Stevens v Frankston City Council [1997] IRCA 301

industrial relations COURT OF AUSTRALIA

INDUSTRIAL LAW -alleged UNLAWFUL TERMINATION - whether VALID REASON connected with CONDUCT - whether employee knowingly gave false evidence in parking prosecution - whether employee prosecutor knew or ought to have known that evidence false - whether OPPORTUNITY TO DEFEND - representation - witness statements

Industrial Relations Act 1988 (now Workplace Relations Act 1996) - s 170EA, 170DC, 170DE. Briginshaw v Briginshaw (1938) 60 CLR 336. Cosco Holdings Pty Ltd v Thu Thi Van Do (unreported, Federal Court Judgement No. 1353 of 1997, Northrop, Lindgren and Lehane JJ, 4 December 1997). STUART ANTON STEVENS AND TIMOTHY JOHN SMITH -v- FRANKSTON CITY COUNCIL VI 6447 OF 1995 VI 1020 OF 1996 JUDICIAL REGISTRAR: R.D. FARRELL JR PLACE: PERTH (HEARD IN MELBOURNE AND PERTH) DATE: 14 OCTOBER 1997

limited DISTRIBUTION IN THE industrial relations COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY VI 6447 of 1995

VI 1020 of 1996

between: STUART ANTON STEVENS

TIMOTHY JOHN SMITH

applicantS

and: FRANKSTON CITY COUNCIL

respondent

JUDicial r.d. farrell, JR

registrar:

DATE OF ORDER: 14 OCTOBER 1997

WHERE MADE: perth (HEARD IN MELBOURNE AND PERTH)

THE COURT ORDERS THAT: 1. The application of Stuart Anton Stevens is dismissed. 2. The application of Timothy John Smith for an extension of time is dismissed. 3. The time within which the parties may make further application arising from these orders shall run from the date on which reasons for decision are delivered. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. LIMITED DISTRIBUTION IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY VI 6447 of 1995 VI 1020 of 1996 BETWEEN: STUART ANTON STEVENS TIMOTHY JOHN SMITH APPLICANTS AND: FRANKSTON CITY COUNCIL RESPONDENT JUDICIAL REGISTRAR: R.D. FARRELL, JR DATE: 16 DECEMBER 1997 PLACE: PERTH (HEARD IN MELBOURNE AND PERTH) REASONS FOR DECISION These were applications under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 ("the Act"). The applications were for compensation arising from the alleged unlawful termination of the employment of the applicants, Mr Timothy Smith ("Mr Smith") and Mr Stuart Stevens ("Mr Stevens"), by the respondent, the Frankston City Council ("Frankston"), on 11 December 1995. Mr Stevens also sought reinstatement. Frankston contended that reinstatement was impracticable. On 14 October 1997, I made orders dismissing the applications. These are the reasons for those orders. Frankston is located about 45 kilometres south-east of Melbourne, on Port Phillip Bay. At the time of the dismissals, Frankston City Council had recently amalgamated with an adjacent council, which had inevitably resulted in some disruption to the Council's usual processes and to changes in staffing arrangements. Mr Smith had been employed by Frankston as a "local laws officer" for over two and half years, commencing in May 1993. His duties included the issuing of parking infringement notices ("PINs"). He had previously worked with the transit police for 10 years. Mr Stevens was employed by Frankston for almost fourteen years, holding the positions of Planning Investigations Officer and City Prosecutor at the time of his dismissal. He was senior to Mr Smith. While the applications were heard together, the applicants were dismissed for different, albeit related, reasons and different issues arose in relation to each of them. While I have initially set out my findings of fact concerning matters relevant to either of the applications, I have considered separately the merit of each of the applications. Mr Smith's application was not filed until 4 January 1996. Because there was written notice of the termination, the application was required to be filed within fourteen days after receipt of that notice. The application was thus over a week late and Mr Smith sought an extension of time within which to file the application, under Section 170EA(3)(b). I had already granted such an extension of time to Mr Stevens in the course of the hearing, but decided to defer consideration of Mr Smith's application until I had heard all of the evidence. The Allegation Against Mr Smith On the morning of Monday 11 December 1995, Mr Smith was called in to a meeting with Mr Jon Edwards ("Mr Edwards"), the Chief Executive Officer of Frankston. Mr Edwards had telephoned Mr Smith at the local laws office and asked him to come to Mr Edwards' office to discuss some serious matters. Mr Edwards advised Mr Smith that he was entitled to be represented during those discussions. He was told nothing more about the purpose of the meeting. Mr Smith met Mr Greg Wood ("Mr Wood"), an industrial officer of the Australian Services Union ("ASU") outside Mr Edwards' office. Mr Smith says that Mr Wood, who appeared to have just arrived, immediately invited him into the meeting, giving Mr Smith no indication of why Mr Wood was there. Mr Wood says that he told Mr Smith he was there to represent his interests and to give him advice. He says he told Mr Smith that there would be allegations made, that Mr Smith should listen to them and not say anything if he wasn't comfortable. If Mr Smith felt uncomfortable at any stage then they should withdraw from the meeting to discuss the position. I note that Mr Wood gave evidence in similar terms about his later advice to Mr Stevens. I accept that Mr Wood had little time to talk to Mr Smith before the meeting and that, in the circumstances, his advice left Mr Smith somewhat confused about what was happening and what Mr Wood's role was. The meeting began at about 9.05am. Mr Edwards introduced everyone present. They were Mr Edwards, Mr Smith, Mr Wood, Mr Peter Blood (Frankston's Human Resources Manager) and Ms Angela Cecil (an ASU shop steward at Frankston). Notes were taken of the meeting; a typed version of these notes was tendered into evidence. Mr Edwards began the meeting by giving Mr Smith a document setting out a written allegation, and warning him that the allegation, if substantiated, would constitute serious misconduct and could lead to the termination of his employment. The allegation was as follows: "Timothy John Smith,... It is alleged that in the Frankston Magistrate's Court on 30 March 1995 before Magistrate White you gave evidence in the prosecution of Mr Kevin B Seamer in relation to Parking Infringement Notice No. 172273 when you were not a party in relation to the reporting or witnessing of the offence which allegedly occurred on 20 October 1993." Mr Edwards says that Mr Smith didn't express surprise. Mr Edwards formed the view that Mr Smith knew about the issues raised by the allegation. However, Mr Wood says that Mr Smith did express some surprise. Given the nature of Mr Smith's subsequent participation in the meeting, I am satisfied that he was able to identify and recall the particular occasion, about nine months before, when he gave the evidence which was the subject of the allegation. Mr Smith's Initial Response Mr Smith's response was that he had attended court on 30 March 1995 and given evidence in relation to the parking infringement notice referred to in the allegation ("the PIN") even though he had not issued it, because he was present and had witnessed the PIN being written up and issued by another local laws officer. He recalled other occasions when evidence of this kind had been given. Mr Edwards advised Mr Smith that Mr Peter Sambell, the local laws officer who had issued the PIN, had stated that Mr Smith was not present when the PIN was written out and issued. Mr Smith said he believed he had met casually with Mr Sambell at the time the vehicle was booked. He claimed that it wasn't uncommon to "bump into" other officers in the course of a day's duties. Mr Smith was shown a copy of the fortnightly local laws staffing roster which included Wednesday 20 October 1993, the day on which the PIN was issued. "Peter" (Sambell) is marked on the roster as working on that day in Area "15" where the PIN was issued. Area 15 is part of what is known as the North Car Park. Significantly, "Tim" (Smith) is marked as having an "RDO" (or rostered day off) on Wednesday 20 October 1993. Mr Smith continued to maintain that he witnessed the PIN being issued on Wednesday 20 October 1993. He told Mr Edwards that rostered days off were not necessarily taken in accordance with the roster. Certainly, some of the other employees also marked on the roster as having "RDOs" have written "saved" near the word "RDO", apparently indicating that they had not taken the rostered day off. However, Mr Smith had not written anything. He told Mr Edwards that rostered days off were not always shown as reserved or "saved" on the roster when were not taken. The adjourning of rostered days off was, he said, recorded on records other than the roster, which he called RDO "slips". There was discussion of how and why Mr Smith remembered the issuing of this particular PIN. Mr Smith told Mr Edwards that he issued about fifteen PINs each day on average and agreed that, in order to recall a particular vehicle for a court hearing, he would have had to review the PIN before it went to court. Mr Smith was shown a copy of the relevant PIN. The details completed on the notice, No. G172273, indicated that it was completed by Mr Peter Sambell, another of Frankston's local laws officers, at 11.20am on Wednesday 20 October 1993 with regard to a silver Holden sedan, bearing the registration "AVW932" for "Failure to display a valid ticket". A further note at the bottom of the office copy of the PIN recorded that car had later been moved, that the PIN left on it had been removed, and that there was still no ticket visible. Mr Edwards noted that the PIN was signed by Mr Sambell. Mr Smith agreed that there was no indication on the notice of Mr Smith's presence. Mr Smith maintained that the absence of his initials from notice was not conclusive. He disputed that it would have been usual for Mr Sambell to make a note on the PIN if another officer was present at the time it was written. When he saw the PIN Mr Smith claimed that the registration number of the motor vehicle was vaguely familiar. He said it "rang a bell" Part-way through the meeting, at about 9.30am, Mr Wood had asked that the meeting be adjourned so that he and Mr Smith would have an opportunity to examine the records of rostered days off in the local laws office. Mr Smith, Mr Wood and Mr Blood searched the office for additional records. Mr Smith disputes that Mr Blood was present. This was not put to Mr Blood, and nothing turns on it. I accept, however, Mr Blood's evidence that he was present for at least part of the search, it being more likely that Mr Smith has forgotten his participation. Mr Smith led the search, which was not restricted in any way. Mr Wood and Mr Blood were able to offer little assistance, not being familiar with the relevant documentation nor the filing system. They looked for roster documents. Mr Smith says that he initially looked at files maintained by Mr Norman Frazer ("Mr Frazer"), one of the senior local laws officers, but they did not go back far enough. However, Mr Arthur Jackson, the other senior local laws officer and one of the ASU shop stewards, was then able to immediately locate the roster documents for the relevant period. Mr Smith later regarded this as suspicious. Mr Blood recalls that they found many other slips for saved rostered days off, but none was found to show that Mr Smith had saved the rostered day off on Wednesday 20 October 1993. Mr Wood suggests they also looked to see if Mr Smith had issued any PINs on 20 October 1993. They were again unsuccessful. When the meeting resumed at about 9.55am, Mr Smith told Mr Edwards that they could find no evidence of the rostered day off having been saved. Mr Smith reiterated that he believed he had been present when the PIN was issued, but said that if he wasn't, then it was a genuine mistake on his part. Mr Smith then referred to his ten years' service with the transit police and said he would not have jeopardised his reputation by giving evidence if he were not a witness to the PIN being issued. He suggested that Mr Sambell might be mistaken in his statement that Mr Smith wasn't present. Mr Edwards offered Mr Smith more time to consider the issues or to look for the records he was seeking. Mr Smith agreed to resume discussions at 4.00pm. Mr Edwards invited him to bring forward any further information he could find.