Emery, Kevin v City of Stirling - [2018] FWC 6853

[2018] FWC 6853

The attached document replaces the document previously issued with the above code on 
3 December 2018.

The word “Draft” has been deleted from the preamble.

List Powell
Associate to Commissioner Bissett

Dated: 3 December 2018















1

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

Kevin Emery

v

City of Stirling
(U2017/2986)

COMMISSIONER BISSETT MELBOURNE, 3 DECEMBER 2018

Application for relief from unfair dismissal – serious misconduct – unauthorised modification 
to company vehicles – investigation process flawed - conflict of interest - dismissal unfair –
remedy to be determined.

[1] Mr Kevin Emery was employed by the City of Stirling (the City) as a Beach Inspector. 
His employment was terminated on 3 March 2017 for gross misconduct. Mr Emery has made 
an application to the Fair Work Commission (Commission) seeking relief from unfair 
dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Emery seeks 
reinstatement.

[2] Mr Emery’s application was initially heard in late 2017 with a decision and order 
issued on 9 February 2018. That decision was overturned on appeal1. The matter was remitted 
to me to re-hear and determine. In the course of re-hearing the application directions were 
issued which provided that all evidence and submissions and transcript of proceedings from 
the initial hearing would be taken into account. The parties were provided with an opportunity 
to file further evidence and submissions.

[3] In accordance with these directions witness statements were filed by Mr Kevin Emery, 
Mr Daryl Eaves and Mr Richard Green. 

[4] At the hearing on 17 and 18 September 2018 I granted permission to both parties to be 
represented by a lawyer in accordance with the provisions of s.596(2) of the FW Act. I did so 
having concluded that the matter could be dealt with more efficiently given its complexity if 
permission was granted. Mr Emery was represented by Mr Mullally and the City was 
represented by Mr Caspersz of Counsel.

Background

[5] Much of the background leading to the decision to dismiss Mr Emery from his 
employment is not disputed. I repeat some of the background. 

[6] Mr Emery was employed by the City as a Beach Inspector on 1 September 2011. He 
was one of four Beach Inspectors who reported to Mr Arthur Snook, Team Leader Beach 

[2018] FWC 6853

DECISION


E AUSTRALIA FairWork Commission




 



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Services. Mr Snook was also responsible for casual life guards who supplemented the 
permanent Beach Inspectors during the summer period. Together they patrolled the relevant 
beaches and were responsible for public safety and well-being.

[7] The Beach Inspectors and lifeguards had available to them a variety of equipment 
including all-terrain vehicles, jet skis and three beach inspector vehicles (BIV) (only used by 
Beach Inspectors).

[8] In November 2016 the City replaced the existing BIVs with three new BT50 Mazda 
Utes.

[9] Sometime in early December 2016 Mr Emery modified the air conditioning units on 
two of the BIVs (BIV U481 and BIV U483) by inserting a bridging wire. This modification 
resulted in the air conditioning coming on whenever the engine was started and running until 
the engine was turned off. 

[10] On 7 February 2017 Mr Adam Gugiatti, one of the Beach Inspectors, reported to 
Mr Snook a noise coming from the engine of BIV U481. Mr Snook directed Mr Gugiatti to 
take the vehicle to the City’s Fleet Depot workshop (responsible for managing the vehicles 
owned and operated by the City of Stirling). From there he was directed to take the vehicle to 
the Mazda dealership (Mazda) from where it was purchased. The vehicle was inspected at the 
dealership and the modification to the wiring for the air-conditioning system was identified.

[11] The modification to the air conditioning was reported to Mr Norm Bryant, the Leading 
Hand at the City’s fleet workshop who advised Mr David Carter, Co-ordinator of Fleet 
Services. Mr Carter then spoke to Mr Snook. Mr Carter also inspected the remaining two 
BIVs where he discovered a similar modification to the air conditioning on BIV U483. 
Mr Carter removed the wiring.

[12] On 8 February 2017 Mr Snook held a team meeting with the Beach Inspectors. 
Mr Emery was absent on personal leave. At the conclusion of the team meeting Mr Snook
advised the team that one of the BIVs had been inspected by Mazda and was found to have 
had a bridging installed causing the air conditioning compressor to shut down. Mr John 
Hardbattle, another Beach Inspector, suggested Mr Snook speak to Mr Emery about the 
modification.

[13] On 9 February 2017 Mr Snook sought advice from the human resource (HR)
department of the City and on 13 February 2017 met with Ms Tracy Watts, Co-ordinator
Employee Relations and Resourcing (HR) and Ms Simone Pastor (who he reported to) to 
discuss how the matter should be investigated.

[14] On 23 February 2017 a letter was delivered to Mr Emery’s home address instructing 
him to attend an investigation meeting to be held the following day. At Mr Emery’s request 
the investigation meeting was rescheduled until 1 March 2017.

[15] On 1 March 2017 Mr Emery attended the investigation meeting with his support 
person Mr Hardbattle. Also at the meeting were Mr Snook and Ms Watts. Mr Emery provided 
Mr Snook and Ms Watts with a bundle of documents which Mr Emery said showed that the 
modifications he had made to the BIVs was not dissimilar to other tasks he had performed at 
the request of Mr Snook. This bundle of documents apparently included emails between 








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Mr Snook and various Beach Inspectors regarding the repair and maintenance of equipment 
used by the Beach Inspectors.

[16] Following this meeting Mr Snook and Ms Watts had a discussion with Mr Trevor 
Holland, Director Community Development for the City. Beach Services was one of the units 
from which Mr Holland had management responsibility. During this discussion Mr Holland 
formed the view that Mr Emery’s employment should be terminated.

[17] The following day Mr Snook was directed to attend a further meeting with Mr Snook 
and Ms Watts on 3 March 2017 (disciplinary meeting). Mr Emery attended with 
Mr Hardbattle again as his support person. Mr Emery was informed at this meeting that he 
had been summarily dismissed.

EVIDENCE

[18] Evidence in these proceedings was given by:

 Mr Kevin Emery; 

 Mr Johnny Hardbattle, Beach Inspector;

 Mr Trevor Holland, Director Community Development; and

 Mr Arthur Snook, Team Leader Beach Services;

 Ms Tracy Watts, Co-ordinator Employee Relations and Resourcing;

 Mr David Carter, Co-ordinator Fleet Services;

 Mr Andreas Kolm, Beach Inspector;

 Mr Adam Gugiatti, Beach Inspector;

 Mr Daryl Eaves, auto-electrician; and

 Mr Richard Green, auto-electrician.

Evidence of Mr Emery

[19] Mr Emery gave evidence at the initial hearing and at the rehearing of his application.

[20] Mr Emery is a qualified auto-electrician and had worked as such until 2003. From 
about 2003 he worked for an internet provider. In 2011 he commenced employment with the 
City as a Beach Inspector. Mr Emery said that while he stopped working as an auto-
electrician he still undertook such work in his own time and had maintained his skills.

[21] Mr Emery’s evidence is that he made the modifications to the BIV U481 and 
BIV U483 following complaints from his co-workers that the air conditioning in each car was 
only blowing hot air. He said that he made the modification following three discussions with 
Mr Snook who agreed that he should undertake the modifications.








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[22] The first meeting with Mr Snook was on or about 2 December 2016 in Mr Snook’s 
office. Mr Emery said he discussed the problem with the air conditioning in the vehicles with 
Mr Snook and told him it would need to be fixed at the 1,000 km service. Mr Emery said 
Mr Snook agreed to have the repairs done at that time.

[23] The second meeting with Mr Snook occurred on or about 5 December 2016. 
Mr Emery said that Mr Snook advised him that the workshop had decided not to have the
vehicles serviced until the 3,000 km mark and that the faulty air conditioners would have to 
wait until then. Mr Emery said he told Mr Snook this was not acceptable. Mr Emery 
suggested that he investigate if he could arrange a temporary fix. Mr Emery said Mr Snook 
“invited” him to do the research.2

[24] The third meeting with Mr Snook took place the following day when Mr Emery said 
he reported to Mr Snook on the outcome of his investigation. He told Mr Snook that he could 
put in a temporary bridge so that the air conditioning runs cold. Mr Emery said that Mr Snook 
agreed he should do this.

[25] Mr Emery variously gave evidence that Mr Snook “invited” him3, “directed” him to 
repair the vehicles,4 “wanted [him] to do the job”5 of repairing the vehicles or “requested that 
[he] modify…the vehicles”6.

[26] Following the second meeting with Mr Snook, Mr Emery said he undertook some 
research that led to him accessing a wiring diagram7 via a “google” search online for “wiring 
diagram air conditioning systems HVAC BT-50 Mazda”.8 Mr Emery agreed that the diagram 
he had found in his research was the same wiring diagram contained in the Mazda BT-50 
Training Manual with a copyright date of 20069 but said that this did not mean the wiring 
diagram in that manual had not been updated since 2006.

[27] Mr Emery said that he also checked the wiring diagram against the engine of one of 
the BIVs “to make sure the components listed here were physically in the vehicle.  The 
diagram was as I expected, and then when I checked the vehicle the components were 
physically located correctly, and so I deemed that that would be the accurate diagram...”.10

[28] Mr Emery subsequently inserted a bridging wire in BIV U481 and BIV U483. 
Mr Emery confirmed the placement of the bridging wire on a wiring diagram.11 He agreed 
that the modifications he undertook to BIV U481 and BIV U483 were not approved by 
Mr Snook in writing.12

[29] Mr Emery gave evidence that a part of his performance management process required 
that he (and other Beach Inspectors) reduce maintenance costs. He provided a range of 
emails13 that showed that Beach Inspectors regularly undertook maintenance on equipment 
and that this was approved by Mr Snook. He provided an email which he said demonstrated 
that Mr Snook regularly asked the Beach Inspectors to “do work on fleet vehicles and 
equipment contrary to policy.”14 He agreed that permission was sought and given for each 
job.15

[30] On 5 December 2016 Mr Emery was acting in Mr Snook’s role as Mr Snook was 
absent. Mr Emery said he sent an email to Mr Carter in which he raised a number of issues 
with the new Beach Inspector vehicles. In that email he did not raise any issue with the air 








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conditioning because “Snook was on the path to resolving it.”16 Mr Carter replied to the email 
from Mr Emery that the “auto sparky” would be down at the beach the next day to look at 
some of the issues raised. Of one of the matters raised by Mr Emery, Mr Carter replied that 
we “will have to go back” to Mazda for the repair and that “[t]hese vehicles have their first 
service at 3000km…”17

[31] By 11 December 2016 Mr Emery had carried out the modifications on BIV U481 and 
BIV U483. He denied that the modifications caused any damage to the vehicles as the bridge 
“simply turned the air conditioning unit on…” and that it was “not possible for this to have 
damaged the relay as it had been completely removed from the circuit and was not in 
operation.”18 Mr Emery did agree the bridging wire he inserted changed the circuit for the air 
conditioning which had the effect of taking out the thermostat such that the air conditioning 
either ran cold or there was no air. He agreed that if the circuit was not as he had found in his 
research but was as identified by Mr Green19 the pressure switch would not respond to any 
changes in pressure which would have the effect of not turning the compressor off.20

Mr Emery did not agree that this would cause any damage to the vehicle.

[32] Mr Emery said that the air conditioning malfunction was a health and safety issue as 
the Beach Inspectors should not be expected to drive the vehicles with the heater jammed on 
in the middle of summer. He said that if he had not carried out the modifications they would 
only have had one of three vehicles operational during the summer peak season for patrols 
and rescues.21 Mr Emery also gave evidence that, whilst it is preferable to have the vehicles, 
they are not necessary to enable the Beach Inspectors to do their jobs.22

[33] Mr Emery was absent from work with an injury from 24 December 2016 until 
14 February 2017. On 23 February 2017 he received a letter delivered to his home address 
inviting him to attend a disciplinary meeting the following day. The date of the meeting was 
subsequently changed by agreement to 1 March 2017. Mr Emery attended the meeting with 
Mr Hardbattle as a support person. Also present at the meeting were Mr Snook and Ms Watts 
from the City (the investigation meeting).

[34] Mr Emery agreed that the minutes of the investigation meeting23 were “reasonably 
accurate”24 but said he had spoken of the three meetings he had with Mr Snook that were not 
mentioned in the minutes.25 He agreed that the minutes indicated that he had said that 
Mr Snook had authorised work, that Mr Snook was aware of it and when he advised the 
Beach Inspectors of the modifications Mr Snook was busy and he had not wanted to bother 
him.

[35] Mr Emery agreed that Mr Snook did go through the sections of the Code of Conduct 
and Fleet Management Practice he was said to have breached.26

[36] Mr Emery was called to a further meeting on 3 March 2017. At that meeting 
Mr Emery was given a copy of the minutes of the meeting of 1 March 2017 which the 
minutes of 3 March 2017 indicated he said to be reasonably accurate. Mr Emery said he was 
summarily dismissed at this meeting.

Mr John Hardbattle








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[37] Mr Hardbattle gave evidence that he attended the investigation meeting of 1 March 
2017 and the disciplinary meeting of 3 March 2017 with Mr Emery as his support person.

[38] Mr Hardbattle confirmed that Mr Emery “made it very clear in the investigation 
meeting”27 that Mr Snook had approved the work done by Mr Emery on BIV U481 and 
BIV U483.

[39] Mr Hardbattle said that there were problems with two of the new BIVs with the air 
conditioning and they would blow hot air even when set to cold.

[40] Mr Hardbattle said he knew that Mr Emery had reported the fault to Mr Snook. He 
said that Mr Emery told him on “several occasions”28 in late November or early December 
2016 that he was going to see Mr Snook to “discuss the problems with the utes.”29

Mr Hardbattle said he witnessed Mr Emery leave the beach and remain absent “for a length of 
time”30 on at least two occasions. The following week Mr Hardbattle said he noted that the air 
conditioning which had been faulty was working. Mr Hardbattle said that Mr Emery told him
that he had installed a bridging wire as a temporary fix.

[41] Mr Hardbattle agreed that the BIVs are used in lifesaving matters and it is important 
for the Beach Inspectors to have the vehicles to be able to perform those and other ancillary 
duties they undertake.

[42] Mr Hardbattle agreed that the minutes of the investigation meeting of 1 March 2017 
“provided a reasonable picture of what was discussed in the meeting”31 and that the minutes 
of the disciplinary meeting of 3 March 201732 were a “fair representation of that meeting”33

although he had not seen the minutes prior to appearing in the Commission.

[43] Mr Hardbattle recalled a team meeting held on 8 February 2017 attended by himself, 
Mr Andreas Kolm, Beach Inspector, Mr Gugiatti and casual lifeguards. He said Mr Snook 
called the Beach Inspectors aside and asked if they knew of any modifications made to the 
BIVs although did not allude to what those modifications were. Mr Hardbattle recalled that he 
“said ‘Oh Kevin’, and then…said you’ll have to ask Kevin about that.”34

Mr Darryl Eaves

[44] Mr Eaves is a qualified and licensed auto electrician and the proprietor of Forestfield 
Auto Electric. He is also licensed to inspect and undertake repairs on air conditioning 
equipment fitted to motor vehicles. Mr Eaves was asked to complete a report by Mr Emery’s 
legal representative and give his expert opinion on certain matters. In doing so he was 
provided with a copy of a statement of Mr Richard Green dated 23 November 2017 and the 
wiring diagram for the Mazda BT-50 sourced by Mr Emery. He was asked to respond to 
specific questions. 

[45] In his written report35 Mr Eaves said that:

 He did not believe that Mr Emery had done any damage to the air conditioning 
control systems in the vehicles by installing the bridging wire as the “circuit is 
fuse protected against short circuit and the air conditioning system is over/under 
pressure protected by the pressure switch”.








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 He did not believe the installation of the bridging wire would cause the 
compressor to overheat as “when the vehicle is in extreme heat the compressor 
stays on far longer…”, nor did he consider it would cause the compressor to run 
out of oil or lead the drive belt to fail and snap.36

[46] Mr Eaves indicated that his view had not changed having seen the supplementary 
statement of Mr Green.37

[47] Mr Eaves agreed that the pressure switch38 plays an important role in the system if 
there is a fault. He agreed that “if a pressure switch is not in the system the potential adverse 
consequences of over pressure or under pressure would not be picked up.”39 Mr Eaves 
explained that “over pressure” occurs when the compressor builds up pressure, mainly caused 
by a blocked condenser (radiator). Too much pressure can result in a blown hose. The 
pressure switch detects a build-up of pressure and prevents this occurring by turning the 
compressor off.40 A blown hose could result in loss of refrigerant and loss of oil which then 
could lead to compressor failure.41 The pressure switch operates to stop this happening.42

“Under pressure” can occur with loss of refrigerant and oil causing the compressor to seize. 
The pressure switch also operates to stop this occurring.43

[48] Mr Eaves agreed that while the bridging wire inserted as per the wiring diagram 
provided by Mr Emery bypassed the fuse and the circuit going through to the PCM and
thermostat, the pressure switch remained in the system.44 The bridging wire would result in 
the compressor being engaged continuously.45 He agreed that the system was not designed to 
do this but rather to cycle so that there are times when the compressor is not engaged.46

[49] Mr Eaves further agreed that if the pressure switch was no longer in the system 
because the bridging wire meant that it was by-passed, the adverse consequences of an over or 
under pressure situations would not be picked up.47 Mr Eaves agreed that the “pressure switch 
plays a fairly important role in that system…[i]n the control of the system.”48

[50] Mr Eaves agreed that the bridging wire would alter the operation of the 
air conditioning control system in a number of respects, by bypassing the battery fuse, 
bypassing the PCM and bypassing the thermostat with the potential for the evaporator to 
freeze.49

[51] Mr Eaves agreed that if the bridging wire had been inserted as he understood it would 
have impaired the system.50 Mr Eaves distinguished this from damaging the system. He did 
agree that there was a possibility that the bridging wire inserted by Mr Emery (which resulted
in the compressor running constantly) burned out the compressor clutch causing the 
compressor to cease working.51

[52] Mr Eaves generally agreed with the opinion expressed by Mr Green52 except in 
relation to paragraph 16(b) of Mr Green’s supplementary statement as he did not consider an 
eventual mechanical failure “likely” although did accept it was a possibility,53 paragraph 19 
which he said would only occur if the condenser was blocked or failed, paragraph 20(a) as he 
considers enough noise would be made such that the driver would be aware and paragraph 
20(c) of the statement as he considered it would take excessive hours. 

Mr Arthur Snook








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[53] Mr Snook is the Team Leader Beach Services for the City. Mr Emery reported to him 
in his role as Beach Inspector. Mr Snook reported to Ms Simone Pastor, Co-ordinator 
Planning and Projects, at the time in question.

[54] Mr Snook gave evidence that in February 2017 Mr Gugiatti told him of a noise 
coming from BIV U481. Mr Snook listened to the noise which he described as a high pitched 
whining sound. He contacted the depot and it was arranged that the vehicle would be taken to 
the depot. Following this the vehicle was taken to Mazda. Mr Snook subsequently received a 
call from Mr Carter who advised that Mazda discovered the installation of the bridging wire; 
the warranty would not cover the repairs as the vehicle had been tampered with and the other 
BIVs would need to be checked. 

[55] Mr Snook advised the Beach Inspectors of this at the next team meeting and 
Mr Hardbattle indicated that “Kevin” [Emery] had something to do with the matter. Mr Snook 
then advised Ms Pastor of the incident.

[56] On 9 February 2017 Mr Snook emailed HR and asked for advice on dealing with the 
insertion of the bridging wire.54 The following day Mr Gugiatti approached Mr Snook and 
advised him that Mr Emery had previously discussed with him the hot air coming from vents 
in the vehicles and that in December 2016 he had received a text from Mr Emery stating that 
he, Mr Emery, had placed a bridging wire in the engine of the BIV.

[57] Mr Snook subsequently met with Ms Pastor and Ms Watts to discuss the investigation 
process for the matter. Ms Watts asked Mr Snook if he had authorised the wiring in the 
vehicles. Mr Snook told her he had not.

[58] Mr Snook confirmed that he conducted the investigation meeting with Mr Emery on 
1 March 2017. Ms Watts attended as minute taker. He said that the purpose of the meeting 
was to have Mr Emery “answer the claims that he had made unauthorised modifications to the 
BIV’s which resulted in damage to the BIV’s and the warranties being voided.”55

[59] Mr Snook said that Mr Emery did not deny installing the bridging wire and when 
asked by Mr Snook who had given him permission to do so Mr Emery answered “you did”. 
Mr Snook said he did not reply to this as he was “shocked and unprepared” and he did not 
want the meeting to descend into a “he said” argument. When he composed himself he told 
Mr Emery he had not “held any such discussions…let alone authorise him to conduct 
mechanical work…”56

[60] Mr Snook did not consider that he was put in a conflicted position by being the 
investigator and Mr Emery suggesting that he had authorised the work done on the BIVs. He 
expected if there was some conflict Ms Watts would have raised it as the HR professional.57

[61] Mr Snook said that he and Ms Watts reviewed the documents which Mr Emery said 
demonstrated that the bridging wire inserted into the BIVs constituted maintenance work but 
dismissed this claim.

[62] Mr Snook said he spoke to Ms Pastor, Ms Cath Holmes, former Senior Employee 
Relations Advisor for the City, and Mr Trevor Holland acting Director Corporate Services for 
the City after the meeting of 1 March 2017 but prior to meeting with Mr Emery on 3 March 
2017. They discussed: 








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 Mr Emery’s admission that he had inserted the bridging wire;

 that Mr Emery had no authority to do the work;

 that Mr Emery had not raised the problem with the air conditioning with 
Mr Snook;

 the potential impact of Mr Emery’s actions;

 Mr Snook’s loss of trust and confidence in Mr Emery; 

 that Mr Emery had advised other team members of the bridging wire but not 
Mr Snook; and 

 that Mr Emery showed no remorse for his actions. 

[63] Mr Snook said that Mr Holland advised that he should consider all of the evidence 
they had gathered and that termination of employment was an option. Other options discussed 
at the meeting included issuing a first and final warning.58

[64] Mr Snook said that he did not take statements from any other people involved in the 
matter but he did have emails including comments from “more knowledgeable people 
regarding vehicles”59 and that he had abided by the City’s policies in undertaking the 
investigation. Mr Snook agreed he had no written statements with respect to whether the 
bridging wire had been authorised, whether the wiring had damaged the vehicles and he did 
not gather a statement with respect to the effect of the bridging wire on the warranties from 
Mazda.60

[65] A disciplinary meeting was held with Mr Emery on 3 March 2017. The purpose of the 
meeting was to present the findings of the investigation to Mr Emery. Mr Emery was not 
otherwise advised of the findings before the meeting. Ms Watts again attended the meeting. 
Mr Emery was provided with a further opportunity to respond to the allegations. Mr Snook 
and Ms Watts had a break and discussed Mr Emery’s response. On re-convening Mr Snook 
advised Mr Emery that his employment was terminated because:

 He had no authority to tamper with the BIVs;

 The warranties on the BIVs had been voided and the City had to meet the cost of 
repairs in excess of $2,000;

 The bridging wire was not maintenance work;

 He failed to understand the potential consequences or seriousness of his actions

[66] Mr Snook agreed that he met with Mr Emery on or about 2 December 2016. He said 
that the discussion was limited to when the BIVs would be serviced. He denied that 
Mr Emery spoke to him of the air conditioning problem.61 Further, he denied that Mr Emery 
advised him that he had done the wiring. Mr Snook said that if he had authorised the work he 
would expect to be advised when it was completed and he was not.62








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[67] Mr Snook said that he considered the incident a “dismissable” offence based on the 
“evidence that we received from our fleet manager, from the Mazda people.”63

Mr Trevor Holland

[68] Mr Trevor Holland reports to the Chief Executive Officer of the City. During the 
period in question he was acting Director Corporate Services in addition to his role of 
Director Community Development. In the later role Ms Pastor reported to him (Mr Snook 
reported to Ms Pastor).

[69] Mr Holland said he became aware of the bridging wire being inserted into the two 
BIVs in early February 2017 when Ms Pastor spoke to him about it. Ms Pastor indicated that 
the City’s HR department was commencing an investigation into the incident.

[70] Following his discussion with Ms Pastor, Mr Holland telephoned Mr Carter. He said 
Mr Carter told him that the BIVs with the bridging wire had been inspected by Mazda and 
that the Mazda Service Manager told Mr Carter that the bridging wire had caused damage to 
the air conditioning compressor, because of the modification the warranties on the vehicles 
were voided and the installation of the bridging wire could have caused the vehicles to 
become inoperable.64

[71] Mr Holland said he met with Mr Snook and Ms Watts on 3 March 2017 where they 
reported to him that Mr Emery admitted installing the bridging wire but claimed Mr Snook 
had authorised him to do so. Mr Holland asked Mr Snook if this was the case and Mr Snook 
denied it. Ms Watts said that Mr Emery had provided no detail in the investigation meeting on 
1 March 2017 of the manner in which Mr Snook authorised the bridging wire, that Mr Emery 
said he had not wanted to bother Mr Snook who was busy and that Mr Emery had shown no 
remorse.

[72] Mr Holland gave evidence that he received an oral report of the investigation into the 
incident in the discussion with Mr Snook and Ms Watts on 3 March 2017 but did not receive a 
written report. Mr Holland gave evidence that HR had headed up the investigation and he 
relied on the skills of Ms Watts. Mr Holland agreed that he had no documentary trail to 
support his view that HR had headed up the investigation into Mr Emery. When asked on 
what he basis he held this view he replied:

on the basis of [custom and] practice, the way that the HR department have operated: 
they have asked various questions, they took the notes, they involved the particular 
departments, and they offered professional advice all the way through the interview.  
So I believe that they’re leading the way.65

[73] Mr Holland agreed that he did not know if witness statements had been taken from 
Mr Emery, Mr Snook, Mr Carter, the Mazda staff or any other Beach Inspectors. He agreed 
that he had received no written statements in relation to the investigation.66

[74] Mr Holland’s evidence is that he “in substance said to Snook and Watts that it was my 
view Emery should be terminated.”67 Based on the information he had Mr Holland felt that 
termination was appropriate.68 He reached this conclusion because of the advice from 








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Mr Carter and because he considered Mr Emery’s explanation implausible.69 He said however 
that he did not direct that Mr Emery be dismissed.70

[75] Ms Watts advised Mr Holland that a disciplinary meeting was scheduled with 
Mr Emery for 3 March 2017. Mr Holland said that “shortly following” his meeting with 
Ms Watts and Mr Snook, Ms Watts advised him that Mr Emery’s employment had been 
terminated. 

[76] Following receipt of this advice from Ms Watts, Mr Holland again contacted 
Mr Carter and requested that he ask Mazda to put in writing the effects of the modifications 
made by Mr Emery to the two BIVs.

[77] Mr Holland first said that he was not the decision-maker in this matter and the person 
with ultimate authority to determine if a person’s employment should be terminated is the 
Manager HR but at the time the HR Manager was acting in the role and it would not have 
been fair to place the decision with her.71 Mr Holland then said that in this instance he was the 
decision-maker. He confirmed that Ms Watts was not the Manager HR.

Ms Tracy Watts

[78] Ms Watts is employed as Coordinator Employee Relations and Resourcing by the 
City. She commenced on 16 January 2017. At the time she commenced employment with the 
City the position of Manager HR was substantively vacant and filled on a temporary basis for 
a six week period by Ms Kath Allen. That position was filled on an on-going basis in 
April 2017.

[79] Ms Watts said that on 9 February 2017 she was provided with an email Mr Snook had 
sent to a HR Advisor with respect to Mr Emery making unauthorised modifications to two of 
the BIVs. The email indicated that Mr Snook considered the matter serious and wanted an 
investigation undertaken. He was seeking guidance from HR as to the correct way of putting 
allegations to Mr Emery.

[80] Ms Watts said that the instruction was given by Ms Pastor to conduct an 
investigation.72 The matter arose from the allegation of modifications to two Mazda four 
wheel drives (the BIVs) that had resulted in damage to the vehicles.73

[81] Ms Watts met with Mr Snook and Ms Pastor where they discussed the investigative 
process. Mr Emery would initially be called to a meeting and given an opportunity to respond 
to the allegations and, following this meeting his response would be considered, a disciplinary 
meeting held and a decision made as to any disciplinary outcome.74

[82] Ms Watts conducted the investigation in conjunction with Mr Snook.75 Her evidence 
was that it is procedure within the City for the supervisor to do the talking and run the 
meeting.76

[83] Ms Watts was the author of the letter of 23 February 2017 inviting Mr Emery to attend 
the first investigation meeting. That letter relevantly said:








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...Our specific concerns relate to an allegation of non-approved modification of two 
the [sic] City’s vehicles resulting in substantial damage including the voiding of the 
warranty.

The alleged behaviour is in breach of the following policy:

 Code of Conduct
 Fleet Management Practice

Copies of the relevant reports and policies are attached.

You will be given the opportunity to respond to the allegations under investigation, 
and will be given the opportunity to ask questions…77

[84] The meeting date was re-scheduled and a further letter in the same terms as the first 
sent to Mr Emery.

[85] Ms Watts agreed in her evidence that there was no information in the letter which 
identified the vehicles being referred to or that identified the damage to the vehicles which she 
said was to be discussed at the meeting.78 Her evidence was that the damage was the voiding 
of the warranties on the vehicles and she had been advised of this in the conversation with 
Ms Pastor and Mr Snook. She said that the City had been notified of this by Mazda following 
an inspection of the vehicles.79

[86] Ms Watts said she attended the investigation meeting with Mr Snook on 1 March 2017 
“to provide him support as a representative of human resources and to take the minutes of the 
conversation.”80

[87] Ms Watts said that at the meeting Mr Emery: 

 agreed he had inserted the bridging wire because of an air conditioning fault; 

 said the BIVs were not going to be serviced until 3,000km instead of 1,000km; 

 said what he had done was part of general maintenance of the vehicles; 

 said Mr Snook had given him permission to do the work; 

 on completing the modification advised other Beach Inspectors; and

 said Mr Snook was busy and he didn’t want to bother him. 

[88] In subsequent evidence Ms Watts made clear that Mr Emery’s comment of not 
wanting to bother Mr Snook was in relation to advice that the modifications had been 
completed.

[89] Mr Emery provided to Ms Watts and Mr Snook emails and performance management 
review documents to support his case that his modifications were general maintenance.








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[90] Ms Watts said Mr Snook “looked taken aback and shocked” when Mr Emery said 
Mr Snook had given permission for the work on the BIVs. Mr Snook was “quite stern and 
direct” in telling Mr Emery he had not given such permission because they had never 
discussed it and such work would need to be approved by the City’s depot.

[91] Mr Snook then clarified those parts of the Code of Conduct and Fleet Management 
Practice it was claimed Mr Emery had breached.

[92] Ms Watts prepared the minutes of the investigation meeting.81

[93] Ms Watts said that Mr Emery provided no evidence that Mr Snook had directed him to 
make the modifications to the vehicle and that it was “common for employees under 
investigation to make such claims against their managers and…for these reasons, it was [her] 
opinion that is was not necessary to remove Snook from the meeting.”82  She said that 
Mr Emery made no objection to Mr Snook conducting the investigation.

[94] The disciplinary meeting was held with Mr Emery on 3 March 2017. Mr Emery was 
again accompanied by Mr Hardbattle. Ms Watts and Mr Snook were also in attendance. At 
that meeting Mr Emery confirmed the minutes of the meeting of 1 March 2017 were accurate 
and was given a further opportunity to respond. 

[95] Mr Emery said at the disciplinary meeting that the work was consistent with previous 
work he had done, he had been trying not to bug Mr Snook, he did not accept that the 
modifications endangered lives and he wanted to negotiate an outcome that would enable him 
to keep his job.

[96] Ms Watts said that she and Mr Snook had a break where they discussed Mr Emery’s 
response. On reconvening the meeting Mr Emery was advised that his employment was 
terminated. 

[97] Ms Watts said in her evidence said that the reasons for the termination were that:

 Mr Emery admitted to the modifications but could not demonstrate authority to 
do so;

 There was a distinction between minor repair work and tampering;

 Mr Emery had not advised the depot of the modifications;

 The result could have been catastrophic;

 Mr Emery had not accepted responsibility or shown remorse; and

 Mr Emery’s actions had resulted in the warranties being voided and the City 
incurred significant costs in repairs.83

[98] Ms Watts said that a letter of termination was sent to Mr Emery on 9 March 2017. The 
letter was re-sent to Mr Emery by mail on 11 April 2017 as she was under the (mistaken) 
belief that he may not have received the first letter.








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[99] Ms Watts gave evidence that she was familiar with the Employee Discipline 
Management Practice84 of the City and that the investigation had been carried out in 
accordance with this.85 Whilst agreeing that it would be better to get statements in writing 
from those involved in the investigation, Ms Watts agreed that she did not get a written 
statement from Ms Pastor, Mr Snook or Mr Emery and she did not gather a statement from 
Mazda personally or cause one to be gathered.

[100] Ms Watts said that following the investigation meeting with Mr Emery on 1 March 
2017 she reported back to Ms Pastor and Ms Allen. They agreed to talk to Mr Holland and 
Ms Watts believes this discussion took place the following day. Her evidence is that there was 
a legal representative present at this meeting. 

[101] Ms Watts said she also met with Mr Holland and Mr Snook on 3 March 2017 prior to 
meeting with Mr Emery. In respect to that meeting Ms Watts gave the following evidence:

Mr Mullally: You say you don't remember the detail of the meeting with Mr Holland 
prior to the disciplinary meeting; is that right?---I know that in terms of the outcome of 
- if the discipline meeting did not provide any further information to support 
Mr Emery's claim of being provided with permission, then we were to continue with a 
termination.

That's what Mr Holland told you?---That's correct.

So your command of this investigation process at that point must have been taken 
away from you; is that right?---In terms of that, if there was any changes to what 
Mr Emery had provided in the next meeting, I was to call Mr Holland and discuss the 
matter further.86

[102] Ms Watts said that Mr Emery provided no further information at the disciplinary 
meeting on 3 March 2017 to support his claim so she and Mr Snook terminated his 
employment. Ms Watts said that she had the delegated authority from Ms Allen to effect the 
termination although Mr Holland was responsible for the decision.87

[103] Ms Watts said she did not consider there to be a conflict of interest in Mr Snook 
continuing to investigate the matter following Mr Emery’s claim that Mr Snook authorised 
the bridging wire in the BIV and Mr Snook’s denial of this.88 Ms Watts based this on 
discussions she had with Mr Snook prior to the investigation meeting on 1 March 2017 when 
she asked if he had authorised the modification and he said he had not.89

David Carter

[104] Mr Carter is the Co-ordinator, Fleet Services for the City. He is based at the City’s 
depot in Balcatta. Mr Carter gave evidence that the depot has a workshop and that the fleet 
services mechanics assess and repair equipment but that vehicles under warranty will 
generally be returned to the dealership. Mr Carter said the mechanics determine priority of the 
work depending on the nature of the repair and the vehicle’s use. His evidence is that the 
BIVs are given priority given the nature of their use.








[2018] FWC 6853

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[105] Mr Carter also gave evidence that, pursuant to the Fleet Management Practice, if an 
employee of the City experiences a fault or problem with a vehicle it is incumbent upon them 
to report it to their supervisor or the depot.

[106] Mr Carter said that in November 2016 the City purchased three Mazda BT-50 vehicles 
for the use of the Beach Inspectors. Mr Carter said the vehicles were due for a first service at 
3,000km. Mr Carter provided, with his written statement, the maintenance history for 
BIV U481 and BIV U483. He said that prior to February 2017 no faults were reported with 
the vehicles.

[107] On 7 February 2017 Mr Carter was informed by Mr Norm Bryant (the leading hand) 
that he had received a call from Mr Snook in relation to an unusual noise coming from 
BIV U481 and that the vehicle was being brought to the depot by Mr Gugiatti, a Beach 
Inspector. The vehicle arrived soon thereafter. As the vehicle was under warranty it was taken 
to Mazda that day.

[108] Mr Bryant spoke to Mr Carter later that day and told him Mazda had called to advise 
they had found bridging wire installed in the vehicle which had caused the air conditioning 
compressor to shut down. Mazda said it could not be repaired under warranty as the vehicle 
had been interfered with.

[109] Mr Carter, along with Mr Bryant went to Mazda and spoke to Mr Seb Melis, the 
Service Manager who, Mr Carter said, stated that a bridge had been installed so that the air 
conditioning would run continuously, the air conditioning system was not designed to operate 
this way, the bridge had wires sticking out and the repairs would not be covered by warranty. 
Mr Carter then spoke to the mechanic who worked on the vehicle and inspected the vehicle 
himself. Mr Carter concluded that the bridging wire had not been bought from a supplier and 
that as the compressor had failed there was a possibility that the drive belts might fail and the 
alarm codes being sent to the computer could shut the vehicle down. The following day 
Mr Carter received an email from Mr Melis advising that the cost of repairs was $1,902.00.

[110] Mr Carter ordered that the two remaining BIVs be inspected. BIV U482 had no
bridging wire installed but BIV U483 did have a bridging wire which Mr Carter removed. 
Mr Carter refitted the relay but a few days later the vehicle developed a fault and was taken to 
Mazda.

[111] On 8 February 2018 Mr Carter emailed Mr Snook to advise him of the fault in 
BIV U481 and that he suspected that the bridging may have been done by one of Mr Snook’s 
staff. Mr Carter asked Mr Snook to inform his staff that no unauthorised repairs were to be 
done on the vehicles.90

[112] On 28 February 2017 Mr Carter received an email from Mr Melis91 which stated:

Hi Dave,

Yes we found a makeshift wire bridging the relay so it would keep the compressor 
running at all times (when usually it is PCM controlled)-this has then in turn burnt out 
the compressor clutch causing the compressor to no longer work-therefore no aircon.








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16

Once something like this has been interfered with it is not deemed as a manufacturing 
defect-therefore warranty is exempt. 

Regards

Seb Melis
Service Advisor

[113] Mr Carter gave evidence that he deals with manufacturers on warranty issues “all the 
time” and he had no reason to doubt what was said in the email.92

[114] Mr Carter said the email arose from a telephone call he made to Mr Melis asking that 
he clarify why the compressor was replaced.93 He could not recall if he made the telephone 
call in response to a request from Mr Holland. With respect to an unsigned and dated letter,94

Mr Carter said Mr Melis sent this to him attached to another email sometime after he received 
the email of 28 February 2017,95 “probably a month” later but “more than a few days” or it 
could have been a “few weeks”.96

[115] Mr Carter said that auto electrical work on the City’s fleet is subcontracted to 
RPG Auto Electrics.

[116] The fleet vehicle maintenance history97 shows that BIV U481 had its 3,000km service 
on 21 December 2016 and BIV U483 had its 3,000km service on 12 January 2017. The 
bridging wire was not discovered at this time.98

[117] Mr Carter said that when he removed the bridging wire and refitted the relay wire in 
BIV U483 he was of the opinion that there would be problems with the air conditioning 
system as there had been in BIV U481. BIV U483 was returned to Mazda on 14 February 
2017 when the air conditioning clutch failed. The fault was repaired under warranty.

Mr Adam Gugiatti

[118] Mr Gugiatti is a Beach Inspector. His evidence is that the BIVs are life-saving vehicles 
equipped with material required to conduct rescues, treat individuals and prevent fatalities. He 
said that the BIV is his “office” and he spends the majority of his shift patrolling the beaches. 
He said that the BIV is essential and he could not do his job without such a vehicle.

[119] Mr Gugiatti said that in November 2016 the City purchased three new BIVs. He is 
permitted to perform general maintenance work on the BIVs which might include checking 
oil and coolant, topping up water, checking tyre pressure and checking lights and reversing 
beepers. He said he is not permitted to conduct any mechanical modifications to equipment or 
vehicles. He said that if there is a mechanical issue he refers the matter to Mr Snook who then 
contacts the depot.

[120] Mr Gugiatti said that in late 2016 he was driving BIV U481 and noticed heat coming 
out of the vents when he turned the engine on. Mr Gugiatti said this was the only vehicle he 
experienced it in, it seemed to happen in cold weather and the hot air blew for about 
60 seconds.








[2018] FWC 6853

17

[121] Mr Gugiatti said that on 11 December 2016 Mr Emery gave him a lift home and they 
discussed heating in the BIVs. He told Mr Emery of the hot air blowing in BIV U481. Later 
that day he received a text from Mr Emery that said:

(Mr Emery) Okay lights and air conditioning fixed and added a litre of oil. 
All good to go again

(Mr Gugiatti) What was wrong with lights ?

(Mr Emery) Wiring to switch not put back or fell off. Bridged air 
conditioning so it is on all the time. Put the mic clip back on 
and topped up oil but it still needs ¼ litre but I have run out at 
home now

(Mr Gugiatti) Roger good stuff99

[122] Mr Gugiatti said that while he knew what Mr Emery had done was wrong he did not 
report him to Mr Snook as he did not want to get him into trouble.

[123] Mr Gugiatti said that in early 2017 he noticed a noise coming from the engines of 
BIV U481 and BIV U483. He noticed this got worse in BIV U481 in February 2017 and 
reported it to Mr Snook. He demonstrated the problem to Mr Snook who, after a phone call, 
directed him to take the vehicle to the depot. Once there he was told the vehicle would need to 
go to Mazda and he delivered the vehicle there.

[124] Mr Gugiatti said he knew the BIV would be given top priority by the depot as it was a 
life-saving vehicle.

[125] Mr Gugiatti said he attended a weekly team meeting on 8 February 2018. Mr Snook, 
Mr Holm, Mr Hardbattle and casual lifeguards were present. Mr Emery was absent. Mr Snook 
advised the group of the bridging wire found in BIV U481 and asked if anyone knew how this 
had occurred. Mr Hardbattle responded with words to the effect of “oh Kevin” [Emery] and 
“you’ll have to ask Kevin about that”.100

[126] On 9 February 2017 Mr Gugiatti decided to tell Mr Snook of the text message he had 
received from Mr Emery on 11 December 2016. He provided Mr Snook with a copy of the 
text message.

[127] Mr Gugiatti agreed that the team of Beach Inspectors had divided up various 
responsibilities informally101 but denied Mr Emery had taken responsibility for motor vehicles 
and electrical items. He agreed that, whilst Mr Snook had asked for his advice on how to 
make the boat trailer work easier, he took responsibility for the logistics but did not make 
changes to the trailer himself.

Mr Andreas Kolm

[128] Mr Kolm is a Beach Inspector. One of his responsibilities as a Beach Inspector is the 
general maintenance of beach services equipment and vehicles. With respect to the vehicles 
this includes checking water, coolant and oil levels, ensuring brake and parking lights are 








[2018] FWC 6853

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working, ensuring the emergency lights and sirens are functioning and checking tyre pressure. 
Mr Kolm said that he understands that he is not required to conduct repairs on vehicles.

[129] Mr Kolm said he considered the BIVs to be life saving vehicles.

[130] Mr Kolm said that in December 2016 he noticed the air conditioning not coming on in 
the BIVs although cannot recall if this was in more than one of the vehicles. He said that the 
problem was intermittent and he dealt with it by leaving the air conditioning off or opening 
the window. He does not recall speaking to Mr Snook or other Beach Inspectors about the 
matter.

[131] Mr Kolm said that around Christmas 2016 he noticed an unusual sound coming from 
the engine of one of the BIVs. He spoke to Mr Gugiatti and they agreed to monitor it and to 
report it if it got worse.

[132] Mr Kolm was present at the team meeting on 8 February 2017. He said that at the 
meeting Mr Snook said bridging wire had been installed in one of the BIVs and asked if 
anyone knew about it. Then, or shortly thereafter, Mr Snook asked Mr Kolm if he had 
problems with air conditioning in the BIVs. Mr Kolm advised that he had experienced some 
issues.

[133] Sometime later Mr Kolm was asked to take BIV U483 to the depot which he did. He 
said he watched Mr Carter remove the relay box cover and take some photographs.

[134] Mr Kolm agreed that responsibilities with respect to repairs and maintenance is “sort 
of divvied up” between the four Beach Inspectors. He agreed that he dealt with the jet skis 
and that if anything went wrong, depending on what it was, he would get approval from
Mr Snook to carry out a repair. He also said he might go straight to the depot.

[135] Mr Kolm said he could recall Mr Gugiatti carrying out repairs to boats and trailers on 
occasion but could not recall him doing a big job on a trailer in 2016. Mr Kolm said that the 
repairs done by Mr Gugiatti were general maintenance.

Mr Richard Green

[136] Mr Green is a qualified auto electrician. He owns and runs RPG Auto Electrics. 
Mr Green is licensed to undertake vehicle repairs and conduct inspection, maintenance and 
repairs to air conditioning in a motor vehicle.

[137] RPG Auto Electrics has a contract with the City in relation to auto-mechanical 
maintenance and repair work on the City’s vehicle fleet.

[138] Mr Green said that when the City took delivery of the three BIVs in late 2016 he 
undertook work on them at the request of Mr Carter. This included installing flashing lights to 
the roof and re-fitting two-way radios from the old BIVs. Mr Green said that at the time of 
doing the work he noticed in one of the BIVs that when the air conditioning was turned on it 
blew hot air. He told Mr Carter that it should be seen to by Mazda.








[2018] FWC 6853

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[139] Sometime later Mr Green was called to do some maintenance work on the BIVs and 
asked two of the Beach Inspectors how the air conditioning was. Mr Gugiatti responding that 
Mr Emery had tweaked the computer and the situation had been resolved.

[140] Mr Green was requested by the City’s representative to provide his opinion based on 
his expertise on the installation of the bridging wire by Mr Emery and the impact this might 
have on the operation of the BIVs based on his experience as an auto-electrician and his 
knowledge of the manner in which the BIVs operate. In so doing Mr Green was given the 
opportunity to inspect the bridging wire constructed and installed by Mr Emery and given a 
copy of a report received by Mr Carter from Mazda on 28 February 2017.102

[141] Mr Green provided two witness statements for the proceedings, one in November 
2017 and another for the hearing before me in August 2018.103 The November 2017 statement 
is attached as “Attachment A” to the August 2018 statement. 

[142] In his November 2017 statement Mr Green said that, in his opinion, the installation of 
the bridging wire would have “caused the compressor to seize because of overuse and 
overheating” and that the compressor shutting down could have resulted in the drive belt 
snapping which would have rendered the BIV inoperable. Mr Green considered that the 
“impact of the modifications was exacerbated” as the BIVs were driven predominantly on the 
beach.104

[143] Mr Green reached his conclusion as to the effect of the insertion of the bridging wire 
because:

(a) the air-conditioning system in the BIVs is controlled by a thermostat;

(b) once the cabin of the vehicle has reached the desired temperature, the air-
conditioning compressor shuts off…The contacts close on the thermostat and 
the compressor will then re-engage;

(c) the result of this is that the air-conditioning system is constantly cycling at the 
desired temperature without the compressor being constantly engaged;

(d) the modification bridged the relay out so that the compressor was running 
continuously…105

[144] Mr Green said that, in his opinion:

 the compressor [in BIV U481] seized because it had run out of oil from 
operating continuously and overheated;

 the seizure of the compressor could have resulted in the motor in the BIVs 
overheating;

 the motor overheating could have impacted the drive belts by causing them to 
fail and snap;

 the drive belts in the BIVs turn the water pump, power steering and compressor;








[2018] FWC 6853

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 a drive belt failure may also result in a failure in the alternator belt if the two 
become tangled; and

 a drive belt failure would have rendered the car inoperable.106

[145] In response to the report of Mr Eaves, Mr Green said that, whilst agreeing that the 
electrical circuit in the air conditioning system was fuse protected, in installing the bridging 
wire Mr Emery had by-passed the battery fuse so any protection was eliminated. Further, 
Mr Green said that by installing the bridging wire the compressor was running all of the time 
and did not have an opportunity to cool down. This, he said, in conjunction with driving with 
few breaks on a hot day could contribute to a failure in the compressor. 

[146] Mr Green said that if the pressure switch was functioning the system might still be 
able to work normally but with the pressure switch not in play he disagreed that “bridging out 
the relay would not cause the compressor to overheat.”107

[147] Mr Green gave extensive evidence on the operation of the air conditioning system in 
the vehicles in question. After reading the report prepared by Mr Eaves, Mr Green said he 
googled “mazda BT-50 air conditioning compressor failure” and was directed to a link which 
contained the training manual for the 2006 model Mazda BT-50. Mr Green said the wiring 
diagram for the air conditioning system in this manual was the same as the wiring diagram 
attached to Mr Eaves’ report. Mr Green then went to Mazda and spoke to the Service 
Department Manager. After identifying himself he said he was seeking a copy of the 
manufacturer’s manual wiring diagram for air conditioning in the 2016 Mazda BT-50. The 
manager printed off a page which he said was from the Mazda manual.108 Mr Green 
subsequently accessed a website containing Mazda manuals including the Mazda 
manufacturer’s manual for the 2016 BT-50. That manual contained the same wiring diagram 
as Mr Green had been given at Mazda.

[148] Mr Green said that in his experience you cannot download current manufacturer’s 
manuals from the internet but rather you have to go to the relevant vehicle dealer.109

[149] Mr Green said that, based on his qualifications and experience, he considered that the 
modification made by Mr Emery:

 Could have caused damage to the compressor;

 It was likely a mechanical failure would eventually have occurred. Timing of 
such a failure is unpredictable;

 The removal of the relay and insertion of the bridging wire eliminated the usual 
protections in the unit because it by-passed the PCM (electrical control unit);

 The removal of the relay and insertion of the bridging wire removed the high-
pressure switch from the circuit meaning the system would no longer detect high 
head pressure and shut down the air conditioning system accordingly.

[150] Mr Green said that he understood the wiring diagram relied on by Mr Emery came 
from a 2006 Manual. He believed this as the year was on the second page of the Manual.110








[2018] FWC 6853

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Mr Green based his opinion on the 2016 wiring diagram111 he had accessed and not the wiring 
diagram relied on by Mr Emery.

[151] Mr Green said that, on the basis of the 2016 wiring diagram and a connected wiring 
diagram112 the effect of the bridging wire inserted by Mr Emery was that “[t]he PCM didn’t 
know what the aircon compressor was doing. It couldn’t control the compressor.”113

[152] Mr Green said that he inserted the bridging wire on one of the BIVs as Mr Emery had 
done and had the air conditioning compressor running. He pulled the pressure switch off to 
see if the compressor disengaged which it didn’t. He concluded from this that the pressure 
switch “wasn’t in play”114 with Mr Emery’s modification.

POLICIES AND PRACTICES OF CITY OF STIRLING

Employee Discipline Management Practice

[153] The Employee Discipline Management Practice115 (Discipline Practice) states, as its 
objective:

This management practice is designed to ensure the City Of Stirling (the City) 
provides a fair, consistent and systematic approach towards managing conduct and 
behaviour across the organisation. The purpose of this management practice is to 
protect both the employee and the City. It is intended to provide a positive approach to 
problem solving that is fair, consistent and impartial to all parties involved.

[154] Under the heading of “Investigation Meeting and Seeking Witness Statements” it
states:

All allegations/disciplinary matters must be fully investigated. Whilst the details may 
vary from case to case, as a rule, the investigation will involve seeking statements 
from those involved and any others who may have relevant information…

Employees being investigated for misconduct will be formally invited to attend an 
investigation meeting. At the investigation meeting, the employee will be provided the 
opportunity to put forward their version of events relating to the alleged incident…

All information collected during the investigation process including the employee’s 
response to the allegations, witness statements and other relevant information will be 
taken into consideration when deciding on the disciplinary action to be taken…

[155] With respect to “Disciplinary outcomes”, under “Termination” the Discipline Practice
states:

...No employee, whether permanent, temporary, contracted or casual may be 
terminated without seeking prior approval from Manager Human Resources. Business 
Unit Managers are responsible for leading disciplinary meetings that may result in a 
termination outcome and make the final disciplinary outcome.

Code of Conduct








[2018] FWC 6853

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[156] The City’s Code of Conduct116 states in its introduction that it is relevant to all 
employees of the City (amongst others). It says that “Consistent standards of ethical 
behaviour must be applied to meet interests and expectations”.

[157] The Code of Conduct confirms that all allegations of misconduct and/or inappropriate 
behaviour will be investigated in a fair and timely manner in line with the Discipline Practice.

[158] The Code of Conduct confirms that a conflict of interest arises where a personal 
interest conflicts with the public interest. An employee is required to disclose an interest that 
could be in conflict with or perceived to be in conflict with the performance of their public 
duty.

[159] The Code of Conduct sets out those things that might form misconduct and provides 
guidelines on the use of the City’s assets (e.g. mobile phones, vehicles etc.).

Fleet Management Practice

[160] The City’s Fleet Management Practice117 “guides the selection criteria and 
maintenance of City of Stirling Fleet vehicles.”

[161] The Fleet Management Practice outlines the allocation and use of fleet vehicles for the 
City. It states, under “General Maintenance” that:

General maintenance is the responsibility of the employee to whom the fleet vehicle is 
assigned. This includes:

 Regular checks of oil, water tyres…

 The fleet vehicle is required to be kept in a clean and tidy condition…

 Additional features including advertising material shall not be added to the fleet 
vehicle …

 The fleet vehicle is to be made available for service, maintenance and repairs as 
required. Mechanical defects are to be reported to the Fleet Workshop as soon as 
practicable…

[162] The Fleet Management Practice says that the City is responsible for the fleet vehicles’
“full service and maintenance...with the City covering all costs…” 

FINDINGS

[163] I have made the following findings on the basis of the evidence before me. 

Did Mr Emery make modifications to the vehicles?








[2018] FWC 6853

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[164] I am satisfied that Mr Emery made changes to the air conditioning system on 
BIV U481 and BIV U483 in that he inserted a bridging wire into each of these vehicles that 
had the effect of bypassing the normal operation of air conditioning in the vehicles so that the 
air conditioning would blow cold at all times whilst the engine was running.

Was Mr Emery authorised to make the modifications?

[165] I am not satisfied that Mr Emery had permission from anyone at the City to make 
modifications to the vehicles.

[166] Mr Emery said that Mr Snook approved the work being carried out. Mr Snook denied 
this. In this case I prefer the evidence of Mr Snook to that of Mr Emery for the following 
reasons.

[167] I accept that Mr Emery may have met with Mr Snook on a number of occasions. This 
does not, however, support a finding that Mr Snook was aware of or approved the 
modifications. 

[168] Mr Emery said that Mr Snook invited him to investigate if there was a temporary fix to 
the air conditioning problem. Mr Emery’s recollection of what he said Mr Snook required 
varied from a “request to investigate” (presumably the possible remedies to the problem) to a 
“direction” that he fix the problem and much in between. A request to investigate is not a 
direction to make changes to the BIVs. It may well be part of a process in coming to some 
decision as to what should occur but it is a long way from a direction to alter the vehicles. In 
this respect Mr Emery displayed no sense of the substantial difference between the two 
extremes of what is, admittedly, a continuum. Mr Emery’s attempt to explain away the 
differences in his recollection of what Mr Snook asked of him was convenient (he did not 
consider there to be a difference) but not convincing.

[169] Mr Emery agreed that there was nothing in writing from Mr Snook as evidence of any 
direction. It is evident from the emails attached to Mr Emery’s witness statement that issues in 
relation to vehicles and other equipment repair or replacement were raised by the 
Beach Inspectors by email, research proposed or undertaken and possible solutions put 
forward. The existence of the emails does not support Mr Emery’s claim that the arrangement 
for him to fix the air conditioning was agreed. Rather they support a conclusion that 
maintenance matters were routinely put in writing by the Beach Inspectors to Mr Snook.

[170] To the extent that the emails might indicate that each of the Beach Inspectors took 
some responsibility for different equipment this does not demonstrate that work was 
undertaken without the appropriate authorisation or that any such work was carried out 
without some paper trail to support it. In relying on previous conduct to suggest that the work 
Mr Emery did was authorised does no more than highlight that, in this case, that norm was not 
followed. There is, otherwise, no evidence to support that work would be verbally authorised. 
The existence of the emails also belies Mr Emery’s claim that Beach Inspectors had little 
access to email.








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[171] Whilst I accept that the Beach Inspectors did have, as part of their performance 
management, the requirement to reduce maintenance costs, the evidence does not support a 
conclusion that this implied a need to do work of the nature undertaken by Mr Emery. Rather, 
the evidence indicates that reduced maintenance costs were to be achieved by the 
development and implementation of an “improved comprehensive maintenance schedule for 
all gear and equipment.”118 There is nothing in this to suggest that Mr Emery was expected or 
required to undertake the modifications to the BIVs that he did. I accept that regularly 
checking tyres or oil or water in vehicles or using vehicles and other equipment appropriately 
is a means by which maintenance costs are contained. 

[172] My conclusion is further supported by the evidence that Mr Emery did not advise 
Mr Snook that he had completed the work on the air conditioning in the vehicles. If it was the 
case that Mr Snook had requested or directed Mr Emery to undertake the work it is 
inexplicable that Mr Emery did not advise Mr Snook that the work had been completed or that 
he did not do so as he did not want to bother Mr Snook. Why it would “bother” Mr Snook to 
be advised of the completion of a task is not clear. Mr Emery advised the Beach Inspectors. 
Given the claimed importance of the task his reason for not advising Mr Snook is not 
credible.

[173] I find it curious that Mr Emery emailed Mr Carter about electrical matters in the 
vehicles on 5 December 2016 (when he was acting in Mr Snook’s role) at the time he was in 
the midst of three meetings with Mr Snook where Mr Emery says the status of the 
air conditioning in the vehicles was the topic of conversation yet did not mention this health 
and safety issue to Mr Carter.  The subject line of the emails was “Issues as discussed with the 
new Beach Inspector vehicles”. Whilst the issues raised in the email were no doubt important 
none appear, on its face, to be as critical as the air conditioning not working or presented a 
health and safety issue to the vehicle users. Mr Carter responded that the “auto sparky” would 
be at the beach the following day and would look at a couple of the matters. The swift turn 
around on these matters does not support Mr Emery’s claim that the BIVs were not given any 
priority such that he needed to do the work on the air conditioning himself.

[174] The weight of evidence does not support Mr Emery’s claim that the modifications 
were approved by Mr Snook (or anyone else).

[175] For these reasons I am not satisfied that Mr Emery had approval to carry out 
modifications on the air conditioning of the BIVs.

Was the conduct in breach of Code of Conduct or Fleet Management Practice?

[176] The breaches of the Fleet Management Practice relied on by the City are that 
Mr Emery acted in a manner deemed inappropriate by the Director or Chief Executive Officer
(CEO); that Mr Emery did not understand his responsibilities with respect to insurance cover 
of the vehicle and that Mr Emery added additional features to the vehicles.

[177] I am satisfied that Mr Emery did, in making the modifications to the BIVs, act in a 
way deemed inappropriate by the Director or CEO. I am not satisfied that Mr Emery showed 
appropriate regard for or was aware of his responsibilities with respect to insurance cover 
insofar as this encapsulates the warranty on the vehicles. Had he had proper regard to this 
matter the evidence does not support a finding that Mr Emery would have taken a cavalier 
approach to doing anything to the BIVs that would affect the warranties on them. Whilst 








[2018] FWC 6853

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Mr Emery did not add additional “features” to the vehicles he did add a bridging wire which 
was not an authorised addition.

[178] The breaches of the Code of Conduct relied on by the City are that Mr Emery 
endangered his own and the safety of others, misused property/assets and that he failed to be 
aware of and understand the Fleet Management Practice.

[179] I am satisfied that, in modifying the air conditioning in the BIVs, Mr Emery may have 
endangered himself or others. I would stress that there is no indication that this was the intent 
of Mr Emery. I am, in this respect, satisfied that Mr Emery believed that he was seeking to 
resolve what he considered to be a health and safety issue with the vehicles. However, having 
thought he was doing the right thing is not an overriding consideration.

[180] I am also satisfied that Mr Emery did misuse the assets of the City. He took action in 
relation to the BIVs that he was not authorised to do.

[181] I am therefore satisfied that Mr Emery did breach the Fleet Management Practice and 
the Code of Conduct.

Did the modifications by Mr Emery cause damage to the vehicles?

[182] The modifications made by Mr Emery to the air conditioning on BIV U481 caused 
costs to be incurred by the City that would not otherwise have been incurred. This was caused 
by the voiding of the warranty in relation to that component of the vehicle. As Mr Melis from 
Mazda explained in his email of 28 February 2017 to Mr Carter, and which I find no reason to 
doubt, the problem with the air conditioning was not a manufacturer defect therefore its repair 
was exempt from the warranty.

[183] The evidence before me does not support a conclusion that the warranty on BIV U481 
was voided beyond the air conditioning component. I accept that the estimated cost of 
repairing BIV U481 was $1,902. Whether that was the final invoiced amount I do not know. 
Regardless of the invoiced amount however, the assessment from Mazda was that the 
modification of the air conditioning had caused the compressor clutch to burn out causing the 
compressor to stop working and hence shutting down the air conditioning.

[184] Mr Melis’ brief email to Mr Carter is supported by the evidence of Mr Green that the 
modifications of the type carried out by Mr Emery could have caused damage to the 
compressor. In this case I am satisfied that it did. No other explanation for the damage to 
BIV U481 has been given. 

[185] The evidence does not support a conclusion that the modifications made to the air 
conditioning in BIV U483 resulted in any voiding of the warranty on that vehicle. Mr Carter 
removed the wiring inserted by Mr Emery and refitted the relay. A subsequent fault in that 
vehicle was apparently repaired with no warranty issue raised.

[186] I am satisfied that, in carrying out the modifications to the BIVs, Mr Emery used the 
incorrect wiring diagrams and that those he used were from a 2006 Manual. Mr Emery 
claimed that car manufacturers update car manuals regularly but there was nothing in his 
evidence to suggest that the wiring diagram he relied on had been updated since 2006 when 
the manual from which it came was copyrighted.








[2018] FWC 6853

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[187] I am satisfied on the evidence before me that the wiring diagrams relevant to the BIVs 
are those produced in the evidence of Mr Green. It would appear from the 2016 diagram that 
the wiring had changed since the 2006 wiring diagram relied on by Mr Emery. Mr Emery 
“googeld” a query and took the information provided by that means as correct. While I accept 
that he looked under the bonnet to ensure all the components were there, the evidence does 
not support a finding that this was sufficient. There is an inherent danger in accepting what 
google produces as being the most current advice on a matter. 

[188] Evidence was given by Mr Emery, Mr Eaves and Mr Green, all auto electricians, on 
the basis that their opinions were reliable as they were “experts” in the field of auto electrics.

[189] I have not accepted the opinions (or expert evidence) of Mr Emery as being evidence 
on which much weight should be placed. Mr Emery has not worked consistently in the field 
of auto electrics since 2001. Whilst I accept that his qualifications remain valid and whilst it 
may be that he does such work from time to time, it is not the field in which he practices or 
works or concentrates. Further, Mr Emery was giving evidence in his own defence which 
might be seen to colour the evidence given. Mr Emery was argumentative in his opinions and 
demonstrated a stubbornness in his evidence which does not support acceptance of his 
opinions as reliable evidence. Mr Emery was not prepared to accept any alternative to his 
view even in the face of evidence clearly to the contrary. This was demonstrated in his 
unwillingness to accept that he had not filed the wiring diagram on which he relied and which 
formed his “research” following his discussion with Mr Snook with his first witness statement 
despite a concession by his lawyer of this. 

[190] I accept that both Mr Eaves and Mr Green have the qualifications and experience to 
provide their opinions to the Commission as to the damage that may have been done to the 
vehicles by the modifications of Mr Emery.

[191] I do not accept that Mr Eaves’ evidence is tainted because he had previously worked 
for Mr Emery’s sister. His evidence was that they parted acrimoniously. In addition I am not 
aware of the content of the conversation between Mr Eaves and Mr Emery to evaluate how 
that may have impacted on Mr Eaves’ evidence. However, Mr Eaves’ evidence is limited in 
that he based it on the 2006 wiring diagram relied on by Mr Emery. Mr Eaves did not look at 
the evidence of Mr Green as to the 2016 wiring diagram.

[192] Mr Eaves generally agreed with the assessment made by Mr Green of the impact of 
the modifications made by Mr Emery and, to the extent he disagreed, it was more in emphasis 
than fact. 

[193] I accept that Mr Green is an auto electrical contractor for the City. I do not accept that 
this would have an adverse consequence on any opinion he may put to the Commission.

[194] There is no doubt that Mr Green carried out the more thorough investigation and had 
access to more information in relation to the wiring as inserted by Mr Emery and in relation to 
accessing the appropriate wiring diagram for the vehicles in question.

[195] I do note that Mr Emery conceded that, if the wiring was as considered by Mr Green, 
the pressure switch would not respond to changes in pressure which would have the effect of 
not turning the compressor off if this was required.








[2018] FWC 6853

27

[196] I am satisfied, on the basis of the opinions expressed by both Mr Eaves and Mr Green, 
that the modifications made by Mr Emery could have caused damage to the vehicles.  

[197] I accept, on the basis of the opinion of Mr Green and Mr Eaves and the evidence of 
Mr Carter, that the modification made to BIV U481 by Mr Emery did cause damage to that 
vehicle. That the extent of the damage was quoted to cost only $1,902 to repair and that no 
reported damage was done to BIV U483 is not the relevant consideration. The actions of 
Mr Emery could and did cause damage to at least one of the vehicles.

Procedural matters

[198] There are a number of procedural fairness issues that arise for consideration as a result 
of the process of investigation and discipline of Mr Emery’s actions undertaken by the City.

The allegations and investigation 

[199] I am satisfied that on 23 February 2017 the City wrote to Mr Emery and invited him to 
a meeting where he could respond to the allegations.

[200] The allegations in the letter were in relation to the “non-approved modification of two 
of the City’s vehicles resulting in substantial damage including the voiding of the warranty”.

[201] Whilst it was not clearly specified in the letter of allegations I am satisfied that 
Mr Emery was aware of the vehicles in question and the modifications carried out. Mr Emery 
came to the investigation meeting on 1 March 2017 with documents he said supported his 
claim that the modifications he made were “general repair work” suggesting he had a 
reasonable understanding of the purpose of the meeting.

[202] The notification of allegations however did not specify the damage done to the 
vehicles even though Ms Watts said she considered the damage to be the voiding of 
warranties. Nor did the letter of allegations provide any specificity as to those parts of the 
Fleet Management Practice or Code of Conduct Mr Emery was said to have breached or how 
he had breached those parts. For this reason it is not clear that Mr Emery had foreknowledge 
of the totality of the allegations against him such that he could reasonably respond to those 
allegations at the meeting on 1 March 2017.

[203] During the investigation meeting Mr Snook outlined those sections of the Fleet 
Management Practice and Code of Conduct that Mr Emery was said to have breached. This 
was the first time these were articulated. The minutes do not indicate that Mr Emery was 
advised of how his actions had specifically breached the provisions of the Practice or Code.

[204] It is not apparent, on the basis of the evidence, what “investigation” was actually 
undertaken by the City before or after the investigation meeting of 1 March 2017 and before 
the termination of Mr Emery’s employment on 3 March 2017.

[205] The evidence does not support a finding that any employees of the City were 
interviewed by Ms Watts or Mr Snook such that they could have been aware of any issues 
with the air conditioning discussed amongst the Beach Inspectors or if there had been such 
discussions how the problem might be dealt with. Further, the evidence does not support a 








[2018] FWC 6853

28

finding that either Ms Watts or Mr Snook spoke to or otherwise sought information from
Mr Carter or Mr Bryant or Mazda employees to ascertain the extent of the damage to the 
vehicles and the extent of the voiding of the warranty on the vehicle which had been returned 
for repairs. I do accept however that Mr Snook did have a report from Mr Carter dated 
8 February 2017 which outlined the extent of what he said the advice from Mazda had been. 
This information of the conclusion in relation to the email was not put to Mr Emery.

[206] Whilst the email of 8 February 2017 is not direct evidence from Mazda, I do not 
consider that Mr Carter would have any motivation for raising those matters with Mr Snook 
other than to alert him to the cost of unauthorised modifications (both in dollar and risk 
terms).

[207] Beyond talking to Mr Holland and Ms Pastor (neither of whom were involved in the 
incident itself) it is not evident that that any investigation was undertaken by the City or what 
documents Ms Watts and Mr Snook had regard to prior to meeting again with Mr Emery on 
3 March 2017. Mr Emery claimed that what he had done was “general maintenance” but no 
investigation was undertaken as to his understanding or that of his colleagues as to what 
constitutes general maintenance.

[208] It does appear from the evidence that the investigations or attempt to gain statements 
that did take place was instigated by Mr Holland who sought further information from Mazda 
after the decision had been taken to dismiss Mr Emery.

[209] I am not satisfied that I can conclude, on the basis of the evidence before me, that a 
sound and proper investigation took place into the allegations put to Mr Emery.

The disciplinary meeting

[210] As indicated above I am not satisfied that the City carried out any investigation into 
the allegations against Mr Emery other than to put those allegations to him and seek a 
response at the 1 March 2017 meeting.

[211] Two days later at the disciplinary meeting no actual “findings” or outcomes of the 
investigation were put to Mr Emery. He was shown the minutes of the investigation meeting, 
asked if he would like to add anything else and then, following a short break, was advised that 
his employment would be terminated. 

[212] The minutes of the disciplinary meeting indicate that the City had decided to terminate 
Mr Emery’s employment on the basis of the “information obtained as part of the City’s 
investigation…” Mr Emery was not advised at any time of this “information” or given an 
opportunity to respond to it. The minutes do not indicate that Ms Watts or Mr Snook advised 
Mr Emery of the penalty it was considering imposing or seek any response from him on that.

[213] Given the failure to carry out an investigation I am satisfied that the disciplinary 
meeting denied Mr Emery a fair opportunity to put his case in that he was never aware of any 
“findings” to which he could respond. Nor was he advised that the proposed disciplinary 
action being considered was termination of his employment (although it was not discounted 
as a possibility in the letter of allegation) such that he might seek to influence that decision. 








[2018] FWC 6853

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The conflict of interest

[214] During the investigation meeting on 1 March 2017 Mr Emery, in response to a 
question of Mr Snook, indicated that Mr Snook had given permission for the modification to 
be made.

[215] Ms Watts said in her evidence that it is “common” for employees to make claims 
against their managers during an investigation and, for that reason, she did not consider it 
necessary for Mr Snook to be removed from the meeting or the investigation.

[216] I accept that both Ms Watts and Mr Holland asked, and Mr Snook advised, that he did 
not give approval for the modifications but that is not to the point. A reasonable person may 
form the view that Mr Snook would not fully investigate the claims of Mr Emery lest it be 
shown that Mr Snook had given approval for the work or had previously given approval for 
similar things to occur.

[217] It is incumbent on the City, in undertaking any investigation into misconduct (or poor 
performance) to protect itself against claims of a lack of procedural fairness. In this case I am 
not satisfied that it has done so, particularly in circumstances where the investigator is said to 
have given approval for the conduct subject to the investigation. Further, it is not reasonable 
to dismiss the claims of Mr Emery on the grounds that it is “common” for employees under 
investigation to make such a claim. There is no evidence before the Commission to support 
this statement and it could not be considered notorious. Any person said to have engaged in 
misconduct is entitled to have their case investigated and decided on its merits and not on the 
basis on what other employees may or may not have done or perceptions of what is 
“common”.

[218] Given the claim of Mr Emery that Mr Snook approved the modifications he made to 
the vehicles the prudent course of action would have been to remove Mr Snook from the 
investigation process. To leave him there means that the perception may linger that the 
investigation was not fair or was compromised.

[219] Mr Snook should have realised he was in a conflicted position and if he did not 
Ms Watts should have recognised it. Stepping away from an investigation is not an admission 
of wrong doing. That Mr Snook did not step away resulted in the investigation (such as it 
was) being tainted.

[220] I am satisfied that the continued involvement of Mr Snook in the investigation and 
disciplinary meeting resulted in a denial of procedural fairness to Mr Emery.

The “advice” of Mr Holland

[221] Prior to the meeting with Mr Emery on 3 March 2017, Ms Watts and Mr Snook had a 
discussion with Mr Holland who indicated that it was his view that Mr Emery should have his 
employment terminated although he did not give this direction to Mr Snook or Ms Watts.

[222] It is unfortunate that Mr Holland should express such a strong view to Ms Watts and 
Mr Snook prior to them obtaining any further information from Mr Emery. Whilst I accept 
that he issued no direction to Ms Watts or Mr Snook he made his views very clearly known. 
Such a course is procedurally fraught and would be more so if the decision as to discipline 








[2018] FWC 6853

30

was finely balanced. It suggests a level of pre-determination and could be viewed as an 
attempt to influence the decision of Ms Watts and Mr Snook.

[223] It is also clear from the comments of Mr Holland that he, as the decision-maker, had 
made up his mind as to the fate of Mr Emery prior to hearing any pleadings from Mr Emery 
as to the disciplinary action that might be warranted or any mitigation that he might offer for 
his actions. It might, form this, be concluded (although I make no finding alone) that Mr 
Holland denied Mr Emery an opportunity to influence any final decision as to his on-going 
employment.

WAS MR EMERY UNFAIRLY DISMISSED?

[224] I am satisfied that Mr Emery made his application to the Commission within 21 days 
of the date of dismissal. Further, I am satisfied that that the Small Business Fair Dismissal 
Code does not apply (the City being a large employer) and that it is not claimed the dismissal 
was a redundancy. 

[225] I am also satisfied that Mr Emery is protected from unfair dismissal in that he has 
completed the minimum employment period with his employer and an enterprise agreement 
applies to his employment with the City.119

[226] I am satisfied that Mr Emery has been dismissed.

[227] In order to determine if Mr Emery was unfairly dismissed it is necessary to determine 
if his dismissal was harsh, unjust or unreasonable. The criteria to be considered in making 
such a decision are set out in s.387 of the FW Act:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or 
unreasonable, the FWC must take into account:

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

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

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

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

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








[2018] FWC 6853

31

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

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

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

Section 387(a) - valid reason for dismissal related to capacity or conduct

[228] At the disciplinary meeting on 3 March 2017 Mr Emery was advised that in modifying 
the BIVs he had “clearly breached the Code of Conduct and Fleet Management Practice” and 
that the modifications “had the potential to affect the ability of the City to perform life-saving 
services and has cost the City substantial money…”

[229] I am satisfied, as set out above, that Mr Emery did perform the modifications on the 
BIVs, he did not have authority to do so and, in performing the modifications he did breach 
the Fleet Management Policy and the Code of Conduct.

[230] I am satisfied, on the basis of the evidence before me, that the modifications had the 
potential to affect that ability of the City to perform life-saving services. The extent of such an 
effect would be dependent on the extent of the damage done to a vehicle caused by the 
modifications. The evidence from Mr Green suggests that damage may occur. Mr Eaves 
agreed with this assessment although did not agree on its likelihood or how soon such damage 
might occur. As it was, damage did occur to one of the vehicles and it appeared that it would 
be off the road for about one week. 

[231] I accept that the BIVs are an important tool of trade for the Beach Inspectors in 
performing their work although the extent to which they are necessary was contested. 
Mr Emery suggested the BIVs were not strictly necessary to enable Beach Inspectors to do 
their job but Mr Gugiatti and Mr Kolm suggested the vehicles were, in effect, their office.

[232] If Mr Emery is correct and the vehicles are not absolutely necessary for the 
Beach Inspectors to do their jobs it is difficult to understand why he felt he needed to modify 
the air conditioning and not have the vehicles sent to the depot to have them seen to in 
circumstances where, as he claimed although disputed by Mr Carter, the BIVs were not given 
any priority. In such circumstances Mr Emery’s actions were absolutely unwarranted. If 
Mr Emery is wrong, and the other Beach Inspectors’ views of the importance of the vehicles 
is correct, the potential effect of damage arising from the modifications is much greater with a 
greater chance of affecting the City’s capacity to deliver life-saving services.

[233] Mr Emery gave evidence that if he had not made the modifications the 
Beach Inspectors would only have had one vehicle in operation for the peak summer period. 
This is no reason for having done the modifications. I do not accept that if the BIVs had been 
sent to Mazda it would have taken through until the end of January or February to have the 
fault repaired. The evidence before me does not support such a finding.








[2018] FWC 6853

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[234] The evidence before me also does not support a conclusion that the modifications cost 
the City a substantial amount of money. The evidence supports an estimated cost of $1,902 to 
repair one of the BIVs but does not support a finding that this amount was paid or that, in the 
context of the City, it is a “substantial” amount.

[235] For a reason to be valid it must be “sound, defensible or well founded. A reason which 
is capricious, fanciful, spiteful or prejudiced could never be a valid reason…”120

[236] In circumstances where Mr Emery did not have approval to modify the vehicles and 
that the modification did cause damage to at least one vehicle I am satisfied that the decision 
to terminate his employment was sound, defensible and well-founded such that there was, 
therefore, a valid reason for his dismissal.

[237] I would note that while Mr Emery was dismissed for gross misconduct it is not 
necessary that I determine if his conduct did amount to gross misconduct. It is enough that I 
determine if the conduct (however it might be characterised) provided a valid reason for 
dismissal.

Section 387(b) and (c) – whether the person was notified of the reason for dismissal and given 
an opportunity to respond

[238] In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and 
Transport121 the Full Bench of the Commission said: 

[73] As a matter of logic procedural fairness would require that an employee be 
notified of a valid reason for their termination before any decision is taken to terminate 
their employment in order to provide them with an opportunity to respond to the 
reason identified. Section 170CG (3)(b) and (c) would have very little (if any) 
practical effect if it was sufficient to notify employees and give them an opportunity to 
respond after a decision had been taken to terminate their employment. Much like 
shutting the stable door after the horse has bolted.

[239] I have found deficiencies in relation to the procedures adopted by the City with respect 
to the letter of allegations and the lack of detail therein, the apparent failure by the City to
seek information from anyone besides Mr Emery (although Mr Snook did have the email 
from Mr Carter which commenced the process and which did contain some detail of the 
supposed damage done to one of the BIVs) as part of any investigation and the continued
involvement of Mr Snook in the investigation process when there may have been a conflict of 
interest.

[240] I am satisfied that Mr Emery was notified of part of what was the valid reason for his 
dismissal prior to the decision to terminate his employment. That part of the reason was 
notified to him in the letter of allegations received by him in February 2017 that led to the 
investigative meeting of 1 March 2017. Mr Emery came prepared to the meeting with a 
bundle of documents he believed supported his claim that the work he carried out on the BIVs 
was routine maintenance work.

[241] Mr Emery was given an opportunity to respond in relation to the allegation in general
except that the extent of the claimed substantial damage (or the substantial cost as it was put 
on 3 March 2017) was not put to him.








[2018] FWC 6853

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[242] I am not satisfied however that any real or substantial investigation took place. 
Mr Emery was advised that his employment was terminated because of information obtained 
as part of the City’s “investigation.” That information was not put to Mr Emery such that he 
could respond to the totality of the reasons for his dismissal prior to the decision to dismiss 
being taken.

[243] Mr Holland said he was the decision-maker in this case. It appears that he made a 
decision that Mr Emery’s employment should be terminated in circumstances where he did 
not have an investigative report and before the totality of the reasons for dismissal was 
squarely put to Mr Emery for his response. I do note however Ms Watts’ evidence, which I 
accept, that she was to notify Mr Holland should anything fresh arise from the 3 March 2017 
meeting with Mr Emery. Given nothing new was put by Mr Emery at this meeting it is not 
surprising that nothing new arose from the meeting.

[244] The deficiency in Mr Emery being apprised of the detail or totality of the reasons for 
his dismissal (in relation to substantial damage or substantial cost) suggests that he was not 
given a real opportunity to respond to clearly what the City considered an extremely serious 
matter (such that it warranted summary dismissal). Without knowledge of the “substantial 
damage” or the “substantial cost” to the City Mr Emery could not respond to the allegations 
and the reason for dismissal prior to the decision being taken to dismiss him. Even if it is that 
the reason for dismissal was the voiding of the warranties (which Ms Watts said was the 
damage) the evidence does not support a finding that this was specifically put to Mr Emery.

[245] For these reasons I am not satisfied that Mr Emery was notified of the totality of the 
reason for his dismissal, nor was he given an opportunity to respond.

[246] I deal with Mr Snook’s conflict of interest below.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support 
person to assist at any discussions relating to dismissal

[247] I am satisfied that Mr Emery was given every opportunity to have a support person 
present during the meetings he had with Ms Watts and Mr Snook and that he exercised that 
right without hindrance.

Section 387(e) - poor performance

[248] Mr Emery’s dismissal did not relate to performance. This is not a matter I therefore 
need to consider.

Section 387(f) and (g) - the size of the employer’s business and absence of dedicated human 
resource management specialists or expertise

[249] The City is a large employer. It has a dedicated HR group and, at least in one meeting 
between Mr Holland and Ms Watts, a lawyer was present. 

[250] The City also has well developed and long standing policies in relation to its Code of 
Conduct and Discipline Practice.








[2018] FWC 6853

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[251] Given its in-house HR expertise and its well-developed policies, the deficiencies in the 
process adopted by the City are difficult to comprehend. While I accept the uncontested 
evidence of Ms Watts that she had recently taken up her role at the City, and of the high level 
of turnover in the HR area at the time, Ms Watts is an experienced HR professional. She had 
come from another HR role to work for the City. Given her recent arrival in the role it might 
be expected that she would be guided by the policies and procedures of the City. Further, 
Mr Holland was frequently consulted by Ms Watts, Mr Snook and Ms Pastor. Mr Holland has 
some background in HR and, at the time of the investigation, was Acting Director Corporate 
Services. In such a senior role it can be reasonably anticipated he would be alert to the need to 
ensure policies and procedures for conducting an investigation are adhered to. 

[252] It is reasonable to expect that the City would have adhered to its policies and 
procedures in undertaking the investigation and decision in relation to Mr Emery. In some 
respects the evidence suggests it did not and there is no reasonable excuse for this.

(h) other matters

[253] I am satisfied on the evidence before me that Mr Snook should have stood down from 
the investigation. Whilst I can appreciate the desire of the City to have the line manager 
involved in an investigation this can only be a sound decision when the line manager is not 
involved in relation to the conduct complained of. In this case Mr Snook is said to have 
approved the work. 

[254] I accept the evidence of Mr Emery that he put in the investigation meeting that 
Mr Snook approved the work. This was supported by the evidence of Mr Hardbattle. I do not 
accept Ms Watts’ evidence that it is “common” for an employee to make such a claim in 
circumstances such as those confronting Mr Emery.

[255] That Mr Snook denied he had approved the work to Ms Watts and Mr Holland cannot 
be the end of the matter. Mr Snook was, in Mr Emery’s claim, squarely caught up in the 
investigation. He could not be investigator and respond to such a claim at the same time. He 
was in a conflicted situation that could not be resolved by his denial. To have not stood aside 
further taints the investigation process (such as it was). This is not to suggest that Mr Snook 
misled Mr Holland, Ms Watts or the Commission. Whether it was an actual conflict or had the 
appearance of a conflict it affected the objective fairness of the investigation.

[256] There is just no circumstance where Mr Snook could, in an unbiased manner,
objectively be seen to determine whether he gave approval to Mr Emery or not.

[257] I have taken into account that the damage actually done to BIV U481 was minimal and 
the vehicle was off the road being repaired for a limited period of time. I have also taken into 
account the limited damage to BIV U483 (although there is no evidence of the connection of 
this to the bridging wire), that Mr Carter removed the bridging wire in that vehicle and was 
content to have any repairs done to it under warranty. Mr Carter was aware of the damage the 
bridging wire could do, he had reported on the matter with respect to BIV U481 to Mr Snook 
after that vehicle was returned to Mazda.

[258] I do not accept the submissions of the City that Mr Emery showed no remorse for his 
actions. The minutes of the investigation meeting indicate that Mr Emery was shocked by the 
allegations and that he had been attempting to reduce maintenance costs. At the disciplinary 








[2018] FWC 6853

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meeting Mr Emery again said he did not understand that what he did was consistent with that 
previously done by him but he was prepared to give an undertaking that he would not do any 
work on the vehicles in the future. This point however has had no bearing on my decision.

[259] I do accept however that, whilst showing remorse, Mr Emery did not acknowledge the 
error of what he had done.

CONCLUSION

[260] In Byrne and Another v Australian Airlines Limited 122 the High Court said:

...It may be that the termination is harsh but not unjust or unreasonable, unjust but not 
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the 
concepts will overlap. Thus, the one termination of employment may be unjust 
because the employee was not guilty of the misconduct on which the employer acted, 
may be unreasonable because it was decided upon inferences which could not 
reasonably have been drawn from the material before the employer, and may be harsh 
in its consequences for the personal and economic situation of the employee or 
because it is disproportionate to the gravity of the misconduct in respect of which the 
employer acted.

[261] On balance I have decided that the dismissal was unreasonable.

[262] I have reached this conclusion because of the substantial deficiencies in the 
investigation process carried out by the City into the allegations and the failure of Mr Snook 
to step aside from the investigation once it became clear Mr Emery claimed he had approved 
the modifications to the BIVs. I am not satisfied that the procedure adopted by the City in 
investigating the conduct was sound, rigorous and without fault. Further, I am satisfied that 
these deficiencies had a substantive effect on the capacity of Mr Emery to respond to the 
reasons for his dismissal such that he might have some influence on the decision

[263] While it is true that procedural defects will not necessarily render a dismissal unfair, in 
this case I am satisfied that the lack of an appropriate investigation and the involvement of 
Mr Snook in the investigation means little confidence can be had in the investigation process
(as it was). This casts substantial doubt over the outcome of that process.  

[264] In such circumstances and where I have a real concern at the extent of the 
investigation undertaken and the apparent conflict of interest in Mr Snook’s involvement, I 
am not convinced that the outcome would not have been different had a thorough and proper 
investigation been undertaken, had Mr Emery been provided with the detail relevant to the 
consideration of the City, and if Mr Snook had stepped down and was replaced by another 
manager as investigator.

[265] I have balanced these findings against the finding that there was a valid reason for 
dismissal but find that the procedural issues outweigh the finding of a valid reason in 
circumstances where the damage to BIV U481 was in the order of $1,902.00, the damage to 
BIV U483 was not attributed to the bridging wire and where the evidence does not suggest 
that Mr Emery had any intent to damage the vehicles (which does not excuse his conduct).

[266] In these circumstances I am satisfied that Mr Emery’s dismissal was unreasonable.








[2018] FWC 6853

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[267] For these reasons I am satisfied that Mr Emery was unfairly dismissed.

[268] The matter will be listed seperately for mention by telephone to determine directions 
with respect to dealing with the question of remedy.

COMMISSIONER

Appearances:

P. Mullally for the Applicant.

T. Caspersz, of counsel, for the Respondent.

Hearing details:

2018.
Perth:
September 17, 18.

Printed by authority of the Commonwealth Government Printer

PR702107

Endnotes:
1 [2018] FWCFB 2279.
2 Exhibit A1, paragraph 15.
3 Ibid.
4 Transcript 29 November 2017, PN368.
5 Ibid PN372.
6 Ibid PN482.
7 Exhibit A8, attachment KE1.
8 Transcript 17 September 2018 PN1337.
9 Exhibit A1, attachment B.
10 Transcript 17 September 2018 PN1509.
11 Exhibits R12 and R13.
12 Transcript 29 November 2017, PN479.
13 Exhibit A1, attachments 6-13.
14 Transcript 29 November 2017 PN508. See exhibit A1 attachment 6.


THE FAIR WORK MMISSION THE SEAL




 



[2018] FWC 6853

37

15 Ibid PN506.
16 Ibid PN740.
17 Exhibit R9, attachment DAC8.
18 Exhibit A1, paragraph 20.
19 Exhibit R14 attachment D.
20 Transcript 17 September 2018 PN1514.
21 Exhibit A1, paragraph 22.
22 Transcript 29 November 2017 PN377 and PN386.
23 Exhibit R7, attachment TAW14.
24 Transcript 29 November 2017 PN927.
25 Ibid PN988-990.
26 Ibid PN958-959.
27 Exhibit A5 paragraph 5.
28 Ibid paragraph 8.
29 Ibid.
30 Ibid.
31 Transcript 30 November 2017 PN1407.
32 Exhibit R7 attachment TAW15.
33 Transcript 30 November 2017 PN1419.
34 Ibid PN1439.
35 Exhibit A7
36 Ibid.
37 Transcript 17 September 2018 PN698.
38 Exhibit A8, attachment KE1, box (3). 
39 Transcript 17 September 2018 PN867.
40 Ibid PN851-PN852.
41 Ibid PN857 and PN862.
42 Ibid PN860.
43 Ibid PN861-PN866.
44 Ibid PN950-PN952.
45 As there would be no interaction between the PCM and thermostat and the air conditioning relay such that the compressor 

could be disengaged.
46 Transcript, 17 September 2018 PN966-PN968.
47 Ibid PN866.
48 Ibid PN864-865.
49 Ibid PN980-PN985.
50 Ibid PN1057-PN1061.
51 Ibid PN1127.
52 As per exhibit R14, paragraphs 5 to 20.
53 Transcript 17 September 2018 PN1094-PN1097.
54 Exhibit R8 attachment AJS8.
55 Exhibit R8 paragraph 62(b).
56 Exhibit R8 paragraph 62(e)-66.
57 Transcript 30 November 2017 PN2633.
58 Ibid PN2576-PN2579.
59 Ibid PN2599.
60 Ibid PN2606, PN2609 and PN2626.








[2018] FWC 6853

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61 Ibid PN2739-PN2740.
62 Ibid PN2774.
63 Ibid PN2286 and PN2828.
64 Exhibit R6, paragraph 17.
65 Transcript 30 November 2017 PN1556.
66 Ibid PN1816.
67 Exhibit R6 paragraph 21.
68 Transcript 30 November 2017 PN1570.
69 Exhibit R6, paragraph 22.
70 Transcript 30 November 2017 PN1569.
71 Ibid PN1610-1615 and PN1628.
72 Transcript 30 November 2017 PN2122-PN2123.
73 Ibid PN2126.
74 Exhibit R7 paragraph 33.
75 Ibid PN 2119-PN2120. 
76 Ibid PN2367.
77 Exhibit R7 attachment TAW10.
78 Transcript 30 November 2017 PN2148-PN2149.
79 Ibid PN2152 and PN2168.
80 Exhibit R7 paragraph 43.
81 Exhibit R7 attachment TAW14.
82 Exhibit R7 paragraph 48.
83 Exhibit R7 paragraph 57.
84 Transcript 30 November 2017 PN2175-PN2176.
85 Exhibit R7 paragraph 63.
86 Transcript 30 November 2017 PN2276-PN2278.
87 Ibid PN2305 and 2285.
88 Ibid PN2318.
89 Ibid PN2330.
90 Exhibit R9 attachment DAC6.
91 Exhibit R9 attachment DAC7.
92 Transcript 13 December 2017 PN74 and PN76.
93 Transcript 13 December 2017 PN146.
94 Exhibit R9 attachment DAC7, page 2.
95 Transcript 13 December 2017 PN170.
96 Transcript 13 December 2017 PN216-PN219.
97 Exhibit R9 attachment DAC3.
98 Transcript 13 December 2017 PN99.
99 Exhibit R11 attachment AAG3.
100 Exhibit R11, paragraph 54.
101 Transcript 13 December 2017 PN520.
102 Exhibit R14 attachment RPG5.
103 Exhibit R14.
104 Exhibit R14, attachment A, paragraph 38(c).
105 Exhibit R14, attachment A, paragraph 40(a)-(d).
106 Exhibit R14, attachment A, paragraph 40(e).
107 Exhibit R14, paragraph 35.








[2018] FWC 6853

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108 Exhibit R14 attachment C.
109 Transcript 17 September 2018 PN1764-PN1765.
110 Exhibit R14 attachment B, second page ( 2006).
111 Transcript 17 September 2018 PN1620-PN1621.
112 Exhibit R15.
113 Transcript 17 September 2018 PN1614.
114 Transcript 17 September 2018 PN 1625-PN1626.
115 Exhibit R7 attachment TAW18.
116 Exhibit R7 attachment TAW11.
117 Exhibit R7 attachment TAW12.
118 Exhibit A1, attachment 5.
119 Section 396 of Fair Work Act 2009.
120 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373.  
121 (2000) 98 IR 137.
122 (1995) 185 CLR 410 at p.465.

Cases cited by this decision: