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. The Allegation Against Mr Stevens After interviewing Mr Smith, Mr Edwards arranged to have Mr Stevens called in to a similar meeting, with the same attendees save for Mr Smith. Mr Stevens was somewhat bewildered when he arrived for the meeting, having been called out of court, where he says he had about 30 cases on, by Mr Frazer and another Frankston officer. He had been told that Mr Edwards wanted to discuss some serious matters, and that he was entitled to be represented at the discussions. After Mr Stevens waited outside the office on his own for a few minutes, Mr Wood came out and told him that he was going to be interviewed in relation to an allegation and that he should listen carefully. The interview began at about 10.10am. Notes were again taken. Mr Edwards again began the meeting by giving Mr Stevens 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: "Stuart Anton Stevens,... It is alleged that in the Frankston Magistrate's Court on 30 March 1995 before Magistrates White, on behalf of the Frankston City Council, you prosecuted Mr Kevin B Seamer in relation to Parking Infringement Notice No. 172273 using Mr Timothy John Smith to give evidence on the matter when you knew, or should have known, that he was not a party in relation to the reporting or witnessing of the offence which is alleged to have occurred on 20 October 1993." Mr Edwards says that, like Mr Smith, Mr Stevens at no stage expressed surprise. Mr Edwards similarly formed the view that Mr Stevens knew about the issues raised by the allegation. Again, Mr Wood's recollection is somewhat different, in that he says Mr Stevens appeared somewhat stunned by the process. However, Ms Cecil, the AWU shop steward, says that it appeared to her that both Mr Stevens and Mr Smith understood what they were being accused of. Mr Stevens' Initial Opportunity to Defend Himself Mr Stevens denied that he had done anything illegal. He said that "I go on what is put in front of me". I take him to have meant by this that if, in fact, Mr Smith did not witness the parking offence, then Mr Stevens would not have prosecuted unless he had been led to believe that Mr Smith had witnessed the offence. Mr Stevens said that the form of Mr Smith's evidence would have been that he was in company with Mr Sambell when the PIN was written out. Mr Stevens told Mr Edwards, in response to his query, that parking prosecutions proceed to court four or five times a year where the witness is not the informant but was present when the PIN was written out. He added that the evidentiary record that a witness was present is usually the initials of the witness on the office copy of the PIN. Mr Edwards showed Mr Stevens some documents which would have formed part of the prosecution brief, including the PIN. Mr Stevens acknowledged that there was no notation on the PIN that Mr Smith had been present. In view of Mr Stevens' statement that "I go on what is put in front of me", Mr Edwards asked him how he knew that Mr Smith was a witness to the offence when there was no notation on the office copy of the PIN to that effect and how it was Mr Smith came to be in the witness box. Mr Stevens said that he must have been aware that Mr Smith was present but he couldn't say how he was aware. He reiterated that it was usual for a witnessing officer to either sign or initial the office copy of the PIN. He said he may have become aware informally. Mr Edwards adjourned the meeting to 4.00pm that afternoon, but offered Mr Stevens the opportunity to put before him any additional information that came to hand in the interim. The meeting concluded at about 10.40pm. Mr Wood says that Mr Stevens seemed exasperated immediately after the meeting. He asked Mr Wood what his options were. Mr Wood said he didn't think there were too many. Mr Stevens queried whether they were trying to get him to resign. Mr Wood said he could find out. Mr Stevens agreed that Mr Wood should raise the matter with Mr Edwards. Mr Wood returned to Mr Edwards' office and asked him whether Frankston would accept Mr Stevens' resignation. Mr Edwards gave a non-committal response, saying that he would reserve his view on the matter. Mr Wood relayed Mr Edwards' response to Mr Stevens, who indicated that he was not interested in resigning, but would fight the allegation. Further Opportunities to Respond Mr Stevens and Mr Smith went over some of the issues with Mr Wood that morning after the meetings. Mr Wood recalls Mr Smith confirming that he would have been present when the PIN was written or he wouldn't have given the evidence. Mr Smith recalls Mr Wood advising that unless he could find proof that he was there, Mr Woods thought they were, to put it euphemistically, in serious trouble. Mr Stevens mentioned to Mr Wood that he believed that some of the records were missing. Mr Woods says he wasn't sure which they were. Mr Stevens says that he was aware that part of the prosecution brief was missing. Mr Stevens says that he and Mr Smith searched in his office and in the filing section for a copy of the full brief. He could not find the envelope containing the briefs for 30 March 1995. Mr Wood recalls Mr Stevens saying that he might have some records at home. Mr Stevens denies this, but Mr Wood was adamant on this point in cross-examination. Interestingly, Mr Blood also recalls someone talking about something being at home, though this must have been at another time, as Mr Blood was not present for these discussions. While this discrepancy in the evidence is intriguing, given other evidence of documents going missing and then reappearing, I have not been able to attribute any significance to it. Finally, Mr Wood recalls Mr Smith and Mr Stevens discussing who might be trying to "set them up". Mr Wood then left to attend to a commitment with another council. For the rest of the day, Mr Smith and Mr Stevens had the opportunity to discuss together their recollections of the circumstances of the prosecution, how it was that Mr Smith recalled being present to witness the issuing of the PIN and how it was that Mr Stevens came to call Mr Smith to give evidence. Mr Stevens says spoke to his wife in the interim and made various other telephone calls and searches, of which he gave little detail in his evidence. Mr Wood returned before the meeting was scheduled to resume and had a brief conversation with Mr Smith and Mr Stevens. They indicated they had not found any further evidence. They insisted on going in to the meeting together. At about 4.00pm, Mr Smith, Mr Stevens and Mr Wood again met with Mr Edwards. Ms Cecil and Mr Blood were also present. Mr Edwards invited them to raise anything they wished to add to the earlier discussions. While they initially responded that they hadn't anything to add, in the subsequent discussions a number of matters were raised. Mr Smith reiterated that he believed he had not done anything wrong. While he conceded that the evidence he gave could have been a mistake, that possibility was not given any prominence in the discussions. Mr Stevens said he had nothing to hide as he also hadn't done anything wrong. Mr Stevens noted that Mr Seamer and the vehicle in question had also been the subject of further cases, so that there would have been more than one PIN issued against him. More generally, Mr Smith said he believed the allegations were unfounded and that it was a "witch hunt". Mr Stevens expressed a suspicion that the making of the allegations was related to a former deputy of his, Mr Des Butts, who had left Frankston three years ago but whom he said had been in the local laws office a great deal in the past six months. Mr Smith expressed concern about the delay in raising the allegations, and wanted to know who had brought them to Mr Edwards. Mr Edwards would not say. They asked on a number of occasions for copies of any statements Mr Edwards had from other staff in connection with the allegations. Mr Edwards said he had no such statements. Mr Smith also asked to see the original of the roster sheet; the original was tendered into evidence and shows no signs of alteration. There is no allegation that it has been altered. At 4.30pm, there was a further twenty five minute adjournment at Mr Wood's request. Mr Wood again told Mr Smith and Mr Stevens that, in his opinion, they were in serious trouble. He told them he thought they were going to be dismissed. They agreed, however, that there was not much they could do about it. When the meeting resumed, Mr Stevens reaffirmed that he didn't believe he had done anything wrong, and that he believed that he had been "set up". He said that there were some documents missing which he believed would come to light. He says he was referring to the missing parts of the brief. Mr Smith said that if it now appeared that he had mistaken the occasion on which he had witnessed the PIN being issued, at the time he was not aware he was mistaken. He said he considered himself a good officer and believed that he had done nothing wrong. Both employees advised Mr Edwards they could supply no further information. They declined an offer of more time to look for evidence in support of their position. The Termination of Mr Smith's and Mr Stevens' Employment Mr Edwards then advised them, at about 5.00pm, that having considered their responses, he believed that in all probability the matters alleged had occurred, that they constituted serious misconduct and must lead to the termination of their services. Mr Stevens asked when the terminations would take effect, and Mr Edwards advised they would be effective immediately. Mr Blood was requested to make out the cheques to cover the relevant entitlements. After the interview had concluded, Mr Edwards prepared a letter of termination in the following terms: "Dear Mr Smith I refer to our discussions today, 11 December 1995, concerning allegations made in relation to the prosecution of Mr Kevin B Seamer for an offence recorded on Parking Infringement Notice No 172273 issued on 20 October 1993 and heard in the Frankston Magistrates Court on 30 March 1995. After full and thorough examination of all the issues, including your responses on the matter, I confirm that I find that the allegations are sustained. Accordingly, as I advised you in this morning's discussions and during our subsequent discussions later this afternoon, the actions constitute serious misconduct. In accordance with the provisions of Clause 22 of the Victorian Local Authorities Interim Award, your services with the Frankston City council are terminated forthwith. Enclosed are cheques in settlement of your entitlements...." Mr Stevens' letter was in substantially identical terms to that given to Mr Smith. Events Between the Termination and the Hearing Mr Stevens filed his application under the Act on 29 December 1995. Mr Smith filed his application on 5 January 1996. Mr Frazer, one of the senior local laws officers, says that he was asked by management in about late 1995 to search for the PINs issued in October 1993. It is not clear whether this was during Mr Edwards' investigation, or on Frankston becoming aware of the applications filed in the Court. It was more probably the former. However, Mr Frazer reported back in January 1996. It appears that in June 1994, when a new computer system was introduced, all previously issued copies of PINs which had been paid were physically destroyed. This may explain why Mr Smith was unsuccessful when he searched for the PINs on the morning of the meeting. The retained copies of unpaid PINs showed only that Mr Smith had written a PIN numbered 168144 on Thursday 14 October 1993, and had written a PIN numbered 168149 on Friday 22 October 1993. There were no retained PINs written by Mr Smith on Wednesday 20 October 1993. Mr Frazer also says that in January 1996 he was asked about the prosecution briefs for 30 March 1995. He had searched for them and initially was unable to find them. Mr Stevens had moved to the Town Planning office, when his position changed in July 1995 after the amalgamation. Mr Frazer went through a cardboard box marked "March 1995" containing briefs which he found in the town planning office. However, about four of the briefs, including that for 30 March 1995, were missing. There was no pattern to the missing briefs. He says they were later found elsewhere in the filing section, just lying around, and were provided to management. Mr Frazer says that Mr Stevens and his assistant were responsible for the filing of the briefs. The full prosecution brief for 30 March 1995 was thus provided to Mr Stevens as part of the discovery process. The roster for 30 March 1995 was also provided. The full prosecution brief was made up of: · the PIN · A letter from the Department of Justice dated 19 December 1994 advising revocation of the enforcement order · An affidavit of Mr Seamer dated 14 December 1994 · A certificate of registration for the vehicle dated 13 January 1995 · A notice from the Department of Justice stamped 1 February 1995 advising that the case was listed for mention on 15 March 1995. Mr Stevens made veiled references in his evidence to receiving information in telephone calls after his dismissal to the effect that he had been set up by his former deputy, Mr Butts, by Mr Jackson, one of the ASU shop stewards, and by Ms Jackie Praed (nee Brear), one of the local laws officers. He did not however elaborate on these claims. In particular, it was never articulated to the Court what role Mr Butts was believed to have played nor what his motive would be for conspiring against Mr Stevens. Evidence at the Hearing The Court heard the evidence of all of those present at the meetings with Mr Edwards on Monday 11 December 1995. In addition, it heard evidence from Mr Smith's fellow local laws officers Mr Peter Sambell, Ms Jackie Praed (nee Brear) and Mr Arthur Deutrom. It also heard from Mr Arthur Jackson and Mr Norman Frazer, the senior local laws officers. Mr Stevens and Mr Smith gave evidence last, having heard the evidence of all the witnesses called by Frankston. I have deliberately confined my account so far to those matters which were raised during Mr Edwards' meetings with Mr Smith and Mr Stevens, in view of their contention that they were not given an opportunity to defend themselves against the allegations made against them. However, through these witnesses, and the exhibits tendered through them, the Court heard more about the events which gave rise to the allegations, and about the manner in which the allegations were made and investigated. My findings of fact on those additional matters follow. 20 October 1993: Mr Sambell Issues the Parking Infringement Notice Mr Sambell issued the PIN on Wednesday 20 October 1993. He says he does not believe that Mr Smith was with him at the time. Mr Smith's position is that he believes he was present, and he has suggested that Mr Sambell was mistaken. Alternatively, Mr Stevens and Mr Smith have suggested that Mr Sambell is one of several people deliberately "setting them up". Counsel for the applicants has submitted that Frankston has not established that Mr Smith was on a rostered day off, because it was not possible to do so on its records. The factors pointing to a conclusion that Mr Smith did not witness the issuing of the PIN are: · Mr Sambell's evidence as to his belief that Mr Smith was not there at the time; · The lack of any notation of Mr Smith's initials on the PIN, given the evidence that a practice existed of making such notations where there was a witness to a PIN; and · The marking on the roster of the letters "RDO" against Mr Smith's name for the date on which the PIN was issued. The only factor pointing to a conclusion that Mr Smith did witness the issuing of the PIN is his own evidence as to his belief that he was there. Mr Sambell's evidence in itself is not conclusive. He concedes that he cannot recall the particular day when he wrote the PIN. I am also conscious of the fact that it is likely that, when the matter was first raised with him, he was asked whether Mr Smith was working with him when the PIN was issued. Thus he may be relying upon the exclusion of that possibility, saying that he recalls working with Mr Smith as a pair on night patrols, but that he has not worked with Mr Smith during the day in the City Centre, where the PIN was issued. Mr Smith of course has never claimed to have been working with Mr Sambell, but only to have "bumped into him" when he was writing the PIN. Mr Smith maintains that he has been with Mr Sambell a few times when he has written out PINs. Mr Sambell gave evidence that the Northern Car Park or area 15, where the PIN was issued, was the most distant parking area from the City Centre and from Frankston's local laws office. It would seem then that it was not on the way anywhere. Mr Smith, however, said in his evidence that the Northern Car Park was the only car park out of the weather. The local laws officers had time between their rounds to congregate there. Mr Smith later added that they used to smoke, and that there were only three places they could smoke. Mr Smith was the last witness. His evidence on these practices was not put to Mr Sambal, nor to any of the other witnesses who were or had been local laws officers. Nor were these matters raised with Mr Edwards during the original interviews. I do not therefore propose to place any weight upon them. Even so, were there merely a conflict between the two officers' recollections, then there would be little basis on which to conclude whose account was more probable. As for the significance of the lack of a notation on the PIN, Mr Sambell says that generally local laws officers were taught to write another officer's initials on the PIN if they were present. Mr Stevens has confirmed that this was the usual practice. Mr Sambell believes had Mr Smith been present then he would have put his initials on the PIN, though he conceded in cross-examination that he didn't do so on all PINs. Again, therefore, this factor is not in itself conclusive. The roster is perhaps the most significant single factor. Mr Sambell says that the Roster would have "saved" written on it if Mr Smith had worked on his scheduled rostered day off. Ms Praed agreed that this was the practice. The roster itself shows that some of the employees did this. Mr Smith's suggestion to Mr Edwards was that there was an alternative practice of completing "RDO slips". One might have thought that this would more likely have been an additional practice, rather than an alternative. In any event, Mr Smith could not produce a slip, for the relevant day. Thus the roster stands uncontradicted by documentary evidence. There was an at least implicit suggestion that Ms Praed or Mr Jackson may have removed such a slip from the records. Other than the attribution of motives and evidence of opportunity, there was nothing to support such a finding. Had Mr Smith been able to produce a PIN issued by him on that date, it would have been important evidence contradicting the roster. However, I have not regarded the inability to produce such a PIN as a factor telling against Mr Smith, given the gaps in the records. Then Mr Smith raised for the first time in his evidence the proposition that back in October 1993 they often didn't make any record anywhere of the fact if they worked on a rostered day off, but rather that he and Mr Stevens operated on the basis of a "gentleman's agreement". The proposition that such an arrangement existed was not even put to Mr Stevens, the penultimate witness. One would have expected any such arrangement to have been explained by Mr Smith to Mr Edwards in the course of the investigation when it became apparent that they couldn't find any documentary record that he had worked on the rostered day off, and certainly it should have been raised earlier in the hearing. It is difficult in the circumstances not to conclude that the existence of such an arrangement is a recent invention on Mr Smith's part. Finally, I should comment on the witnesses' demeanour. The assistance that demeanour can offer the Court in resolving differences in the evidence is, in my view, often over-stated. However, I was assisted on this occasion. Mr Sambell presented as a frank witness who seemed careful not to overstate his level of certainty on the matters upon which he gave evidence. In contrast, I found the manner in which Mr Smith gave his evidence on this issue unconvincing. In conclusion, while no single factor would have been conclusive, the coincidence of factors tending to establish that Mr Smith was not present when the PIN was issued lead me to find that it was considerably more probable than not that Mr Smith was not present, especially given the unconvincing nature of Mr Smith's evidence to the contrary. 15 - 30 March 1995: Mr Stevens Prepares for the Prosecution Mr Sambell applied in early February 1995 for leave covering the period from 27 March to 7 April 1995; he was going to Tasmania. His leave was approved on 16 February 1995. Mr Stevens was advised by letter on 1 February 1995 that the prosecution on the PIN was to be listed for mention in the Frankston Magistrates Court on Wednesday 15 March 1995. Mr Stevens attended on that day and the prosecution was listed for hearing and determination in the Frankston Magistrates Court on Thursday 30 March 1995. Mr Stevens returned from Court to the local laws office at around lunch time on Wednesday 15 March 1995. Mr Stevens recalls that Mr Sambell, Ms Praed, Mr Smith were also present. There is a note in Ms Praed's diary that she was to "relieve L. Scott" (Mr Stevens' assistant) from 12.30pm to 1.30pm on that day. After sitting at the computer and processing the PINs which had been finalised in Court that day, Mr Stevens announced which of the local laws officers were to be required at Court on 30 March 1995. He recalls Ms Praed noting it on the roster as he called out the names; the word "Court" is written on the roster for that day against the relevant names in Ms Praed's handwriting. Mr Sambell recalls Mr Stevens standing by the roster and saying to him "You're in Court next week". Mr Sambell said that he would be on holidays. Mr Stevens responded that he would subpoena Mr Sambell to be present if necessary. Mr Sambell answered that Mr Stevens would have to find him. He recalls that Mr Stevens was not pleased. Mr Stevens acknowledges that he was annoyed that Mr Sambell was to be on leave again. He had forgotten to take the leave details to court with him to avoid listing matters on those dates. He says he was not, however, seriously intending to subpoena Mr Sambell and says he was quite prepared to adjourn the hearing. Mr Sambell also assumed that Mr Stevens would arrange for the case to be adjourned. Mr Stevens says that it would have been a simple thing to do. Up to this point there is little dispute in the evidence. Mr Stevens' and Mr Sambell's accounts are broadly consistent. While Ms Praed does not recall any such conversation, she is less likely to recall it because she was not involved. There is circumstantial evidence to support the proposition that she was present. Mr Sambell does not recall whether Mr Smith was there. Mr Smith and Mr Stevens then went on in their evidence to recount a conversation which Mr Sambell does not recall. Mr Smith says that he was flicking through the briefs for Thursday 30 March 1995. He explained that he was a "sticky beak" in that respect. He saw the PIN, the registration number and the name - Kevin Seamer - and it seemed to jell. He says he told Mr Stevens he was there when the PIN was written by Mr Sambell. He says that Mr Stevens responded that if he was there then he could give evidence as a witness. Mr Stevens also says that Mr Smith announced that he was there that day when the PIN was issued. He says nothing else was said, and nobody said anything to dispute Mr Smith's statement, even though Mr Sambell was, according to Mr Stevens, standing beside him at the time. Mr Stevens says he doesn't recall discussing the matter any further with Mr Smith at any stage, then or later. Mr Stevens agreed that it was his usual practice to give a copy of the relevant PIN to any officer giving evidence for a prosecution a day or two before the hearing, so they had an opportunity to refresh their memory. He also agreed that having an officer who did not issue the PIN give evidence was not a usual event. Presumably having such an officer give evidence where there was no supporting notation on the PIN was even more unusual. He agrees that he would have had to satisfy himself that he could "pull it off", but says he didn't think about the lack of a notation. He doesn't know why he didn't raise it with Smith. He adds that he had other things on his mind. He points out that he was having to apply for a new position, as a result of the reorganisation, and he was going on leave soon. He concedes, with hindsight, that the decision to proceed with the prosecution relying upon Mr Smith's evidence was reckless, and that he should have handled the matter differently. Counsel for the applicants submits that there was no evidence before the Court that Mr Stevens "knew" that Mr Smith did not witness the offence, and that the only issue was whether he "should have known". I will defer consideration of this submission until I have completed my account of events. 30 March 1995: The Hearing of the Prosecution The hearing in the Frankston Magistrates Court on 30 March 1995 was attended by Mr Stevens and three of the local laws officers, namely Mr Smith, Ms Praed and Mr Deutrom. According to Ms Praed, the four of them were alone in the Court room for a time prior to the hearing, which was scheduled to begin at 10.00am. Ms Praed heard Mr Deutrom laughing at the back of the Court, and heard him speaking to Mr Smith. Exactly what was said is in dispute. Mr Stevens says he just heard the normal banter before a court hearing, and did not notice anything of significance being said. Mr Deutrom's and Mr Smith's evidence is broadly in accord. Mr Deutrom says there was some light-hearted chatter and giggling about Mr Smith taking Mr Sambell's role in the case. Mr Smith says that Mr Deutrom asked him why he was giving evidence when he wasn't there when the PIN was issued. Mr Deutrom concedes that he may have told Mr Smith "you couldn't do that because you weren't present." Mr Smith says he doesn't know why Mr Deutrom thought he wasn't present. Mr Deutrom recalls that Mr Smith responded asserting that he was there with Mr Sambell. Mr Smith recalls Mr Stevens joining him in that response. Mr Deutrom says that, in the face of those assertions, he wasn't to know otherwise. He says, however, that he had a "gut feeling" at the time that something wasn't right. Ms Praed's recollection differed. She recalls Mr Deutrom saying words like "You are kidding," "You can't do that," and "You weren't there, you were on an RDO." There are difficulties with this account. Mr Deutrom says he would not have known or remembered at that time that Mr Smith was on a rostered day off when the PIN was written some seventeen months before. It was suggested to Ms Praed that Mr Deutrom's tone of voice may have indicated that he was repeating a proposition that Mr Smith had put to him: eg "You're kidding! You were on an RDO?" However, Ms Praed says Mr Deutrom sounded as though he were making a statement, rather than asking a question. In any event, Mr Stevens "shushed" them to be quiet as others began entering the Court. It is agreed that in the course of the hearing, Mr Smith gave evidence to the effect that he was present when Mr Sambell wrote the PIN. Mr Sambell, of course, did not give evidence. The Magistrate found the case proven and ordered a fine of $30.00 with $61.00 costs. Mr Deutrom seemed a reluctant witness. His evidence was not expansive and he sometimes appeared evasive. However, I am not satisfied that he said the things Ms Praed recalls. It may be that Ms Praed's recollection has been affected by her later learning about the rostered day off. It seems clear, however, that Mr Deutrom reacted with disquiet to the proposition that Mr Smith was to give evidence on the PIN, and that Ms Praed witnessed that reaction. It is possible that Mr Deutrom's disquiet was, in a sense, misplaced. He says he had always understood that whoever signed a PIN should give evidence in connection with it. It had never to his knowledge happened otherwise. It was accepted by the parties, however, that there would have been nothing improper in Mr Smith giving evidence of witnessing the offence and the issuing of the PIN if he did in fact witness it. 30 March 1995 - December 1995: Aftermath and Delay Ms Praed says that she overheard Mr Smith, Mr Stevens and Mr Deutrom talking after they returned to the office. She says that Mr Smith and Mr Stevens were "bragging", while Mr Deutrom was "rubbishing" them, expressing incredulity and saying that it wasn't right and that it was "perjury". While Mr Smith says he doesn't recall any such "chit-chat" after court, he did not feel he was in a position to deny that it happened. Ms Praed says she was not sure at that stage whether Mr Deutrom's comments were true. She says she asked Mr Deutrom if he was serious. She says he replied that he was, that Mr Smith and Mr Stevens had perjured themselves in Court and that he was going to see Mr Norman Frazer, one of the senior local laws officers, about it. Mr Frazer's evidence suggests the timing was somewhat different. He recalls that Ms Praed and Mr Deutrom returned from Court that day before the others. He was the first person they saw. They asked him whether he had heard what Mr Smith and Mr Stevens had done; He says they couldn't wait to tell him. They went on to say that Mr Smith and Mr Stevens had decided that Mr Smith should say he was with Mr Sambell when he wrote the PIN. Mr Frazer took it that Ms Praed and Mr Deutrom believed that Mr Smith was not with Mr Sambell. His response, on the assumption that what he was being told was true, was that Mr Smith and Mr Stevens were "bloody idiots". However, Mr Frazer says that he didn't want to get involved. He was conscious that as second in charge to Mr Stevens he stood to gain if Mr Stevens' employment were affected. I might note at this point that Mr Frazer was an impressive witness, and where there are conflicts in the evidence, I would generally prefer his account. When Mr Sambell returned from leave about a week after the Court hearing, he was approached privately by Mr Arthur Jackson, who was a senior local laws officer and union shop steward. Mr Jackson asked Mr Sambell what he knew about the case, and whether Mr Smith was working with him on the day the PIN was issued. Mr Sambell answered that he had never worked with Mr Smith as a traffic officer on a weekday in the Frankston central business district. I note again in passing that Mr Smith was not claiming to have been working with Mr Sambell. Mr Sambell also recalls talking with Mr Deutrom about the matter on a couple of occasions. On the first occasion, within a week of his return, Mr Deutrom observed that Mr Stevens and Mr Smith were "bloody idiots if they've done it", echoing Mr Frazer's remark. Mr Sambell says that some time later, in casual conversation, Mr Deutrom told him that he had told Mr Smith in the Court room "you can't do that, it's perjury" and was told to shut up. Mr Deutrom says he doesn't recall taking part in any such discussions after the hearing. He conceded that there was probably innuendo about the matter "floating" around the office, and that he might have spoken about it. I found Mr Deutrom's reticence on this point coy and unconvincing. I am satisfied that he made intemperate statements to and about Mr Smith and Mr Stevens after the hearing of the sort attributed to him by other witnesses. I am not, however, able on the evidence before me to conclude whether these statements were based on a misconception, a "gut feeling" or possibly even some admission on Mr Smith's part. One issue raised against Mr Smith can be quickly dispensed with. Mr Sambell says that after his return from leave, he recalls Mr Smith at some point saying, in a joking manner while in conversation with Mr Stevens, "Yes, I'm Peter Sambell". Mr Sambell interpreted that as an indication that Mr Smith was boasting about having gone to Court to impersonate him. This sometimes suggested that Mr Sambell mistakenly believed that Mr Smith had claimed in his evidence to have issued the PIN himself. Ms Praed, however, believes this was merely Mr Smith "mucking around" and generally mimicking Mr Sambell. She does not regard it as having any relevance to the incident. I agree that this is the most likely explanation for Mr Smith's behaviour. Ms Praed's view was that it wasn't up to her to deal with the allegations; she had told both of the senior local laws officers - Mr Jackson and Mr Frazer. She says that she also spoke to the following people in the workplace: · Mr Geoff Cumming, the new Regulatory Services Manager; · Ms Sheila Vennells, the Pay Administrator; and · Ms Angela Cecil, another of the union shop stewards. As I have noted, Mr Frazer did not want to get involved. He volunteered in evidence that he wouldn't want to be relying on Ms Praed as a key witness. He recalls that Mr Jackson spoke to him in about June, but he refused to go to management with him. Mr Jackson took a continuing interest in this issue. After initially questioning Mr Sambell, he described it to Mr Sambell as a case of perjury, and told him not to talk about it, because Mr Jackson had it in hand. Mr Jackson says that he was concerned that people knew about the incident, and that the rest of them may be "dragged in on it" if they kept silent. He believed something had to be done about it. In June 1995, Ms Praed was allocated a role in the office which gave her the opportunity to check the rosters. She says she did so, at Mr Jackson's request. She found that Mr Smith was recorded as being on an rostered day off on the day the PIN was issued. She made a copy of the roster. Presumably it was at this point that Mr Jackson approached Mr Frazer about going to management. In the event, the matter seems to have rested for a time. From time to time, when Mr Sambell raised the matter with Mr Jackson, he responded that it was "progressing", and that it was with the union or in legal hands. In late October 1996, Mr Stevens and Ms Praed came into conflict over the prosecution of a dog-related offence. I will discuss this further in due course. Mr Wood, the ASU industrial officer, recalls attending a meeting at Frankston in early December 1995 with Ms Praed and two of the shop stewards, where Ms Praed raised the allegation. Mr Wood declined to hear the detail but put Ms Praed in contact with the union's solicitors. He subsequently spoke to the solicitor at Ms Praed's request. The solicitor's advice was that Ms Praed should not compound any offence, and that she had a duty to report the incident to her employer. Ms Praed confirms that she sought advice from a solicitor and also from a friend in the police force, who advised her that the conduct she described may be criminal. Mr Wood says that he advised Ms Cecil that she should accompany Ms Praed when she went to speak to Mr Edwards, to look after her interests. It was agreed that Mr Jackson should have minimal involvement, being "too close" to the matter given his role in the local laws office. Mr Wood decided to offer his services to Mr Smith and Mr Stevens. Mr Wood then warned Mr Edwards, Frankston's Chief Executive Officer, that an allegation of some seriousness about an employee may be brought before him, that Frankston should have in place a procedure for investigating such an allegation and that any employees involved should be given access to union representation. Mr Jackson recalls raising the matter first with Mr Edwards. Mr Edwards firmly disagrees with this evidence. He spoke of a later discussion with Mr Jackson and I accept that Mr Jackson may have confused the timing of that later conversation. Mr Edwards received advice from Mr Blood, Frankston's Human Resources Manager, as to the process to adopt. The proposed investigatory procedure was reduced to writing, as follows: "PROCEDURE 1. Take detailed statement from complainant. 2. Ascertain who can corroborate. 3. 3.1 Take statements from those who can or are prepared to corroborate. 3.2 Determine and check other sources to support allegations. 4. 4.1 Interview those about whom allegations are made. Offer opportunity for them to be accompanied. Record offer. 4.2 Provide copy of allegations to them if sought and record offer. 4.3 Require response to allegations within a specified time. 4.4 Advise that the allegations if made out to my satisfaction will be regarded as serious misconduct. 5. On return of those about whom allegations are made, take statement and consider carefully response: 5.1 If response acceptable the issue is terminated. 5.2 If response unacceptable, advise: (a) allegation is sustained and constitutes serious misconduct (b) invite submission as to why services should not be terminated for serious misconduct under the provisions of clause 22 of the Victorian Local Authorities Interim Award. 6. Make determination." Mr Edwards then awaited an approach. 7 December 1995: The Allegation is Made On Thursday 7 December 1995, Ms Praed approached Mr Edwards with Ms Cecil and asked to see him about a serious matter. Their meeting took place in his office at 2.00pm, in the presence of Ms Cecil and Mr Blood. Ms Praed gave Mr Edwards her account of the events at the Frankston Magistrate's Court on Thursday 30 March 1995, and the conversation in the office afterwards. Ms Praed said that Frankston's usual practice is to have the issuing officer give evidence, and not a person accompanying him. She believed the hearing should have been adjourned to another day to enable the officer who wrote the PIN to be present. Ms Praed said that she had not approached Mr Edwards earlier because she was frightened about losing her job. She claimed that Mr Stevens was vindictive. However, as part of Frankston's organisational restructuring consequent upon the merger, the position of Superintendent of Traffic and Local Laws, formerly held by Mr Stevens, was abolished. Ms Praed now answered to the newly appointed Regulation Services Manager, rather than Mr Stevens. She recounted the various people within the office she had spoken to about the matter in the interim. She gave Mr Edwards copies of the rosters showing that Mr Smith was on a rostered day off when the PIN was issued and that Mr Sambell was on leave when the matter went to court. 7 December 1995 - 11 December 1995: Investigation of Allegation Later the same day, Mr Edwards asked to see Mr Sambell. They met in his office at about 3.30pm, again in the company of Ms Cecil and Mr Blood. Mr Sambell confirmed that he was on leave when the Court hearing took place and that Mr Smith had not been working with him when he issued the PIN. He also recounted his discussion with Mr Jackson, and Mr Smith's apparent joking about impersonating him. He reviewed the rosters, and interpreted them for Mr Edwards. Mr Edwards then asked to see Mr Deutrom. They met in his office at about 5.00pm, with the same witnesses. Mr Deutrom confirmed that there was some light-hearted chatter and giggling in Court about Mr Smith taking Mr Sambell's role and conceded that he may have said "you couldn't do that because you were not present." However, he said he would not have known by the time of the Court hearing whether Mr Smith had a rostered day off on the day the PIN was issued, seventeen months earlier. He did not recall Mr Smith's evidence. Mr Deutrom then asked to discuss the matter off the record. Mr Edwards refused, being of the view that it would be inappropriate to do so in the context of a formal investigation. The meeting then ended. Mr Deutrom now says that he was merely going to say something about the fact that there was chatter in the office to the effect that perhaps Mr Smith and Mr Stevens shouldn't have done what they did. At about 9.00am on Monday 11 December 1995, Mr Edwards met with Mr Smith, as I have already detailed, and put the allegation to him. Later, at about 10.10am, he met with Mr Stevens, and put the allegation to him. At about 11.15am, after those meetings had adjourned, Mr Edwards again called Mr Sambell into his office, telling Mr Sambell that he wished to be "absolutely certain" that Mr Smith was not present when Mr Sambell wrote out the PIN. Mr Sambell responded that one generally noted another officer's presence by putting their initials on the office copy of the PIN, and he saw no such indication on the PIN in question. Mr Edwards then proceeded to his final interview with Mr Smith and Mr Stevens together, which ended with the termination of their employment. Both Mr Smith and Mr Stevens claimed in their evidence that Mr Edwards appeared to them to have already made up his mind, so that there was no point, for example, in them accepting his offer of more time to prepare a defence. Summary of Findings as to the Facts. Counsel for the applicants attacked the credibility of many of Frankston's witnesses. He contended that Mr Sambell was not on good terms with Mr Smith nor Mr Stevens. Brief evidence was led about an incident in the dog pound between Mr Smith and Mr Sambell. It was also noted that Mr Stevens had stopped Mr Sambell from accruing excessive time in lieu of overtime, which had been resulting in him accruing up to eleven weeks' leave per year. I am prepared to accept that there was some ill-feeling between Mr Sambell and the applicants. The evidence that Mr Smith was mimicking Mr Sambell in front of Mr Stevens lends some support to that proposition. However, I did not discern any tendency on Mr Sambell's part to exaggerate his evidence to their disadvantage. Counsel for the applicants also contends that Ms Praed's evidence was unreliable and was motivated by malice. There did seem to be some ill-feeling between Ms Praed and Mr Stevens. Ms Praed says that in October 1995 she was threatened with perjury by Mr Stevens in relation to a dog prosecution which hadn't even gone to court. Ms Praed, with another officer, had investigated an alleged dog attack. She asked Mr Stevens if she could be excused from giving evidence because she knew the owner of the dog. She says he threatened to summons her. She pointed out that the other officer could give the evidence. She says he responded that he didn't give a damn about anyone else, and that it was her he was after. She later described Mr Stevens to Mr Edwards as "vindictive". Ms Praed also agreed that she had been involved with an incident with a firearm in June 1992. One of the other witnesses indicated that she had pointed a loaded firearm at someone in the Council offices. The important matter is that Mr Stevens says he relayed concerns to management about working with Ms Praed after this incident. The manner in which Ms Praed gave her evidence suggested that she found it a disagreeable experience which she was determined to endure as best she could. I have been prepared to accept that the detail of her evidence of conversations has sometimes been reconstructed based upon her memory of her impressions at the time. However, I found the broad thrust of her evidence convincing, and I do not accept that it was concocted out of malice. Mr Jackson was also named as a member of the alleged conspiracy against the applicants, though his motives were less precisely identified. The delay in bringing the allegations to Mr Edwards' attention is criticised. There was, however, no cogent explanation of how such a delay would diminish the gravity of the applicants' alleged misconduct, if it were proved. If it were the case that Ms Praed or Mr Jackson were motivated by malice in eventually putting the allegation to Mr Edwards, that would not be relevant to whether the dismissals were lawful. Mr Edwards either had valid reasons to dismiss the applicants or he did not. The reason the allegation came to his attention is, in my view, beside the point. What exactly is it then that Mr Smith and Mr Stevens did, and was there, in each case, a valid reason to dismiss them? I have found that Mr Smith was not present when the PIN was issued by Mr Sambell. It follows that his evidence in the Frankston Magistrates Court to the effect that he was present when the PIN was issued was therefore incorrect. Mr Smith's consistent response has been that if he was wrong about being present when the PIN was written by Mr Sambell, then it was an honest mistake. On his account, the point at which that mistake was made was on 15 March 1995 when he says he was leafing through the prosecution briefs and claimed to Mr Stevens that he had been there when the PIN was issued. For his part, Mr Stevens' position has consistently been that he relied upon what was put before him, and that he would not have called Mr Smith as a witness if he had not believed on some basis that Mr Smith was present when the PIN was written by Mr Sambell. He now says that the basis for that belief was Mr Smith's claim on 15 March 1995 that he was there when the PIN was issued, and that the belief was reinforced by the alleged failure of Mr Sambell to dispute Mr Smith's claim. The only evidence that such a conversation took place is that of Mr Smith and Mr Stevens. It is troubling that it was raised for the first time in the course of this hearing. It is particularly troubling in Mr Stevens' case, given that Mr Edwards' central question to Mr Stevens during his investigation was "How did Mr Smith come to be in the witness box?" At the time, Mr Stevens had no specific answer. However, by the time he gave evidence in this Court, he was able to recount his conversation with Mr Smith. Mr Stevens' explanation for this anomaly is that by 11 December 1995, some nine months after the conversation is said to have occurred, he had forgotten about it. He says it was not until the discovery process, when he saw: · the roster for 30 March 1995 with the word "court" in Ms Praed's handwriting; and · the notice from the Department of Justice stamped 1 February 1995 advising that the case was listed for mention on 15 March 1995, which had been part of the original brief that he recalled the conversation. My own examination of those documents gave me no inkling as to what could have jogged Mr Stevens' memory. That is not reason enough, in itself, to dismiss Mr Stevens' explanation. Human susceptibility to quirks of memory should not be underestimated. Even so, having considered all of the evidence, I find I cannot accept Mr Smith's and Mr Stevens' evidence about the conversation and about Mr Stevens' decision as a consequence to call Mr Smith to give evidence. Mr Stevens' decision is difficult to understand, assuming the circumstances were as he contends. Mr Smith's explanation for his claim that he had witnessed the offence is that when he looked at the brief and saw the vehicle details and the name, Kevin Seamer, it "seemed to jell". The vehicle registration was familiar to him. Mr Smith says that Mr Seamer, who was a car dealer, had been a "regular" since about May 1993, and that the local laws officers had a tendency to chase the regulars. However, the ticket was written in December 1993, some 17 months before. It is difficult to accept that Mr Smith genuinely believed himself able to recall this particular PIN, especially if Mr Seamer's vehicle was the recipient of many such PINs. There was, for example, no way he could have known how many PINs Mr Sambal might have issued to him. It is still more difficult to accept that Mr Stevens, when faced with such a claim from Mr Smith, would have accepted it at face value without making some further enquiries of Mr Smith so that he could assess whether the evidence was sufficiently cogent to, as he put it, "pull off" the prosecution. I found Mr Stevens' evidence that he: · accepted Mr Smith's claim at face value; · provided him in due course with a copy of the unannotated PIN in the usual way without further comment; and · did not discuss the matter further with Mr Smith until he was in the witness box difficult to accept. Again, given the unusual nature of Mr Smith's claim and Mr Stevens' alleged proposal in response that he give evidence, I would have expected Mr Sambell to have remembered it, had he been present. It is also implausible, had Mr Sambell been present, that Mr Stevens would be content to rely on Mr Sambell's silence as confirmation of Mr Smith's claim, when it would have been easy to ask him to positively confirm it. Even allowing for the usual frailties of memory, one would have expected Mr Stevens to remember the circumstances of his decision to call Mr Smith to give evidence; the decision was, after all, very unusual, given that: · Mr Smith had not issued the PIN; · his evidence was to be instead of rather than merely in addition to that of Mr Sambell; and · there was not the usual notation of Mr Smith's presence on the PIN. Mr Stevens' evidence that he did not remember the decision is therefore somewhat implausible. Further, while one could perhaps understand Mr Stevens having a failure of recollection in the course of the first interview, perhaps due to agitation, he then had the intervening hours to reflect on the matter. More importantly, he had the opportunity in the interval to discuss the prosecution with Mr Smith. Mr Smith was asked during his evidence whether he and Mr Stevens discussed the events leading up to his giving evidence between the morning and afternoon meetings on 11 December 1995. He says he would have given his recollection of the conversation, yet it was not put to Mr Edwards at the 4.00pm meeting. Had the circumstances surrounding the decision been as Mr Smith and Mr Stevens described in their evidence, it is inexplicable that neither of them raised it with Mr Edwards at any point during Mr Edwards' investigation. Having considered this accumulation of improbabilities, I am comfortably satisfied that the conversation described by the applicants in their evidence did not take place. How then did Mr Stevens come to call Mr Smith to give evidence? I find it more probable that, after Mr Stevens' confrontation with Mr Sambell, Mr Smith privately proposed to Mr Stevens that Mr Smith give evidence that he witnessed the offence. I am satisfied that, whether or not it was made explicit, neither of them believed it to be true that Mr Smith had witnessed the offence. Mr Stevens says that he had no motive for acting improperly, because it would have been easy to adjourn the prosecution to a later date. That this course would have been readily available to him was not contested by Frankston. Even so, I am satisfied that my findings best reflect and explain the surrounding circumstances. Certainly it was a foolish decision, and represented a serious lapse of judgment on Mr Stevens' part. It was clear to me, having seen Mr Stevens' evidence, that he now profoundly regrets it. I am well satisfied however that he made that decision. Whether There was a Valid Reason for the Termination of each of Mr Smith's and Mr Stevens' Employment Section 170EDA(1)(a) confers the onus on the employer to prove, for the purposes of Section 170DE(1) of the Act, that there was a valid reason for the termination of an employee's employment connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service. In reaching my findings of fact, I have been mindful of this reversal of the usual onus, and of the relevance, given the facts of this case, of the considerations discussed by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. Frankston contend that Mr Smith's conduct, in giving evidence when he did not witness the offence, was a valid reason for the termination of his employment. I have found on the balance of probabilities that Mr Smith indeed gave evidence when he did not witness the offence, and further that he did not believe it to be true that he witnessed the offence. It was not, in other words, an honest mistake. Frankston further contend that Mr Stevens' conduct, in calling Mr Smith to give evidence when he knew, or should have known, that Mr Smith did not witness the offence, was a valid reason for the termination of his employment. I have found on the balance of probabilities that Mr Stevens indeed called Mr Smith to give evidence when he did not believe it to be true that Mr Smith witnessed the offence. Mr Edwards says that he formed the view that Mr Smith's evidence had been a deliberate misrepresentation, and that Mr Smith's and Mr Stevens' actions amounted to a conspiracy. As I have indicated, I am ready to accept that when Mr Smith proposed giving evidence that he witnessed the offence, he may not have explicitly told Mr Stevens that he had not in fact done so. Assuming there was no explicit admission, I am satisfied that Mr Stevens realised that Mr Smith's evidence would be a fiction; it is inherently implausible and Mr Smith does not claim to have said anything to explain his purported recollection. Such a realisation would also explain why Mr Stevens was careful not to make further enquiries of Mr Smith on the matter. One can imagine how Mr Smith was tempted to offer to give the evidence. Parking prosecutions are no doubt routine in nature. The evidence given by local laws officers would often be formulaic and completely reliant on the information written on the PIN at the time it was issued. No doubt they are often heard ex parte. Mr Smith may well of thought that he was as easily able to give the evidence based upon the PIN as Mr Sambell, and that in a practical sense no real injustice would flow from it, particularly given that the affidavit filed by Mr Seamer indicated that the matter in controversy was who owned the car at the relevant time, rather than whether the car was displaying a ticket. It could no doubt be rationalised as merely a matter of "cutting corners". Mr Stevens' decision to accept Mr Smith's offer was probably influenced by similar considerations. Assuming Mr Smith did not explicitly tell Mr Stevens that he had not witnessed the offence, Mr Stevens may also have taken comfort from the proposition that if Mr Smith were prepared to give false evidence, then it was not Mr Stevens' problem. Mr Edwards' view was that Frankston's credibility was at stake, and that Mr Smith and Mr Stevens were "almost officers of the Crown". With regard to Mr Smith's conduct, I have found that, more probably than not, Mr Smith knowingly gave false evidence. That is, of course, a serious matter, regardless of whether it had practical consequences in the particular prosecution. It was criminal conduct. It occurred in the course of Mr Smith's employment duties. It was likely to bring Frankston into disrepute. In the circumstances, I am well satisfied that Frankston had a valid reason for the termination of Mr Smith's employment connected with his conduct. With regard to Mr Stevens' conduct, I have found that, more probably than not, Mr Stevens called Mr Smith to give evidence when he did not believe it to be true that Mr Smith witnessed the offence. While it is possible that Mr Smith went so far as to admit that he had not witnessed the offence, I am not sufficiently satisfied of it to find that such an admission was made. Counsel for the applicant submits that in the normal course of things a prosecutor is entitled, especially in a simple matter of parking infringement, to rely upon and lead the evidence of a witness who is familiar with giving evidence in Court and knows that evidence must be truthful. He goes on to point out that an advocate cannot be liable for a witness statement which may be later found to be untrue. The analogy is, in my view, not apposite. Unlike, say, a defence lawyer in a criminal matter, Mr Stevens' obligation was not merely to present his client's case to the court as best he could. As a prosecutor, he had an obligation to his employer, if not the Court, to assess the evidence and make a preliminary determination in good faith of whether there were reasonable grounds to prosecute. It is not merely a matter of seeing whether the prosecution can "pull it off". This is particularly so where there is a strong possibility that the matter may be heard ex parte and the prosecution evidence not tested by cross-examination. I am satisfied that Mr Stevens' conduct in calling Mr Smith was not merely careless nor even merely reckless. I have found that he believed Mr Smith's evidence to be a fiction and, assuming Mr Smith did not admit as much, that Mr Stevens deliberately refrained from testing that evidence in order to preserve the fiction. Mr Smith's offer to give evidence was wrong and likely to bring Frankston into disrepute. Mr Stephens could have and should have stopped it from happening, and didn't. I find that it was improper for Mr Stevens to so conduct himself in his capacity as a prosecutor for Frankston, and that his conduct amounted to a valid reason for the termination of his employment. I am conscious that it was, on the evidence before me, a single lapse of judgment over fourteen years of service. However, it was a serious lapse, going to the core of Mr Stevens' responsibilities. At the time I handed down my orders, I was of the view that Mr Edwards' decision to terminate Mr Stevens' employment was not unfair or unreasonable so as to render invalid what would otherwise be a valid reason for dismissal. Since then, the Full Court of the Federal Court have decided 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). Any review of this decision will be heard by the Federal Court, and I am therefore bound by that decision. Mr Edwards' decision clearly falls within the narrow interpretation of "valid reason" expounded therein. Whether Mr Smith and Mr Stevens Were Given the Opportunity to Defend Themselves Against the Allegations Section 170DC of the Act provides that: "An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity." Mr Wood believed that the process employed by Frankston was a fair one. The allegations were put, and they had an opportunity to respond, including the opportunity for breaks to prepare their response. While taking into account the matters that he refers to, I place no great weight on Mr Wood's assessment. Mr Smith and Mr Stevens complain that they did not choose Mr Wood to represent them, that he did so ineffectively and that they did not trust him. I accept that Mr Wood's role in the meetings may not have been as useful to the applicants as it could have been. However, even if one were to take the view that they were unrepresented at the meetings, it does not follow that Section 170DC has been breached. They are both intelligent and articulate men, and there was no evidence that they sought alternative representation. Nor did they even express any dissatisfaction with Mr Wood at the time. Both applicants gave quite similar evidence that they felt from Mr Edwards' body language that he had made up his mind and was merely going through the motions. Certainly, Mr Edwards was following the predetermined procedure set out earlier. The procedure was, in my view, a good one. By the time Mr Edwards heard from Mr Smith and Mr Stevens, he had already heard from a series of people whose accounts tended to support the allegations. He had also seen documentary evidence. While Mr Smith and Mr Stevens denied the allegations, they raised little other relevant evidence. Assuming Mr Edwards had reached a provisional view, it did not follow that his mind was closed to other possibilities. Mr Edwards says that he did regard the apparent offer by Mr Stevens to resign, which was relayed by Mr Wood, as tending to show an acceptance of guilt. I accept that it was not intended as such. Mr Edwards says, however, that he still kept an open mind. Mr Edwards concedes that he did not disclose to Mr Smith or Mr Stevens who it was who made the assertions against them. He says it is not his practice to reveal his sources. Mr Edwards says he perceived that there was apprehension, if not fear, on the part of the people with whom he had had discussions. Ms Praed, in particular, seemed very anxious, and it was apparent to him that she regarded herself as having taken a big step in coming forward. So as not to disclose those identities, the detailed allegations as to the conversations in the Court room and on the return to the office were not raised. Nor would he accede to the requests of Mr Smith and Mr Stevens to have access to witness statements. He says he had no witness statements, merely notes of what the witnesses said. This was obviously a disingenuous response. The witness "notes" were not disclosed in an effort to protect the witnesses. These are in my view the most significant complaints raised by the applicant, especially given that Mr Edwards acknowledged that the accounts he had heard of the conversations before and after the court hearing influenced his decision. However, while the things said in the Court room and later in the office may have resulted in the matter coming to Ms Praed's and, later, to Mr Edwards' attention, they are not in my view fundamental to any finding of misconduct against Mr Smith and Mr Stevens. While Mr Deutrom's statements may conceivably have derived from admissions to him by Mr Smith, they may also have been based on mere assumption, or even on a misconception as to the propriety of a witness to an offence giving evidence in relation to another officer's PIN. While Mr Smith's and, possibly, Mr Stevens' reaction in court may have led Mr Deutrom and Ms Praed to believe that "something was not right", it is not alleged that they made any admissions, then or later. In reaching my findings, I have not had to have regard to the evidence of what took place in the Court on 30 March 1995. It has not been necessary to rely upon the evidence of Ms Praed, or anybody else. Rather I have had regard to the evidence of Mr Sambell, documentary evidence, agreed facts and the inherent implausibility of the applicants' own accounts. In putting the terms of the allegation together with the central documentation to the applicants, Frankston put to them the fundamental matters on which I have reached my findings. While Mr Edwards also took into account other matters which were not put to the applicants, I am satisfied that his decision would not have been different had he not taken those matters into account, given that they were of lesser relevance and weight. In the circumstances, I find that there has been no breach of Section 170DC. If I am wrong in that, I think it improbable that the applicants' response or Mr Edwards' decision would have been different had the witness "notes" or the matters raised in them been made available to the applicants. Mr Edwards' decision is therefore unlikely to have changed. I would therefore have awarded nominal compensation had I found a breach of Section 170DC. Conclusion Given that I have decided against him on the merits, I have refused Mr Smith's application for an extension of time within which to file his application, and the application has been dismissed. Mr Stevens' application has also been dismissed. I certify that this and the preceding twenty six (26) pages are a true copy of the reasons for decision of Judicial Registrar R.D. Farrell. Associate: Dated: 16 December 1997 APPEARANCES Counsel appearing for the applicant: Mr McDonald Solicitors for the applicant: McDonald Murholme Counsel appearing for the respondent: Mr Jackson Solicitors for the respondent: Maddock Lonie & Chisolm Dates of Hearing: 22 - 23 August, 12 - 13, 16 December 1996, 3 January 1997 Written Submissions Complete: 6 January 1997 Date of Decision: 14 October 1997 Date of Reasons: 16 December 1997