Industrial Relations Commission of New South Wales CITATION: Walton v Blacktown Council [2009] NSWIRComm 1022 APPLICANT PARTIES: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union on behalf of William Walton RESPONDENT Blacktown City Council FILE NUMBER(S): 637 of 2009 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - summary dismissal - evidentiary onus to justify summary dismissal - finding of serious and wilful misconduct based on perception of corrupt conduct - substantive basis for dismissal flawed - token corrupt conduct - punishment of dismissal disproportionate to misconduct - procedural errors - employee denied opportunity to plead case face to face with decision maker - dismissal harsh, unreasonable and unjust - reinstatement ordered. LEGISLATION CITED: Industrial Relations Act 1996 [NSW] HEARING DATES: 5, 14 and 15 May 2009 DATE OF JUDGMENT: 15 May 2009 EXTEMPORE JUDGMENT DATE : 15 May 2009 APPLICANT Mr M Barnes, solicitor with Ms M Wilson from New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union LEGAL REPRESENTATIVES: RESPONDENT Mr M Paul, solicitor from Bartier Perry with Mr D Reynolds from Blacktown Council DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 15 May 2009 Matter No IRC 637 of 2009 William Walton -v- Blacktown City Council Application by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of William Walton), re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. EXTEMPORE DECISION [2009] NSWIRComm 1022 1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 30 April 2009, by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union, (the USU), on behalf of William Walter Walton (the applicant). The respondent employer is the Blacktown City Council, (the Council). 2 The matter has proceeded to an expedited arbitration hearing conducted on 5, 14 and today, 15 May 2009. The expedited procedure has arisen as a result of related industrial dispute proceedings in matter IRC09/606. 3 The applicant is a man of 62 years of age who had been employed by the Council for almost 7 years. The applicant worked in a position described as street sweeper, mechanical broom. 4 The applicant was summarily dismissed on 24 April 2009. The applicant was provided with a letter of dismissal dated 23 April 2009. The letter of dismissal refers, inter alia, to an incident that occurred on 25 March 2009, and a subsequent investigation that resulted in the applicant making an admission that he was involved in the unauthorised collection of commercial waste during work hours and using Council plant. The letter of dismissal also refers to this unauthorised activity as providing for "…potential personal benefit". The Council concluded that the applicant's actions represented serious and wilful misconduct and he was dismissed without notice or payment in lieu of notice. 5 Importantly, the stated basis for the applicant's dismissal recorded that the applicant's actions established potential for personal benefit as opposed to any finding of actual personal benefit having been obtained by the applicant. Consequently the decision to dismiss was founded upon the actions of the applicant without regard for whether the applicant obtained any personal benefit at all, or the nature and extent of any benefit that may have been gained. 6 The applicant's work involved driving a road sweeper at nights. His shifts ordinarily started at 12:30am and involved iter alia, the mechanical road sweeping of streets primarily in industrial and commercial areas during the earlier part of the shift, and later, (for noise abatement reasons) this work was undertaken in residential streets. At about 1:30am on 25 March 2009 a member of the public videotaped the applicant emptying the contents of waste bins onto the car park roadway at a fast food outlet. The video recording shows the applicant driving the Council road sweeper over the waste in order to collect it into the sweeper. After the waste was collected the applicant was seen to re-enter the fast food outlet. 7 On 27 March the person that had videoed the applicant's activities made a complaint to the Council which asserted that the applicant had obtained a free meal after collecting the waste from the fast food outlet. The Council investigated the complaint, obtained the video recording, and then interviewed the applicant on 7 April when he was suspended from duty without pay and required to provide a written response to the allegations that he had seriously breached the Council's code of conduct. The Council also reported the incident to the Independent Commission Against Corruption (ICAC). 8 During the period that the matter was under investigation the applicant made two important requests of Council. Firstly, the applicant requested that the Council review the incident of 25 March with reference to other incidents of a similar nature, referred to as "foreign orders". Secondly, the applicant requested that he be permitted to personally plead his case to the General Manager before any decision about his employment was finalised. 9 The latter request was refused, and on 24 April the applicant was handed his dismissal letter whilst he was attending Commission proceedings for the related industrial dispute. It is unnecessary to traverse the details of the subsequent escalation of the industrial dispute for the purposes of this matter, except perhaps to note that the Commission premises might, upon reflection, not represent the most appropriate venue for implementation of a dismissal. 10 The essential element that constituted the substantive basis for the applicant's dismissal was the unauthorised collection of waste from the fast food outlet. As mentioned earlier, the Council considered that action as serious and wilful misconduct irrespective of whether or not the applicant actually obtained any personal benefit. It is also relevant to note that the Council placed importance on the discovery that the unauthorised collection of waste from the fast food outlet had been occurring for some time, perhaps up to 18 months. 11 The evidence established that the applicant was not authorised to sweep the fast food car park and the adjoining retail liquor store car park, but he did so on a regular basis. However, the evidence also revealed that these commercial car parks were swept for a logical and acceptable reason, albeit unauthorised. Rubbish from these car parks would be blown by the wind onto the surrounding streets which the applicant (and other Council street sweepers), were required to clean. Consequently the applicant (and presumably other sweeper drivers), swept these commercial car parks for legitimate and understandable operational reasons. 12 The unauthorised sweeping of commercial car parks for legitimate operational reasons would be unlikely to represent serious and wilful misconduct justifying dismissal. Of course the applicant did more than just sweep the car parks. The somewhat bizarre actions of empting the waste bins onto the ground naturally attracted the attention of the public. The actions of the applicant had the appearance of providing potential for personal gain and had occurred on multiple occasions, and this was, for the Council, sufficient to establish serious and wilful misconduct. 13 The applicant provided reasonable explanation that the most effective way of collecting the waste involved mechanically sucking it up into the sweeper. Hence he emptied the bins onto the roadway where the waste was organised into a column that the sweeper could then be driven over as it straddled the waste. The applicant's explanation for why he would even bother to empty the bins was not readily understandable. 14 The decision to dismiss the applicant was made absent any determination as to the motivation of the applicant. Instead the Council was content that the action had the potential to provide personal benefit, and it had been occurring over an extended period of time. These components were sufficient to provide the foundation for dismissal. At the time that the decision to dismiss was made the extent of any personal benefit to the applicant had not been established. It could have been one free meal, many free meals, direct money payment, or just an occasional free cup of coffee, or nothing at all. The Council found it unnecessary to establish to any level of satisfaction, just what the applicant obtained in return for his collection of the commercial waste. 15 In effect the basis for the decision to dismiss the applicant was anchored upon a finding that the action of potential corruption on multiple occasions, established serious and wilful misconduct. Essentially such an approach translates into mandatory dismissal for established action which appears to have some personal benefit that might be attached to it. Such an approach by Council might be an understandable reaction to publicity attached to the laudable pursuit to throttle corruption, however such a rigid approach will create real injustice and operate with less success in removing corruption than an approach that requires full examination and evaluation of the entire circumstances. 16 Putting the circumstances of the present case to one side for a moment; As a general practice, mandatory dismissal for proven corruption is conceivable, although not without some difficulties, as will be explained shortly. However dismissal for perceived corruption can not withstand just one moment of reasoned and logical contemplation. The manifest injustice of such a concept is astounding. Consider the numerous situations that might appear to an uniformed observer as corrupt conduct but for which a reasonable and legitimate explanation existed. Should no inquiry be required? In the employment context, such an approach translates into, sack first, and no need to ask questions later. 17 In fairness, the Council did undertake inquiries in the present circumstances. However, regrettably, the move to dismissal was made before properly establishing the nature and extent of any personal benefit and therefore reliance was placed upon the potential rather than the actual. 18 I return to the notion of a general practice of mandatory dismissal for proven corruption. Although such an approach might be popular, it has a superficial attraction. Corruption comes in different shapes and sizes, and to treat all corruption with the same penalty will not remove all corruption. Perhaps a useful example involves the hypothetical case of two employees who both used the employer's photocopy machine for personal copying. Both were established to have committed corrupt conduct, and under a mandatory dismissal practice both were dismissed. However employee A made 6 copies of the minutes of the local kindergarten management committee meeting, while employee B made 200 copies of a flyer promoting his weekend dog grooming business. Should both have been sacked? There is no capacity to even ask that question if dismissal can occur without full inquiry and evaluation of all of the relevant circumstances. 19 In the present case the Commission has had the benefit of moving beyond the potential for personal benefit and establishing what the applicant did actually gain from his rather bizarre activities on 25 March. Although the public complainant asserted that the applicant obtained a free meal after he collected the waste from the car park that assertion has proven to be baseless. The applicant went into the restaurant after removing the waste to wash his hands. The applicant is a diabetic and would not ordinarily eat fast food of the type sold at the establishment in question. However, the applicant did confess to receiving a cup of coffee at the fast food establishment at about 6:30am that same morning and for which the money that he tendered was refused. 20 The applicant made further admissions that on an irregular basis his payment for coffee at the fast food outlet would be refused. Consequently the applicant took a benefit to which he was not entitled and he acknowledged and sincerely apologised for his wrongdoing. It is puzzling and difficult to understand why the applicant went to extraordinary lengths to collect the waste that was in the bins at the restaurant. The most rational explanation seems to emerge for the applicant's sense of obligation to the young members of staff at the fast food outlet. The applicant swept the car park for operational reasons as mentioned earlier, and he extended this work to include the removal of the waste from the bins as quid pro quo for the occasional free cup of coffee. 21 In very strict terms the applicant committed corrupt conduct. However when fully disclosed and properly examined this was no more than a minor matter. The very unusual appearance of the particular conduct attracted public attention and elevated the perception of the conduct to represent a more serious issue. Unfortunately Council's decision to dismiss was based more on perception rather than on reality. The complete picture has only emerged after proper examination and evaluation of all of the relevant circumstances. Consequently the substantive basis for the applicant's dismissal was fundamentally flawed. 22 The applicant requested, inter alia, that the incident of 25 March should be assessed by reference to other cases of "foreign orders". This request was no more than a suggestion that the misconduct be evaluated in terms of it's seriousness. Unfortunately, because the Council proceeded on the basis of the perception of the incident and without full analysis, no proper evaluation of the seriousness of the conduct was undertaken. Consequently the Council erroneously elevated the misconduct to a level of seriousness than can not be confirmed. 23 The Council's code of conduct would have provided assistance if an evaluation of the seriousness of the misconduct had been carefully undertaken. In section 8.3 of the code of conduct there are a number of matters under the heading "Personal Benefit" which provide an instructive guide. Relevantly subclauses c) and d) are apposite the circumstances of this case and it would not be unreasonable to suggest that the value of the occasional cup of coffee would be no more than "token value". Consequently the applicant would not have breached subclause d) of the code of conduct. In any event, if a proper evaluation of the actual as opposed to perceived circumstances had been undertaken there would have been no valid reason for a matter of this nature to be referred to the ICAC. Frankly, the ICAC has more important matters to deal with. 24 One further issue requires mention. The decision to dismiss the applicant was made by the General Manager, Mr Moore, who was not called to give evidence. The absence of evidence from the decision maker is ordinarily problematic in one of these matters. 25 The refusal to permit the applicant to put his case in person to the General Manager is highly regrettable. It is difficult to accept that it could be reasonable or just for any employee to be dismissed without a fundamental process that included the opportunity to put a case, face to face, with the decision maker. Although the requirement for such a process is primarily derived from the notions of natural justice, it's absence can also properly infer a lack of courage to face the accused employee. If the decision maker can not, or will not, deliver the dismissal message themselves, face to face, he or she risks creating the appearance that they do not have the courage of their convictions. In addition, both the legal and ethical basis for the decision is open to manifest challenge. 26 There are some exceptional circumstances where a decision to dismiss might be appropriately taken without need to provide the employee with an opportunity to be heard, usually in person. These exceptional circumstances include cases of gross and wilful misconduct, admitted or undeniably existent, such that no further inquiry is warranted because no possible explanation or mitigation could alter the decision. It follows that the nature of the employee's transgression must be treated as being of a type and gravity that, prima facie, could not be open to contemplation of any punishment other than dismissal. However, if some other outcome could be possible as a matter of logic and natural justice, the decision maker would have to hear from the employee. 27 In summary, that part of the applicant's dismissal that was based upon "…potential personal benefit" as stated in the letter of dismissal, created a manifestly unjust reliance upon the perceptions of the incident of 25 March without satisfactory identification of the complete factual circumstances. Further, the facts of the incident once properly established, disclose a lower order level of misconduct for which the penalty of dismissal was palpably disproportionate and harsh. In addition, the refusal to permit the applicant to personally plead his case to the decision maker before the decision to dismiss was made by the General Manager, establishes defective and unreasonable process. 28 Consequently the Commission finds that the dismissal of the applicant was harsh, unreasonable and unjust. 29 There is no basis upon which to establish impracticality with reinstatement. Issues related to any alleged loss of trust in the applicant to act honestly have arisen more as a consequence of a defective and injudicious approach to the initial interview of the applicant rather than blatant dishonesty on the part of the applicant. Trust is a matter that involves shared obligations and responsibilities. There will need to be some re-building of trust from all involved in this matter. 30 The applicant has sincerely accepted his wrongdoing, other's should similarly acknowledge mistake and move on. The applicant's lower order misconduct should be appropriately recognised. A formal written warning should be maintained on the applicant's employment record and he will also suffer a financial penalty. No Order will be made for any payment during the period that the applicant was suspended without pay. No Order shall be made for any payment in respect of the intervening period between dismissal and reinstatement. Further, the Council shall be entitled to recover all payments that were made to the applicant in accordance with the arrangement established during conciliation proceedings before Kavanagh J on 30 April. ORDERS 1. The Commission Orders, pursuant to section 89(1) of the Act, that the Council reinstate the applicant to his former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. The applicant is to be reinstated as soon as practicable and by no later than Tuesday, 19 May 2009. 2. The Commission Orders, pursuant to section 89(4) of the Act, that the period of employment of the applicant with the Council shall be taken not to have been broken by the dismissal. oooOOOooo 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.