Industrial Relations Commission of New South Wales CITATION : Zattin v Waterways Authority of NSW [2002] NSWIRComm 212 PARTIES : Anthony David Zattin Waterways Authority of NSW FILE NUMBER: IRC 6857 of 2001 CORAM: Grayson DP Whether dismissal harsh unjust or unfair - whether misconduct proved by employer to reasonable satisfaction of tribunal - weight to be given to expert opinion - findings on credit - adequate opportunity to understand and answer allegations CATCHWORDS : Held, allegations of misconduct proved - respondent's evidence preferred - document's relied upon by applicant not authentic - procedural fairness afforded - dismissal not harsh, unreasonable or unjust - application dismissed LEGISLATION CITED : Industrial Relations Act 1996 Barrett v Crown Street Women's Hospital, Re [1947] AR (NSW) 565 Bigg and Another v NSW Police Service (1998) 80 IR 434 Briginshaw v Briginshaw (1938) 60 CLR 336 Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 Homebush Abbatoir, Re [1966] AR (NSW) 386 Jones v Dunkel (1958-1959) 101 CLR 298 CASES CITED : Municipal Employees, Greater Newcastle (Wages Division) Award, Re [1949] AR (NSW) 868 North v Television Corporation Ltd [1976] 11 ALR 599 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gatrell White [No.3] (1990) 35 IR 70 Rejfek v McElroy (1964-65) 112 CLR 517 Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35 WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Williams v Printers Trade Services (1984) 7 IR 82 HEARING DATES: 03/13/2002; 03/14/2002; 03/15/2002; 05/13/2002; 05/14/2002; 05/15/2002; 07/08/2002 DATE OF JUDGMENT: 08/29/2002 APPLICANT Mr A Daly - solicitor Solicitors - Adrian Daly Solicitor & Attorney LEGAL REPRESENTATIVES: RESPONDENT Ms T J Anderson of counsel Instructed by - Waterways Authority of NSW JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: Grayson, DP Thursday, 29 August 2002 Matter No IRC 6857 of 2001 ANTHONY DAVID ZATTIN v WATERWAYS AUTHORITY OF NSW Application by Anthony David Zattin re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 212 1 Anthony David Zattin (the applicant) seeks relief pursuant to s84 of the Industrial Relations Act 1996 (the Act). In so doing he asks for reinstatement to the position of boating services officer from which he was dismissed on 4 October 2001, or in the alternative, monetary compensation. 2 The letter of dismissal provided to the applicant indicated firstly, that the chief executive officer of the Waterways Authority (the respondent), had formed the view that two allegations had been proven against the applicant namely: i. that on 15 June 2000 he had unlawfully removed $204.50 from the Nowra Service Centre; ii. that on 19 February 2001 he had unlawfully removed $262.45 from the Nowra Service Centre. 3 The letter further indicated that, the chief executive officer of the respondent had also formed the view, that the applicant had improperly removed $310 from the Nowra Service Centre between close of business on 12 April 2001 and 8.15am on 19 April 2001. 4 Following the applicant's dismissal further instances of alleged misconduct came to the respondent's notice, which at the direction of the Commission, were particularised to the applicant through his legal representative in late November 2001. 5 The further instances of alleged misconduct may be set out conveniently in short form as follows: i. that on 6 March 2001 the applicant collected the sum of $99 from a person as payment for a boating licence test and a boating licence but failed to give that money to the respondent; ii. that on 12 May 2001 the applicant collected the sum of $99 from a person as payment for a boating licence but failed to give that money to the respondent; iii. that on 15 October 2001, the applicant sent an email to the respondent's general manager operations falsely stating that he had not sent an email to another employee of the respondent at 7.24pm on 9 October 2001; iv. that the applicant created or caused to be created two documents which he falsely stated had been signed and sent to him by facsimile transmission on 20 February 2001 and 13 March 2001 by the then acting regional manger of the respondent's South Coast Region. 6 Subsequent to the above additional allegations being particularised to the applicant's legal representatives in late November 2001, the respondent became aware of and relied upon, two further incidents in December 1999 and January 2000 where the applicant collected money on the respondent's behalf but failed to give that money to the respondent. 7 The applicant denies each of the allegations against him and steadfastly maintained throughout the respondent's exhaustive investigations and the protracted and lengthy hearing of the matter, that he has been wrongly accused by the respondent and is thus deserving of reinstatement to his former position. 8 It is well settled at law that whilst the applicant in proceedings such as this bears the onus of establishing that the intervention of the Commission is warranted (see Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273; Bigg v NSW Police Service (1998) 80 IR 434; Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565 for example), there is a subtle shift of onus to the respondent where, as here, there are allegations of serious and wilful misconduct raised against the dismissed employee. 9 In Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gatrell White [No.3] (1990) 35 IR 70 at 83-84, Hungerford J expressed it this way: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital Crown Street [1947] AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949] AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 and Homebush Abbatoir [1966] AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidenciary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 at 552, 553; North v Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. 10 The respondent in this case accepts that it bears the legal burden of which Hungerford J spoke in Pastrycooks above, and in so doing accepts that it must discharge that burden to the reasonable satisfaction of the Commission. 11 In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J as he then was, said (at 361-362): The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this had led to attempts to define exactly the certainty required by the law for various purposes. Fortunately however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which might affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 12 More recently in Rejfek v McElroy (1964-65) 112 CLR 517, the High Court of Australia in a joint judgment, confirmed that the degree of satisfaction for which the civil standard calls is necessarily circumscribed in the following way (521-522): But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and had not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to support the conviction upon a criminal charge. 13 I am bound to say at this point, after careful consideration of the totality of the evidence and the submissions of Mr Daly for the applicant, and Ms Anderson for the respondent, that the case against the applicant is overwhelming and I cannot in good conscience find in the applicant's favour in one of the numerous allegations he defends. 14 In saying that, it might appropriately be observed as to the allegations involving cash handling, that the respondent's case does not expressly assert theft, or in other words, inherently criminal misconduct, although by inference a subtle distinction is drawn between that and the notion of unlawful removal of money, as it was expressed in the letter of dismissal, for example. 15 Be that as it may, the applicant's defence of each of the allegations is characterised by categorical denial in a way which, on any reasonable view, is difficult to understand given the evidence against him and it is fair to say, I think, on the evidence as it stands, that were it not for such obdurate resistance on his part of what appears to me to be a series of irresistible allegations, it may well be that the employment relationship which ended on 4 October 2001, although strained, may well have been capable of repair. 16 In respect of the allegations that he unlawfully removed $204.50 from the Nowra Service Centre on 15 June 2000, the applicant admits receiving payments from various persons totalling that amount but claims that he was forced to issue those persons with manual, or Kalamazoo, receipts because of the technical failure at the time of those transactions which prevented him from processing the transactions through the computerised cash register system. 17 The applicant said, however, that he placed the money with the day's takings and it was later banked and further, that he spoke to Ms Tanya Lymant, at the Help Desk and reported the cash register malfunction. 18 As with other allegations, the respondent called detailed evidence in rebuttal of the applicant's explanation, which clearly demonstrated the improbability, and in certain aspects, the implausibility of the applicant's explanation. 19 For example, Ms Lymant gave unchallenged evidence that she was absent on sick leave the day the applicant said he spoke to her. Ms Waddington deposed that the respondent's computerised transaction records suggest that the Nowra Office cash register operated normally with no "freezing" or other malfunction on 15 June 2000, with normal times shown for transaction and with an unbroken sequence of receipts. The evidence revealed further that if the money collected that day by the applicant had been placed in the cash drawer and banked, as the applicant had said, then the banking could not have balanced, as it did. 20 The applicant's attempts to extricate himself from his difficulty in this regard by attempting to portray himself as being untrained in, or insufficiently familiar with proper cash handling procedures, to my mind have a hollow ring to them given his eventual concession that he could have received instruction from Ms Searl. Furthermore, Ms Searl gave evidence which I accept, that she actually trained the applicant in office procedures when he was recruited by the respondent. 21 In respect of the allegation that he unlawfully removed $262.45 from the Nowra Service Centre on 19 February 2001, the applicant admitted receiving five payments from various persons totalling that amount on that day. I might interpose here that it would be difficult for him to do otherwise than so admit because the persons who gave him the money on this and other occasions, justifiably complained later on when they received demands from the Waterways Authority for boating registrations or licenses they had in fact renewed by payment to the applicant in his role as a boating services officer. 22 As these complaints were made and investigated by the respondent, a picture emerged which led to disciplinary action being taken against the applicant and ultimately to his dismissal in October 2001. 23 Returning then to the events of 19 February 2001, the applicant said he again experienced difficulties with the computerised cash register and that those difficulties caused him to again issue manual, or Kalamazoo, receipts and to lock the money away in the safe for banking at another time. He said he created handwritten explanatory notes to that effect which he placed with the transaction records, otherwise called the "batching" for that day. 24 Ms Margie Byrne, a customer service officer in the Nowra Office, became concerned and on 30 April 2001 sought advice from Ms Searl in Wollongong about complaints she received from persons whose licenses had ostensibly been renewed by the applicant on 19 February 2001 and who, as earlier noted, were getting reminders from the respondent. She was asked to check the "batching" for 19 February 2001 and on this occasion discovered a handwritten explanatory note, said by the applicant to have been placed there on the day. She had a similar experience when she went yet again to the batching of 19 February 2001 and this time discovered a second handwritten explanatory note from the applicant. 25 Ms Byrne was adamant that neither of the handwritten notes, said by the applicant to have been created and placed in the batching on 19 February 2001, were there when she first went to the batching. I accept that. 26 Following Ms Byrne's contact with Ms Searl on 30 April 2001 and the provision of details of the five transactions for 19 February 2001, Ms Searl contacted the applicant and sought an explanation. The applicant is said by Ms Searl to have told her that, the computer had gone down that day and that he put the money received in the safe. Later on 30 April 2001, the applicant contacted Ms Searl and said he had processed the payments in question, meaning as I understood the evidence, that he told Ms Searl the five payments had been entered onto the computer records. 27 On 1 May 2001, Ms Searl alerted the respondent's regional manager, Mr Whitmore, to the events described above and then went to the computer record (known as Waterways Authority License and Registration On-Line System, or by the acronym WALROS) to check whether the applicant had done as he said. She found that one of the payments had not been processed and directed the applicant to present himself without delay to the Wollongong Office for the purpose of rectifying the discrepancy. 28 The applicant came to Wollongong with the missing payment and also with one of the two handwritten explanatory notes to which Ms Byrne referred in her evidence. Like Ms Byrne, Ms Searl had not seen the note before 1 May 2001, and the question how and when those handwritten notes were created is simply left at large given, as I am comfortably satisfied, that they were not in the batching for 19 February 2001 when it was first examined by Mr Byrne. 29 The applicant's attempts throughout the lengthy investigative process conducted by the respondent, and throughout the hearing of this matter, to explain his failure to process the five payments by reference to computer failure, inadvertence, unfamiliarity with or inadequate instruction in cash handling procedures, left a considerable amount to be desired as I view the evidence. 30 The version of events proffered by the applicant was, as Ms Anderson was quick to point out, riddled with inconsistency and implausibility and as with other evidence which emerged in the course of these proceedings, is strongly suggestive of attempts on the applicant's part to go to unusually elaborate attempts to obscure the truth. 31 I note before moving to the next allegation, that Ms Waddington's evidence, by reference to the respondent's computerised transaction records, indicates as on the earlier occasion, that the Nowra Office cash register operated normally with no "freezing" or other malfunction on 19 February 2001. 32 In respect of the allegation that he improperly removed $310 from the Nowra Office, Ms Byrne said the applicant arrived at the office on 19 April 2001 and handed her $320, which he said he had given to the butcher next door for change. Ms Byrne said that she checked the till and found it was $310 short whereupon she returned $10 to the applicant and replenished the till with the remainder. She later checked with the butcher who said he had never received change from the respondent's Nowra Office. She then reported the incident to her superiors in Wollongong. 33 The applicant said he attended the Nowra Office on a day during the Easter break in April 2001 and whilst there, on his own, a man in a leather apron knocked on the door and asked for change. The applicant said he obliged and immediately replaced the respondent's money with the money he had been given by the man in the leather apron. He denied handing Ms Byrne money on 19 April 2001 and in so doing, places the tribunal again in the position of preferring one version of events to the exclusion of the other. No motive was put to Ms Byrne to invent her testimony and she appeared to me throughout the course of robust cross-examination by Mr Daly, to be a candid and truthful witness, willing where appropriate to make concessions but at the same time steadfastly maintaining that the applicant came into the Nowra Office and handed her money on 19 April 2001. I accept that, and in so doing, consider the evidenciary conflict as to the precise time of the applicant's arrival at the Nowra Office that day, and a number of other matters surrounding this particular allegation, to be unhelpful to the applicant. 34 The plain facts are, again as Ms Anderson is quick to point out, that notwithstanding ample opportunity throughout the lengthy hearing, there was no attempt by the applicant to locate the man in the leather apron and to call him as a witness or to otherwise corroborate his version of events, in spite of the fact that he was squarely challenged in this and other respects. I am again seized of the implausibility of his evidence. 35 The allegation that the applicant failed to give the respondent money he collected from four other persons, as earlier observed, was particularised to the applicant through his legal representative after the applicant had been dismissed and after he had commenced proceedings here. For convenience, the allegations may be briefly described as similar in nature to those earlier described save for the fact, as the applicant would have it, that money he collected from the four persons concerned would have been handed over to Ms Byrne in the Nowra Office or to her predecessor for processing. 36 Ms Byrne was taken in evidence to each of the transactions she was allegedly asked by the applicant to process and categorically denied that any such request had been made of her. She pointed out in the case of one of the transactions that it pre-dated her employment with the respondent. 37 Simply put, the applicant's evidence again lacks credibility and as Ms Anderson submits, his preparedness to infer that Ms Byrne and/or a previous customer services officer at Nowra are in some way responsible for a failure to account for the money in question, demonstrates an unprincipled willingness to direct blame at others to escape the consequences of his own actions. 38 The applicant's credit is further damaged, in my opinion, by the remaining two allegations which he steadfastly denied. 39 The first of those allegations, which may be described as neutrally as I can, as of lesser concern to the respondent than the second allegation, involves an uncomplimentary email allegedly sent by the applicant to Ms Byrne on 9 October 2001. The email among things asserts that Ms Byrne told lies, which "affected my employment", and that she failed to inform the respondent of her own alleged misconduct. 40 The applicant admits that the e-mail concerned carries his private e-mail address. Ms Wyborn, a colleague of the applicant's from the Narooma Office, deposed that the applicant had called her the day after the matter was before the Commission for preliminary hearing on 1 November 2001, and mentioned among other things, a letter he had received from the respondent warning him about contacting its employees. Ms Wyborn recalled the applicant telling her in that context, that he had sent an e-mail of the type in question to Ms Byrne. 41 The applicant said when taken to this matter in cross-examination that he told Ms Wyborn that he had been accused of sending the e-mail, not that he had sent it. If it be a simple matter of misunderstanding on Ms Wyborn's part of what the applicant said to her in that regard, it was open to the applicant to require Ms Wyborn for cross-examination in relation to her statement. The fact that Ms Wyborn was not required for cross-examination, as well as the fact that she documented the conversation shortly after it took place, adds weight to her evidence and leads me to accept it in preference to the applicant's. 42 In that same telephone conversation, Ms Wyborn said and the applicant again denied, that he alluded to matters which occurred the previous day in proceedings before the Commission. The matters to which he alluded and I accept that he did, gave rise after considerable investigation by the respondent to the final allegation against him in circumstances to which I will now turn. 43 At the preliminary hearing before the Commission in Wollongong on 1 November 2001, the applicant produced two documents which, to say the least, took the respondent somewhat by surprise. The two documents were said by the applicant to be true and correct copies of memoranda sent to him by facsimile transmission on 20 February 2001 and 13 March 2001 by Mr S Black, who was at the time, acting in the position of Regional Manager of the respondent's South Coast Region. 44 The documents which later became annexures to the applicant's affidavit, purport to acknowledge the cash register malfunction in February 2001, as well as the applicant's adherence to cash handling procedures and the issuing of appropriate receipts at the time. The documents further purport to indicate an intention on Mr Black's part to send office manager, Ms Bell, to Nowra to assist the applicant with instruction as to what he should do in case such problems recur. 45 The memorandum of 13 March 2001 purports to acknowledge a telephone conversation between Mr Black and the applicant and a discussion Mr Black had with Ms Bell about delays in the processing of payments left by the applicant in the Nowra Office safe. It further purports to again acknowledge that the applicant followed correct cash handling procedures and that either Ms Bell or her colleague, Ms Searl, had been requested to travel to Nowra as a matter of urgency to instruct the applicant in what to do. 46 The applicant said the copies of the two documents were contained in a sealed envelope with which he was provided and which also contained transcript of his first disciplinary interview in August 2001. 47 On the face of it, the memoranda or rather their contents, afford the applicant a much needed element of corroboration in respect of the allegation that he unlawfully removed money from the Nowra Office on 19 February 2001 and on that basis, form a critical part of his defence of the allegation. The only problem, and one which creates an insuperable hurdle for the applicant, is that the memoranda in all probability are not authentic documents. 48 Mr B Paulsen who was at the relevant time, Manager Special Events, was appointed by the respondent in about July 2001 to conduct an investigation into cash handling at the Nowra Office following an audit report obtained from Price Waterhouse Coopers. 49 In his capacity as investigator, Mr Paulsen interviewed the applicant on two occasions. He interviewed Ms Byrne once and he also collected numerous documents of significance to the investigation. Mr Paulsen was adamant that at no stage had he been provided by the applicant or anyone else, with the memoranda in question, that at no stage had he provided the applicant with such memoranda in a sealed envelope or otherwise, and that the first time he saw the memoranda was when the applicant produced them at the preliminary hearing before the Commission on 1 November 2001. 50 Although he identified the signatures as his, Mr Black said he did not write either memorandum, he did not sign either memorandum and he did not send either memorandum to the applicant. Furthermore, he denied having any conversations with the applicant or Ms Bell about the processing of payments in the Nowra Office on 19 February 2001. 51 Mr Black said his first name "Stephen" was misspelt as "Steve" on the questioned documents and that it was not his practice to entitle himself "A/RM" (for acting regional manager), as the documents do. 52 Mr S Dubedat, who describes himself as a handwriting and questioned document examiner, was provided with copies of the two documents in various stages of reproduction and by a technical method which is described in detail in his three comprehensive reports, and need not be recited here, he concluded as follows: For these reasons, I have no doubt that documents Q3 to Q5 do not represent what they purport to be, and would highly recommend that no reliance be placed on the authenticity of these documents. 53 Mr Dubedat's methodology and conclusions were unshaken in lengthy cross-examination by Mr Daly for the applicant, and Mr Daly's most proper concession in the course of argument as to the weight which would be given to Mr Dubedat's expert opinion in the absence of an expert opinion to the contrary, in addition to the applicant's failure to adduce expert evidence, compels an inference of the type referred to by the High Court of Australia in Jones v Dunkel (1958-1959) 101 CLR 298. 54 In all the circumstances, I am comfortably satisfied that the allegations against the applicant have been made out and that he misconducted himself in a manner which justified his dismissal from the respondent's employ. I am not persuaded, notwithstanding the earnest contentions of Mr Daly to this effect, that the applicant was denied the opportunity at any stage of the investigatory or disciplinary processes or at any stage in the proceedings before the Commission, of knowing what was alleged against him or of preparing the defence of his choosing. 55 I am not persuaded that the actions of the respondent in dismissing the applicant on 4 October 2001 were harsh, unreasonable or unjust, and I cannot in good conscience, find a basis for the Commission's intervention. The application before the Commission is accordingly dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.