DECISION

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

Ms Susan Edwards
v
Litchfield Council
(U2019/3475)

Application for an unfair dismissal remedy – no valid reason – procedurally unfair pursuit of allegations of misconduct – reinstatement.

INTRODUCTION

[1] Ms Susan Edwards (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal from her employment with Litchfield Council, Darwin (the Employer/Respondent). The Applicant had been employed for seven years in the position of gatekeeper at the Council’s Humpty Doo and Howard Springs, Waste Transfer Stations.

[2] Prior to the Hearing, the parties were directed to provide submissions pursuant to s.596 of the Act, as to whether the Respondent should be granted permission for legal representation. Legal representation was refused, in a separate decision. 1 Accordingly, as the parties in this matter were self-represented, it was necessary throughout the Hearing to conduct the matter with relevant questions to both parties and witnesses where required.

[3] The Applicant was assisted at the Hearing by a support person, Ms Turner. The Respondent was represented by Ms Bailey, Human Resources and Work Health and Safety Advisor, instructed by Ms Nilon, Director of Infrastructure and Operations.

[4] The Hearing took place at the Commission in Darwin on 28 and 29 August 2019.

[5] The Applicant in this matter, in the days prior to the Hearing had concerns that she could not proceed. However on the Monday prior to the Hearing a telephone conference was held with all parties. The Applicant stated her strong preference was to complete all matters at this two day Hearing. An alternative proposal had been put forward to provide final submissions at a later date. There was general consensus after this conference, to proceed with the submissions after the evidence, at the Hearing in Darwin.

[6] On the second day of the Hearing the programming of the final submissions was further confirmed. An adjournment was provided, in addition to the luncheon adjournment, for the review of submissions. The parties then proceeded with the final submissions.

[7] It is relevant to note that whilst legal representation was refused, the legal representatives for the Respondents prepared their case; that is the filed witness statements and the initial submissions.

[8] As a procedural matter it is noted, that the Applicant in this matter had not, prior to the Hearing, been provided with the USB that contained the relevant CCTV footage of vehicles being processed at the gatekeeper station, (that formed part of the basis of a range of the disciplinary matters). Although the Applicant had been provided with a link to access the footage, she had expressed difficulty that she was unable to make the link connect. The Respondent stated that the link was re-sent and they weren’t clear that it had been further ineffective for the Applicant. The USB had been sent to the Commission. On being made aware of this at the Hearing, I organised for the Applicant to take a copy of the USB, to consider overnight. For this reason it was necessary to play parts of the CCTV footage during the Hearing and to allow the parties to make comment on how they relied on this and for the Applicant to respond to it.

[9] The Respondent also indicated that in combination with the footage they had referred to an associated log of transactions; that is the transactions for vehicles at her gatekeepers station. This log of transactions had not been presented to the Applicant at the time the CCTV footage had been shown to her at the meeting with Council, when the allegations were presented. I called for this log of transaction data to be presented. Ms Nilon provided this under the cover of a second Affidavit, on day two of the Hearing, prior to her evidence. Therefore it was necessary to ask questions of the Respondent’s witness in relation to this new material and to put some of this material to the Applicant, in combination with viewing the footage.

[10] In this matter both parties sought to provide statements of evidence, on a late basis prior to the Hearing, they were accepted on a consent basis.

[11] Whilst not all submissions and evidence are referred to in this Decision, all of such have been considered.

LEGISLATION

[12] Section 394 of the Act relatively states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[13] Further, ss385, 386 and 387 of the Act relevantly provide:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

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

(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.”

[14] Pursuant to s.390 of the Act:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

BACKGROUND

[15] The Applicant commenced working for the Respondent on 1 September 2012. The Applicant was first engaged on a casual basis as a Waste Transfer Station gatekeeper and was later offered a full-time position from 5 October 2016, until the dismissal on 6 March 2019.

[16] This matter involves the dismissal of the employee for matters of alleged misconduct, arising from her work at the Litchfield Council Waste Transfer Stations at Humpty Doo and Howard Springs in Darwin. The Respondent considered some of her alleged conduct was designed to defraud the Council, from improper gatekeeper transactions.

[17] The Applicant was a woman of 60 years who had worked at the Council Waste Transfer Station for seven years. The disciplinary process commenced with a First and Final warning on 27 November 2018 (with the Applicant’s conduct to be monitored for 6 months afterwards) and resulted in the dismissal on 6 March 2019, as recommended by Ms Nadine Nilon, Director of Infrastructure and Operations and Ms Kaylene Conrick, Chief Executive Officer (CEO). The CEO provided an Affidavit but was not called by the Council to provide evidence, as she was no longer employed by the Council.

[18] The Applicant submitted that her termination of employment was harsh, unjust and unreasonable and she sought reinstatement to her position with the Council. The Applicant at all times maintained that the Respondent’s motivation for her termination was her prior inquiry regarding the amount of money, that she received as a result of the voluntary cashing out of her annual leave. She considered that the amount she received was incorrect, when compared to her colleague, who she stated worked the same hours and period of employment as her, but he received an amount in excess of her payment. She stated she made several inquiries to resolve this matter and that the relevant information, was not provided to her. As a result of being frustrated in endeavouring to receive the information she was seeking, she contacted the Mayor of the Council, regarding this issue. The matter was immediately then, referred to the CEO and the Applicant was advised that she should not have contacted the Mayor in relation to these matters. The Applicant submitted that the annual leave matter was never resolved to her satisfaction, in terms of, the response by the Council.

[19] It is recognised that this is an application for consideration of an Unfair Dismissal and is not a General Protections application matter made pursuant to s.365 of the Act, accordingly the Respondent does not bear the reverse onus of proof, as if the matter was a General Protections application. However the query regarding annual leave is part of the factual matrix in this matter. The Respondent noted there was several responses to the Applicant, which included their correspondence of 15 July 2019. The correspondence set out:

“…The Litchfield Council Enterprise Agreement 2009 provided an annual leave entitlement of 6 weeks. The Litchfield Council Enterprise Agreement 2014 (2014 EA), which commenced on 29 May 2014, provided an annual leave entitlement of 7 weeks and 6 days for Waste Transfer Station (WTS) employees (including the Applicant. In around late 2017/early 2018, Council identified that the 6 additional days of annual leave per annum had not been credited to the WTS employees.

Council subsequently reviewed employee timesheets against leave accruals, and corrected the relevant employee’s annual leave accruals by crediting the appropriate additional leave to the employees based on their time worked. Council then wrote to each WTS employee explaining the issue, and offering each employee to cash out any excess annual leave (within the parameters of the 2014 EA).

After the additional annual leave was credited to the Applicant, she had 498 hours of annual leave accrued. Council therefore offered the Applicant to cash out 346 hours of annual leave (being her annual leave balance, less 152 hours that could not be cashed out). The Applicant elected to cash out 300 hours of annual leave and a payment was made to her on that basis…”

[20] There is proximity in terms of the dates, when the Applicant raised her concerns regarding the annual leave payment and the commencement of the disciplinary process against her by Council. The Applicant did not accept the Respondent’s response, as an explanation for the comparative difference between her payment and her colleague’s, whom she stated worked in a similar role and for a similar period. The annual leave material, was not before the Commission and no determination is made on this issue.

[21] The Applicant had provided a personal impact statement outlining the effects of the dismissal on her health and well-being. The Applicant’s evidence was that her complaint regarding the cashing out of her annual leave and what she considered to be a significant difference in the amount paid to her, was the catalyst for the disciplinary matters, that occurred after this.

[22] The evidence (provided at the Hearing) by Mr Byrnes, Manager of the Council Waste Transfer Stations was that he was requested by the CEO to look at the conduct of the Applicant. 2 He stated that he had received a complaint about her conduct on 13 October 2018, from another employee, Mr George Hadjikyriacou. The specific nature of the complaint was not conveyed to the Applicant at that time. The complaint was about whether the Applicant had in relation to a mixed load of waste received at approximately 2 pm on 13 October 2018, (not late in the day as per the complaint), appropriately advised the customer, where the goods should be deposited at the waste site and whether the customer’s vehicle was appropriately charged for the load. Mr Byrnes said the complainant, who worked at the site, had been annoyed at waste being improperly deposited at the site, which he then had to sort. It was agreed by the Manager in evidence that the Applicant was only able to influence this issue from the gatekeeper’s station (that is to direct customers) and was not able to follow vehicles to ensure that they were putting the material at the site correctly. The Manager then assessed the CCTV footage in relation to the date of this inquiry and then proceeded to move through the following days of footage, to check whether there were any other matters of potential misconduct by the Applicant, that may be referred to the CEO, Ms Kaylene Conrick. Mr Byrnes’ evidence was that this was what he had been requested to do, and he prepared a report on it.

[23] Throughout the case, it was conceded by Ms Nilon, that the appropriate Council document for the Waste Transfer Station transactions, could not be produced. That is, the applicable document for the Applicant’s required processing of waste. That is the terms of the fees and guidelines, and how those fees were to be charged to residents or commercial operators and how the discretion of the gatekeeper is to be exercised in terms of charging or not for green waste mulch or commercial waste. Ms Nilon also agreed, that there was no documentation, demonstrating that the Applicant had been trained in these matters. Some toolbox training had occurred early in 2019, however it was recognised in Ms Nilon’s evidence, that the Applicant was not present but on personal leave, during the time of this training. She stated some of the relevant information on the charges was on the website or at the site.

[24] A set of allegations was made about the Applicant’s conduct, that are set out later in more detail. The first set of complaints made against the Applicant included the following:

“Alleged action/conduct

A Toyota ute (redacted) enters the premises the gatekeeper hands the occupant of the car an item wrapped in paper. This item is taken into the car and the gatekeeper and the driver talk for a couple of minutes then items change hands from driver to gatekeeper. The occupant of the car then goes to the steel pile, looks around, throws out rubbish and leaves the premises. No iWeigh transactions are recorded at this time.

Alleged breach of duties

Making personal and potentially illegal transactions on Council property during working hours. Not dedicating the whole of your time to your role whilst at work. Failure to take payment for disposal of rubbish (depriving Council of funds), failure to record the transaction on Council's system (distortion of Council records). 3”

[25] The Applicant explained this transaction as handing ‘a bag of crystals’ that a friend coming through the gate, was to return to a haberdashery store for her.

[26] The Applicant, during the disciplinary process had initially been represented by an Industrial Relations consultant. At the Hearing the Applicant indicated that her representative had stated to her, that she should allow her representative to speak and that she should not address the Respondent directly on the matters at the disciplinary meeting. Ms Nilon indicated in her evidence at the Hearing, that being able to speak directly, to the Applicant may have provided some mitigation on the events.

[27] The second set of complaints included:

“Alleged action/conduct

A grey twincab ute (redacted) enters the premises. The driver hands money to the gatekeeper, the gatekeeper hands something to the occupant of the car. The occupant of the car is then left to throw out his rubbish. No iWeigh transactions are recorded at this time.

Alleged breach of duties

Making personal potentially illegal transactions on Council property during working hours. Not dedicating the whole of your time to your role whilst at work. Failure to take payment for disposal of rubbish (depriving Council of funds), failure to record the transaction on Council's system (distortion of Council records).

This may amount to potential theft, fraud and corruption.”

[28] The Applicant explained this was medication she had forgotten to bring to work and a friend dropped it to her. This response was later acknowledged by the Respondent.

[29] The third set of complaints that led to the dismissal included:

“Alleged action/conduct

A 10 ton truck enters the premises with a large load of logs dirt and green waste. At the gatehouse no money changes hands, no receipt changes hands, and there is no evidence of the transaction going to an account.

Alleged breach of duties

Failure to take payment for disposal of rubbish (depriving Council of funds), failure to record the transaction on Council's system (distortion of Council records).

This may amount to potential theft, fraud and corruption.

[30] The Applicant was not in receipt of the transaction log, at the time the allegation was made.

SUMMARY OF THE APPLICANT’S EVIDENCE AND SUBMISSIONS

[31] The Applicant at all times refuted that she had engaged in any improper gatekeeper conduct and had not deliberately undercharged or not charged customers. The Applicant’s evidence in response to the allegations was straightforward and credible. Her evidence was that she had never sought to deprive Council of any funds, relating to the payment for use of the Waste Transfer Stations and had complied with the policies and procedures, as she was aware. She considered that there was unfairness in the manner in which the investigation was undertaken, without her knowledge of the complaint or the investigation. She stated that the specific incidents were not put to her, with full knowledge, to allow a proper response. The issues relating to the CCTV footage and the allegations were put to her at short notice, and without the ability to fully understand the matters. For example, she stated she responded as best she could in relation to the allegation that she had not asked a resident to pay for mulch. Her recollection was, that the car in front had paid for the loads for both cars. The CCTV footage was not provided, to her for appropriate consideration and the associated log of the transactions had not been presented to her in combination with the CCTV footage, at that time. This only occurred at the Hearing.

Evidence of Mr David Warboys

[32] Mr Warboys was another employee at the Waste Transfer Station. His evidence was that he thought he, and the Applicant were being treated differently to other gatehouse employees. He also confirmed that he had also had plenty of issues arise, with Mr George Hadjikyriacou, the employee that had made the initial complaint about the Applicant.

[33] The evidence of Mr Warboys, was that, he considered that he and the Applicant had been treated differently in relation to a number of the complaints and matters at the Transfer Station. He had also (with the Applicant), sought a meeting with Council to clarify a number of matters. The Respondent did not cross-examine this witness.

Evidence of Ms Denise Gould

[34] Ms Denise Gould was not required for cross-examination by the Respondent. Ms Gould, was a gatekeeper employed by the Council for nearly 4 years. In response to allegations that the Applicant incorrectly charged for mulch, she stated that the process, that she often used for residents who enter and ask for 3 m of mulch, was that the aggregate information is entered on one receipt, which is more convenient for customers. She stated that this provided good relations with residents, in the local community.

[35] In relation to whether the Waste Transfer charge is made on a commercial or residential basis, as had been alleged that the Applicant had incorrectly charged; she stated that, if a resident enters the transfer station with a load that resembles commercial waste in a commercial vehicle but produces his license with a local address and states it is not a commercial load, there isn’t very much that can be done and the load is assessed on a resident basis.

[36] She stated that the practice was, that some residents made payment for green waste on the way out of the transfer station. Her evidence was that there are reasons the gatekeepers may miss trailers of green waste (as the Applicant was accused of), as staff could be busy or away from the console. Mr Zammit, a gatekeeper whom provided evidence for the Respondent, agreed that some residents pay for green waste on the way out. It is noted that Mr Byrnes, the Manager, did not report checking the footage of other employee’s transactions, in a detailed manner, for similar issues.

[37] In response to allegations that the Applicant had improperly removed goods from waste. She stated that often residents may allow staff to go through their waste, such as books before “dumping them”. However she stated any money that is offered has to be documented and put through the register.

[38] In terms of the Applicant allegedly having people in the gatehouse, Ms Gould stated that her husband and a close friend had previously visited the gatehouse, as she was working all day. She stated she had not been told, that no visitors were permitted.

Evidence of Ms Jean Maynard

[39] Ms Maynard’s evidence was, that she was a resident and had taken some ‘rubbish’ up to Humpty Doo. She stated when she got to the window of the gatekeepers station she saw a child there, a young boy, she said he waved me through. She recollected this event as follows:

“How were you at the Humpty Doo - - -?---I had taken some rubbish up there and there was a couple of cars in front of me, so I waited for them to go through and then it was my turn and I got to the window and it was like a child there, like a young boy, and he just sort of like waved me through and I said, 'Oh, okay' and then when I got to the end of the building, as the cars are going past, I sort of looked to my right and I saw a bloke standing there, like leaning up against the rail and I sort of looked and looked again and then I realised it was Glenn.

“How do you know Glenn?---Just from going to the dump, yes.

What were you delivering that day?---Just rubbish.

What sort?---Just normal household rubbish, yes.

Were you charged for it?---No, no, but, yes, I didn't recognise it was Glenn at first because he was just like in thongs, shorts and a tee-shirt.

Was he in the gatekeeper position or outside?---No, he was outside, leaning up on - - -

The child was in the gatekeeper - - -?---Yes.

Was there some sort of documentation or registering of your load through?---Not as far as I know, no.” 4

[40] This differentiation of treatment of the Applicant, with regard to the allegation of her having people in the gatekeeper’s station was only acknowledged by Mr Bynres at the Hearing.

SUMMARY OF THE RESPONDENT’S EVIDENCE AND SUBMISSIONS

[41] The Respondent submitted that the Applicant was dismissed on the basis of misconduct. The Respondent set out the key duties, the Applicant’s position involved that only acceptable waste materials are admitted into the Waste Transfer Station and that they are recorded and processed in the appropriate manner. This required the gatekeeper to direct customers coming to the Transfer Stations to the correct area and to collect all fees and charges as determined by the Respondent. The gatekeeper also had responsibility for cash handling and dealing effectively with the public, in a friendly manner.

[42] The complaint that initiated the disciplinary proceedings was received from another employee on about 17 October 2018 in relation to contact on 14 October 2018 at the Humpy Doo Waste Transfer Station in relation to a mixed load of building rubble and waste. The complainant alleged that the Applicant had not required the driver to sort the load and alleged there had been no charge for the load or record of transaction for it. In the course of investigating this complaint all of the CCTV footage for the proceeding days was reviewed by the Manager. The Respondent submitted further instances were noted of the Applicant failing to properly assess vehicle loads, collect required fees, record transactions, and the Applicant inviting third parties into the gatehouse for an extended period during her shift. In addition they submitted the footage showed the Applicant making personal transactions during her shifts. As a result, the Respondent relied on five of the seven allegations and implemented a First and Final warning and stated to the Applicant that any further instances of unacceptable behaviour within the next six months may, lead to further disciplinary action which may include the termination of your employment.

[43] The Applicant was on personal leave between 30 November 2018 and 19 January 2019. On 24 January 2019, the Council submitted it received further complaints regarding the Applicant’s conduct that the Applicant had made inappropriate comments about another employee in the gatehouse logbook, was rude to a customer and charged incorrectly for loads of waste.

[44] The Applicant denied the allegations. The Applicant responded in writing to the allegations. The Respondent indicated that a third complaint was received and, they became aware that the Applicant had engaged in a personal transaction during working hours and failed to charge correctly for vehicles to dump commercial waste. The Applicant as a result was suspended from her employment and was advised that unless she could provide a reasonable explanation her employment maybe terminated. The Applicant’s employment was terminated on 6 March 2019. The termination letter set out the following reasons, that whilst she was on a First and Final warning she:

“engaged in further instances of unacceptable behaviour, being:

1 Inappropriate behaviour towards a colleague and failure to follow Council procedure to raise a grievance;

2 Failure to follow Council procedure in relation to dumping waste;

3 Depriving Council of funds; and

4 Failing to record all transactions.

Council has now lost its trust and confidence in Ms Edwards’ ability to appropriately perform her role with policy and procedure, despite her previous warning. Council cannot further risk that Ms Edwards will continue to charge attendees of the Waste Transfer incorrectly, fail to collect Council funds and distort Council’s records. On this basis, Ms Edwards’ employment will terminate on notice.”

[45] A series of reasonable explanations were provided in response to the allegations by the Applicant. This was particularly the case when the Applicant was provided during the Hearing, with the log of transactions, she was able to recollect, the events more clearly with this greater level of information, in response to Ms Nilon’s evidence.

[46] The Employer raised three sets of separate complaints against the Applicant in this matter. The complaints included a number of allegations relating to the procedure to be used for charging customers and the transactions of vehicle loads by the Applicant in her gatekeeper duties. There is in this case, the absence of the relevant document, containing the fees, charges and guidelines relating to the required treatment of the nature of the loads for residents and non-residents, when depositing at the Waste Transfer Station. The evidence of Mr Glenn Byrnes, the Manager of the Waste Transfer Station indicated that the gatekeeper had some discretion in the application of the fees and charges dependent on the nature of the load and whether customers, were residents or non-residents. This evidence was consistent with the Applicant’s evidence.

[47] As referred to, the Applicant conceded in response to the allegation that she had given a package to a customer; that it was crystals and she had sought a friend coming through the station, to return them to ‘Spotlight’ for her.

[48] The Applicant attended a meeting in relation to the complaints on 13 November 2018 and was shown some footage, she was not privy to the relevant accompanying printout of the log of transactions, the Respondent had relied upon. Ms Nilon was questioned on this log and the CCTV footage at the Hearing. Ms Nilon made a number of concessions; when the Applicant provided explanations, on the assessment of the log of transactions against the CCTV footage.

[49] At the Hearing the Applicant indicated that her representative had stated, at the original disciplinary meeting that she should allow her representative to speak and that she should not address the Respondent directly, on the matters at the meeting. Ms Nilon indicated in her evidence at the Hearing, that being able to speak directly, to the Applicant may have provided some mitigation on the events. This position was not communicated to the Applicant.

Evidence of Kaylene Conrick

[50] Ms Kaylene Conrick, the former Chief Executive Officer of the Litchfield Council between January 2016 and May 2019, provided an Affidavit in the proceedings. She no longer worked with Council or resided in the area and the Respondent did not call her to give evidence. The Applicant did not seek to cross-examine her. She stated in her role she undertook the daily management of Council’s operations, including full responsibility for staff. This included the engagement of employees and termination of their employment. She stated that in October 2018, she became aware that the Applicant had sent an email to the Mayor requesting a meeting about her employment. The Mayor forwarded the email to the CEO and she contacted the Applicant to attend a meeting to discuss her concerns.

[51] In November 2018, Ms Nilon attended a meeting with the CEO and the Applicant. The Applicant attended the meeting with Mr Warboys and he also raised a number of issues. The Applicant raised the issues of the payment she had received for her annual leave. The CEO’s statement indicates that about the same time she became aware of concerns regarding the Applicant, in relation to not collecting funds from customers at the gatehouse. She stated Ms Nilon had investigated these allegations and consulted with the CEO during the investigation. The Applicant was not aware of the investigation. The CEO stated in about November 2018, Ms Nilon discussed the matter with her and recommended a First and Final warning be issued. She stated she considered the allegations and the Applicant’s responses, and agreed with the recommendation.

[52] She stated in January 2019, that she was informed that there were further allegations which were investigated and she was consulted as required. She stated that Ms Nilon considered the outcomes of the investigation, provided sufficient evidence that the Applicant had failed to collect appropriate fees from customers at the gatehouse.

[53] Ms Conrick stated she agreed with Ms Nilon’s assessment and considered the conduct dishonest and that termination was justified, and on that basis, she signed the dismissal letter. She stated that the Applicant’s concerns regarding the calculation of her annual leave did not influence her consideration, in relation to the termination of the Applicant’s employment.

[54] The evidence provided at the Hearing by the Manager of the Waste Transfer Station was that he had been requested by the CEO to review the CCTV footage in relation to any conduct of the Applicant. After the provision of this evidence, the Respondent (with Ms Nilon instructing) did not seek to call the CEO, to provide evidence by telephone or otherwise. The evidence of Mr Byrnes was not challenged.

Evidence of Mr George Byrnes

[55] Mr George Byrnes, Manager of the Waste Transfer Stations, confirmed he received a complaint about the Applicant from another employee Mr George Hadjikyriacou, in regards to a load that came in, he said late in the afternoon. Mr Byrnes could not recall in any convincing manner, whether he had discussed this complaint with the Applicant. He stated that this complaint about the Applicant, originated around a truck that came through the Applicant’s gatehouse, late in the afternoon, with a ‘whole heap’ of building rubble. The complainant was frustrated that he had to clean this up. This employee complained that this rubbish that came in, wasn’t properly separated when unloaded. 

[56] The Applicant asked Mr Byrnes how this was her fault. Mr Byrnes stated ‘George’ wanted to find out whether it was paid for properly or whether it was not paid for. 5

[57] Mr Brynes was asked after reviewing the footage, how the correct payment for the load of rubbish impacted on ‘George’s’ role at the Waste Transfer Station, given that he did not work as a gatekeeper. Mr Byrnes responded, ‘it came in late in the afternoon and he had to sort it out. Our EPA rules so we’re not allowed to leave rubbish on the floor of the pit’. 6

[58] Mr Byrnes was asked what he ascertained the load was, he responded it was a mixed load of construction waste that should’ve been separated. He stated from memory, it was a lot of concrete and steel and a bit of vegetation matter in it. Mr Byrnes was asked whether the Applicant was responsible for the required separation, he replied, no, she has to make an appraisal of what’s coming through the gate at that particular time. The Applicant stated ‘and I would’ve told him where it went what more can I do and say that the wood goes on the wood and the concrete on the concrete? I can’t do any more than that and if it goes up to the top and dumped it in the pit why does that come back on me? He answered ‘that’s just like it was appeared a load that came in Sue.’ 7

[59] Mr Byrnes stated that as a result of this complaint, he reviewed the footage on the cameras to see what it was all about and found some matters regarding the Applicant’s conduct that concerned him. He stated he then went back and ‘talked to Kaylene and Nadine ‘at the time, about this. 8 Mr Byrnes’ email of 18 October 2018 to Ms Nilon and Ms Conrick stated:

“Hi this is what I have found as a starter for Sunday 14th October 2018…”

[60] On 30 October 2018, Mr Byrnes sent an email to Ms Nilon and Ms Conrick regarding his further review:

“I have reviewed the footage from Saturday 28 October 2018, at the Humpty Doo Waste Transfer Station when Sue Edwards was working…”

[61] On 31 October 2018 his email to Ms Nilon and Ms Conrick commenced:

“After our talk yesterday I decided (sic) this morning to check whats happened after I left work yesterday…”

[62] Further questions were put to Mr Byrnes in regards to the other employee’s complaint, (that the Manager started commencing the process of review of the Applicant) as follows:

“THE COMMISSIONER:  What time did that load come in?---I don't have that before me.  It was late in the afternoon, from what I believe.

What time does it close?---Well, we shut at six, the gates shut at six, but they need - because of our - it was like a tipper load of rubbish that came in and it puts the people behind and they go home late sort of thing.

Did this come in near six?---I can't remember the exact time but it come in after 5.30.

MS EDWARDS:  It actually come in at 2.57, which left a few hours before six.  That's what you've put on number 26?---What do you mean by 26?

THE COMMISSIONER:  Paragraph 26.

MS EDWARDS:  Yes, sorry.

THE COMMISSIONER:  Paragraph 26 of your statement, Mr Byrnes.  Have you got that there?---Yes, it come in at 2.57.  George had just - he wanted to know about the load and apparently he asked you and you wouldn't tell him if he got charged or not.

MS EDWARDS:  Because it had the signage on there.  I remember that day now I've just read that bit there.  He comes in a lot, he's a regular; am I correct?---He used to come in a lot, yes.

Yes, Le Hubby?  Guy Le Hubby or something?---Okay, yes.

THE COMMISSIONER:  Is that the name of the business?

MS EDWARDS:  Yes, and he did say to me that, 'This is my' - he brought about four loads in, he was cleaning up a death, a house where someone had died?---Yes.

His last load, he said, 'I'll be bringing in my own household goods' and he didn't get charged for that, no, but he always puts it in the exact spot, so if that's the person - I would have to call that not true if that's that same person?---In paragraph 26, I have said there that it was full of building rubble and waste.

THE COMMISSIONER:  But if it's at 2.57, that's not late in the day, is it?---No, because I was - yes, I forgot there was a load of it.  That's still not where it should go.  If he's brought it in and it's full of building rubble, we have to separate that out and a lot of it goes to land fill, which is not what we want.

Just for my purposes because I'm not entirely familiar with the station - I am familiar with stations but not specifically this one?---Yes.

From the gatekeeper where Ms Edwards worked, what's the distance then to where this rubbish is dumped?---About 100 metres.

Does Ms Edwards have any ability if someone doesn't go where she has directed or told them, does she have any ability to influence or say, 'Don't dump that there'?---Not once they've gone past the gate, but she can keep an eye on it through the cameras and alert the operator to it.

But if she is serving other customers, is that somewhat a bit difficult?---It depends how busy it is at that particular time.” 9

[63] In relation to the complaint made to Mr Byrnes by the other employee, George Hadjikyriacou, the Manager was asked further questions as follows:

“Does he work right there where the goods are dumped?---There's different - the pit is mainly where he works and that's where you push this landfill over it.  The building rubble is sort of over that side.  Like it's sort of like a C graded area is where we dump individual loads of steel separate, the wood separate, the green waste is separate and the concrete or construction waste is separate.

Does he have some influence then about directing people?---Yes, if he's alerted early enough, he can get to them before they tip the load.

What do you think was at the bottom of this complaint because it's a complaint from one employee against another employee?---I don't know.  George, he likes people dumping the waste in the right areas.

But how does that complaint, how is it visited upon Ms Edwards?---From what I remember, George asked Ms Edwards about it, she wouldn't tell him anything, so he come and saw me when he come back on Wednesday.

And you reviewed it on the CCTV footage?---Yes.

What did you ascertain from that?---What I've said in my thing, that it was full of rubble and it's something that shouldn't have been dumped where it was dumped and if that man had been in four times previously that day, he should have known that basically - - -

MS EDWARDS:  He wouldn't have done it.  If that was that gentleman, he would not have done it.  He sorts his rubbish every single time.  He's one of the really good ones.  He would never have done that.

THE COMMISSIONER:  Mr Byrnes, your position there is what?---The manager of the Waste Transfer Stations.

Is this a matter that you could have discussed with Ms Edwards and asked her to be alert and active and vigilant about these matters?---It's something that we always - like it's an ongoing thing, you have to keep telling Sue - she asks lots of questions about it and I try and give her the answers that she needs to know and, yes, the waste is a game of separation, you have to get the waste separated so you can recycle it properly, otherwise they send it all back to you.  So that's what we try and do.

I understand that.  Why did this matter then escalate so much?---It wasn't - well, there was that little thing and then the other things that I found when I was reviewing the CCTV footage.

But why then, on the basis of that, which - and you correct me if I'm wrong - this is a matter where someone has not dumped their goods correctly, their refuse correctly in the correct places?---That particular incident was, yes, but George also told me about other things that were happening at the transfer station on that same day which I reviewed and found they were not correct.

What is that?---People in the gatehouse, people not paying for green waste.  I can't remember the exact - - -

But you have had people in the gatehouse, too?---Sorry?

You have had a young child in the gatehouse, too, haven't you?---Yes, my son comes and visits me, like he comes from high school and waits about the gatehouse for about an hour and then I take him to rugby training.

So why is Ms Edwards - the allegation is she had someone there.  Why is that treated differently?---Well, there was four cars parked there on Sunday and she - like my son comes and visits me, which, you know, like he's family, so he's allowed, but I don't think - - -

Is it allowed?---Well, as far as I'm aware, yes.

Where is the code of conduct or where is the rule that says your son is allowed there and Ms Edwards can't have a visitor?---She can have a visitor, but they stay - if she's working at the time and like there's four of them there, you can't have four people in the gatehouse.  The gatehouse is very small and you can't have four people in there without impacting on your work…” 10

[64] Mr Byrnes was questioned about relying on the nature of the allegations leading to the Applicant’s dismissal and that he had been asked by the CEO to collect the information on the Applicant:

“THE COMMISSIONER:  So, you know, I have to test whether these are seriously sustainable allegations whereby she should have lost her job of seven years.  You are the manager and I have to weigh up - you're saying, 'Yes, my son frequently came of an afternoon' - correct me if I'm wrong - 'as the manager'?---Yes, he comes on Tuesdays and Thursdays.

I am not taking issue if that is authorised - all right - or if it is something that has been condoned, but if, in fact, Ms Edwards has someone in the gatekeepers and you are not happy with that, then is it not reasonable that you would go to her and say, 'You just can't do that, you can't do that.  I know I've got my son here, I've got authorisation' - or whatever - 'but I'd prefer you not do that?'  Was that discussion held?---No.

Why not?---Because it got a little bit too - a bit more involved than just having people at the gatehouse.  The whole thing just - - -

But did it get more involved because you combed through the footage looking for issues?---Well, basically, yes, I was instructed to go through the footage to see what I could find.

Who instructed you to do that?---Kaylene, at the time.

The CEO at the time?---Yes.

Asked you to go through the footage?---And see what I could find, see what was there.

For what purpose?---To see if anything else was happening because there was issues happening that we were concerned about.

How did she know that there were issues?---Because I identified a couple of issues and put them on the CCTV that she looked at.  No, she didn't look at them at the time, but I identified to her that there were potential issues that could cause great embarrassment for council.

When did this all happen?  When did you get that instruction to start going through the footage?---I did it on the 13th, I think, if I - an email in there.

The 13th of?---18 October, sorry.

You received an instruction from - - -?---On the 17th.

Of October?---I wrote it all up and I sent it off on the 18th.

You received an instruction?---Just a verbal one, yes.

From?---Kaylene.

Would that be regular that the CEO would contact you?---No, I went to her office to tell her what I found.

But why would you have done that?  Where's her office?---Bees Creek.

In the city?---No Bees Creek at - Bees Creek, Freds Pass.

How far is that from Humpty Doo Station?---Five Ks.

Do you go there often?---Every day, a couple of times a day.

For what purposes do you go there?---Call in there to pick things up, drop banking off, general stuff.  I go and meet people in there.

How often would you meet with her?---Kaylene, very rarely.

Did you think this was odd?---What, meeting Kaylene?

Being asked to - - -?---No, like my concerns were with what was happening at the gatehouse that could have caused embarrassment for everyone that worked in the transfer station and I didn't like it and I made a point of asking the CEO - - -

But, Mr Byrnes, you're the manager?---Yes.

Wouldn't it cause embarrassment for you?  Why wouldn't you sort it out?---Because what was happening there was not appropriate and it was way above my pay grade to start fooling with it, I thought, so I went to see - I sought clarification from her.

When you say it's way above your pay grade, you are the manager?---Yes.

What do you manage?---I manage the staff and the transfer stations.

Is it within the domain of your management to make sure that the loads are paid for?---Yes.

Is that not a matter that you could speak to Ms Edwards about?---Yes, but it all tied into a whole heap of other things at the same time.

What other things?---All the other allegations that were brought up on that particular day.

It all relates to one day?---Not everything.  There's further days after that.

But it relates to that period of the available CCTV footage?---Yes.

Were you asked to go through that footage?---Yes.

By the CEO?---I'm pretty sure it was the CEO.  I can't say exactly whether it was the CEO.

Mr Byrnes, someone called you and asked you to go through the footage.  How often do you go through the footage?---Not that intense, but I do go through the footage to check things out and see why things got dumped where they did.

So where was it that you went through this footage?---Humpty Doo.

In the gatekeeper's?---The gatekeeper's, yes.

Who was in the gatekeeper's station when you were there?---At that particular time, whoever follows through on the roster.  I think it was Lesley or Ron.

So it was when she was off for the four days?---Yes.

You went through all of the footage at that time?---For that particular point, yes.

How long did that take you?---A good portion of the day because I have to go through the footage, then I have to go and cross check against the dockets that come in, the completed dockets, so I can see what's been paid for and what hasn't been paid for.

After that, did you then go and see the CEO?---Yes.” 11

[65] The Applicant asked Mr Byrnes if he had checked other employee’s transactions.

“So you didn't see anyone miss any green wastes or not pay for mulch?  You didn't see anyone take off with mulch?---I can only check people on a - because it's a long, laborious job, I can just check them on a day, and I have done it randomly for all of them since these have come up and I have gone through it and found nothing to - nothing to find.

THE COMMISSIONER:  What days did you check other people?---On the weekend.  I can't give you the exact dates, I just checked them on a weekend basis because that's when I'm not there.

Who are the other employees that you've checked?---Paul Sheehan, Lesley Asquith and Ron Zammit.

Is there a report in relation to the checking of those employees?---No.

Were you ever asked to provide a report?---No, I did it just to check.

Only in relation to Ms Edwards was a report provided?---Yes, that's all that was there.

What does that mean?---Well, that's all that - they did their job as they were supposed to.

No, who was the report called for on?---I didn't - on the other three gatekeepers?

Was there a report called for Ms Edwards to check on Ms Edwards?  Were you asked to assess and make a report in relation to Ms Edwards?---What sort of report?

You indicated that you had provided a report after checking the CCTV footage?---That was the transaction report.  That's what I was talking about.  It gives you just all your completed dockets for the day.  Is that what - - -

As I understand it, you were asked to assess these matters?---Yes.

Is that correct?---Yes.

Who asked you to assess them?---Kaylene, I'm pretty sure, asked me to do it.

Did she ask you to assess that for any other employee?---No, she didn't, I did it off my own bat just to check it…” 12

[66] The Applicant asked Mr Byrnes whether he was authorised to assess the footage in this way:

“MS EDWARDS:  Glenn, are you aware of the policies and procedures for the cameras?---Yes.

You are?  Well why did you do it then?---What's that?

Why did you do a check on me without - why didn't you go to Kaylene - Kaylene, it has to be - and you had to get permission from her to do that.  You can't just go and check on employees there on the camera when you feel like it.  You can't do that if you read the policies?---Well, for you, I was asked to and, for the rest of them, I just did it on my own bat to check it to see what was happening.

So you didn't follow policies and procedures at all for the other people?---I can't recall.  I'll go with you on that one, but, yes, for the other people.

And you did with me?---Well Kaylene asked me to.

She asked you to?---Yes…

MS EDWARDS:  It's just in Denise's stat dec, she admits to having visitors in there as well and also when I spoke to her to do an affidavit for me, she said that it was only the last lunch she done - she took Lesley's lunch time - and Lesley had left a docket with - I can't remember if it was green waste or mulch, but it was taken for two mulches or green waste and the gentleman had only taken in one, so he will be back to - then she can put the other one through, because she's already made out the docket.  Just like the diary, isn't that distortion of council records and - it's the same sort of thing, isn't it?---I don't know anything about this but had the person - - -

But you tell us we can do it, Glenn?---Had the person already paid?

You know we do it?---Has the person already paid?

Yes?---Well, I don't know anything about it.

He paid for two.  He come through and wanted two metres of mulch, say?---Right, yes.

And he gave Lesley the money and meanwhile Denise has come in to do her lunch and so Lesley has said, 'Denise, he's already paid for that mulch when he comes back, this has already been paid for'?---Yes.

Now that's what I'm getting in trouble for?---No, what happened here, you were letting them take their stuff and paying at the end of the day.

Glenn, are you serious?  You tell us - sorry.  That's got nothing to do with what I just said anyway, but we can talk about that other one if you want to.  What I'm saying is she has taken $20 for two metres of mulch?---Yes.

Denise has come in and Lesley has said to Denise, 'He's getting the mulch now, he's got one more to come'?---Yes.

Is that allowed?---Well, it's not quite policy, but he's prepaid for two loads.

Yes?---So he's taken one and if he does come back and get it, Lesley has alerted to what they want to do, that he's already paid for it and let him go through.  Look, I don't know anything about this, so I'm just sort of saying, you know, I don't know what - - -

What is the procedure there?---Pay as you go.” 13

[67] The Applicant stated that in relation to the allegations she would need to compare the CCTV footage with a log of transactions. This log was not provided to her in the form it was subsequently provided to her at the Hearing to allow this comparison, and further recollection of the events. The Applicant stated:

“MS EDWARDS:  Christine has said to me that I haven't taken money for mulch or green waste on several occasions.  When I seen the video of it, I knew exactly what had happened at that time, I could remember that, and that was when - sometimes someone will say, 'I've got three trailer loads of green waste to come through', so I say '$15' - okay - and then he takes one, he goes home, brings back another one and goes through for free, and that's what they were seeing on the footage.  That happens a lot with mulch and with green waste, but I got accused of not taking money and - what was it called - depriving council of funds and distorting the records when everybody does it, Glenn?---No, they don't.  They go through once.  When I checked the video footage, I find the times and I write it down and say, 'Green waste comes through at 12 o'clock.'

Yes?---Then I can go to the iWEIGH report where it is and find that cost and that will say, 'At 12 o'clock, he unloaded green waste and come through' and if it says $15 instead of $5, I then know that something's happened there that shouldn't have happened, but there's two more loads of green waste that would have come through free.  I did not find that.

I need to see the records because, no, sorry.

THE COMMISSIONER:  Did you mark on your report anything such as that, that, 'We have received $5 and here's the two free cars'?---No, my report is basically that email that is in your stuff there and it's just - it's complicated but it's quite simple once you work out that, you know, green waste comes through and the report tells you exactly what time the green waste came through, so then you can correlate that to your video time to say, 'Okay, yes, that come through at that time.'

It would be on the dockets, wouldn't it?---If the times are on the dockets.

Why did you not have a discussion about this with Ms Edwards?---Look, I had lots of discussions with Sue, many of them around green waste and mulch and concrete and what can come in for free and what can't come in for free.  I do attempt to tell her every time what it was.  Like free green waste is, you know, a handful of palm leaves or, you know, less than a wheelbarrow load of green waste.  That is free.  It's only 5 bucks, you know, we're not that bad, but it's a constant - it always was a constant issue with Sue trying to find - she was always trying to find a line in that issue and we can't actually give you a line, just make an educated guess, but when your green waste is flowing over the top of your trailer, that's not a freebie, that's - you've got to pay for that.

Am I to understand that the gatekeepers have some discretion?---They have a little bit of discretion.

As to what is free?---Yes, as to what's free.  When we first started it in July 2013, we've had a lot of talking about what is free and what is not free.  At the start, we were pinging everyone and then we started not pinging them and just over the years, we've just sort of come to a, well, let that go and not let that go.

But for the CEO asking for this report, would you have just undertaken discussions with Ms Edwards about these matters?---About the green waste matter, yes.  It was - yes, we were constantly having talks about it.  It was - sorry…

MS EDWARDS:  You've just called them 'constant', Glenn.  You have in your report you spoke to me - what was it - for two years every couple of months.  What was that about?  What did you speak to me about?  You never spoke to me about - you never filled me - the only reason I got answers from you, Glenn, was if I asked.  You never come to me with anything?---Sue, you sat like 10 feet - we were always talking about different things that were happening in the transfer station.  You were as close as that lady right there.

THE COMMISSIONER:  Were they issues of discipline or were they just discussions?---Discussions on everything, like I could - from where Sue's standing, I could stand up from my desk and look straight out on the load that was there and if she needed, she'd say, 'Have a look at that' and I can have a look at it and give her what I thought.

MS EDWARDS:  Do you think - was there ever times - have you seen with any of us when they go to the toilet, do any go through and, 'Oops, they had a trailer load of green waste'?---That would happen occasionally.

Of course it does happen, it does happen, it happens to all of us.” 14

[68] In relation to capturing the waste transactions and all funds for green waste, the Applicant put to Mr Byrnes As follows:

“MS EDWARDS:  Do you think - was there ever times - have you seen with any of us when they go to the toilet, do any go through and, 'Oops, they had a trailer load of green waste'?---That would happen occasionally.

Of course it does happen, it does happen, it happens to all of us.

THE COMMISSIONER:  Is it a boom gate?---No, there's no gate, you just stop at the window, basically, and show your ID.

So you can just drive through if no one's in attendance?---Yes.” 15

[69] The Applicant put to Mr Byrnes matters involving other employees and the alleged separate scrutiny that she received in relation to the routine conduct of her duties. She stated to Mr Byrnes  ‘it just seems well what I’m getting would’ve been fight over it’s so petty compare to things I brought to your attention are times that are very should have been dealt with and you asked me to deal with it? 16

[70] The Applicant asked Mr Byrnes why she wasn’t told that she was under investigation

Mr Byrnes stated he considered that the Applicants comment in the diary at the gatekeeper’s station about another employee not taking funds for green waste was inappropriate as she was basically accusing a gatekeeper of letting free green waste in. In regard to this entry the Applicant considered that given she rarely saw Mr Byrnes and that she considered the diary was used for communication amongst gatekeepers, that this was not improper conduct and it was the same allegation made of her. The Applicant stated the other employee’s name was not used, and that this was the same issue that she was being accused of. Mr Byrnes however stated that the comment referred to the ‘lunch girl’ and that made the employee identifiable. Mr Byrnes agreed there was no specific policy about the logbook communication. He considered it was more appropriately used for general information and that his phone number was available for them to ring him, if required.

[71] The Applicant was then issued a further letter on 1 February, for matters including this issue of her alleged inappropriate diary entry in regard to another employee’s alleged conduct with a waste transfer transaction. The Applicant had called for a copy of the gatekeeper’s diary to assess the nature of the communications, used in the logbook, but the Respondent denied the request.

Evidence of Ms Nadine Nilon

[72] Ms Nilon was the Director of infrastructure and operations and commenced in that role in July 2018.

[73] In addition to her evidence, on the second day of the Hearing Ms Nilon provided an affidavit with the transaction reports relevant to the CCTV footage for cars passing through the gatehouse, at only the times that the Applicant had worked. Given this new set of transaction reports were provided at the Hearing and the Applicant had not had been able to access to the CCTV footage (given her difficulties with opening the link to this information) parts of the footage were played at the Hearing.

[74] Extracts of the CCTV footage and the accompanying transactions were put to Ms Nilon in cross-examination and the Applicant asked questions on this material. Ms Nilon, noted that she was involved in the disciplinary matter as it is one of the Directors responsibilities and the Human Resources officer was on maternity leave at that time. Ms Nilon indicated that there was a complaint from Mr George Hadjikyriacou (who was employed at the Humpty Doo transfer station) to the manager Glenn Byrnes. She confirmed that the complaint was on the disposal of rubbish on the 13/14th October. She explained that there was no footage available for 13 October as the system had overridden it, however on 14 October she stated, that Mr Byrnes considered he found things on the footage that were relevant in relation to the Applicant’s conduct. He therefore assessed the footage only in relation to the Applicant’s transactions in the gatekeeper’s role on the next days.

[75] The evidence of Ms Nilon was that the Applicant was not made aware of the complaints or the investigation as the Respondent was concerned, that there was potential for the transactions to be fraudulent or illegal behaviour, that may have defrauded the Council she stated they wanted to understand that further.

Evidence of Mr Ron Zammit

[76] Mr Zammit’s evidence was referred to earlier. His statement was provided in response. He was employed as a gatekeeper and his evidence went to the duties, as set out in the job description of the gatekeepers and how transactions are to be undertaken.

SECTION 387

[77] The criteria in section 387 must be considered in determining whether a dismissal is harsh, unjust or unreasonable.

s.387(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);

[78] The employer bears the onus of establishing that there was a valid reason for a dismissal. 17 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”.18 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,19 and the validity is judged by reference to the Commission’s assessment of the factual circumstances as to what the employee is capable of doing or has done.20 The Commission is not limited to the reason given by the employer in considering whether there was a valid reason for the dismissal.21 Misconduct justifying dismissal is conduct so serious that it goes to the heart of the employment relationship,22 or evinces an intention that the employee no longer intends to be bound by the employment contract.23

[79] No valid reason can be substantiated, based on the evidence of the allegations, that would support a dismissal in this matter. A number of the allegations of the Applicant’s conduct are without basis and can be interpreted as being erroneous. Other matters, other employee’s also engaged in simply required a discussion. When the log of transactions is looked at closely against the allegations, a number of the transactions that were part of the allegations, were correctly recorded by the Applicant, as per her evidence. Ms Nilon’s later concessions at the Hearing supported this. Further, the fees and charges applicable to an assessment of the loads were not strictly adhered to across the board by employees. Mr Byrnes also noted that the gatekeepers, ‘had some discretion as to how they applied these charges’.
 
[80] In addition, a document setting out the applicable fees and charges for loads could not be provided by the Respondent, nor could they point to any particular training on this, that the Applicant had undertaken. Reference to later toolbox meetings and training on these matters had occurred, but in the Applicant’s absence, whilst she was on leave or after her dismissal. The later inclusion of this training after these events with the Applicant, highlights the lack of an applicable training manual and that there was the need to further communicate the guidelines to employees. This undermines the conduct, providing a valid reason for termination. Clear breaches of the method for processing loads or required gatekeeper conduct have not been made out, to warrant the disciplinary action or the Applicant’s termination of employment.

s.387(b) whether the person was notified of the reason

[81] The Applicant was notified of the reasons for her dismissal in the letter dated 6 March 2019. The Applicant was provided with information of the reasons for the dismissal, at a prior meeting about the allegations. This communication of the reasons, (particularly on the transactions) was not done clearly and as referred to there was no provision of the CCTV footage together with the log of transactions, to enable the Applicant to have an appropriate understanding of what was alleged. Further, this information was not provided and not for a period that would allow her to assess the specific transactions referred to. When the log of transactions relevant to the CCTV footage was provided at the Hearing, this aided the Applicant’s recollection. For these reasons the notification of the reasons for the First and Final Warning and the dismissal was unclear and unfair.

s.387(c) where the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[82] The Applicant was given an opportunity to respond, but not in circumstances where she was fully aware of the details of the allegations. The Applicant at the time of responding was not aware of the precise nature of the allegations, given the limited viewing of the gatehouse footage. In addition she did not have the necessary log of transactions. The opportunity to respond was not provided on a procedurally fair basis.

[83] As referred to the process was deficient; the Commission was provided with the USB of the CCTV footage, as part of the Directions, but not the Applicant. 24 Prior to the Hearing, the Applicant had previously been provided with only a link to this footage and had indicated difficulty in accessing the footage. The Respondent had re-sent the link and was not aware that the Applicant could not access this footage prior to the Hearing. The Applicant was provided with a copy of a USB during the Hearing, to look at the footage overnight. She indicated that she had limited time after the first day of Hearing and was “too weary” to properly look at this footage. Accordingly, during Ms Nilon’s evidence, the exercise was undertaken to put a range of the footage on the screen in the hearing room and to compare the footage with the log of transactions (which was only provided on this day in a further Affidavit by Ms Nilon25). This process allowed the Applicant to provide further responses on the allegations. The opportunity for the Applicant to respond was compromised by this process.

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

[84] The Applicant was not afforded a support person at the first meeting which was organised in response to her inquiry about her annual leave payment. It was during this meeting, that the allegations were raised with her. Further to this, she was represented, initially by an Industrial Relations consultant who provided representation on behalf of the Applicant.

s.387(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about the unsatisfactory performance before the dismissal

[85] The Applicant had not been warned about the conduct prior to the implementation of the First and Final Warning. This response was disproportionate. The disciplinary response had moved immediately to a First and Final Warning. The Applicant had then only been back at the workplace for a few days when the termination was implemented.

s.387(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 s.387(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;

[86] The Respondent had some 59 employees and an in house human resource management officer and access to external expertise in Employment law. The fairness of the process has been considered against this standard. There was a series of procedural flaws in the process. Given the Applicant’s relatively significant length of service, a proper determination of the allegations was required. The Applicant had not been subject to prior documented disciplinary action. The imposition of the First and Final warning was not fair or justified in the circumstances.

s.387(h) any other matters that the FWC considers relevant

[87] Part of the Applicant’s case was that the disciplinary process was initiated by the Respondent against her, after she raised an inquiry, regarding what she alleged was an under payment of the cashing out of her annual leave. Specific findings in relation to that matter are not within the Commission’s jurisdiction, in relation to a matter pursuant to s.394. The relevant comparative calculations for the leave payments, were also not before the Commission. It was argued by the Respondent, this was not a matter, where a workplace right had been contravened, and the dismissal was not an adverse action matter. However it is noted that after the inquiry on the leave matter by the Applicant (which was raised with the Mayor), the CEO was contacted and a meeting immediately was organised. It was at the meeting that the allegations of misconduct were put to the Applicant. Prior to this, the Applicant had not received any formal disciplinary action for any matter for seven years of her employment with the Respondent. This matter involved the direct pursuit of alleged contraventions by the Applicant after making contact about the annual leave matter. The evidence of the Manager, Mr Byrnes was that he was directed, to assess the CCTV footage of the Applicant’s work.

[88] There was inconsistent treatment of the Applicant, on a range of issues, such as having people in the gatehouse and potentially missing payment for loads. The evidence of Ms Maynard was that as a resident, she was driving past the Humpty Doo gatekeeper’s station to deliver her household refuse and she stated she was surprised to see a young child in the gatekeeper’s position waving her through and, as she drove on she saw Glen (Mr Glen Byrnes), the Manager of the Transfer Station. In his evidence Mr Byrnes conceded it was his son and he looked after him at the workplace in the afternoons, after school on a regular basis.

[89] Ms Maynard’s evidence in response to questioning, was that she did not pay for a load, (as she was not required to) as it was household refuse, and she assumed no register was made of her vehicle driving through the gatehouse. The Respondent was in receipt of this witness statement and did not seek to challenge this evidence by way of cross-examination. However the general evidence on the gatekeeper’s duties in reply of Mr Zammit is recognised.

[90] With reference to the Applicant’s logbook entry (about the conduct of another employee) being a breach of the Code of Conduct; Ms Nilon conceded that there was no communication or documentation about how to use the logbook in the gatekeepers station. Ms Nilon also conceded, in relation to the Applicant having people in the gatehouse, that they had communicated Council’s position on this to staff, but the Applicant was not present:

“Is this a matter, given you're aware of Mr Byrnes, the manager, now - is this a matter that could have been the subject of a toolbox meeting to - or could have been the subject of a meeting with Ms Edwards and toolbox meetings generally with gatekeepers:  'You are not to have any member of the public or otherwise in the gatekeepers'' - - -?---Yes, and it was, in a later toolbox meeting.

But by that stage, the applicant had been dismissed?---No, I mean, in the period she was on leave.

Yes but, Ms Nilon, there is no point - I mean, you can't confirm that that discussion has been had with the applicant if she's not there?---Well, it was - - -

I understand what you're trying to do is remedy the situation?---Yes.

You considered it warranted a discussion, so - - -?---So when we went through the footage it was acknowledged and Sue said - I agreed - she said, 'If I can't have people in there, I won't have people in there.'  That was fine.  As a stand-alone thing, if this was the only allegation, yes, it would have been a discussion, it would have been noted.  Depending on the extent it might have been a first warning but not a first and final - if it was a stand-alone thing.  It was the combination of everything at once.

But in circumstances where you've noted this, it's caused concern, you've become aware the manager has got his son there, you're not aware that that's authorised.  It's acknowledged that this requires a training.  Why would you continue to rely on it?---Because I was made aware - we relied on it for the first warning, on the 27th.

First and final?---The first and final warning on - - -

It moved to a first and final?---Yes, on the 27th - I wasn't aware of Glenn having staff - of Glenn having - - -

But he was the one that forwarded those matters?---Yes, I - - -

So he was the manager and forwarded the complaint in circumstances where he was aware he had had his son there?---Yes.

So do you understand that in reviewing that matter, it may be unsustainable for council in relying on that matter?---Yes, but we didn't dismiss based on that matter.

But it is part of - correct me if I'm wrong - it's part of the series of allegations that are relied on?---For the first and final warning.

Yes?---Yes.

As a result of the additional allegations - and we've been to some of those - the dismissal was recommended?---Yes.” 26

[91] Mr Byrnes supported the process, as he considered some of the events that were occurring with the Applicant, could have caused embarrassment for everyone. However it was put to him that he was the Manager and therefore he was questioned whether he could have resolved these issues with the Applicant? He confirmed he manages the staff and the transfer stations. However he stated that these things that were happening, were above his paygrade and they ‘were all tied into a heap of other things at the same time’. He did not clarify what this meant. He stated it was a long and laborious process to check the footage and cross check it with the saved dockets and make a report. He stated he had undertaken a process of checking some other employees but not to this same level. He stated he had not prepared a report on them. He had not been asked by the CEO, to check on other employees.

[92] Importantly in considering the other matters in the CCTV footage, Ms Nilon also made concessions on the waste load transactions, after the Applicant provided reasonable responses to these, when she had the log of transactions on day 2 of the Hearing. These responses from the Applicant had not been available, prior to the dismissal, due to the process used.

CONSIDERATION

[93] In this matter, on 6 March 2019, the Respondent wrote to the Applicant’s then Industrial Relations consultant representative setting out the outcome of the disciplinary process. That letter documented that Council had concluded that the Applicant had engaged in further unacceptable behaviour and conduct and taking into consideration the recent First and Final warning, they had decided to terminate her employment effective that day.

[94] The correspondence referred to prior letters setting out allegations on 30 January 2019 and 8 February 2019. It was noted in the correspondence, that an opportunity was provided for the Applicant to attend Council to respond to the allegations, however these opportunities weren’t taken and the Respondent confirmed written responses were provided through her representative. The Applicant had attended Council, to view the CCTV footage.

[95] The Respondent concluded that the termination was the appropriate outcome, as the Respondent set out the range of allegations. The Respondent submitted that the Applicant had engaged in inappropriate behaviour toward her colleague, by criticising her in the gatekeeper’s logbook. That entry stated as follows by the Applicant:

“12.22 # on my lunch break g/w [green waste] was not being charged by the Lunch Girl”

isn’t that depriving Council of funds and distortion of Council Records”

[96] The Respondent interpreted this as an accusation against another staff member, rather than as the Applicant stated, a warning to other staff, given she stated it was posed as a question. The Respondent considered this contravened the Respondent’s Code of Conduct, as a public criticism of a fellow employee. The Applicant emphasised the logbook was only used by other Waste Transfer Station employees.

[97] The further allegation under consideration was whether the Applicant may not have followed Council procedure regarding the disposal of waste on 24 January 2019 and that she may have engaged in inappropriate contact towards a resident by providing a substandard level of customer service. This allegation, as with a number of the others, was not substantiated.

[98] A further allegation raised was that on 3 February 2019, a specified vehicle entered the Waste Transfer Station and handed the Applicant ‘unidentified papers’, wrapped up. No disciplinary action was taken in this regard, as the Applicant had responded that the package contained medication for her medical condition.

[99] A further allegation was made in regard to conduct on Sunday, 3 February 2019, where the driver of another specified vehicle spoke to the Applicant for approximately two minutes and then left to dump his trailer of green waste. It was alleged this was not charged, and that this car had previously been identified as a car that visited in the Waste Transfer Station and that the Applicant had previously not charged to dump the Greenwaste. The Respondent concluded, that as the Applicant later on assessing the material admitted that she had failed to take payment of the mulch, she was therefore said to be depriving Council of funds. In addition, it was stated she did not record a transaction for this vehicle, it was submitted has the effect of distorting Council’s records. Whilst the Applicant agreed no charge or transaction was made the reasoning was not clear on the recollection of the events, but she was clear there was no attempt to deprive or distort Council funds or records.

[100] On that same day, another specified vehicle is alleged to have brought in a large pile of ‘old steel large antenna frames’ and the Applicant did not record a transaction in relation to the disposal or charge the resident. Council concluded that the Applicant failed to take payment for dumping this material and therefore deprived Council of funds and did not record an appropriate transaction in the records. However, the Applicant stated that this transaction did not constitute a financial transaction, as the truck contained construction waste and the driver was a resident. The Respondent concluded that there was a requirement to charge the resident a fee and record the transaction. There was some clear disparity, on the application of the fee guidelines on this matter, between the parties.

[101] Based on these further matters, the Respondent considered that it had lost trust and confidence in the Applicant’s ability to appropriately perform the gatekeeper role and comply with Council policy and procedure. It was further stated they could not take the risk that the Applicant will continue to charge attendees incorrectly, and fail to collect Council funds and distort Council’s records. The First and Final Warning was relied on in reaching this decision.

[102] The Applicant’s initial representative had taken issue with the basis of the allegations of inappropriate conduct, (that formed the warning) and the improper manner in which such was raised.

[103] The correspondence from the Applicant’s representative of 18 November indicated that the First and Final warning and the performance management plan that had been implemented, were procedurally unfair on the following basis; the investigation process had been carried out by Mr Byrnes, the same manager who had raised the concerns with senior management. Further, the first allegations, (it was stated) were presented to the Applicant at a pre-scheduled meeting with the CEO, Ms Conrick. That meeting has been organised to discuss the Applicant’s concerns with the payment for her annual leave accruals. Accordingly the Applicant had been denied the right to be forewarned, or bring a support person of her choice, to that meeting, regarding the allegations.

[104] The Applicant’s representative had written to the CEO on 13 and 27 February 2019, in response to the allegations.

[105] Further to the responses set out in the correspondence, in regard to the non-charging for waste allegation in relation to green waste on 3 February 2019, the Applicant could not recall the incident and the parties agreed not to make the Applicant respond and to allow her to review the CCTV footage first, (which was not further available to her at the time). On reviewing the footage at the Hearing she openly accepted a fee should have been charged. She stated that on that occasion she could not see how much waste was in the trailer. Her concessions highlighted the transparent nature of her responses, to the allegations.

[106] The allegation in relation to not charging for the pile of ‘large antenna frames’ (she stated this was not commercial waste), was refuted by the Applicant. She stated the resident had been cleaning up his shed and yard and it was not commercial waste but the dumping of household waste for which no charges were attached.

[107] The allegation regarding the interaction with the resident on 24 January 2019 in which the Respondent alleged that she had yelled at, the resident as a $10 charge was required rather than $5 green mulch charge, as the Applicant assessed the driver was travelling in a truck. The Applicant stated that the driver had not hesitated to pay the $10 and further that she was unable to see in the back of the truck to be sure about the amount of Greenwaste to be deposited. Further, she stated contrary to the allegation, she was forthcoming with her name when the customer asked.

[108] The evidence of Mr Byrnes, was that he recognised that the Applicant could not be held responsible for the incorrect placement of waste. Whilst this allegation was unsubstantiated, he as a result undertook a review of her work via CCTV footage for the ensuing days. His evidence was that he was instructed to review the Applicant’s performance by the CEO. The Applicant was unaware of the initial complaint and unaware of the investigation into her performance. The Respondent justified this on the basis that they were concerned at the potential level of the fraud or denial of funds to Council, that was occurring. After a consideration of these allegations, the height of which, is that, the Applicant may have over or undercharged for some waste for example green mulch. This is not to condone or disregard Council policy, but there was no evidence that the Applicant was not endeavouring to comply with Council policy and their required conduct. The evidence contained an unjustified level of scrutiny not directed at any other gatekeeper. The Manager’s evidence was that the task of undertaking the assessment of the footage of the Applicant’s work, was directed by the CEO and he was required to prepare a report of potential breaches, as a result of his lengthy review of the footage and then to meet with the CEO, when he had concluded the report on the exercise. 

[109] It was clear from the evidence that there was a level of discretion attributed to the gatekeeper’s role, as to how they discharged their duties, in assessing the waste loads and the commensurate charges.

[110] A number of the initial allegations made against the Applicant did not proceed, for lack of substance. The Applicant was concerned the allegations had been made about her work. She submitted because of this, and standing her down from her job, she experienced damage to her reputation in the community and this was exacerbated when she was dismissed.

[111] Some of the matters initially raised, such as the Applicant having people in the gatekeeper’s station, was also conduct that the Manager and other gatekeepers had engaged in. He was aware of such, at the time of recording the allegation, against the Applicant.

[112] The evidence of Ms Nilon (the Director whom supported the decision to terminate the Applicant’s employment along with the CEO), questioned whether the correct fee had been charged in relation to the load, the subject of the initial complaint. When questioned about this response, Ms Nilon indicated there was some complexity in the charges policy.

[113] The initial complaint that Ms Nilon referred to, alleged that a mixed load had not been directed properly and consequently another employee complained he had to sort it and he further queried whether it had been charged correctly. Ms Nilon stated this customer had a small truck with signage from a construction company. In response to questions she stated:

“Is there verification that it was definitely commercial?---No.  Having been there for three months, at the time, my understanding of the fees and charges were that that should have been charged.  So that is why I would have asked the question of how and should that, I believe it should have.  At the same time I was also working through the understanding of the processes of what do we tell people they can and can't do, according to our fees and charges that the council adopts.  So my understanding is that it would have been, so my question would have - was, why wasn't it?  That didn't lead so much to the broader investigation, but if that was standalone, it was to get to the bottom of that and make sure it's documented and just to make sure everybody's clear, rather than a - - -

So if it was a resident using a vehicle that looked like a commercial vehicle, but was their residential material, not construction material, what was the charge?---They should still be charge.  The fees and charges that council adopts is that it would still be charged.

What's the charge - - -?---The practice of that happening is a different thing, but the - -

What's the charge for that?---Depending on the material.  It's slightly less than the commercial rate.  So at the time it was $55 for the commercial per tonne, plus a Shoal Bay fee for whatever has to be transported to Shoal Bay, or $45 a tonne for residents.  So there's two charges in the fee.” 27

[114] The Applicant objected to Ms Nilon’s evidence on this and stated that at the time of this allegation, this rule had not been introduced yet, Ms Nilon responded:

“No.  Sorry?---It was in the fees and charges.  Whether that was a regular practice of what was happening, that was something I was looking into separately anyway.

THE COMMISSIONER:  Did you ask that question of Glen?---Yes.

And did you put the documentation in the meeting to Ms Edwards?  Because there seems to be some flexibility with the fees and charges, and I understand, given that it's a rate payer - like a free rate payer service, but commercial users do us that.  So was there a document put to Ms Edwards that established, and had that document been raised at the toolbox meeting?---It had been raised at toolbox meetings after, but - - -

After this?---Yes, but Sue wasn't at those toolbox meetings.  We also discussed about the charging of the green waste as well.  The first letter, when we did do the warning we did say - I'm jumping a bit, that we did say we'd do some training but, Sue not being there, that hadn't happened.

All right.  Am I to understand that particular allegation, as to the charging, given that there was going to be some training, it's not on firm ground?---It is documented in toolbox minutes now, with the people that were there, and I - - -

Yes, but Ms Nilon, I really can only look at what was in place prior to - - -?---Yes.

I understand, if thing emerged and council have taken some remedial steps, very good, but I can only look at what was in place at that contemporaneous moment.  So is it that there was no firm understanding that had been conveyed to employees about the charges at that time?---I don't know if that had been conveyed, from a procedural point of view of, this is what you do and this is how you do it, I don't know that and we haven't - I only know from what Glen's told me.  The response - the fees and charges adopted by council, the gatekeepers have a responsibility to know what they are, however I completely understand that if they haven't been demonstrated how to interpret that, there is - - -

Where do they find that?  Where's the document?---The - it's in a number of places.  It's on the website, it's printed out at the gatekeeper's offices.” 28

[115] Throughout the questioning on the fees and charges applicable to residents and commercial customers there was uncertainty with the procedure and with respect to the charges applicable to a variety of customers. For example in regards to the customer on 19 November 2018, the following exchange occurred with Ms Nilon’s evidence:

“Was there any evidence, that was verified with that truck driver, that it was a commercial load?---No.

If it wasn't a commercial load, what was the requirement to charge him?---So it still should have been charged, but there's a lower rate for residents that bring in that kind of material in a commercial vehicle.” 29

[116] The Applicant held a contrary view as to this approach to charging:

“THE COMMISSIONER:  Ms Edwards, what do you say about that?

MS EDWARDS:  No.  Never, ever heard of that, Nadine.  Never heard that because it's a commercial truck it should have been charged.  Never have we heard of that.  Never.

THE COMMISSIONER:  Are you saying, if he was a resident - - -

MS EDWARDS:  If he was a resident and he was under 2 tonne, his load was under 2 tonne of construction, it would have been free.  But if it was over 2 tonne then he gets charged.” 30

[117] The Applicant denied all of the matters and whilst she was put on a six month period to be assessed following the First and Final warning, she had only returned to work for a few days when she received the dismissal based on the further matter of the logbook entry, and alleged failure to assess vehicle loads charge the correct fees and record the transactions. She denied these allegations and they have not been made out to the requisite level, based on the evidence.

CONCLUSION

[118] In terms of the consideration of remedy the Applicant sought reinstatement. The relevant legislative provisions for consideration of a remedy are set out in s.390, s.391 and s.392 of the Act. In considering whether reinstatement is appropriate in all of the circumstances, the issue of the loss of trust and confidence raised by the Respondent must be considered. The issue of loss of trust and confidence has been considered by the Commission in Australia Meat Holdings Pty Ltd v McLauchlan the following observations remain relevant:

“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability…

We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd, the Full Court of the Industrial Relations Court said:

“...We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits.” 31

[119] In considering reinstatement the issues relevant to the disciplinary action and the process used must be considered against the practicalities of reinstatement at the workplace. The Applicant works with a level of supervision. It is recognised also, that she often works independently in the gatekeeper’s station. There was an absence of relevant documentation and training guidelines, to the required duties of the gatekeeper. It is timely for the relevant guidelines and associated training to be undertaken for all gatekeepers. It is understood some of this training was done, whilst the Applicant was away, from the workplace.

[120] On the basis of the evidence, there are no practicalities impeding reinstatement. There was no clear evidence to support the allegations of misconduct or a finding that the Applicant had engaged in conduct designed to defraud or divert money from the Council. The direct movement to the First and Final level of discipline was surprising and could not be sustained on the evidence. The targeted action to capture information, relevant to possible other breaches by the Applicant, has also been seriously considered in this matter, as significantly procedurally unfair.

[121] The Applicant has been dealt with in a comparatively different manner to other employees, in relation the individual assessment of her daily transactions. A range of the matters that became disciplinary issues (such as having people in the gatehouse and using discretion to charge for loads of waste) were matters that were sanctioned and were also being undertaken by other employees at the gatekeeper’s station. The evidence and the email exchanges revealed an intention to obtain matters, that may form the basis of disciplinary action against the Applicant. The process leading to the termination was procedurally flawed. The Applicant was not provided with a reasonable period, to examine the CCTV footage and was not provided with a copy of the transaction log, that aided the understanding of the vehicle transactions that formed the basis of the allegations of improper conduct.

[122] Based on the evidence there was no valid reason for the dismissal, the process was initiated improperly and was procedurally unfair.  It is necessary to consider the question of remedy. As required by sections 390, 391, 392 and 393 of the Act, I am satisfied that the Applicant’s employment was protected from unfair dismissal and that she has been unfairly dismissed. The remedy sought is reinstatement. The Applicant had a relevantly, lengthy employment period. Compensation can only be awarded in circumstances where it is not considered appropriate to award the primary remedy of reinstatement.

[123]  For the aforementioned reasons, it is determined that the Applicant was unfairly dismissed, accordingly the application pursuant to section 394 is upheld. I consider the Manager’s submission, regarding the loss of trust and confidence in the Applicant, to be misplaced, particularly given the manner in which examples of her possible misconduct were sought to be captured by him. I do not consider there are any practicalities, preventing the Applicant’s return to the workplace. I consider it is appropriate to make an order pursuant to s.391(1)(a) for reinstatement to the position in which the Applicant was employed immediately before dismissal. In addition an Order is made pursuant to s.391(2) of the Act to maintain the continuity of the Applicant’s employment and to ensure the period of continuous service.
[124] The Applicant responded that she had not received any earnings, in the interim period. In all of the circumstances I consider it is appropriate to make an Order to restore the Applicant’s lost remuneration in terms of ordinary time wages for the period between the dismissal and the reinstatement, less the amount of the five weeks wages in lieu of notice that was paid on termination. The reinstatement is to occur 14 days from the date of the decision, and to be implemented with continuity of service and employment.

[125] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR712762>

 1   [2019] FWC 5386

 2   PN957 to PN961.

 3   Ms Nilon’s affidavit dated 15 August 2019 – Annexure NN3. 7.45am on 14/10/18 No. 6.

 4   PN853 to PN860.

 5   PN903.

 6   PN904.

 7   PN909.

 8   PN900.

 9   PN910 to PN926.

 10   PN928 to PN944.

 11   PN952 to PN994.

 12   PN1008 to PN1021.

 13   PN910 to 1055.

 14   PN1071 to 1085.

 15   PN1084 to 1088.

 16   PN1085 to 1119.

 17   Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

 18   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 19   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 20   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 21   Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.

 22   Culpeper v Intercontinental Ship Management (2004) 134 IR 243; [2004] AIRC 261; Print RP 944547.

 23   North v Television Corporation Ltd (1976) 11 ALR 599.

 24   Ms Nilon’s affidavit – Annexure NN2

 25   Exhibit 9 – Ms Nilon’s 2nd affidavit (unsigned)

 26   PN2083 to PN2096.

 27   PN1439 to PN1442.

 28   PN1447 to PN1454.

 29   PN1481 to PN1482.

 30   PN1484 to PN1487.

 31   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192.