conduct when it was conducting a full investigation of the Applicant’s conduct.
[102] The Applicant was on notice on 5 August 2011 that an investigation was being conducted. Given that I have concluded the outcome would have been the same had the investigation been conducted more promptly, the outcome of the delay meant that the Applicant remained in employment longer than he would have.
Conclusion
[103] There was a valid reason for the termination of the employment. The Applicant was afforded procedural fairness. The delay in finalising the investigation is not sufficient to affect the outcome of this case.
[104] For the reasons set out above I find that the termination of the Applicant’s employment was not harsh, unjust and unreasonable.
COMMISSIONER
Appearances:
C Morgan for the Applicant.
V Gostencnik with R Preston for the Respondent.
Hearing details:
2012.
Wodonga:
October 30, 31.
November 23.
1 Exhibit A1 at [17](a)
2 Exhibit R9 at [48]
3 Ibid at [47]
4 Exhibit A1 at [17](c)
5 Exhibit R7 at JB1
6 Exhibit R6 at MW3
7 Exhibit R10 at [8]
8 Exhibit A1 at [43]
9 Ibid at [44]
10 Ibid
11 Exhibit R9 at [37]
12 Ibid at [38]
13 Exhibit A3 and Transcript PN 83-92
14 Transcript PN 1644
15 Ibid PN 1683
16 Ibid PN 1686-1691
17 Ibid PN 3427
18 Exhibit A1 at [33]
19 Exhibit R8 at AC9
20 Ibid
21 Transcript PN 453-456
22 Ibid PN 469
23 Ibid PN 617
24 Ibid PN 539-541
25 Exhibit A6 at [23]
26 Exhibit R8 at [42]
27 Ibid
28 Transcript PN 361-363
29 Ibid PN 364-366
30 Final submissions of the Applicant at [72]
31 Ibid PN 857
32 Ibid PN 1799-1800
33 Ibid PN 201
34 Ibid PN 213
35 Ibid PN 864
36 Ibid PN 201
37 Exhibit R5 at [43]-[46]
38 Ibid at [48]
39 Ibid at [49]
40 Transcript PN 706
41 Exhibit A1 at [38]
42 Transcript PN 985
43 Transcript PN 774
44 Transcript PN 716
45 Exhibit R8 at AC3
46 Transcript PN 899
47 Ibid PN 722
48 Ibid PN 1774
49 Ibid PN 1933
50 Ibid PN 2039
51 Exhibit R5 at [33]
52 Ibid at [38]
53 Exhibit R9 at [15]
54 Ibid at [20]
55 Exhibit R8 at [24]-[25]
56 Ibid at [28]-[31]
57 Ibid at [32]
58 Ibid at [33]
59 Ibid at [34]
60 Transcript PN 201
61 Final Submissions of the Applicant at [14]
62 Transcript PN 3776-3783
63 Ibid PN 3782
64 Exhibit A1 at [46]-[50]
65 Transcript PN 387
66 Ibid PN 388
67 Ibid PN 1142
68 Ibid PN 1143
69 Ibid PN 1124
70 Ibid PN 1033-1034
71 Ibid PN 1136-1140
72 Ibid PN 1100-1107
73 Ibid PN 1050
74 Ibid PN 1057-1099
75 Exhibit R10 at [50], Exhibit R9 at [48], Exhibit R5 at [56], Transcript PN3196-3202;
76 Exhibit R10 at [51]
77 Transcript PN 3700-3710
78 Exhibit R10 at [51]
79 Transcript PN 3710
80 Exhibit R5 at AW1 and 2
81 Ibid at [83]-[88]
82 Ibid at [73]-[74]
83 Ibid at [76]
84 Ibid at [77]
85 Exhibit R6 at [7]
86 Ibid at [8]
87 Ibid at [9]
88 Ibid at [10]
89 Exhibit A5 at [11]-[13]
90 Ibid at [20]
91 Exhibit R12, 22, 23 and 29 August 2011
92 Ibid, 27 October 2011
93 Potter v WorkCover Corporation (2004) 133 IR 458 at [53]
94 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
95 Exhibit A7 at [28]
96 Ibid at [29]
97 Ibid at [30]
98 In its submissions, Exhibit R14 at [51] the Respondent suggested this provision entitled the Respondent to treat misconduct as unsatisfactory performance this is not an accurate description of the Agreement.
99 Exhibit A6 at [41]-[46]
100 Exhibit R9 at [4]-[5]
101 Ibid [7]-[9]
102 Exhibit R11 at [6]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR533734>
0
3
0