Industrial Relations Commission of New South Wales CITATION: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Grose) and Griffith City Council (2006) NSWIRComm [2006] NSWIRComm 1137 APPLICANT New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Brendan James Grose) PARTIES: RESPONDENT Griffith City Council FILE NUMBER(S): 2916 of 2006 CORAM: Bishop C CATCHWORDS: Termination of employment - allegations of theft/misconduct by member of public - investigation by Council under ICAC Act - Council determined misconduct and breaches of Council's Code - misconduct denied by applicant - absence of proper procedures and policies - procedural issues raised - whether misconduct occurred - harshness of penalty - reinstatement or re-employment sought. Held - Improper conduct and some misconduct and breaches of Council's code but not sufficient to warrant termination - fundamental procedural flaws - demotion appropriate - re-employment ordered with continuity of service from date of termination - limitation on backpay. Independent Commission Against Corruption Act 1988 LEGISLATION CITED: Industrial Relations Act 1996 Local Government Act 1993 Antonakopoulos v State Bank (1999) 91 IR 385 Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch v Westport Bowling Club Ltd (2001) NSWIRComm 2005 Bankstown City Council v Paris (1999) 100 IR 363 Burns and Aboriginal Legal Service of Western Australia (T3496, 21 November 2000). Busways v Johnson (1994) 55 IR 255 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Commonwealth Steel Company Limited v Ward (unreported, Matter No IRC 3144 of 1993, 16 Decemfber 1994) D Stroud and David Jones Ltd (PR925084, 26 November 2002) Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341 Franklins Ltd v Webb (1996) 72 IR 257 Hill v Department of Juvenile Justice (2000) NSWIRComm 128 Howarth v Linfox Armaguard Pty Limited (2005)NSWIRComm 1170 IGA Distribution Pty Limited v Moses (No.2) (2002) 114 IR 307 (John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517) CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Little v Commissioner of Police (No 2) (2002) NSWIRComm 52 New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade (2005) NSWIRComm 440 Nguyen v Australian Postal Corporation (Larkin C, AIRC, PR913694, 5 February 2002) Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233. Outboard World v Muir (1993) 51 IR 164 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW v Gartrell White (No 3) (1990) 35 IR 70 P A Smith and Yipirinya School Council Inc (PR8676, 6 February 1998) Paul Haskayne and Town of Vincent (PR952168, 28 September 2004) Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 P T Wilson and Australian Taxation Office (PR901127, 26 February 2001) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales (2006) NSWIRComm 108 Rapp v Wauchope RSL Club Ltd 81 IR 116 Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18 Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 186 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-4 Zinteschenko (nee Charles) and Alfred Tallon Real Estate Pty Ltd (PR940237, 5 November 2003) HEARING DATES: 08/03/2006, 09/03/2006, 19/04/2006, 20/04/2006, 21/04/2006, 31/05/2006 DATE OF JUDGMENT: 09/15/2006 Mr J Klower Industrial Officer NSW Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union LEGAL REPRESENTATIVES: Mr D Gardner Solicitor Maddocks Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 15 September 2006 Matter No IRC 2916 of 2005 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Brendan James Grose) and Griffith City Council Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union on behalf of its member Brendan James Grose re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION NSWIRComm1137 1 This is an application by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("the USU") made on behalf of Brendan James Grose against Griffith City Council ("the Council") for a remedy pursuant to S.84 of the Industrial Relations Act,1996. Mr Grose was dismissed from his position with Council of Overseer Works/Waste at the Tharbogang Landfill on the 25 May 2005. He sought reinstatement to his former position with Council or re-employment to another position with Council. 2 The matter was listed for conciliation and directions before me in Griffith on the 23 June 2005 at which time conciliation took place. The parties were directed to confer and the matter set down for report back in Sydney on the 11 July 2005. Further conciliation was subsequently held in Griffith on the 16 August 2005. As no settlement could be reached, directions as to the filing and exchange of witness statements were issued on the 6 September 2005. 3 The matter was listed for hearing in Griffith on 8 and 9 March and 19, 20 and 21 April 2006. The taking of evidence was finalised on these days. The hearing concluded with the submissions of the parties in Sydney on the 31 May 2006. 4 At the hearing Mr Klower with Mr Fayle, Officials of the USU, appeared on behalf of Mr O'Hara and called the following witnesses to give evidence:- Brendan Grose - applicant (Exhibits 1 & 2) Michael Rand - Plant Operator (Exhibits 8 & 9) Darryl Penrith - Plant Operator (Exhibits 12 & 13) Matthew Higgins - self-employed (Exhibit 15) Peter Piccolo - Owner/Operator Griffith Indoor Recreation Centre (Exhibits 16 & 17) Paul Snaidero - Company Director (Exhibit 18) Peter Higgins - Infrastructure & Design Manager Griffith City Council (Exhibits 19 & 20) 5 Mr Gardner, Solicitor, with Ms Wilson, appeared on behalf of Council and called the following witnesses to give evidence:- Lesley Siviour - Farmer (Exhibit 27) Tracy Robertson - Personal Assistant, Griffith City Council (Exhibit 28) Ajit Yadav - Assistant General Manager Technical Griffith City Council (Exhibit 29) Ian Mackinlay - Manager, Organisational Development Griffith City Council (Exhibit 30) Peter Brooks - General Manager, Griffith City Council (Exhibit 13) Ron Gatty - Scavenging Contractor (Exhibit 32, Annexure C- Appendices 4 & 5) The following witness was also called by the respondent on subpoena John Dal Broi - Mayor, Griffith City Council Background and Chronology- based on the evidence filed and the transcript of proceedings. 6 Mr Grose commenced his employment with Council in March 1993. He was promoted to the position of Overse41er at Council's Tharbogang Landfill site in March 2001. A position he occupied until his termination in May 2005. He had just over twelve years' continuous service with Council. Mr Grose was on a weekly rate of $1154.10 and his employment was governed by the Local Government (State) Award 2004. He was also a Union Delegate for the USU. 7 Mr Paul Josling, Works Manager, was responsible for day to day staffing issues and was the immediate supervisor of Mr Grose. Mr Josling in turn reported to Mr Yadav. Mr Peter Higgins supervised the licensing and development side of the Landfill site and as such would also become involved in issues concerning Mr Grose and the other Landfill staff. Mr Higgins also reported to Mr Yadav. 8 It had been the practice until early 2004 to keep motor vehicles impounded by Council Rangers at the Council Depot in Jenkins Road. Due to ongoing pilfering of parts and to create more space Depot management decided to move the impounded vehicles to a new compound to be built at the Landfill. There were a variety of procedures in place to be followed by Rangers and administrative staff at Council in relation to impounded motor vehicles. Those procedures and the relevant policies were attached to Mr Mackinlay's affidavit (Exhibit 30 - Annexure "I"). 9 Impounded vehicles could either be returned to the owner (following Council's procedures), scrapped or put up for public auction by way of a tender process. Vehicles value at more than $500 would go for auction. Vehicles valued at less than $500 would either go for auction or be scrapped. Members of the public would also take motor vehicles out to the Landfill to be dumped. 10 Mr Ron Gatty held the scavenging rights at the Landfill and had done so for some years. Any motor vehicles to be scrapped (including dumped vehicles) would also come into his possession and be disposed of by crushing or be available for selling for spare parts etc. 11 On 3 September 2004 Mr Gatty visited Council offices and raised verbal allegations with Mr Higgins and Mr Josling about Mr Grose which concerned the theft and/or misuse of items from the Landfill viz.- a wrought iron gate, a white Holden VN Commodore (RST 712) and a burgandy Valiant motor vehicle. He also alleged that Mr Grose had requested that he provide a bill of sale for the vehicles, which had never been in the possession of Mr Gatty. The allegations were put in writing in two statements dated the 3 and 6 September 2004. (Exhibit 32, Annexure C - Appendices 4 & 5) 12 Mr Brooks subsequently notified the Independent Commission Against Corruption ("ICAC") of the possibility of corrupt conduct pursuant to the provisions of Independent Commission Against Corruption Act 1988 ("the ICAC Act "). He also commenced an investigation into the allegations. The 13 ICAC, by letter of 28 October 2004, noted that Council were investigating the matter and requested a copy of the final report on the investigation, 14 On 10 September 2004 Mr Brooks provided Mr Grose with a copy of the written statements made by Mr Gatty. Mr Grose provided a written response on or about the 18 October 2004 as follows: 18th October 2004 PO Box 485 Griffith NSW 2680 Dear Sir I have enclosed a response to statements made by Mr Ron Gatty on 3rd and 6th of September 2004 in relation to alleged incidents at the Tharbogang Landfill Site. Please feel free to contact me should you have any further enquiries however I have requested my Union Officials be in attendance at any further discussions. 1. Wrought Iron Gate The wrought iron gate in question was located on a property owned by Peter Piccolo. I have no knowledge of how the gate got onto that location and believe Ron Gatty has advised Mr Paul Josling of Council that he is satisfied with the outcome having retrieved the gate from the above property 2. Cars In relation to vehicles either left at or picked up for the landfill site there has never been any policy in relation to procedures for disposal of or sale of such vehicles. Ron Gatty makes mention of myself and other staff driving these types of vehicles around the landfill site and I do not deny that occurs and has occurred for a long period of time. If there were to be any change to these practices I would be grateful if staff were advised accordingly. I would seek to have my Union in attendance at any further discussions regarding these matters for the purpose of procedural fairness. Yours faithfully, Brendan Grose 15 In October 2004 Mr Brooks appointed a panel of senior personnel, including Mr Yadav, Mr Mackinlay and Mr Geoff Hipkins, CEO Murrumbidgee Irrigation, to assist him in the investigation. 16 On 29 November 2004 Mr Brooks, together with Mr Yadav and Mr Hipkins, conducted an interview of Mr Grose. Mr Mackinlay was not present during the interview but participated in the subsequent consideration of the issues. Mr Grose was accompanied by representatives of the USU, Mr David Perry, (Industrial Officer), Mr Ian Fayle (Organiser) and Mr Jim Taylor (USU Delegate). 17 Mr Brooks also obtained written statements from Mr Peter Higgins (Exhibit 32 Annexure "C" - appendices 9 & 12), Mr Paul Josling (Exhibit 32 Annexure "C" - appendix 8), Mr Matt Fisher re the Valiant (Exhibit 32 Annexure "C" - appendix-7) and also documented a verbal statement given via telephone by Mr Peter Piccolo concerning the gate (Exhibit 32 Annexure "C" - appendix 13). Mr Greg Tyack, Council's Compliance Officer, provided a memorandum concerning the white Commodore and the involvement of the Department of Immigration, (Exhibit 32 Annexure "C" - appendix 11). 18 On 31 January 2005 Mr Brooks forwarded an eight (8) page report to the ICAC which attached inter alia Mr Gatty's allegations, Mr Grose's written response, a typewritten record of interview of the 29 November meeting and a copy of the various statements noted in paragraph 15 above. (Exhibit 32 Annexure "C"). 19 In his summary of the report Mr Brooks indicated that it was considered that Mr Grose had been guilty of misconduct in that he: " - Acted inappropriately and in a manner that could bring Council into disrepute. - Exercised poor leadership and decision making." 20 Six " Recommended Actions" were also detailed which included a review and implementation of new procedures concerning vehicles at the Landfill and "scavenging", a review of the entire operation and management at the Landfill, and implementation of new processes in relation to the security video equipment at the weighbridge. In addition Mr Grose was to be sent a "show cause" letter requesting his response as to why he should not be penalised as per the Award for breaches of Council's Code of Conduct. 21 On 29 April 2005 Mr Brooks sent the following letter to Mr Grose: 29 April 2005 Mr Brendan Grose Griffith City Council Dear Brendan NOTICE OF DISCIPLINARY PROCEDURE The Council, acting in accordance with the requirements of the ICAC Act, has completed its investigation of complaints relating to alleged misconduct by you. You have been advised of the substance of these allegations and have participated in the investigation to the extent of answering questions at interview and providing a written statement. The specific incidents which gave rise to these charges are summarised as follows: 1. The disposal of a valiant by private arrangement prior to auction and without approval. You acted without authority and encouraged the issue of false documents. 2. The disappearance and subsequent recovery of a gate, the property of Mr Gatty. You had knowledge of the gate's disappearance and of its whereabouts. Your involvement in this episode was of a personal nature and was carried out during normal business hours using a Council vehicle. 3. The private use of an unregistered vehicle, a white commodore. You had possession of the vehicle outside Council premises and actively encouraged the issue of false documents. In accordance with its charter, ICAC will consider the Council's report and decide on appropriate action. For its part, the Council, in considering the facts has determined that you have committed breaches of the Council's Code of Conduct (Refer Policy No. 160 as revised 8 June 2004), in that: (a) You did not act in good faith and exceeded the powers of your position. (b) While on duty you did not give the whole of your time to the business of the Council. (c) You acted in a manner that gave rise to the reasonable suspicion or appearance of improper conduct. (d) You acted contrary to the law. The Council considers that your conduct in the various matters covered by this investigation was inconsistent with the standards of conduct expected of you in your leadership role as an Overseer. Council now requires that you show cause why you should not be penalised as provided for in Clause 31 (D) of the Local Government (State) Award 2004. Your written response is required by COB (close of business) Friday, 6 May 2005. Yours sincerely, Peter Brooks General Manager 22 On the 6 May 2005 Mr Grose sent the following letter in reply to Council: 6th May 2005 The General Manager Griffith City Council PO Box 485 Griffith NSW 2680 Dear Sir Reference is made to your correspondence of 29th April, 2005 requiring me to show cause why I should be penalised under Clause 31D of the Local Government State Award 2004. For me to suffer any form of penalty I would have to concede I have been involved in some form of misconduct which I am not prepared to do. I have previously supplied Council with written responses, which I will rely on in any further proposed action. I urge you to accept my response and I am more than willing to participate in assisting Council in formulating a policy and procedure, which will assist staff in the future. Yours faithfully, Brendan Grose 23 Following receipt of the letter Mr Mackinlay made attempts to contact Mr Grose for the purpose of arranging a meeting with him. Those attempts were unsuccessful and on 24 May 2005, Mr Brooks caused to be sent the following termination letter by registered mail to Mr Grose (Exhibit 5): 9Th May 2005 Mr Brendan Grose 42 Messner Street GRIFFITH NSW 2680 Dear Brendan, Notice of Termination You were formally advised on 28 April 2005 of the outcome of an inquiry into various allegations relating to your conduct and behaviour while in the position of Overseer Waste. You have subsequently declined the opportunity to submit any material reason for Council not to proceed with the imposition of a penalty provided for under clause 31D (i-iii) of the award. I note for the record that you have declined to respond to my attempts to contact you and to meet with you. I also note for the record that you have in recent days contacted councillors on more than one occasion in order, presumably, to influence events. This in itself constitutes a serious breach of the Council Code of Conduct and you would be aware of this. In imposing a penalty I have taken into consideration your record of service, the nature of the offences and your lack of co-operation throughout the period of the inquiry. The offences constituted serious breaches of conduct in a position requiring leadership and trust. Your employment with Council will cease with effect close of business 25 May 2005. Notwithstanding the serious nature of the offences, Council chooses not to exercise its prerogative under clause 33 (iii) of the award and will include in your final payment, an amount equivalent to the period of notice prescribed under clause 33 (iv) of the award. Yours sincerely, PETER BROOKS GENERAL MANAGER 24 Mr Grose maintained that there had been rumours circulating within Council and at large concerning his termination and that his termination was confirmed on 17 May over the telephone by Mr Peter Higgins following a conversation Mr Higgins had with Mr Brooks. This was contested by Council. 25 On 20 May Mr Grose contacted the Mayor, Mr Dal Broi, by telephone and requested a meeting with him. The meeting took place at the Mayor's residence on Saturday 21 May. Mr Grose went to the meeting with his partner Michelle Devery. 26 Council maintained that an incorrect date appeared on the top of the termination letter received by Mr Grose. The letter had been based on an initial draft prepared by Mr Mackinlay. Mr Brooks had subsequently signed a corrected letter. Mrs Robertson had inadvertently not sent out the correctly dated and signed letter (24 May 2005). 27 Reinstatement or re-employment of Mr Grose was opposed by Council. The Evidence 28 Extensive evidence was taken over five days. I therefore propose to summarise the relevant evidence under the following headings: · the gate, · procedures at the Landfill re cars, · the Valiant Slant 6, · the Holden VN Commodore (RST-712), · Gatty statements and events of 3 September · Council investigation/procedures, · contact with Councillors, · disciplinary history of Mr Grose, · the termination · remedy sought. The Gate 29 Mr Gatty had taken an old wrought iron gate with an oval "Mackay Sunshine Harvester" logo on it from the bottom of his stockpile of steel waste and placed it on the top. He received an inquiry from a Mr Minato who expressed interest in purchasing it. The agreed price was $100. On Monday 16 August 2004 Mr Gatty noticed that the gate was missing. He spoke to Mike Rand and also Brendan Grose inquiring as to who had been looking around his pile. He also went to the weighbridge to check the security video tape but couldn't find anything. Mr Grose told him that "a gentleman from the gym" had asked about it and that he would speak to him later that day about it. 30 Mr Rand confirmed that he contacted Mr Grose on the two way radio and discussed with him that Peter Piccolo had been in that area and that Mr Gatty wanted to look at the security video. Mr Rand had also received a call from Rowan Smith at the weighbridge inquiring as to what vehicle Peter Piccolo drove. 31 Mr Grose said Mr Gatty approached him about the gate and said Mike Rand had told him Peter Piccolo was one of those seen in the area. He also spoke about looking at the surveillance video and Mr Grose told him he couldn't as he wasn't authorised but he went and looked anyway. Mr Grose confirmed that he was contacted by Mike Rand about seeing Mr Piccolo and also about Mr Gatty going to the weighbridge. Mr Grose also confirmed that he discussed with Mr Gatty that he would speak to Mr Piccolo about the gate when he saw him at the Gym. Although in Mr Grose's evidence Peter Piccolo's name was actually mentioned in the conversation. 32 Meanwhile Mr Gatty went to see Mr Minato who assured him that he had not picked up the gate. They discussed what Mr Grose had told Mr Gatty and came to the conclusion that Peter Piccolo may have taken the gate. They then went onto a neighbour's property behind Peter Piccolo's house and looking over the fence saw the gate. 33 Mr Gatty then went to Council and spoke to Peter Higgins and Paul Josling to report the theft of the gate, and was advised to "wait and see if Brendan was able to recover the gate". (Mr Higgins and Mr Josling had the date this occurred as the 23 August) Mr Higgins said that Mr Gatty had told him that he knew where the gate was, an "associate" of Mr Grose had taken it and he had said he would look into the matter. Mr Higgins also said that he asked Mr Gatty if he wanted to involve the police but he said he would wait to see if Brendan could get the gate back. Mr Higgins then contacted Mr Grose and told him Mr Gatty had reported the theft of the gate. Mr Grose advised Mr Higgins he knew nothing about the theft. Mr Grose said he was instructed by Mr Higgins and Mr Josling to help Mr Gatty get the gate back. 34 This instruction was confirmed by Mr Higgins in his oral evidence. His affidavit (Exhibit 19) referred to a "discussion" with Mr Grose about the missing gate. There was no reference in his subsequent statement to Mr Brooks (8 September and Exhibit 32, Annexure C-appendix 9) to any discussion with or instruction to Mr Grose at this time, only a reference to a conversation with Mr Grose a few days after the gate had been recovered. 35 Mr Higgins was asked if he had indicated to Council Officers that the gate had been returned satisfactorily and that Mr Gatty was happy and said that he thought that was "common knowledge" however he was not "100 per cent sure" he actually told them the issue was solved. If he'd been asked he would have told them but he wasn't asked. 36 Peter Piccolo was a "keen recycler" and said he had taken many items from the tip over the years. Sometimes he had purchased items from Mr Gatty with whatever loose change he had in his pocket (he did not carry a wallet) but would have paid no more than $5 or $10 for such items. He never got receipts. He also said Mr Gatty had let him take various items from time to time. This was denied by Mr Gatty. He acknowledged that he also just took items and material and said his house had pretty much been built with items from the tip as well as various items ending up in his extensive garden. 37 He had seen the gate lying on the top of the scrap steel pile and was taken by the sunshine logo. He thought the gate was going to be scrapped and thought that was a waste and it would look good in his garden. He had other items such as an old plough etc in the garden. If Mr Gatty had been around he would have asked him and would probably have offered some money for the gate when next he saw him (but would not have been prepared to pay $100). He did not discuss the gate with any Landfill staff but did see an employee at the Landfill but there was no-one around when he drove out of the site. 38 Mr Grose said that he raised the issue of the gate with Mr Piccolo that night at the gym but he essentially said "what gate, I'm busy" and rushed off. Mr Piccolo could not recall having any conversation with Mr Grose about the gate. It was not a significant issue at that time, he was a very busy person, ran two businesses, worked long hours and had teenage children. His first recollection of speaking to Mr Grose about the gate was some time later after he had been contacted by phone by Mr Brooks about the gate and the Landfill. 39 The next day Mr Gatty approached Mr Grose about how he went at the Gym and was told that he had spoken to the gentleman at the gym who didn't know what he was talking about and he believed him. However Mr Gatty did not believe this and asked Mr Grose to take him to where the gate was and he would show it to him. He said in his statement that Mr Grose refused to do this saying he had half an hour's work to do. Mr Gatty was prepared to wait but then Mr Grose told him to go and have lunch and he would go by himself and have a look. In cross examination Mr Gatty agreed that Mr Grose wasn't saying that he wouldn't go and do it. 40 Mr Grose maintained that he didn't refuse to go but had work to finish up before lunchtime and when he finished up sooner than expected he then decided to drive to Peter Piccolo's house to retrieve the gate. 41 In the meantime Mr Gatty had driven to Peter Piccolo's house and had contacted Mr Minato by phone to ask him if the gate was still sitting there and was told he couldn't see it. Mr Grose then drove up and there was an exchange between the two concerning why Mr Gatty was there and he might be seen as stalking the place. (Mr Gatty said that Mr Grose said "what the fuck are you doing here"). Mr Grose suggested Mr Gatty just go in and knock on the door but Mr Gatty was reluctant to do so. He drew a picture of what the gate looked like for Mr Grose. Mr Grose then drove onto the property, went and knocked on the door but no-one was home. He retrieved the gate, came out and he and Mr Gatty put it on the back of Mr Gatty's vehicle. Mr Grose said he held authorisation from Council to enter onto property if a pipe had burst etc. 42 Mr Gatty said that after putting the gate onto his vehicle Mr Grose said "mum's the word on this one" implying he keep it quiet. Mr Grose acknowledged that he did say "no need to call the police, mum's the word leave it alone". His intention being that he didn't want a minor matter becoming a big thing with the police. He maintained that when he had first driven up Mr Gatty was on the phone and he heard him say "do you want me to call the police". 43 Mr Gatty reported a "satisfactory" outcome to Paul Josling who in turn advised Mr Higgins that Mr Gatty had his gate back, did not think Brendan was involved, was reasonably happy with the outcome and did not want to take the matter further. Mr Grose also reported the outcome to Mr Higgins the next day. 44 Mr Gatty acknowledged in evidence that once he got the gate back he was happy. He had never alleged that Mr Grose had stolen the gate. 45 Both Mr Higgins (in evidence) and Mr Josling (in his statement to Mr Brooks) confirmed that Mr Gatty told them he had the gate back and was happy with the outcome. 46 Peter Piccolo subsequently noticed that the gate was no longer on his property and assumed someone wanted it more than he did. He said it had been lying up against his fence in the driveway in full view of anyone passing by. As Mr Gatty lived close by and had to drive past his house on the way from the tip to his home, he went to the tip and asked Mr Gatty if he had taken the gate. He said no he didn't have the gate but was very abrupt. Mr Piccolo said he could tell straight away that he had it. Mr Piccolo apologised to him explaining he had taken it as he thought it was scrap and of little value. Mr Piccolo said he probably would have offered something for it next time he saw Mr Gatty as he respected him and had always got on well with him. 47 As at the date of the hearing he still didn't know who had taken the gate from his property but was aware Mr Minato now had it and had paid $100 for it after another Italian man had fixed it up (having told him about doing that). Mr Piccolo didn't consider that he had stolen the gate. It was going to be scrapped, melted down. It was "mangulated" and all bent, he was only interested in the sunshine logo and considered that he was "saving" it. 48 Mr Gatty confirmed that Mr Piccolo apologised to him and that he was satisfied with the outcome. Mr Grose and Mr Rand also confirmed that they had spoken to Mr Gatty and/or Mr Piccolo and understood apologies had been made etc. 49 Mr Piccolo was subsequently contacted at the gym by phone by Mr Brooks about the gate following the written complaints made by Mr Gatty. Mr Piccolo said he felt "quite privileged, quite honoured" to be rung by the General Manager. At first he didn't know what he was talking about. He asked him about the gate and Mr Piccolo told him he had taken it but that no Council employees were involved. He asked why did he want to talk to him about the gate and was told that it was in relation to an investigation being carried out into the behaviour of employees at the tip. There was one name mentioned but he had never heard of the person and couldn't remember the name in any event. 50 Mr Piccolo then went and told Mr Grose he had been phoned by Mr Brooks and that he had mentioned employees at the tip. Mr Grose asked him if his name was mentioned and he told him no, and gave another name (but he couldn't now remember what name he said). He asked Mr Grose what was going on and he said he couldn't talk about it. Mr Grose indicated in evidence that Mr Piccolo said Mr Brooks was not really worried about the gate because he'd told him it was a mistake He went into more detail about "youse guys and missing vehicles and sale of parts." Mr Grose also said Michael Rand was the name that Mr Piccolo said was mentioned by Mr Brooks. 51 Mr Grose did not speak further to Mr Piccolo about the gate as Mr Brooks had told him (after the complaint by Ron Gatty) not to talk to Mr Piccolo in regards to anything until he had seen him. Mr Grose respected this. 52 Mr Piccolo said he only knew Mr Grose and his partner Michelle through their regular attendance at the gym. He was also aware Mr Grose worked out at the tip. There were only two or three employees out there and he had been a regular visitor to the tip over the years. Procedures at the Landfill 53 There was various evidence given during the course of the hearing by witnesses about procedures at the Landfill. Mr Higgins gave evidence that there had been a great deal of change over the years from what had been in existence in 1999 when he first commenced with Council. Since then a weighbridge had been installed as well as an office with the weighbridge staffed fulltime. The Landfill was run on a user pays' system charged on a cubic metre basis for garbage. It had essentially gone from a free for all to a managed Landfill with a weighbridge and operational changes to affect the occupational health and safety of people at the Landfill and to finance its operation. 54 Mr Higgins deposed that the changes met with considerable resistance from some members of the public and that there were complaints every second week about issues at the Landfill in situations where the public had formerly had a "fairly free rein" such as being asked to wear footwear because of OH&S issues or control children because of OH&S risks. 55 Mr Grose, Mr Higgins, Mr Rand and Mr Piccolo all indicated that members of the public would still try and take items from the Landfill although Mr Higgins indicated it was not the problem it had been in the past. There were signs warning against scavenging however it still happened from time to time. 56 There were procedures in place within Council in relation to the impounding of vehicles by authorised Impounding Officers (such as Rangers). Mr Grose was not an Impounding Officer but the manager of impounded cars kept at the Landfill. Vehicles that were taken over the weighbridge and dumped by the members of the public were not covered by the relevant Act which governed Council's obligations to dispose of vehicles in a certain way. Mr Higgins said that such cars were essentially "rubbish". Mr Grose said that he was never given any training or provided with any rules or regulations in relation to the car compound only verbal communications stating that he was able to determine which vehicles were to be disposed of or kept. 57 There were no procedures in place or records kept at the Landfill in relation to the receipt of either impounded or dumped cars apart from a payment at the weighbridge in the case of a car being taken to be dumped. After the issue arose of the complaint by Mr Gatty concerning the white Commodore (around 7 or 8 September) Mr Grose told Mr Rand to go and purchase an exercise book and thereafter cars received at the Landfill were written up in the book (the "Compound Book"). Details such as date received, registration number, make, condition etc were then entered. The white Commodore was the first entry to go in the book and Mr Rand noted it as "good condition" (Exhibit 11). The Valiant Slant 6 58 Matt Fisher was a contractor who worked at the quarry adjacent to the Landfill. In early August Mr Grose had asked him to push rubbish up over the tip face. The Council machines had broken down but the compactor was still working. Mr Fisher drove a loader at the quarry and made several trips over the 4 and 5 August 2004 pushing rubbish for Mr Grose. He did not bill Council for the work. 59 Subsequently Mr Grose was towing an old burgundy Valiant Slant 6 to Mr Gatty's scrap pile. The vehicle had previously been marked by Martin Hebold, the Council officer in charge of Council Rangers to be scrapped. Matt Fisher saw Mr Grose towing the Valiant and asked him what he was going to do with it and on being told it was to be scrapped he asked him not to scrap but to give it to him it in exchange for the work that he had done for Council. Mr Grose said that he told him he would take it back down to his area but that he would have to "go through Ron". 60 Mr Fisher confirmed his involvement with the Valiant in his subsequent statement to Mr Brooks (Exhibit 32, appendix C-annexure 7). In relation to the issue of a receipt he said that "Brendan may have made a comment about getting a bill of sale off Ron Gatty but I didn't worry about doing that and I never took him serious." 61 Mr Fisher had since moved interstate and Mr Grose did not know where he now lived. 62 Mr Grose, Mr Penrith and Mr Rand all gave evidence about Mr Fisher coming to the lunch room whilst Mr Gatty was there making a sandwich and seeking a receipt. Mr Penrith told him to see Mr Gatty. Mr Gatty asked him if he wanted it now and Mr Fisher said no and Mr Gatty told him to come back and see him. 63 Mr Gatty said in evidence that the Valiant had not come into his possession. In his 6 September statement he indicated that it had been marked for scrap by Martin Hebold. One Saturday he had observed Mr Fisher driving the Valiant around the landfill and on being questioned said he was going to get it. He spent some time on it to get it working. 64 Mr Gatty did not agree with all the above evidence concerning the receipt. In his statement he did refer to being in the lunch room with Mr Grose and Mr Penrith (but with no mention of Mr Rand) when Mr Fisher came in. He said "it seemed like he had an agreement with Brendan to take the vehicle, which he intended to do, and I believe Brendan assisted him in doing this." He said it was Mr Grose who told Mr Fisher he should get a receipt of sale from him "to cover himself." Mr Gatty said he had not agreed to this and said nothing. Mr Fisher then left the lunchroom. As far as Mr Gatty was aware Mr Fisher left the Landfill with the Valiant, whilst he did not see this it was missing thereafter. 65 As there was to be a sale by Council of abandoned vehicles Mr Grose said Mr Rand had drawn up a list of vehicles for the sale and that the Valiant had been mistakenly placed on the list which was the subject of a Local Government Notice in the Area News of 18 August 2004. A subsequent bid of $25 had been listed. (Both documents were annexed to Exhibit 32) The closing date for quotations was 27 August 2004. Mr Grose said Mr Rand had seen it still in the yard when he was compiling the list because Mr Fisher had not yet come in to pick it up. 66 Mr Higgins had no direct knowledge of the transaction concerning the Valiant. He said in evidence that he "disagreed" with Brendan doing it that way but "it was Brendan acting in an innovative way for the good of Council as he saw it." The Holden VN Commodore (RST-712) 67 It was Mr Grose's evidence that he and Darryl Penrith were driving in the Council vehicle when he received a phone call from an Immigration Officer (DIMIA) that had been given his number by the General Manager. He said that he was leaving town within the next thirty minutes (as he was due to fly out) and could they meet him across the road from the Police Station. When they arrived there was a gentleman standing next to a white VN Commodore. He introduced himself and gave them his business card, the keys and some paperwork (a letter). The value of the car was also mentioned in the letter. He said the car belonged to an illegal immigrant who "had done a runner" and driven the car into some trees (an orchard) and then escaped on foot. 68 The Immigration Officer said that the car was valued at under $500 and that it should be kept for at least two weeks in case the illegal immigrant came back for it. The car could then be "crushed". Mr Grose was asked to contact the Officer if the illegal immigrant came back. Mr Grose told him he would keep the car for a month. 69 Mr Penrith confirmed the evidence of Mr Grose. It was Mr Penrith who drove the car back to the Landfill. The registration was due to run out the next day. This took place on Thursday 5 August 2004. 70 Mr Brooks gave evidence that two or three days before this he had been involved in a meeting with senior DIMIA officers on an unrelated community issue. Subsequently he was telephoned by one of the officers, a Mr Collimore, who advised him that they had a vehicle that they wished to impound and did Council impound vehicles. Mr Brooks told him they did and passed on the request to Council's Compliance Officer, Greg Tyack. Mr Tyack arranged for the car to be picked up. 71 As part of Mr Brooks' investigation following the Gatty complaints, Mr Tyack forwarded a memo to Mr Brooks on 8 September 2004 on his involvement with the vehicle. He indicated that he had contacted "Chris" at the Department of Immigration on 5 August as requested by Mr Brooks and was informed by "Chris" that "the vehicle was abandoned as the Department of Immigration had left the vehicle at Railway Street. It belonged to an illegal immigrant who had fled the area." Mr Tyack inspected the vehicle at 10 a.m on the Thursday. He noticed that the registration was due to expire the next day. There was no mention in the memo of any other action taken by Mr Tyack in relation to the vehicle apart from noting that "The vehicle was driven from Railway Street to the Landfill by Landfill workers ( I was advised of this on Monday, 9 August by Chris)". Mr Tyack subsequently saw the vehicle out at the Landfill in the car compound on Tuesday 10 August. 72 Mr Tyack's memo also noted the usual arrangements for the removal of vehicles - those assessed as under $500, unroadworthy or unregistered were collected by Ron Gatty. If it appeared the value was more that $500 then MIA smash repairs were contacted to collect the vehicle and deliver it to the Landfill. 73 Mr Grose said the car was not an impounded car but a car that had been surrendered by the Immigration Officer. This was the first time a car had come to the Landfill in this way. 74 Mr Brooks deposed that he believed the Commodore was not impounded by DIMIA but by Landfill workers. He based this belief on the memo from Mr Tyack. 75 Mr Grose said the letter and business card from DIMIA were placed in the file at the Landfill. Mr Rand also confirmed the existence of the letter. Although he initially said he didn't read it, he subsequently said that it mentioned the value of the car and that it was to be scrapped after two weeks. Mr Higgins also saw the letter and confirmed that the instruction on the letter was to keep the vehicle for two or three weeks then dispose of it. He was not however asked any question about whether he saw any mention in the letter of the vehicle being valued at less than $500. However he did say that he couldn't see that the $500 was relevant if the car was to be disposed of. 76 Mr Grose said that Mr Higgins took the file containing the letter and business card, after he came out to the Landfill on Monday 6 September when he met with them to discuss the issue of cars in the compound. No questions from either side (or from the Commission) were directed to Mr Higgins about whether he did in fact take the file in question and whether it had the letter in it. He was asked where the letter was and said he "believed there was a copy of it with Council somewhere." 77 Mr Mackinlay had no knowledge of the existence of such a letter. The letter has not been located by Council and was not in evidence before the Commission. The only letter the Council had in its possession from the Immigration Department (Exhibit 32, Annexure C - appendix 11) was the notification by DIMIA to the illegal immigrant in question that the car had been abandoned and what had to be done to retrieve it. That letter was dated the 29 July 2004. 78 Mr Brooks also said there was no other letter. He had subsequently spoken to the DIMIA person and at no stage was a value even expressed. He thought that suggestion was ludicrous. He had gone onto the internet and the "Red Book" webpage which gives the value of various vehicles. A 1991 VN Commodore was valued at between $1400 and $3200. A copy of that particular entry was tendered (Exhibit 33 - dated 20 April 2006). He assumed the value of the vehicle would have been even greater back in August 2004. 79 The Commodore was in good condition, as subsequently noted by Michael Rand, apart from a couple of dents on the front left side bumper and scratches on the left front door panel. There was no evidence as to the mileage of the car or more detailed evidence as to the car's mechanical condition etc. Photographs of the Commodore were tendered in evidence (Exhibit 3A and Exhibits 22 - 26). 80 Mr Grose maintained that it was his intention to do the car up and use it for a vehicle to run around in at the Landfill. He told Mr Penrith and Mr Rand of his intention. They both confirmed that this was what they were told and that was their understanding of what was to happen with the car. Mr Grose said he also had a discussion with Mr Gatty that they were going to use the Commodore to drive around the site instead of the orange Ford. He said the orange (sometimes described in evidence as yellow) Ford station wagon had been driven in by a young girl a month or two before and disposed of because it was going to cost too much to do it up and re-register etc. Mr Gatty had noticed the "guys" driving it around and "got a bit upset" because he said he knew it was coming in, so Mr Grose told him he was going to keep the Commodore and he could have the orange Ford back. Mr Grose said that when he told Mr Gatty this he just said "fine" and didn't object. 81 It was the evidence of the three men generally that there had been the practice for some time to use old vehicles to drive around the Landfill site. Mr Penrith and particularly Mr Rand indicated that the site was a large one, it was some distance up to the machines, to the tip face and from there back to the toilets. Mr Grose drove the Council utility and was sometimes away on Union business or at meetings and when he was the two men had no access to a vehicle. Mention was made during the evidence of using a green Meteor until the windscreen was smashed and it became unsafe to drive. An orange Ford station wagon was also used. Both cars were old. They were now in the car compound. 82 Mr Higgins was not aware of this practice and considered it unsafe and illegal as the cars were not registered. If he had known about it he would have stopped it. He did notice on occasions that the orange Ford was parked at different places around the Landfill especially after the weekend of 14 and 15 August when the BlueDot Raceway was running and spoke to Mr Grose about it on the following Monday. 83 It was Mr Grose's evidence that some days after bringing the VN Commodore to the Landfill he was in the lunch room with Darryl Penrith and discussed with him the fact that he still owed Mr Grose some "two grand" (or actually $2200) out of the $3500 he had paid for a white VL Commodore bought from Mr Grose's son a few months earlier. Mr Grose said he had reimbursed his son with his own money for the car and Mr Penrith was supposed to pay him $200 per pay for the car. The car had been sold as his former wife had lost her licence and they didn't need two cars so the son sold his car. As Mr Penrith had lapsed in paying the money they discussed organising payment through a deduction by the payroll office of $200 a pay. This was subsequently organised. Council tendered an authority to deduct for Darryl Penrith dated the 5 November 2004 and it was noted as "actioned 9.11.04" (Exhibit 31). 84 Photographs of the white VL Commodore (YZF-621) owned by Darryl Penrith were also tendered (Exhibit 23). 85 It was the evidence of Mr Grose and Mr Penrith that Mr Gatty was present in the lunchroom at this time and overheard this conversation. This was denied by Mr Gatty who said he heard no such conversation. He did however have a conversation with Mr Grose in the lunchroom (he didn't believe any one else was present) wherein Mr Grose told him the white Commodore was worth $2000, was to be repaired and that he wanted it for his son in Melbourne. He also inquired as to a receipt of sale. This conversation was reported in Mr Gatty's statement of 6 September as being "in general discussion" without any specificity as to who was present. He also said in evidence that Mr Grose told him he was going to take the Commodore to Melbourne to his son. 86 Mr Gatty was aware that the car had been picked up from the Immigration Department and brought to the Landfill but was never told by any Council Officer what instructions came with the vehicle. He had not been present when it arrived but saw it in the shed two weeks later. The vehicle wasn't his and he had nothing to do with it. In his 6 September statement he said: "In early discussion with Brendan of a general nature he advised that the vehicle had been picked up on behalf of the Immigration department. The keys were still in it and it had been recovered by driving it back to the Landfill and parked in the compound." 87 Mr Gatty acknowledged that he sold cars to people from his scrap pile for parts and that sometimes people would take the whole car, take the parts they wanted and either return the car or he would go and pick it up. He had also sometimes given cars to people to take parts off. They were generally cars that weren't in good condition and could not be driven away only towed. The vehicles were ones that had been dumped at the Landfill as well as vehicles that he had gone and collected from farms or from houses in town. They would either be scrapped (crushed) or put on the side and sold. 88 Neither Mr Grose nor any of the another Landfill employees ever told him that they intended to drive the Commodore around the site. He said that they had a yellow Ford for that purpose. Mr Gatty was aware of the practice of the Landfill staff of driving old cars around the site - the green Meteor and the yellow Ford station wagon were mentioned. It did not worry him. He did not know who would have made the decision about whether the two cars were to be scrapped or kept. It wasn't him, they were not his cars. 89 Mr Gatty had said in his 6 September statement that "he believed the vehicle was missing for a period of time (approximately one week) without authorisation as on the morning of Saturday, 28 August I observed this vehicle being driven past the weighbridge by Brendan with his wife in their white four wheel drive following". 90 Mr Gatty acknowledged that he didn't make any complaint to Council when he saw Mr Grose driving the vehicle out, nor was he concerned. It was up to Mr Grose, he was "the boss" out there, in charge of the Landfill. He had not accused Mr Grose of stealing the Commodore. The vehicle had never been his but if it had been then that would have been a different situation. 91 Mr Rand's evidence was that he was on duty on Saturday 28 August. He had wanted to take some photographs of domestic waste dumped in the steel section. They were allowed to issue fines for such matters but had to have photographic evidence. The memory card of the camera was full and he couldn't get into the computer to download it. He rang Mr Grose, who was rostered off, to ask him how to do it and he said he was just around the corner looking at houses and would come in. Mr Grose arrived with his partner Michelle. Whilst she went into the office adjoining the lunch room to look at the computer, Mr Rand and Mr Grose went outside and whilst outside they went into the shed and put an alternator in the Commodore. Mr Grose had the alternator with him but Mr Rand wasn't sure where he got it from. Mr Rand said that although he indicated in his affidavit that it came from a wrecker he now said he didn't really know. 92 The Commodore had been "vandalled" (to use Mr Grose's word) over the weekend of the 13 and 14 August, with the alternator taken out, the transmission was leaking and the dashboard was pulled out with wires hanging down. Mr Grose said it had then been put in the shed. 93 Mr Grose's partner Michelle also could not get into the computer and they were going to leave it till the Monday. Mr Grose told Mr Rand he was going to take the Commodore for a run to see if it was charging He also said he would take it home to do some work on it on his rostered days off and then bring it back. Mr Rand said he noticed it was back down the side of the compound on the following Friday. The Commodore was still in the compound although the alternator had been taken out. 94 Mr Grose indicated that he and his partner were looking at a house in the area when he got the call from Mr Rand and he went to the Landfill to give him some help. He deposed that Mr Rand asked him when he would be finished working on the Commodore as it was in the way. He expanded on this conversation in evidence saying that Mr Rand had asked when he was going to finish working on it so they could use it, it was in the way in the shed. (Mr Rand was not questioned at all about whether that had in fact been asked.) Mr Grose further deposed that he drove it (but did not specify where) to see how much more work was needed on it and returned it after repairing it. 95 Mr Grose gave further evidence that he drove it to his home to work on it on his rostered days off and would have worked on it on the Sunday. He said he "would have" returned it (or "may have" returned it) on the following Thursday in his own time as it was definitely there on the Friday. 96 Mr Grose also expressed the belief that he had the authority to dispose of the Commodore. He was not questioned as to what basis he had for this belief. 97 Mr Mackinlay however said that there was "no question" in his mind that the vehicle was in the "custody of council" and they had the authority to dispose of it, " so presumably the legal definition of the ownership of that property is that it is council's property". Gatty statements and the events of 3 September 98 Mr Gatty said that on the 3 September he was returning from Melbourne with a new car (a Statesman) Mr Grose called him on his mobile on two occasions asking for a receipt "for that Commodore" when he got back. Mr Gatty told him "Righto, okay". The first time he rang Mr Gatty was down near Finlay and the second time he was near the old brickworks, ten minutes out of town. However the more Mr Gatty thought about it he was concerned about where he stood if he signed a receipt for a vehicle that had never been in his possession. 99 There were questions directed at Mr Gatty about whether or not the Commodore was the sort of car that would have come to him in any event given its condition and he agreed it wouldn't have. The Commission asked if he had said anything to Mr Grose about "well that's not my vehicle etc". He said he didn't and that was why he ended up going to Peter Higgins to find out where he stood. He agreed he should have said that he couldn't give him a receipt but instead went to Peter Higgins and that was how they ended up here at the hearing. 100 Later that same afternoon (3 September) Mr Gatty went to Council to see Mr Higgins to ask him where he stood if he signed such a receipt. Mr Higgins told him not to and that he'd better make a statement. Mr Higgins contacted Mr Mackinlay who came and spoke to Mr Gatty and then they went around to Mr Brook's office. 101 Mr Higgins said that when Mr Gatty came in he only mentioned the Commodore and the receipt issue at that stage, he said nothing about the gate, that came on Monday when the lengthier statement was made. 102 Mr Gatty said he only went in with the intention of raising the receipt for the Commodore and that the other two issues, the gate and the Valiant were raised with him by Council Officers when he made his further statement on the following Monday (6 September). They asked him "okay what about these others; the gate and the.." He wasn't upset about the Valiant nor did he complain to Council about it they just asked him about that and the gate. 103 Mr Mackinlay deposed that when he initially discussed with Mr Gatty his concerns he told him that "Brendan Grose has stolen a white Commodore for his son's use in Melbourne. He's pressuring me into issuing a receipt." He went on to say he didn't want to do anything illegal but he could make life really hard for him at the Landfill. 104 Mr Gatty said he never accused Mr Grose of stealing the Commodore. Mr Higgins also said Mr Gatty didn't say that Mr Grose had stolen the white Commodore. 105 The first short statement made on 3 September was dictated by Mr Gatty and typed by Tracy Robertson. The statement was headed "Statement by Ron Gatty on Friday, 3 September 2004 at 5 p.m. in the Personal Assistant to the General Manager/Mayor's Office at Griffith City Council. " 106 Whilst Mr Gatty was dictating his statement Mr Higgins left the room and went round to his office to ring the weighbridge (at Mr Mackinlay's request) about keeping the surveillance tapes and keeping Mr Grose away from them. This arose from the allegation that Mr Gatty had seen Mr Grose drive the Commodore through the weighbridge on the 28 August. Mr Higgins said he used the speed dialling facility on the phone and dialled 636 instead of 637. That connected him with Mr Grose in the office at the Landfill instead of the weighbridge. He said he was very vague about why he was ringing and wasn't sure whether he may have mentioned something about the car or not he was just trying to get off the phone and get onto the weighbridge. 107 Mr Higgins also made a written statement on the 8 September 2004 following the Gatty statement of 6 September. (Exhibit 32, Annexure C-Appendix 9) in which he detailed the speed dialling mistake and said that he was "completely surprised" when Brendan answered and when he asked what he was calling about " after some floundering I said that it was about the use of vehicles at the landfill at this point Brendan said he had the white commodore. It was a strange phone call I admit, as I was very vague at first." 108 Mr Higgins subsequently made another phone call to Mr Grose and advised him not to go to the weighbridge over the weekend. 109 Mr Mackinlay maintained that at some stage that afternoon, after Mr Gatty made his short statement, he observed Mr Higgins walking towards him and talking on his mobile phone. He said words to the effect of "you won't believe it but Brendan's just admitted the car's at his place." When Mr Mackinlay asked him why he called Mr Grose he told him "I did it by mistake". 110 Mr Higgins maintained this phone call occurred on a different day some time later and didn't think the car was mentioned then but later that Friday at Ron Gatty's house. He also maintained that Mr Grose told him the car was to be used as a "runabout" at the Landfill and (as he understood it) he had taken the car home to be repaired. There was no indication given as to when this might have been conveyed to him nor was he questioned about this. 111 Mr Mackinlay also deposed that Mr Higgins told him some time in late October, early November that Mr Grose had been speaking to him and was very concerned and wanted him to change his story about the phone call on the 3 September and wanted him "to vague it up a bit". 112 Mr Higgins said in evidence that he believed "Mr Grose did not want him to be so specific about the issue of the car being at his place at one stage and he did inform Mr Mackinlay that was the case". He didn't believe it was about the 3 September call, it was a later one than that, saying "but anyway, that's marginal." 113 Mr Grose denied that he had ever told Mr Higgins he should "vague up his story a bit" He had never tried to coerce or get anyone to change their statement. 114 Mr Grose's evidence indicated that he was aware that Mr Gatty had gone to Melbourne on the Thursday/Friday to get a new car. He rang Mr Gatty on two occasions on the afternoon of Friday 3 September. The first time he rang was because he wanted "to catch up with him because I wanted his excavator as well 'cause we hire his excavator for digging and I needed him to do a cover on the weekend. And he said he was on the way out." 115 Mr Grose went on to say that he also wanted to "catch up" with him on another incident. Peter Higgins had informed him when he was talking to him about the gate that "Mr Gatty did suspect you were involved in that". That upset him as he wouldn't have done that to Ron and he rang him back. He said this was "probably about 5-ish, quarter to 5, 'cause he hadn't got back' cause he said he was coming into town with a new car and he hadn't made it." The phone was turned off so he called the cover off. 116 Mr Grose said that he went home and got a call from Mr Higgins at around 5.45 to not go near the weighbridge. Mr Higgins told him he didn't want him tampering with the surveillance tapes. This conversation took place in his carport. He was with his partner Michelle and they had just picked up his daughter. 117 Mr Rand deposed that around the time of the incident with the gate Peter Higgins told them to stop driving cars around the tip and asked Brendan where the white Commodore was. Brendan told him it was here at the site and to come and have a look. 118 He also deposed that Peter Higgins told Brendan to stay away from the weighbridge and that Brendan asked if it was over that "fucking car" he said "the car's here come and have a look". 119 In evidence Mr Rand said he was standing talking to Brendan when this phone call took place and that he whilst he didn't actually hear Mr Higgins say stay away from the weighbridge he heard Brendan's response which was "stay away from the weighbridge?" he then said "is that over the car?" and asked him to come out and have a look. He did not hear any other part of the conversation just that "Brendan actually virtually begged Peter to come out and have a look." 120 Mr Grose said in evidence that he thought this phone call weird with the surveillance tapes a couple of weeks before with Ron and the gate. He didn't know Ron had been to Council and asked those questions. "The car thing was totally out of - you know, out of the equation, didn't even know what that was about. " He went on " So I thought Ron the Rat thinks I had something to do with it ( the gate that is) and Council are pursuing it". 121 He then drove to Ron Gatty's house with his partner and daughter. When he arrived Mrs Gatty was doing the gardening and said that Mr Gatty wasn't there, he was on his way and she would give him a call to tell him he was there. 122 Mr Gatty said that after he left the Council he received a phone call from his wife to say that Mr Grose was parked in their driveway. Mr Gatty took it that he was there because he was after a receipt for a vehicle. He was a bit worried about him wanting that receipt and what he might do and so he called Peter Higgins. He then met Mr Higgins at Lake Wyangan and they drove together to Mr Gatty's house. 123 Mr Higgins confirmed that he received a phone call from Mr Gatty and agreed that he was concerned about Mr Grose being there and wanted Mr Higgins there to effectively calm the situation down. He was on his way to a Scout meeting and so was in his Scout's uniform and met Mr Gatty at the fish and ship shop at Lake Wyangan and then followed him to his home. When they arrived Mr Grose was there with his partner who was in their car. 124 Mr Grose's evidence was that when Mr Gatty arrived followed by Mr Higgins the following exchange took place: "Well you were the next man I was coming to see". I said "That's a weird conversation you put forward. What's wrong." And he goes, Um Ron's concerned about youse purchasing or using vehicles out there." I said, "Which vehicle?" And he goes "The White Commodore." I said "Yes." So he goes, "He doesn't want to write any receipts and that as well." I said, "Ron, I told you we're just using it out there," this was in front of Peter and Ron and in his driveway, Michelle was there. And I said, I thought it was about a gate." And he goes, "No, it's not about the gate. " I said, "Well let's go out there now, the car's there. What's the problem". KLOWER: Q. The car is where? A. It was at the landfill site. He goes, "I'll come and see you on Monday." And I said - He goes, "I'll explain it more fully then." 125 Mr Grose went on to say that Mr Higgins came and saw them on the Monday and pointed out the cars which were a concern - the Commodore. Mr Grose told him "they're not impounded vehicles." But he told them to put them in "there" (the car compound) because "these cars are in question". 126 Mr Grose maintained essentially the same conversation in cross-examination but also indicated that Mr Gatty came up and said "What's going on". He added that at the end of that conversation Mr Higgins asked if there were any other problems. He said "No" . Mr Grose then had a conversation with Mr Gatty about his new Statesman and left. Mr Higgins left at the start of this conversation. 127 Mr Higgins did not give any detail about the conversation. ( And was not pressed as to any confirmation of what Mr Grose said took place). In evidence in chief he said the "car" was discussed (but no further detail was given). In cross-examination he said that Mr Grose and Mr Gatty were mainly discussing the new Statesman. He went on to say "There was a bit of discussion then about - and I was leaving while they were still discussing it, because it was quite a friendly discussion, there was no animosity at the time, but at the time they were discussing the allegations to some extent". In later questioning he confirmed that he did not aware of what was said between them after he left however it was "peaceful and sound." There was no "fighting or arguing." 128 Mr Gatty said that when he and Mr Higgins drove up "Brendan wanted to know what was going on." He then said that "Brendan and Peter Higgins had a bit of a chit chat there together". He did not hear most of what was said and went on to say " I believe something was mentioned about a vehicle and concerning this vehicle that Brendan was wanting a receipt for." Mr Higgins then left and Mr Grose and his partner looked at his car that he'd just purchased. They then left, "no dramas." 129 In cross-examination he denied that there was any discussion in general terms about the Commodore. Not on that night. He said Mr Grose probably did not know at that stage that he'd made the statement. He agreed there was a conversation between them about his new car. 130 Mr Gatty observed that the Commodore was back near the depot on Saturday 4 September (as noted in his 6 September statement). He was not aware of where it had been between the 28 August and 4 September. 131 The Commodore, as at the date of the hearing, was still in the vehicle Compound at the Landfill. Mr Mackinlay indicated that ultimately he expected it would be put up for auction and fetch a "handsome price" something in the order of $2000. 132 Mr Gatty returned to the Council on Monday 6 September and made a lengthier and more detailed statement. Mr Higgins helped him put it into words and it was typed up. He acknowledged that the words used were not the words he would have said but was prepared to sign the statement which he did. Mr Brooks was present on that occasion as were other Council Officers but he was not sure who. The statement is noted as being taken at 2.30pm. Mr Yadav deposed that he was present and that the statement was typed by Ms Robertson. Council investigation/procedures 133 Mr Grose deposed that on Monday 6 September Mr Higgins came out and asked where certain vehicles were, they pointed them out and he told them no more vehicles were to be used as Ron Gatty had made a formal written complaint about certain issues. Mr Grose also gave further evidence about what Mr Higgins said (see above). 134 Mr Rand and Mr Penrith confirmed that Mr Higgins came out on the Monday and spoke to them about keeping the cars in the compound and not driving them around the Landfill site. They had not driven any of the cars after that. 135 Mr Grose deposed that the next day when he got to the Landfill he was told that Peter Higgins had already been out and taken the surveillance tapes. He later went into Council see Peter Higgins to find out what was going on and why he was being harassed. Mr Higgins took him around to Mr Brooks' office where he was told that Mr Gatty had made a formal statement, Council were thinking of suspending him on pay but had no evidence at that time and they were also considering calling the Police. 136 When he asked what for he was told he would be supplied with a copy of Mr Gatty's statement at the end of the week. He was also told to stay away from certain people such as Mr Piccolo. 137 Mr Brooks denied that any mention was made of suspension or contacting the police. He simply told Mr Grose that a public disclosure on issues at the Landfill had been made, he had implemented Council's policies in relation to such disclosures and he would be provided with a copy of the disclosure by the end of the week. 138 After considering the statements made by Mr Gatty, Mr Brooks formed the opinion that "corrupt conduct" for the purposes of the ICAC Act had taken place. He then initiated the investigation as outlined above in the "Background and chronology". The investigation was conducted in accordance with Council's Protected Disclosures policy and process as well as the policy and Guidelines for Principle Officers (an ICAC document) Both documents were attached to Mr Brooks' report to ICAC. (Exhibit 32, Annexure C - appendices 1 & 2) 139 Mr Grose received a copy of the Gatty statements on Friday 10 September. He then contacted Mr Fayle and sent the statements across to him the following week. Mr Grose also subsequently spoke to Mr Klower . Mr Klower assisted him (over the phone) in writing a response to the statements, the letter of 18 October 2004 (as set out at paragraph 14 above). He also sent an initial draft of the letter to Mr Klower. Mr Klower was in Wollongong and had other cases and there was a delay of several weeks in this toing and froing process. 140 When questioned as to why he did not respond in a more detailed way as to the specific allegations made by Mr Gatty he indicated that Mr Klower had advised him "don't go into too much detail". They would request a meeting to go through it. Mr Klower told him it was short and brief enough if he had raised all the points about the procedures in operation at the time. 141 He maintained that the last paragraph in the letter "I would seek to have my Union in attendance at any further discussions regarding these matters for the purpose of procedural fairness," was an indication that he was available for a meeting with Council on the allegations made by Mr Gatty. However Council never got back to him. He was never told the letter wasn't enough. 142 During the course of his investigation Mr Brooks obtained written signed statements from the following persons - Peter Higgins, Paul Josling, Jim Monato, and Matt Fisher. He spoke to Mr Piccolo over the phone and made a summary note of that conversation. In addition he received the memo referred to above (paragraph 70 and 71). 143 Mr Brooks did not at any stage interview either Mr Rand or Mr Penrith (or Mr Jim Taylor who worked at the weighbridge) or seek statements from them. He said this was because they were not mentioned in Mr Gatty's statements. He didn't require them to provide information because he didn't believe they would be able to provide anything in relation to the facts. There was also no reason in his mind to interview Mr Penrith in relation to the investigation and Mr Grose did not suggest at any time that Mr Penrith give evidence on his behalf. Mr Brooks was only interested in getting the facts not opinions. He was also suspicious and hence had to write to ICAC as was he was required to do under the Act. Subsequent events and affidavits had strengthened his belief that was the case. 144 No-one from Council asked anything of Mr Higgins or Mr Josling in relation to any request from them to Mr Grose about recovering the gate. The only reference about that arose from Mr Gatty's statement. 145 All the statements were before the panel (as established by Mr Brooks) that conducted the interview with Mr Grose on the 29 November 2004. 146 Mr Grose said he never received a copy of any of the statements (apart from Mr Gatty's) nor was he aware of them until he received a copy of Mr Brooks' affidavit in January 2006. 147 Mr Grose was accompanied to the interview by Ian Fayle, the USU Organiser for the area, Mr David Perry, a USU Industrial Officer (Mr Klower was unable to be present) and another local USU Delegate at the Council, Mr Jim Taylor. Mr Fayle and Mr Perry took notes but Mr Grose was not aware whether those notes had been kept. 148 Mr Brooks, Mr Yadav and Mr Hipkins conducted the meeting with each person asking three or so questions from a pre-determined and printed set of questions with line spaces underneath for responses to be noted. The topics for questioning were noted as: 1. Gate (4 questions), 2. Commodore ( 6 questions some of which were in two or three parts giving 11 separate entries), 3. Slant 6 Valiant ( 3 questions) 149 Mr Grose's responses to each question were individually and separately recorded in handwriting by the three interviewers. 150 Mr Brooks acknowledged that Mr Grose was not provided with a copy of Mr Higgins' statements nor was he told what Mr Higgins had said about Mr Grose telling him he had the car at his house. Nor was any more specific question directed at him that they had a statement that said he took it home. Mr Brooks said that they were trying to give him an opportunity of responding to the Gatty statement (which he was aware of) because his letter of the 18 October hadn't provided a response to some of the questions. 151 There were no final consolidated minutes of the interview prepared and provided to Mr Grose nor was a copy of any of the responses as noted by the interviewers provided to either Mr Grose or the USU. A copy of Mr Brooks' and Mr Yadav's handwritten record of interview were attached to Mr Brooks' affidavit (Exhibit 32 - Annexure B). There was no copy available of Mr Hipkins' notes. Mr Grose first saw the notes when he received Mr Brooks' affidavit in January 2006. 152 Mr Grose acknowledged that he never requested a copy of any minutes or notes of the meeting. He did not keep any as his writing skills were not good. He thought that down the track it would have been proper protocol to type it up and have him read it to check that it was fine. However he heard nothing from Council. 153 Mr Grose said that he felt intimidated in the meeting. He acknowledged that there were three Union people present with him but said they were Union staff and the others were "in town" and one was not even a Council employee. He felt the aim of the meeting was to belittle him. 154 Mr Brooks deposed that at the meeting Mr Grose's responses were brief, lacked detail, were inconsistent and demonstrated a lack of understanding of what was required from him in his role of Overseer. He found the excuses for his conduct "ridiculous" for someone in his position. The content of his responses also displayed a dismissive and unapologetic attitude towards the allegations of Mr Gatty. 155 Mr Yadav deposed that he did not think that Mr Grose's answers were convincing. He was unable to provide a satisfactory explanation to the issues raised. He appeared nervous, uncomfortable and uneasy. His answers were often incomplete and did not answer the question in a direct manner. Mr Yadav believed he was dishonest and less than candid on a number of occasions. Mr Yadav deposed this was because many of the allegations were backed up by documentary evidence or corroborated by other statements. 156 Mr Grose maintained that if he appeared uncomfortable it was because sitting for lengthy periods aggravates his lower back injury. He answered to the best of his ability and recollection. He answered each question fully as they were not the sort of questions that could be simply answered yes or no. 157 It was the evidence of Mr Brooks and Mr Yadav that after the interview the panel discussed the responses and essentially agreed that Mr Grose had not given convincing answers. Mr Yadav said he indicated that he considered that there was substance to the allegations and the panel unanimously agreed with his view. 158 In relation to the gate Mr Yadav was of the opinion that whilst Mr Grose did not actually pick up the gate and take it to Mr Piccolo's house, he had some knowledge of where the gate was or how it got to Mr Piccolo's house. 159 Mr Makinlay indicated that while he was not present for the interview, as a member of the panel he participated in the discussion that subsequently took place on the interview and had also seen all the statements before the panel. He concurred with the findings of the other panel members who had been present in the interview. 160 The handwritten notes of Mr Brooks and Mr Yadav were attached to Mr Brook's affidavit (Exhibit 32 - annexure "B') Those notes indicated that Mr Grose's responses to the questions about the gate were that he "had no knowledge about how the gate got to Peter Piccolo's house. Ron Gatty told him where the gate was. Michael Rand saw Peter Piccolo looking at the gate & assumed that he had taken the gate." On the specific issue of saying "mums's the word" he responded "yes I wanted to ensure that a minor thing/misunderstanding did not become a big thing with the police." 161 In answer to who brought the Commodore to the compound Mr Grose's response was noted as "Darren Penrith & me (Brendan)." 162 Mr Brooks answered a number of questions directed by the Commission as to the responses of Mr Grose concerning the Commodore. He could not recall if Mr Grose told the panel he had the car at his house or said where the car was. He went to the handwritten responses in the questionnaire which indicated that it was " in the shed he took it for a spin down beyond the gate & bluedot. Parked near the orange Ford at the landfill". 163 Mr Brooks was asked whether Mr Grose was told that they had a statement from Mr Higgins which said he had the car at his house. Mr Brooks said he was not told this. The panel asked questions based on the Gatty statements. 164 Mr Brooks was also questioned as to the differing notations recorded by him compared to those of Mr Yadav in relation to Mr Grose's response to the Ron Gatty statement that - "Brendan stated the vehicle is for his son" - " Requested Ron Gatty for a receipt of sale for the vehicle" Mr Yadav's handwritten notes were - "RG overheard comment between me & DP about my son wanting a commodore." On the next line as the response to the second issue (the receipt) he noted "Fine". Mr Brooks' handwritten notes were - "Ron overheard discussion Darryl purchased Holden from Brendan's son." There was then noted - Ron's - Matt Fisher re :- receipts re :- Valiant not Commodore" 165 Mr Brooks maintained that the response as summarised and sent off to ICAC, was "signed off" by the three people on the panel. That noted - "Grose response - Ron Gatty had overheard comments between me (Brendan) and Darren about my son wanting a car. " Grose response - The receipt request was for the valiant (for Matt Fisher) not the commodore." Mr Brooks indicated that after the discussion with the other members of the panel he must have decided his interpretation was incorrect. 166 Mr Brooks did not have a copy of Mr Hipkins' notes of the interview, he had given his opinion verbally. The panel reached a consensus and Mr Brooks prepared a summary document which formed the basis of the report to ICAC. 167 The report was not provided to Mr Grose. The Union never asked for it and if they had he would have given the same response as he gave to other enquirers and that was that if ICAC agreed to its release then Council would release it. 168 On 6 December Mr Grose asked Mr Brooks if he was going to talk to Daryl Penrith and Mike Rand and was told no, only if the matter was going further. Mr Grose noted this conversation in his work diary (Exhibit 6). 169 In early December 2004 Mr Mackinlay was informed by Mr Higgins that Mr Gatty was the subject of some harassment by the Landfill staff. They were giving him a hard time, following him around etc. Mr Higgins told that he and Mr Yadav were talking to the staff on the issue. This was reported by Mr Mackinlay to Mr Brooks. Mr Higgins took the view that both parties were getting a "bit paranoid and making mountains out of molehills". Mr Grose was taking photos and other little things that seemed to annoy Mr Gatty. 170 There was evidence from both sides (Mr Grose, Mr Penrith, Mr Rand and Mr Gatty) each generally complaining about actions/activities of the other. On the Landfill staff's part the issues raised were mainly OH & S matters (unsafe practices by Mr & Mrs Gatty such as allowing the children to run around the steel section, Mrs Gatty not wearing shoes, not keeping the area tidy etc.) Mr Gatty's complaints went to being followed around, watched etc., a Council vehicle driving past his house. 171 Mr Gatty also gave evidence that Mr Grose had approached him in early December and asked him to reverse his statement. He also told him that in two or three weeks he'd have Mr Gatty's key taken off him so he could not enter the Landfill outside of hours and in two or three months he'd have him "kicked out of there". Mr Gatty said it took longer than that but he believed it was due to Mr Grose that he'd been kicked out of the tip. There was evidence from Council that Mr Gatty's contract was not renewed after the end of May 2005. 172 Mr Grose denied that he asked Mr Gatty to reverse his statement but rather said "I can't believe you did that to me. I've read your statement. You're trying to get me sacked." Mr Gatty told him that was not his intention. Mr Grose also denied saying he would have him kicked out but did say he told him that he had now drawn attention to himself and it was going to affect him as well and they'd see how long he lasted. Mr Grose maintained that Mr Gatty's contract ran out in 1998 and that it was only verbal and did not cover steel. 173 In mid December Mr Gatty contacted Mr Higgins and told him his house had been vandalised. Mr Gatty gave evidence of rocks being thrown through his front window whilst his wife and young son were in the room. He had since installed security surveillance. The matter was reported to the police. 174 The Commission had alerted Mr Klower and Mr Grose to the issue of self-incrimination and suggested Mr Grose get legal advice over night before answering questions on the above incident. The same caution was given to Mr Rand. Mr Rand declined to answer questions on the incident. 175 Mr Grose denied any involvement in this incident. He was at home on the night in question with visitors having Christmas drinks. He had never been questioned by the police about the matter. In the week prior to the hearing in March he had been advised by Mr Klower that the issue was to be raised in the hearing. (Police documents in relation to the incident were subpoened by Council-Exhibit14). He had then gone to the Griffith Police Station to enquire about the matter and was told the file was closed. He volunteered his DNA. (Nothing more had been heard from the Police as at the finalisation of the evidence in this matter). 176 At the end of December, Solicitors for Mr Gatty wrote formally to Council to complain on his behalf of harassment by Council workers at the Landfill. The complaint also mentioned the "malicious damage" to Mr Gatty's home and that the matter was currently being investigated by the Police. The letter also referred to an earlier incident the same day as "malicious damage" of the Council vehicle driven by Mr Grose coming up to his area and driving around when there was no reason to be there. This was claimed to be harassing and intimidating behaviour. (Exhibit 32) 177 Mr Higgins had the responsibility of drafting Council's response which he discussed with landfill staff. The reply raised a number of issues concerning Mr Gatty's conduct and actions at the landfill, the role and duties of Landfill staff (including Mr Grose) affirmed Council's non harassment policy but pointed out that Mr Gatty could be instructed to undertake safe work practices and carry out his work in accordance with his contract. As far as Mr Higgins was aware Mr Yadav had sent the letter in substantially the terms he had drafted. The letter was not attached to Mr Brooks' affidavit but Mr Higgins' draft was annexed to Mr Grose's affadavit in reply (Exhibit2- annexure "D" 178 Mr Yadav gave evidence about a meeting he and Mr Higgins held with the Landfill staff on the issue of intimidation, Mr Gatty's rights at the Landfill site (as his contract had not finished) and also his rights, having made a protected disclosure. Mr Yadav said the staff took this "quite well" and seemed to understand Council's concerns that their actions could be seen as a reprisal against Mr Gatty. Mr Yadav and Mr Higgins also met later with Mr and Mrs Gatty (Mr Brooks being away on sick leave). Their concerns were raised but Mr Grose was not specifically mentioned. Mr Gatty was also told to stop waving at the staff as they were construing that as being snubbed by him. Mr Yadav subsequently reported the meeting to Mr Brooks by e-mail in early March 2005. 179 When Mr Brooks returned from sick leave he finalised the report to ICAC which was forwarded on the 31 January 2005. The report comprised the following: 1. EXECUTIVE SUMMARY, 2. SCOPE OF THE INVESTIGATION, 3. METHODOLOGY USED, 4. THE EVIDENCE, and 5. CONCLUSIONS AND FINDINGS. 180 Under the heading "1. EXECUTIVE SUMMARY", the findings concerning the three allegations were detailed as follows: 1.Gate Mr Grose could claim some benefit of the doubt in relation to this allegation but, notwithstanding this, he has allowed himself to become involved in matters at the margin of his core task and responsibilities. As the senior person at the Landfill he cannot afford to be seen in a role where he is involved in activity which could be viewed as dubious. Even with the noblest of motivations, the fact remains he used a Council vehicle during Council time for essentially a personal errand. He needs to focus on his core tasks and avoid becoming involved in other matters. In spite of the statements by Mr Grose and Mr Peter Piccolo, I remain suspicious as to the circumstances of how the gate got to Mr Piccolo's residence. Mr Paul Josling's statement advises that: "I suggested he let Brendan know that he knew where the gate was and that if it wasn't returned he would involve the Police." I believe it was this threat that prompted Mr Grose into action. 2.White Commodore Again even with the benefit of the doubt, the transaction Mr Grose proposed in respect of the Commodore was at best poor judgement and at worst illegal. As to the question of how the Commodore left the Landfill, we have video proof of Mr Grose and his wife driving into the landfill site on Saturday, 28 September ( note Mr Brooks acknowledged in cross examination that the month should have been August). The tapes from the weighbridge for the 28 and 29 September 2004 ( note error acknowledged ) were nearly unviewable and the tapes for Saturday, 4 and Sunday, 5 September 2004 were totally unusable as they did not display 4 & 5 September 2004 but dates in August 2004. It is reasonable to assume the possibility that the tapes were intentionally interfered with. While there is no proof to link Mr Grose to this, it should be recorded as an open question which gives Griffith City Council and I some concern. Mr Peter Higgins' statement states that Mr Grose told him on 3 September 2004 that the Commodore was at his house. When questioned later Mr Grose advised that he and his wife entered the landfill site on Saturday 28 September 2004 ( note error acknowledged) to fix a computer and that the Commodore had been parked in the shed at the depot or at the Blue Dot Raceway. I am therefore entitled to say that Mr Grose's evidence on this point seems unreliable and therefore places in doubt other recollections of events by Mr Grose. 3. Valiant Mr Grose again used poor judgement in this matter and demonstrated poor leadership. Even in the absence of written instructions he must have known that what he was proposing by exchanging a car for work done by a third party was essentially illegal and could bring the Council into disrepute. As with other actions listed above, this action would have been known to his staff and it sent the wrong message. It was a poor example to set and unfortunately it seems to have been part of a pattern that had evolved at the Landfill under his leadership. 181 Mr Brooks acknowledged that in his report he did not indicate to ICAC that Mr Grose had brought the vehicle back and that it was at the Landfill site. Mr Brooks said that was because he wasn't sure if that was the truth or not as it was at odds with Mr Gatty's statement. When asked if he had made subsequent inquiries to check when the vehicle was back at the Landfill site he said he thought the car was back on 3 or 4 September. His concern was that Mr Higgins had advised Brendan and the vehicle was then returned to the Landfill. 182 Under the heading "METHODOLOGY USED" was an outline of the procedures followed in the course of the investigation and included in the attachments to the report were copies of the various statements taken and Mr Grose's October 18 response to the Gatty statements. Also detailed were the questions asked at the 29 November interview together with Mr Grose's responses. 183 That section also noted, in addition to the record of the interview questions and Brendan Grose's responses, that "a copy of Brendan Grose's telephone account are attached as appendix 14". However that phone account was not included as part of the Report to ICAC annexure to Mr Brook's affidavit (Exhibit 32-annexure C). In the annexed interview record the following notation appeared below the response noted by Mr Grose to a question about the allegation that he phoned Mr Gatty twice on 3 September as follows: "NB- Grose's telephone account indicates the following - 2 calls-made by Brendan to Ron Gatty 1 at 9.43am for 6minutes and 12 seconds and a second at 12.28pm for 1minute and 34 seconds both on 26th August 2004. Brendan made 2 calls on 3rd September 2004 - 1st at 12.21 which lasted 21 seconds and a further call at 2.09pm which lasted foe (sic) 1 minute and 4 seconds" 184 Mr Brooks detailed under the heading "THE EVIDENCE' the following: "The evidence gained during the investigation process and ultimately used to determine my findings are as follows: a) Signed statements by persons named in the public declaration and by Council staff involved. b) Telephone conversation with the person named in the public disclosure. c) Formal interview by the Investigation Panel of Brendan Grose on 29 November 2004. d) Opinions of members of the Investigation Panel. It is my belief that the evidence presented is accurate and reliable" 185 In his "CONCLUSION AND FINDINGS" Mr Brooks noted in his "Summary" the following: On my reading of the facts and viewing the statements taken, Mr Grose has been guilty of misconduct in that he: - acted inappropriately and in a manner which could bring Council into disrepute. - Exercised poor leadership and decision making. As stated above, my opinion is that the public declaration statements by Mr Ron Gatty are correct and I find it hard to believe all of Mr Grose's recollection of events, unfortunately possible evidence via video tapes is not reliable and I believe that the tapes could have been intentionally interfered with. 186 Mr Brooks then made recommendations as to six actions to be taken which may be summarised as follows: a) Mr Grose be sent a letter by the General Manager requesting that he advise why he should not be penalised as per Clause 41 (d) of the award for "breaches to the Griffith City Council Code of Conduct (Policy 160) and for breaching his leadership role as defined in Mr Grose's Position Description". The disciplinary actions provided for under the Award were noted as i. Demotion ii. Suspension without pay iii. Termination. b) As a matter of urgency, a review and implementation of new procedures re the acceptance and disposal of vehicles, including a review of procedures re abandoned and impounded vehicles at the Landfill and the vehicle Compound. The policy and procedures to be clearly communicated to relevant staff and contractors. c) Review of procedures re "scavenging". d) A review of the entire operations, management and procedures at the Landfill. e) Repair and if necessary replacement of the video surveillance equipment at the weighbridge, training of staff and implementing regular collection and viewing of the tapes by a senior manager. f) Advice to staff concerning the rights of those making public disclosures in this investigation with reprisals to be seen as disciplinary breaches to be "vigorously pursued". 187 In late April 2005 Mr Mackinlay and Mr Brooks discussed the results of Council's investigation and they both believed that disciplinary action was required against Mr Grose. Mr Brooks then caused to be sent the 29 April letter to Mr Grose as outlined in paragraph 21 above. 188 Mr Brooks deposed that the main reason for the time taken between submitting his report to ICAC and writing to Mr Grose on 29 April was that he had been advised in telephone conversations with Ms Malin, an official of ICAC, not to take further action until ICAC had had the opportunity review his report. He had contacted Ms Malin a number of times to check progress and received verbal approval to implement the recommendations contained in the report in April. 189 Mr Mackinlay acknowledged that he did not approach Mr Grose in any way about the allegations in the period between the meeting of 29 November 2004 and the 29 April 2005 letter. Although he also said that during the investigation on several occasions, he would have said to him words to the effect of - "look you need to get on the front foot, you need to get some information and you need to be responding to these requests for information, you need to be getting your story across," and his advice was "well I'm acting on the advice of the Union and I'm taking their advice." 190 Mr Fayle had contacted him on occasions to ask about progress of the matter but as he understood it Mr Fayle had "stepped back" from Mr Grose due to a previous issue between them. 191 Mr Grose said that when he got the letter he contacted Mr Klower for advice. Mr Klower asked him if he had had a meeting with Council when all these questions were put to him and whether he had given the answers in detail and he told him yes and Mr Klower indicated the response he needed because he'd given the answers in detail. Mr Grose wrote his letter of reply of 6 May (see paragraph 22 above) and maintained that it answered the allegations against him. He denied that he had ever breached Council's Code of Conduct. 192 Mr Mackinlay considered that the 6 May response of Mr Grose was "completely dismissive" . When given the opportunity to expand on any other issues that might act in mitigation he came up with a short concise response that said "essentially nothing " and did not add to their knowledge or in any way explain his actions. This was another opportunity for him to put his case forward and answer very specific allegations. The General Manager was considering what action was appropriate to take having found him guilty of serious misconduct. 193 They decided that Council needed to meet with Mr Grose to discuss the issues with him. Mr Mackinlay then personally made attempts to contact him between the 9 and 25 May to advise him of the need to meet with himself and Mr Brooks. During that period Mr Grose was absent on workers compensation leave in relation to a back injury. Council records did not have Mr Grose's home phone number and it was also not listed in the local phone directory. 194 It was Mr Mackinlay's evidence that in the week of the 9 May he tried to ring Mr Grose's work mobile which was answered by Darryl Penrith. He asked him to pass a message on to Mr Grose that he and Mr Brooks wanted to speak to him, he said he would do this. Later in that week he again rang Mr Grose's work mobile which was answered this time by Rohan Smith another Landfill employee. Mr Smith was also asked to pass the same message onto Mr Grose. 195 Mr Grose said that when he went off on leave he handed his work mobile phone to Darryl Penrith on 13 May (a Friday). He then went to Melbourne for his partner's birthday and did not return until 17 May (a Tuesday). Mr Penrith confirmed that Mr Grose gave him the work mobile on 13 May and maintained that Mr Mackinlay had rung him several times after that date in the week beginning the 16 May (over a two week period). Mr Mackinlay was trying to get hold of Brendan but didn't say what for. 196 Mr Mackinlay said he had also told Peter Higgins in the beginning of the week of 9 May that he was trying to contact Mr Grose to arrange to have him come in for a meeting. Sometime during that week he also had a conversation with Mr Higgins in which Mr Higgins told him Brendan had rung him a couple of times and asked "what do they want to have a meeting about". Mr Mackinlay told Mr Higgins that the General Manager was considering disciplinary action and wanted to discuss the matter with Brendan. His written response hadn't helped matters. Mr Higgins was also in his office early in the week commencing 16 May when his mobile phone rang and he indicated it was Mr Grose on the other end. Mr Mackinlay "motioned" that they needed to see him and he recalled Mr Higgins telling Mr Grose "that they want you to come in and have a meeting with them...um well I imagine it's about the ICAC investigation" 197 Mr Higgins acknowledged that he spoke to Mr Grose a couple of times in the two week period before his termination. He said that Mr Mackinlay had spoken to him about getting Brendan to come into a meeting to get a letter. He told Mr Mackinlay that Brendan had contacted him. This was on a mobile phone and Mr Higgins used the reverse dialling to ring Mr Grose back and asked him to come to a meeting but he was in Melbourne and wouldn't be back till the end of the week. He said he passed that on to Mr Mackinlay but couldn't remember the dates involved. 198 However prior to Mr Mackinlay speaking to him he had gone to see Mr Brooks because of rumours that were circulating around Council about Mr Grose. Mr Higgins said there must have been a Council meeting where this was discussed and it got out, as the Parks and Gardens Supervisor, a Mr Brown, had informed him that "my boy's got the chop." He told Mr Brooks there were rumours that Brendan was going to be fired or suspended. Mr Brooks confirmed that that was the way he'd reported it to ICAC, they'd got something back from ICAC and that was the way they were proceeding. Mr Higgins told him he didn't think that was fair as he hadn't been involved and didn't know what level of investigation there had been. 199 Mr Brooks denied that there was a discussion with Mr Higgins in those terms because they hadn't finalised what actions they were going to take. The letter of 29 April listed three possible disciplinary options available under the award of which termination was only one. If there had been a discussion it would have been along the lines of "we're working our way through it." Mr Brooks acknowledged that it was "fair to say" that there was quite a lot of rumour flowing around the place at the time but there was certainly no comment from him to Mr Higgins that that was the course of action that they had decided because right throughout the investigation Mr Higgins had actually been kept away from it. This was because not only had he provided a statement but also because Mr Brooks had "some suspicions" as to his ability to be unbiased. 200 When Mr Higgins spoke to Mr Grose he told him that his "fears" had been confirmed. 201 Mr Grose deposed that when he returned from Melbourne on the 17 May both Darryl Penrith and Jim Taylor told him that Mr Mackinlay was wanting to get in touch with him as Mr Brooks wanted to have a meeting. Mr Grose contacted Ian Fayle who in turn contacted Mr Brook's Secretary Tracy Robertson to organise a meeting for Friday 20 May which was the only day Mr Fayle could come across from Hay. Mr Fayle was advised that Mr Brooks was busy on that day. Mr Fayle contacted Mr Mackinlay by phone and was told that Mr Brooks didn't want to have a meeting only to give Mr Grose a letter. Mr Mackinlay said he could not tell him what was in the letter. Mr Fayle called Mr Grose back and told him that that his suspicions of termination may be right as they don't want a meeting only to pick up a letter. 202 Mr Grose deposed that he was at home at this time and contactable by "other parties" who did contact him, including Mr Fayle who had no problem contacting him. He received no contact from Council. 203 Mr Grose then rang Mr Higgins and told him about the letter and his suspicions as to its contents. Mr Higgins had not heard anything about it and asked how he knew it was a termination letter he told him he had heard a certain manager "spruiking" about it. Mr Higgins said he would go and ask Mr Brooks and call him back. When he called back he said that Mr Grose was right, and essentially he had protested about it, tried to have a discussion with Mr Brooks but was dismissed He didn't agree with it and apologised. Mr Grose said that as a result of this discussion with Mr Higgins he believed that he had been terminated by Council. Mr Higgins was his manager and wouldn't lie to him. 204 Mr Grose said he also knew that he'd been terminated because the week before Mr Brown had been "bragging" about it down at the club - "Brendan's got sacked, Brendan's got sacked". He believed several staff "up the top office" already knew. 205 Mr Penrith also said there were rumours floating around the between the town and the tip in the week before Mr Grose received his termination letter. He couldn't recall who had specifically mentioned it however. 206 After speaking to Mr Higgins, Mr Grose rang Mr Fayle, told him it was a termination letter and asked what he should do. Mr Fayle said he would contact Mr Klower and ask him and was told to tell Council that as Mr Grose was on workers compensation they should deliver the letter. 207 Mr Mackinlay denied that he was contacted by phone by Mr Fayle and that he told him during the course of the conversation that he had a letter for Brendan and that "he wouldn't like it" with Mr Fayle asking if he was going to terminate him. Mr Mackinlay said Mr Fayle may be confusing it with the 29 April letter. He called him "about that period as he often did, because both of us were keen to see the whole thing brought to a conclusion , it had been dragging on for various reasons." 208 There was no evidence from either Mr Fayle or Mr Klower who conducted the case on behalf of Mr Grose. 209 Mr Mackinlay said that between the 9 and 24 of May, he and Mr Brooks had discussed on a daily basis the issues concerning Mr Grose although he could not recall the detail of those discussions. On the 9 May after discussion with Mr Brooks about the unhelpful written response of Mr Grose, Mr Mackinlay was asked by Mr Brooks to look into the three possibilities allowed under the award, being suspension, demotion and termination. He researched those possibilities particularly in respect of demotion because they were convinced that Mr Grose would need to be re-located if he was to be demoted. He also drafted a letter in the event that termination was the option the General manager chose. The draft letter was typed by Mr Mackinlay on his computer and remained there untouched from 9 May until 24 May 2005. 210 Mr Mackinlay said the significant differences between that version of the letter and the final termination letter of 24 May were the references to Mr Grose's continued reluctance to make himself available to come and discuss the issues and the reference to the further breach of conduct in relation to the contacting of Councillors. 211 Mr Mackinlay acknowledged that, apart from the attempted contact from the period of 9 May and the 29 November 2004 ICAC investigative meeting, at no stage in the whole 9/10 months since the original Gatty complaints had Council requested that Mr Grose attend for the purposes of having a meeting with either Mr Mackinlay or Mr Brooks to discuss the complaints or Mr Grose's actions. He also acknowledged that when he couldn't contact Mr Grose by phone in early May he did not send a letter to his home address requiring him to come to a meeting. That wasn't the was they did things in Griffith. 212 Mr Brooks indicated that in relation to the recommendations concerning a review of Council's policies and procedures concerning cars and the Landfill some had been implemented, particularly in relation to vehicles, but the rest had been put on hold pending the outcome of these proceedings. Contact with Councillors 213 Mr Grose said he had spoken to Councillor Pittavino "only just by coincidence". He had spoken to Mr Higgins on the 17 May and had been told about Mr Higgins going and speaking to Mr Brooks who said "yes, he's been terminated." The next day Mr Grose was with Mr Snaidero and they were passing through Yenda. They stopped to get a bite to eat and do some business at the IGA store as Mr Snaidero is in a franchise with an IGA business. Councillor Pittavino was across the road at a Field Day, something to do with phones as he "does Telstra". When they said they were having a bite to eat Councillor Pittavino said he'd join them. Mr Grose then told him about an a recent encounter he'd had with Peter Piccolo outside the gym. 214 Mr Grose's evidence about that encounter was that he had been coming out of the gym with his partner and when Peter Piccolo drove up he scraped his car against the kerb. Mr Grose made some comment about taking it easy and said that " and he goes -"That's right you like 'em out at the tip all in one piece so you can sell 'em". He then "told him the story" . Mr Grose told him he had been terminated and said "That's not funny, things like that, that gets around a small town". 215 Initially when Mr Piccolo was questioned about this encounter he could only remember scraping his car and speaking to Mr Grose and being when he was at the gym that he'd been terminated. Mr Piccolo said this (and other) conversations weren't terribly significant to him, it didn't concern him at the time. He was "travelling 100 hundred miles an hour all the time." He just dealt with things and moved on. After some prompting he said "it will come to me, give me a chance". He then said- "Yes, Brendan said, hey, take it easy, some - you know, about the front guard of it. And I said, well, you can take it out the tip and scrap it, something like that. And that's when he said, don't say things like that, that's what I got the sack over, some comment like that." 216 Mr Grose said that Councillor Pittavino advised him to go and see the Mayor and bring this to his attention. He told him that was the proper protocol and that it should be reported. Mr Grose also deposed that Mr Snaidero commented that it was proper protocol to see the Mayor if he had concerns about the General Manager. 217 Mr Grose subsequently rang the Mayor and asked to have a meeting with him on Saturday 20 May at the Mayor's house. His partner went with him. His purpose for seeing the Mayor was because he had a complaint about the General Manager breaching the Code, it was nothing to do with his termination. Mr Grose deposed that he would not have made an appointment to see the Mayor if in his opinion he was not already terminated and effectively no longer a Council employee. Mr Grose maintained that the Mayor had an "open door" policy with staff. Also if he had a problem with the General Manager then you couldn't go to the General Manager with a complaint about the General Manager, the protocol was to see the Mayor. 218 Mr Grose said he was having "a fair bit of trouble around the town with the cars". It was on the local news, he'd been in the paper about six times concerning taking vehicles, leaving the site, taking them back to Council and selling them. The newsreader had actually referred to the "supervisor at the landfill". He said "it gets around". He was concerned that "90 percent of the town probably thinks I'm a thief". He went on to say - " And for Mr Brooks to, while he's doing an interview, mention parts of the whole investigation to a person that all he was there to ask, ringing up about the gate, I find a total breach of the code." 219 When Mr Grose met with the Mayor he didn't tell him about his concerns about being terminated, he told him he was terminated. The Mayor asked him if he was sure and he replied yes. The Mayor told him he didn't know anything about it and he could not interfere in the General Manager's decision nor could he direct him. Mr Grose maintained Mr Dal Broi told him "You can't win with these guys". He also said that when Mr Dal Broi asked him if he was sure he'd been terminated and he told him he was, Mr Dal Broi then said "well take the gloves off. " 220 Mr Grose reported to him "the general manager has spoken to a Mr Piccolo and went into great detail of the case and caused me an embarrassment." He then relayed the encounter with Mr Piccolo as detailed in paragraph 207 above. He considered that Mr Brooks' investigation was appalling and told the Mayor that. 221 Mayor Dal Broi's evidence was that Mr Grose rang him some time in May wanting to meet with him because he felt there was a letter terminating his employment with Council. The Mayor informed him it was not a matter for an elected representative, but he'd known him for a while and he still insisted on meeting him so he did "approve" to meet with him. 222 In answer to a question from the Commission he said- "he was under the understanding that he was about to be terminated, yes. There was a letter - his words there was a letter floating around the council building and that the staff were trying to serve the notice on him to terminate his employment." 223 Mayor Dal Droi couldn't recall saying the words attributed to him by Mr Grose. However he had known Mr Grose for some time and could recall saying that if he was telling him there were inconsistencies, and he was trying to explain that there were some inconsistencies, he told him there'd "have to be an explanation by someone". 224 Mr Grose and his partner spent about an hour with him. Mr Grose showed him some documents- letters where he'd been given references about his work, talked about the job and what he did and didn't do on the site. He felt he was unfairly treated and that some of the allegations being made were untrue. The Mayor was not fully aware of all the allegations at the time because the General Manager was handling it. They just generally spoke about that. 225 Mr Grose asked if he could help him and he said that he would try and approach the General Manager. He couldn't recall all the issues that were discussed that morning. However the next working day on the following Monday or Tuesday, he raised the issue with the General Manager who gave him his version. That was where he stopped because it wasn't his place as an elected representative to interfere with staff matters. 226 The Mayor agreed that he had an "open door" policy with staff who wanted to discuss these type of matters with him. He could not answer for other Councillors as to whether they had a similar approach. He also conceded that he agreed to meet Mr Grose even after he had explained what he wanted to speak to him about. He would have applied the same principle to other staff. 227 The Mayor couldn't recall having any discussion with fellow Councillors in relation to the termination, but there were discussions in relation to some of the issues at the waste disposal. The General Manager had briefed him as to the process but not the detail. He also reported in Committee that he was conducting an inquiry and they may have discussed the issue of the inquiry. 228 Mr Brooks however maintained that the Mayor did not have an "open door" policy and that the Mayor was very well aware of the clear definition between the role of the elected members and the Mayor and the General Manager and the senior staff. Mr Brooks also indicated that he had had occasion to speak to the Mayor and Councillors and staff about communication between Councillors and staff. 229 Mr Yadav gave evidence that he was aware that Mr Grose had attempted to contact Councillors during the period of investigation and prior to being terminated. Councillor Pittavino had taken Mr Yadav aside at a social function in February 2005 and told him he thought "Brendan was hard done by". Mr Yadav didn't agree and defended Council's position. 230 Mr Yadav took the view that Councillor Pittavino was obviously speaking on behalf of Mr Grose. Although he conceded that Councillor Pittavino didn't actually say that Mr Grose had asked him to approach Mr Yadav. 231 Mr Yadav also agreed that Councillors generally got "pretty involved" in a whole lot of committees that regularly run the operation in the Council. They talked to staff regularly whenever there was a need for information but generally went through Mr Yadav or his counterpart on the corporate side. Mr Yadav also agreed that the Mayor had an "open door" policy. 232 Mr Brooks had told him at a meeting of the investigation panel about Mr Grose approaching the Mayor in relation to the allegations. 233 It was Mr Brooks' evidence that shortly before 24 May, Mr Yadav had told him that he had run into Councillor Pat Pittavino who had told him that Brendan had been speaking to him and said he's going to be terminated. Shortly afterwards Mr Brooks also spoke to Councillor Pittavino (but could not recall where the conversation took place) who asked him if it was true that Brendan Grose was being terminated. He then asked "are you sure you're doing the right thing?" Mr Brooks told him it was a "staff issue" and it was subject of an ICAC investigation. 234 In addition, shortly before 24 May, Mr Brooks had a conversation at Council's offices with the Mayor, Mr Dal Broi, who told him that Brendan Grose had been to see him. He was avoiding Mr Brooks because he suspected he wanted to sack him. Mr Dal Broi said he told Mr Grose that it was a staff issue and the General Manager was responsible for staff issues. Mr Brooks told him that Mr Grose had also been in contact with Councillor Pittavino. Council had not finalised its action as they couldn't get in touch with him. 235 Mr Brooks further deposed that Mr Grose's conduct in contacting the Mayor and Councillor Pittavino was in breach of Council's Code of Conduct. (Exhibit 32- Annexure "G"). However he was not able to say that Mr Grose had asked Councillor Pittavino to come and speak to him. Disciplinary history of Mr Grose 236 Mr Mackinlay gave evidence about Mr Grose's disciplinary history with Council and deposed that he had a "history of unsatisfactory performance and conduct with Council". 237 Mr Mackinlay had checked his personnel file which showed that whilst Mr Grose commenced employment with Council on 22 March 1993 his employment had been terminated on 16 April 2003 on the ground of misconduct for making a false workers compensation statement. It appeared that Council reinstated Mr Grose a short time later. 238 Mr Grose deposed that in relation to the 1993 termination it was not a false workers compensation claim, "Council upon investigation realised that they had erred in their decision and reinstated him immediately." He annexed the applicable letter from Council dated 20 April 2003 (Exhibit 2 - Annexure "K") which indicated, in relation to information about a previous claim, that Council were prepared to accept that his "actions were not done with the intention to deceive" and confirmed his immediate reinstatement. 239 Mr Mackinlay had not seen the letter before seeing Mr Grose's affidavit. He was aware that Mr Grose had made a misleading statement when he joined Council. He was aware he had been reinstated a some days later. Whilst he had not been with Council at the time he had talked to others who were around at the time and were aware of other circumstances surrounding the matter. For him it raised the issue of the credibility of Mr Grose. 240 Mr Grose was not cross examined on this issue. 241 Mr Mackinlay deposed as to four incidents prior to 2004 which resulted in Mr Grose being disciplined by Council and attaching relevant documents from Mr Grose's personnel file: December 1995 - assault of fellow employee, August 1998 - approval of sick leave for staff member without authorisation. August 1998 - unauthorised use of Council equipment, December 1998 - failure to erect signage appropriately and failing to execute his responsibilities as overseer. 242 Mr Grose deposed (Exhibit 2) that in relation to the assault he was suspended whilst an investigation took place by Council and Griffith detectives. Statements were taken by both. Mr Grose was told by the Police that charges would not be laid as during their investigation they found the other employee to be the aggressor and asked if he wished to proceed with charges. He declined as he didn't want trouble in the workplace and heard nothing further. He was contacted by Council to come and have a meeting with the Human Resources Manager. He was asked if he had any problems working with the other employee and said no and was told to start back at work the next day. He could not recall getting a disciplinary letter regarding this matter as he was not at fault. 243 Mr Grose was cross examined on the details of the assault and what physical actions took place and injuries that were sustained by the other employee. 244 Mr Mackinlay acknowledged that he did not examine the personnel file of the other employee involved. He assumed he received a similar letter to that of Mr Grose which indicated a suspension and interviews to be conducted. He had read the detailed Police statement and the other consistent witness statements which made it pretty obvious. He could not recall any further letter on the file and there was no indication of any outcome. As he understood, it appeared the two men were invited to shake hands and get on with life. 245 In relation to the signage incident Mr Grose deposed that he was only the truck driver, he was not in control of the site and was under the direction of an accredited Traffic Controller retained to do the job. In relation to the unauthorised use of equipment (a spray painter), it was Matthew Higgins who borrowed the equipment, he had been using it at his residence and Mr Grose was asked to go and return it to Council. Mr Grose was not cross examined on any of these issues. 246 Matthew Higgins' evidence was that in relation to the sick leave issue after seeing his doctor for work related stress he had gone to Mr Grose's house to give him a sealed envelope to give to Mr Josling on the following Monday. Mr Grose was the closest one living near him and he didn't find it appropriate to go to his manager's residence for work related issues out of hours. He had also been the one who had borrowed the equipment (a compressor) and followed the procedures at the time which were to fill in a log book. He had not returned it as he had intended to do so after returning from annual leave. He was the only one who used the compressor as he was the only painter. 247 Mr Higgins had also been the Traffic Facilitator and responsible for signage on the day. He had erected the signs as he had been trained to do by Council prior to Mr Grose and the other employee involved commencing work. He was not aware of the memo sent to Mr Grose by Mr Cremasco about the incident otherwise he would have placed a response. 248 Mr Mackinlay was asked a number of questions about his understanding of the incidents. He generally viewed the documentation as being critical of Mr Grose's involvement in the incidents. He indicated that procedures in relation to staff borrowing equipment had changed since that incident and it was no longer permitted. In relation to the alleged assault he agreed there was nothing on the file to indicate any follow up action. 249 Mr Mackinlay also deposed and gave evidence about two complaints received from members of the public - a phone complaint in March 2002 and a written complaint in April 2000 - about Mr Grose's manner and the way he had spoken to them. The written complaint concerned being spoken to in an offensive and rude manner 250 Mr Grose attached to his witness statement (Exhibit 2) a letter of reply sent by Council to the member of the public who made the written complaint. The reply dealt with Mr Grose's belief the person had again been scavenging, language difficulties, the lack of clear guidelines as to community expectations and attaching a draft policy for proposed guidelines. It also indicated that that the incident had been "discussed" with Mr Grose. 251 Mr Peter Higgins gave evidence in reply to the affidavit evidence of Mr Mackinlay concerning Mr Grose's disciplinary record. Mr Higgins deposed that he had not found it to be the case that Mr Grose had a "history of unsatisfactory performance and conduct". He deposed that on the recommendation of his manager and the approval by senior management he had been promoted to Waste Overseer and had continually received above average performance reviews". 252 Mr Higgins also deposed as to the difficulties and problems encountered by the Mr Grose and the Landfill staff and criticism of them by members of the public for doing their jobs. He and Mr Josling had conducted investigations which found that actions taken by staff had been completely justified based on safety and Council's Landfill policy. Senior management had no knowledge of the difficulties and abuse staff had to endure to put into place a "user pays" and compliance with Council's policies. He also deposed that complaints from "wrong doers" did not indicate a poor employee as senior management seemed to indicate. On the contrary it indicated a "dedicated employee willing to operate in difficult circumstances". 253 Mr Higgins indicated that he had concerns with the way Mr Grose handled things at times (particularly in relation to incidents with Mr Siviour). He said Mr Grose was "fairly enthusiastic" and with Mr Siviour it was "two bulls at a gate". He had also had occasion to speak to Mr Siviour about his attitude to staff. 254 Mr Higgins also indicated that Mr Grose was a "fairly active and fairly keen member of staff". However with a few complaints about "this gorilla"" out at the Landfill they did send him to a customer relations course for training on how to deal with customers. It wasn't done as a disciplinary thing but because of the number of complaints coming in. They didn't believe the complaints were justified but wanted "to neaten up Brendan's approach to people". 255 Mr Higgins in cross-examination indicated that because of Mr Grose's "stature and presence" which had an intimidating effect on some people, they had nicknamed him "the gorilla", he was approachable to people but people misunderstood him. 256 Mr Siviour gave evidence about incidents in 2003 and 2004 concerning the operation of the Bluedot Speedway Club with which he had been involved for some years. The club was located within the boundary of the Landfill site. Mr Siviour complained about Mr Grose and his manner and approach and actions in enforcing Landfill procedures. 257 Mr Grose (and to a lesser extent Mr Rand) also countered with evidence about Mr Siviour's manner and approach and problems staff encountered with the Club. 258 Mr Snaidero gave general evidence about his knowledge and opinion of Mr Grose's character and satisfactory performance during the time they had both been employed at the Council (prior to December 2001). He was not cross examined. 259 Mr Yadav gave evidence that he was aware that Mr Grose had had some disciplinary issues in the past and had been cautioned although he could not recall the details. He found him to be an "overbearing character" and had formed this view from the complaints from members of the public about how he had approached people who in the opinion of Mr Grose had done the wrong thing. He lacked customer care skills, had a rough tone and his use of language was often inappropriate. 260 Mr Yadav said that he and Mr Grose had always communicated at a very respectable level. He had never been arrogant or anything and they had a pretty good relationship. He'd had no reason to tell him how to conduct himself apart from dealing with customer complaints in the proper way. A few of the complaints that had come across his desk had been discussed with Mr Higgins but "he always seemed reluctant to deal with the customer complaints properly". 261 In relation to his concerns about how Mr Grose dealt with customers, he said he was unaware as to whether he had ever been disciplined in any way. He went on to say - "his managers were reluctant to deal with those issues. They were quite ineffective that way". He had asked them to speak to Mr Grose about his manner but was not able to say whether that had happened. However the complaints came in pretty regularly. 262 Mr Grose had also been one of the Union's delegates at Council for the last 11 years. He said he often had occasion to have meetings and discussions with Mr Mackinlay since he joined Council. Mr Mackinlay said whilst they enjoyed a "robust exchange from time to time", it was always "cordial". The Termination 263 Mr Brooks deposed that "at the end of May in the light of all the evidence available" to him he decided to terminate Mr Grose's employment. In reaching that decision he had regard to the following: · Mr Grose committed serious breaches of Council's Code of Conduct: - he disposed of Council property (being the valiant motor vehicle without authority); - he removed Council property (being the Commodore motor vehicle without authority); - he was involved in the attempted theft of a gate; - he sought to have false documents (being receipts) issued; - he drove an unregistered vehicle. · Mr Grose's conduct demonstrated complete disregard for his responsibilities as an overseer: · Mr Grose had apparently avoided Council's attempts to contact him and had contacted Councillors on at least two occasions in relation to his termination (which constituted further breaches of the Code of Conduct); · Mr Grose's employment history was far from satisfactory, taking into account his early termination for misconduct, together with four reprimands for misconduct ( including one for assault). 264 Mr Brooks prepared and signed a letter advising Mr Grose of his decision to terminate his employment effective from 25 May 2005 which was sent by registered post on 24 May 2005 (see paragraph 23 above). The letter also advised that Council had chosen not to exercise its right to summarily dismiss Mr Grose, instead providing five weeks' pay in lieu of notice. Mr Grose signed for and received this letter on 25 May 2005. 265 It was Ms Robertson's evidence that Mr Brooks informed her on or about the 24 May that Mr Grose was to be sent a letter by registered post. This was the letter of termination which was based on Mr Mackinlay's May 9 letter. On 23 May Mr Mackinlay e-mailed to her a revised version he had typed which now included an additional paragraph referring to Mr Grose declining to respond to attempts to contact him and also referring to his recent contacts with Councillors. The cessation of employment date was now 25 May (TR-3). This version was printed off and signed by Mr Brooks (TR-4). It was then noticed that the original date of 9 May had not been updated. Ms Robertson saved the document into Mr Brooks' confidential file area in the EDM. She then made corrections to it, removing the old file number 999 (which means personnel file), added a reference TR:PB, added some commas, justified the right margin and changed the date to 24 May 2005. She then printed this version off and Mr Brooks signed it (TR5). Copies of the relevant screen printouts and history for the letters were attached to her affidavit ( TR1-TR4). 266 Ms Robertson believed she sent out by registered post the final signed version dated 24 May however she had both signed letters (9 May and 24 May) in the photocopying room. Her intention was to shred the 9 May letter, photocopy the 24 May letter and place the copy on the personnel file and then send the original 24 May letter. Whilst she photocopied the 24 May letter, as a copy was on the personnel file, she inadvertently shredded the 24 May original and sent out the 9 May letter that had initially been signed by Mr Brooks. 267 Ms Robertson was also adamant that she placed the letter inside a Council envelope and then placed it into a registered post envelope. This was disputed by Mr Grose who said that when he opened the registered post envelope the letter of termination was inside and not in another envelope. His partner, Ms Devery, placed it in a Council envelope he had at home (he had a number of these) and handwrote "Termination letter" on it. The envelopes and letter were in evidence as Exhibit 5. The registered post envelope had a typewritten label with Mr Grose's name and address on it. The Council envelope had a hand written name and address that was not in the same hand writing nor pen( blue and black pen) as "Termination letter". 268 When Mr Grose received the letter with 9 May on it, he said it confirmed his belief that Council had sacked him before it tried to contact him. 269 However it became apparent during the course of the hearing that Council were unaware that there was any issue about the date on the termination letter. A copy of the letter in Mr Grose's possession was not attached to his Unfair Dismissal application. In answer to questions from the Commission Mr Brooks said he could see how Mr Grose might have formed the impression that he did about his termination but that was certainly not Council's intention. 270 Mr Brooks subsequently received a letter from ICAC, dated 10 June 2005, in relation to the investigation (Exhibit 32- "H"). The letter said in part: Given that Council is implementing the recommendations of the investigation and making efforts to improve policies, procedures and organisation of Council in order to minimise the possibility of similar incidents reoccurring, the ICAC has determined not to take any action in respect of this matter. 271 The letter went on to note that ICAC understood that Mr Grose's employment with Council had since been terminated. 272 Mr Brooks deposed that based on this letter he believed that he had responded "reasonably" to Mr Gatty's allegations, that the investigation had been conducted in a "thorough and balanced way", and that the termination of Mr Grose's employment was the "appropriate, fair and reasonable outcome." He maintained that he still considered that Mr Grose had breached Council's Code of Conduct. 273 Mr Grose for his part maintained that he had never breached Council's Code and deposed that if it could be shown that he had then he would accept his dismissal. However in evidence he said he would not accept his dismissal as he was aware of numerous people speaking to Councillors in the past. 274 Mr Higgins said he was not aware of the reasons for Mr Grose's termination. Mr Brooks did not seek his views in relation to Mr Grose before the termination was effected. Remedy sought 275 Mr Grose sought reinstatement to his former position or re-employment to another position. There was no evidence however, as to any attempts by Mr Grose to seek alternate employment since his termination. 276 There were bank records produced in response to a Summons for Production which were the subject of debate between the parties. Those records related to a joint account with Mr Grose's partner, Ms Devery. However there was no specific evidence as to earnings directly attributable to Mr Grose himself in the period since his termination. 277 Mr Yadav, Mr Mackinlay and Mr Brooks all opposed the reinstatement of Mr Grose. Indeed Mr Brooks also opposed re-employment to another position. 278 Mr Brooks deposed that he did not consider Mr Grose a "trustworthy person or a suitable person to hold a position in a local government council". Mr Brooks deposed as to the following reasons as the basis for his opinion: · the conduct the subject of the Investigation raises serious doubts about Mr Grose's honesty and integrity in his position as Overseer of the Landfill; · Mr Grose's responses to the allegations made against him during the Investigation displayed an absence of any awareness of wrongdoing or contrition for his conduct, which I find completely unacceptable for a person occupying the role of Overseer; · Mr Grose's alleged harassment of Mr Gatty during the Investigation is of particularly serious concern; · I believe, based on Mr Grose's alleged harassment of Mr Gatty at the Landfill during the investigation, on Mr Gatty's stated suspicions and for reasons of timing, that Mr Grose may have played a role in the serious act of vandalism perpetrated on Mr Gatty's house on 17 December 2004; · Mr Grose contacted the Mayor on or about 20 May 2005, and contacted Councillor Pittavino at around the same time, in breach of the Council's Code of Conduct. I believe that he did so to attempt to influence Council's decision to terminate his employment. Mr Grose's in my view "fairy tale" account, as set out in a statement made by Mr Grose on 5 July 2005, of meeting up with Mr Pittavino while having a picnic, demonstrates to me the continual misinformation portrayed by Mr Grose; and · Mr Grose's employment history at Council was generally unsatisfactory and includes four reprimands for misconduct, including one for assault. I also believe he displayed an unsavoury influence over the staff under his supervision. There has been a marked improvement in staff attitude, morale and conduct since Mr Grose's departure." 279 Mr Yadav considered that if Mr Grose was reinstated it would "have a very negative effect on Council's operations", it would be a "backward step" as it could potentially cause more customer complaints against Council. He believed Mr Grose set a "poor example" for other Council staff. Re-instating someone who had broken the Code would also send the wrong message to other staff and have a negative effect on staff morale. he considered that the Landfill staff appeared to be "more positive and happy" since his termination. 280 Mr Rand maintained that he would be "quite happy" to have Mr Grose reinstated as his Overseer. He considered he had "done a good job" in running the Landfill. He was always trying to save Council money. If they were doing jobs requiring hiring contractors he would always try to get it done quicker to save money and when purchasing stuff he would go for the cheaper rather than dearer stuff. In his eyes he was always doing what was in the best interests of Council and trying to save them a dollar. 281 In response to Mr Brooks' claims, he refuted that Mr Grose had an influence over him whilst he was Overseer. He had never been approached by Mr Brooks or any other managers to discuss morale, attitude or conduct either before or after Mr Grose's termination. He would have no reservations in working with Mr Grose again. 282 Mr Penrith queried how Council "justified" that Mr Grose displayed an unsavoury influence over he and other Landfill staff or that there had been a marked improvement in attitude, morale and conduct since his termination. He found Mr Grose to be "fair " and a "good boss" who was respected by the staff. He went beyond his normal duties and would come in even on his days off to help out or when he was needed. He would have no objection to Mr Grose being his boss again. Submissions for the Applicant 283 Mr Klower in his submissions took the Commission through the issues raised by Council in the Employers Reply filed on 21 June 2005 in response to the unfair dismissal application made on behalf of Mr Grose. Those issues summarised the Gatty allegations, Council's investigative process and procedures, the findings made against Mr Grose, the outcome, Council's view that there was a valid reason for the dismissal, that it was not unfair and that the applicant had ample opportunity to make out a defence or give an explanation. 284 Mr Klower based the format of his submissions on those issues. 285 He submitted that it was the complaints of Mr Gatty had initiated the issues yet he had said in cross examination that at no time had he made complaints of theft or attempted theft of either the gate or cars. He only wanted his gate back, didn't care about the cars in question and went to Council to ask where he stood about the issuing of receipts. 286 Mr Klower summarised the evidence about the gate and the two cars and in so doing submitted what could be concluded as a result. The gate 287 There was no evidence that Mr Grose had any involvement with the gate. Mr Piccolo had admitted to taking the gate. Mr Grose had been instructed by Mr Higgins to assist in recovering the gate which he did. Mr Grose had no knowledge of what the gate looked like. Mr Gatty confirmed in evidence he drew a picture of the gate for Mr Grose. It was illogical for Council to use that as part of Mr Grose's termination knowing the admissions of Mr Piccolo. The Valiant 288 Mr Gatty didn't allege any theft. Mr Fisher asked Mr Grose not to destroy the Valiant. He asked Council could he have it. He asked Mr Grose who agreed. It was marked to be destroyed but placed on the auction list by mistake. There was nothing underhand in events as Mr Grose told him to get a receipt and go through Mr Gatty. Mr Fisher subsequently came to the crib room and asked for a receipt. That evidence was confirmed by Mr Rand and Mr Penrith. Mr Gatty admitted he did not regularly issue receipts and had given another car to someone and not issued a receipt. The car was of no real value to Council. The Valiant didn't become of interest to Mr Gatty until it was determined to be scrapped or bulldozed over. Council knew where the car was. It had not requested payment for it nor its return from Mr Fisher. It was an insignificant issue. Policies and Procedures at the Landfill 289 Mr Grose said there were no policies and procedures in relation to these matters. He had no formal procedures and kept no formal records. Council stated there were procedures and policies in place but there was no evidence that staff knew of these procedures. Mr Higgins confirmed there were no policies or procedures in place in relation to cars. The operation continues with no firm procedures in place. Mr Brooks was awaiting the outcome of these proceedings. That was a feeble excuse. The Commodore 290 The circumstances in this were unique. Mr Grose and Mr Penrith were asked by Council to pick the car up from the Immigration Officer. They complied with an instruction from Council. The vehicle was not impounded and was not processed as such. It was questionable as to whether it was the property of Council. There was a letter with instructions as to its disposal after fourteen days. This was supported in evidence by Mr Higgins. There was also supporting evidence from Mr Penrith about the car and the instructions. Mr Brooks was aware of the car and where it had come from and had given Mr Grose's phone number to the Immigration Officer. It was driven to the Landfill site. Mr Gatty had no rights to the car. The evidence of Mr Grose, Mr Rand, Mr Penrith and Mr Higgins confirmed Mr Grose's intention to use it at the tip site. Mr Grose had never denied that he took the car home for the purpose of getting it running properly. The car had been returned on the 3 September and was still there. Mr Gatty misconstrued a conversation between Mr Grose and Mr Penrith about a balance of $2000 owing on another white Commodore bought from Mr Grose's son. There was never a receipt issued. Mr Gatty had no rights to the car and a receipt could not validate its supposed purchase - it was illogical. 291 Mr Klower again reiterated that Mr Gatty made no allegation of theft of the car or of it being stolen. If Council were so adamant about this why did they not involve the Police and let them investigate the matter? They did not do so because the allegations were not substantiated and were grossly exaggerated to the point of being ludicrous. 292 Mr Klower submitted that the disciplinary matters raised by Mr Mackinlay were not investigated properly nor were complete details given from the file (e.g the other employee in the assault was found to be the aggressor). There was nothing to suggest Mr Grose authorised sick leave. Mr Matt Higgins had given a sick form in a sealed envelope to Mr Grose to pass on. Mr Higgins had also borrowed equipment and left it at Mr Grose's place for the purpose of return. There was no longer a policy of borrowing equipment. In relation to the failure to erect signs Mr Grose was only the truck driver. Mr Higgins again was the one that didn't put the signage out and spoke to the Workcover Investigator that day. 293 The issue of the false workers compensation claim was a very serious allegation and could put Mr Grose in goal. Conveniently Council left out the letter to Mr Grose dated 20 April 1993 confirming it was all a mistake with immediate reinstatement. 294 It was further submitted that these matters went back some years and there was little to no investigation into the facts. 295 Mr Mackinlay mentioned Mr Grose's attitude towards the public at the Landfill. Mr Peter Higgins' evidence was that senior management had no knowledge of the difficulties and abuse staff endured. He and Mr Josling had carried out investigations and found actions taken by staff completely justified. 296 In relation to contacting Councillors, Mr Pittavino advised Mr Grose to contact the Mayor. There was no dispute that the termination letter was written on 9 May and was the subject of discussion around the Council building for some time. The Mayor stated he had an open door policy towards staff. He invited Mr Grose and his partner to talk to him. The content of those discussions would never be known but it was clear he didn't become involved or interfere in the process and told Mr Grose that. The Mayor said he had knowledge of a letter circulating the building before 25 May. 297 It was submitted that at no time did Mr Grose canvass Councillors in direct breach of the Code of Conduct. On the Mayor's own admission, staff would have to be re-educated that an open door approach by the Mayor and Councillors should not include staff matters. Another policy and procedure issue that needed to be drastically addressed by Council. 298 Mr Klower turned to the investigative process. He summarised the notations made by the interview panel as to Mr Grose's responses. Whilst noting they were abbreviated notes he submitted that when they were digested they were consistent with everything heard during the hearing either in statements or from witnesses. 299 Mr Klower submitted it was the lack of processes after the interview panel that went to the heart of whether there was procedural fairness. 300 There were no subsequent interviews of Mr Penrith, Mr Rand or Mr Higgins who were all mentioned in the notes. There should have been such interviews and further investigation. 301 Mr Brooks said he wanted to distance Mr Higgins from the investigation. He was the person with responsibility for the Landfill site. He was "scathing" of Council's handling of the investigation. He rejected Mr Mackinlay's history of unsatisfactory work performance in relation to Mr Grose saying he found that not to be the case and he had continually received above average performance reviews. He also indicated that Mr Brooks had little knowledge of either him or the Landfill site. 302 Mr Klower submitted that if the process had been procedurally fair Mr Brooks and Mr Mackinlay should have interviewed Mr Penrith, Mr Rand, Mr Higgins and Mr Taylor to determine fact from fiction. 303 Further it was submitted that Mr Brooks' report to ICAC contained some incorrect dates that were substantially wrong and should be corrected in future. If he got the dates when Mr Grose and his wife went to the site wrong by a month then it was submitted that Mr Klower was entitled to say the evidence was unreliable. 304 It was submitted that Mr Brooks misled ICAC on certain issues.The Commodore had never been valued and to say it was worth $2000 was untrue. Mr Grose didn't use a Council vehicle for personal use he was instructed to retrieve the gate and did it in his lunch time. 305 Mr Brooks referred to Mr Grose's poor judgement in exchanging the Valiant and suggested a pattern had evolved. He made no comment about the loose practices heard from Mr Gatty and Mr Piccolo and no mention was made of this to ICAC. 306 It was submitted that Mr Grose had been painted as a villain in the report but this had been proved to be false during these proceedings and that was because Mr Brooks didn't investigate matters properly. A further letter should be sent to ICAC correcting things and clearing his name. 307 Mr Klower submitted that this matter was one of the most flawed and incomplete procedurally unfair investigations to come before this Commission. The respondent had concentrated on trying to discredit witnesses such as Mr Higgins rather that the facts. 308 Further, financial records had been produced on three occasions during proceedings and not been accessed. 309 ICAC had determined not to take any action in this matter because Council were implementing and making efforts to improve policies and procedures to minimise the possibility of similar incidents. Those recommendations had still not been implemented two years down the track. It was nonsense that Mr Brooks was waiting for this Commission to finish the matter. It was submitted that Mr Grose had fallen victim to what had been acceptable policy up until 2005. 310 Mr Klower submitted that the incidents referred to in Mr Brooks' 29 April letter to Mr Grose were simply not true and essentially explained how they were incorrect by traversing the evidence as previously dealt with. Further Council had no policy covering the driving of unregistered vehicles. There had been evidence about Mr Gatty's tractors and trucks being unregistered and also about members of the public driving unregistered vehicles out of the Landfill after they had been bought. 311 Mr Grose's response of 6 May, simply put, denied any wrongdoing and he offered to avail himself in what was the panel's outcome of formulating policies and procedures. 312 Mr Klower submitted that the termination letter had been a controversial part of these proceedings. There was no doubt it was drafted on 9 May even if it then sat on a computer. It clearly stated "notice of termination" and termination was the clear intent from 9 May. The letter sent to Mr Grose had 9 May on it. The letter of 24 May was a direct copy of the first letter which included the reference to approaches to Councillors. There were never any additions. The intent of Council on 9 May was undoubtedly to terminate Mr Grose. 313 Mr Klower challenged the attempts by Council to contact Mr Grose after 9 May and raised the issue of why a registered letter was not sent. The only reason Council wanted to contact Mr Grose was to terminate him. 314 Mr Klower submitted that had there been a proper investigation these matters would not have formed part of any termination process as there was no substance to them and they had been well explained during proceedings. The investigation was flawed and inept. It was procedurally unfair and resulted in Mr Grose's termination. Mr Klower believed Mr Grose's termination had been "manufactured" and Council wanted to "get rid of him" because he was an active Union delegate. It had a "political air " about it. 315 In support of his submissions about the unfairness of the procedures followed and the flaws involved, Mr Klower took the Commission to relevant passages of the following decisions viz. Howarth v Linfox Armaguard Pty Limited [2005] NSWIRComm 1170, Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch v Westport Bowling Club Ltd [2001] NSWIRComm 205, and New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440 . 316 In conclusion Mr Klower submitted that the Commission should order Mr Grose's immediate reinstatement to his former position with orders as to payment for all time off since his dismissal. Submissions for the Respondent 317 Mr Gardner filed detailed written submissions ( with cases cited annexed) and with 230 footnotes of extensive references to relevant transcript in support of the submissions and also citing relevant cases relied upon by Council. Those submissions were expanded upon by Mr Gardner in further detailed oral submissions. I intend to summarise those submissions under the headings listed in the Index to the written submissions. 318 Mr Gardner initially responded to the submissions made by Mr Klower and indicated that he was disturbed at the way those submissions had unfolded because they seemed to be a continuation of some very fundamental inaccuracies as well as some misrepresentations of fact which would require addressing in the respondent's reply. For example it was alleged that Mr Higgins was not involved in the investigation when in fact Mr Higgins gave two separate statements to the investigation panel. 319 There was also a selective use of both the statements and the evidence in the applicant's submissions. 320 It appeared from the applicant's submissions that it was accepted that the notes of the interview committee were consistent with essentially what this case was about. It was therefore queried how this hearing had contributed to any more difference or divergence in what the respondent eventually decided. 321 It was submitted that all it did was reinforce, in the view of the management of the respondent, that its reasons were sound, fair and reasonable and that the decision to terminate was not only justifiable it was actually quite proportionate to the seriousness and the gravity of the offences. Sadly the applicant still either deliberately misunderstands or deliberately tries to gloss over those offences as something different to what they truly are. 322 Clearly the applicant bears the onus of proof in satisfying the Commission that his termination of employment was harsh, unjust or unreasonable. He has quite patently failed to demonstrate this. 323 The basic facts from the respondent's point of view were then summarised under the various headings listed in the Index. Background, 324 The applicant's claim is as to why his termination was harsh unjust and unreasonable, as contained in his original application. The onus was on the applicant to establish such a claim. The contention of the respondent that the termination of the applicant's employment was not harsh, unjust, or unreasonable and that the application should be dismissed on that basis. If the Commission was to find against the respondent it was contended that it was not appropriate for the Commission to make any order under sections 89(1) or 89(2) of the Act for the reinstatement or re-employment of the applicant. The Basic Facts, 325 Essentially as outlined in the Background and Chronology set out earlier in this decision. Events leading to the Termination, The wrought iron gate 326 This substantially mirrored the evidence as summarised above. However it was submitted on the half of the respondent that it was not a common practice for persons to steal items from the Landfill site. The applicant said it was a common practice for people to take things from the Landfill site, prior to the installation of the weighbridge. Mr Higgins also stated that there were significant operational changes in 1999, after which the public were prevented from taking things from the landfill site. It was further submitted that Mr Grose was well aware of where the gate was from the beginning. The VN Commodore 327 This also substantially mirrored the evidence as summarised above. However it was submitted that the Commodore had been impounded by Mr Penrith and the applicant. It was also contended that the evidence of the applicant and Mr Rand as to the Immigration Officer indicating a value of the vehicle was inconsistent with the evidence of Mr Brooks who said "at no stage" was a value for the car expressed. Reference was made to the view expressed by Mr Gatty that the vehicle was worth more than $500 and, accordingly, he did not have the scavenger rights. Also the earlier evidence of Mr Rand listed the vehicle as being of "good condition" with the only defect being its alternator had been removed. The condition of the vehicle is clearly set out in the photographs tendered as Exhibit 3A and Exhibits 22 to 26. It was also pointed out that it was quite an extraordinary coincidence that whilst Mr Grose said he had no intention of visiting the Landfill on 28 August he just happened to have an alternator with him which was then fitted into the vehicle. 328 The events of 3 September were also outlined in similar detail as to that which is set out in the evidence above. However it was submitted that what was not clear was when the vehicle was returned, but it was certainly after the applicant had become aware that questions were being asked. Mr Higgins said that he thought the vehicle was returned after 3 September 2004. It was further submitted that was not the applicant's intention to use the car as a "runabout" at the Landfill. The applicant told Mr Gatty that he was going to take it to Melbourne for his son. It was pointed out that Peter Higgins' evidence indicated that he didn't know what Mr Grose's intentions were - use as a runabout was a possibility because they had used vehicles at the landfill previously as was Mr Gatty's allegation. He had no evidence one way or the other. The Burgundy Valiant. 329 Mr Gardner emphasised that during the interview which occurred on 29 November 2004, the applicant admitted that the vehicle was provided in lieu of payment of work undertaken by Mr Fisher. The Investigation, 330 Under this heading Mr Gardner detailed a similar chronology of events as outlined in the evidence above with appropriate references to relevant transcript and documents, commencing with Mr Gatty making his statements on 3 and 6 September, the investigative process followed by Mr Brooks, the interview of 29 November 2004, the report to ICAC and events up until the termination of Mr Grose. 331 Mr Gardner rejected the assertion that had been made in submissions on behalf of the applicant (and which was not an aspect of the case) that Council was somehow on a witch hunt to bring down a Union Delegate. That was not the evidence before the Commission and it was simply not true. 332 This case was all about a member of the public reporting what he believed was corrupt conduct. Once that complaint was made there was the beginning of a proper and required by law investigation into not just Mr Gatty's concerns but other issues that flowed from Mr Grose's responses and also the way in which Mr Grose went about defending himself during that process. 333 It was pointed also out that if there was some attack on the accuracy of the individual notes of the interviewing panel or the conclusions of what was said why wasn't that put before the Commission. The Union had very detailed notes of its own that could have been advanced and weren't. However the applicant's own evidence was an admission that he believed he gave everything that was material in support of his own defence. Conduct of the Applicant during the investigation 334 The Commission was referred in detail to the transcript and evidence filed that was relied on by the Council to support the following :- Attempt to get Higgins to change statement, Attempt to get Gatty to change statement, Harassment of Mr Gatty, Discussions with Councillors. 335 It was further submitted that the contact with Councillors was misconduct because it was clearly a breach of the Council's Code of Conduct. Previous disciplinary history of the Applicant, 336 The Commission was taken to the disciplinary history of Mr Grose as detailed in Mr Mackinlay's affidavit and evidence. It was submitted that the applicant had a history of seeking the assistance of Councillors to intervene on his behalf which he was well aware was not to be done and was in breach of Council's Code. 337 In relation to the alleged assault incident in 1995, Mr Gardner submitted that it was absolutely irrelevant that the applicant was not the subject of Police charges and in support thereof relied upon Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463-4. 338 Also summarised was the evidence from various witnesses as to Mr Grose's manner and issues with customer relations and customer complaints The Termination of Employment, 339 Under the Local Government Act 1993, it was the role of the General Manager to appoint staff in accordance with an organisation structure and resources approved by Council and to direct and dismiss staff (S.335 (2)). The matters considered by Mr Brooks in reaching the conclusion to dismiss the applicant as set out in his affidavit were then traversed. 340 Council provided the applicant with five weeks' payment in lieu of notice despite the applicant having no legal entitlement to notice as he was dismissed for serious misconduct as set out in the letter of termination. Date of Termination, 341 The evidence of the applicant in relation to matters raised by Peter Higgins and the applicant's understanding of when he had been terminated were not raised by the applicant, nor any other witness, prior to the hearing. It was submitted that Peter Higgins had no direct knowledge of these matters and it may be that he made incorrect assumptions and may have, in turn, conveyed this incorrect information to the applicant. 342 The evidence concerning the disputed date of termination on the letter of termination was detailed and it was submitted that the applicant was terminated from his employment with effect from 25 May 2005. Mr Brooks certainly had not determined to terminate Mr Grose as at 9 May as he didn't have access to that letter until 23 May 2005. The letter was further modified to include further reasons why the applicant should be terminated including the more recent contact with Councillors. 343 It was further submitted that the day a termination takes effect must accord with the date on which the termination of employment is communicated to the employee whose employment is being terminated. Of relevance is the actual termination of an employee rather than an evinced intention to terminate. There is a distinct line of authority in decisions of the Australian Industrial Relations Commission (AIRC). On this issue reliance on was placed on the following cases viz. Burns and Aboriginal Legal Service of Western Australia [T3496, 21 November 2000], Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 186 and P.T Wilson and Australian Taxation Office [PR901127, 26 February 2001]. 344 Further, a number of subsequent decisions of the AIRC have indicated that an employee is terminated on the date of receipt of a letter and not before as per D Stroud and David Jones Ltd [PR925084, 26 November 2002], Paul Haskayne and Town of Vincent [PR952168, 28 September 2004], Zinteschenko (nee Charles) and Alfred Tallon Real Estate Pty Ltd [PR940237, 5 November 2003] and P A Smith and Yipirinya School Council Inc [PR8676, 6 February 1998]. Conduct of Grose since termination, 345 Reference was made to the evidence concerning Mr Grose and Mr Siviour entering the Council's saleyards on 5 July 2005 to speak to employees about driving unregistered vehicles and also speaking to John Perrin at the airport. Mr Grose also called Mr Gatty on Sunday 13 November 2005 and asked if he could ask him a couple of questions. This was denied by the applicant who said he hadn't spoken to Mr Gatty since a few days after the incident. 346 The reason this was important was not just due to the serious issue of intimidating witnesses but there was an agreed protocol on how the applicant should go about compiling witness evidence. There was also the issue of Council's Protected Disclosures Policy to be considered. Relevant policies and procedures, 347 The Commission was then taken to the relevant oral and written evidence on the following policies of Council: Protected Disclosures Policy and process, Policies re impounding vehicles, Policies re abandoned and unregistered vehicles. The contention of the applicant that there was a total lack of policy in relation to the impounding of vehicles and abandoned cars was rejected. There was a detailed policy scheme as well as a legislative scheme in place at Council. 348 Mr Gardner then took the Commission to the relevant sections of Council's Code of Conduct as follows: A member of Council staff must: · act in good faith, that is, honestly, for the proper purpose, on relevant grounds, and without exceeding the powers of the position. · While on duty give the whole of his or her time and attention to the business of the Council and ensure that his or her work is carried out efficiently, economically and effectively.... · give effect to the law for policies, decisions and practices of the Council, whether or not the staff member agrees with or approves of them... · treat members of the public and fairly and equitably and with respect, courtesy, compassion and sensitivity... · Refrain from any form of conduct, in the performance of his or her Council duties, which may cause any reasonable suspicion or appearance of improper conduct or partial performance of his or her Council duties... An employee of the Council shall not: · act contrary to the law... · act for an improper or ulterior purpose or on irrelevant ground. · seek or accept a bribe or other improper inducement. · take advantage of his or her position to improperly influence councillors, other members of staff or delegates in the performance of their public or professional duties for the purpose of securing a private benefit for the employee or for some other reason. · by virtue of his or her official position accept or require a personal profit or advantage of a pecuniary value ( other than of a token kind) other than as permitted by the Local Government Act and the adopted policies of the Council. · convert to his or her own use any property of the Council... · use Council resources for private purposes unless such use is lawfully authorised and proper payment is made where appropriate. 349 It was submitted that unlike most employers, these were very, very specific duties and obligations which quite properly apply to Councils because they are public bodies that deal with public money and are entrusted to insure the delivery of services to the community in the way that certainly ratepayers and citizens would expect. If a General Manager becomes aware of a mere suspicion of any breach of these types of duties there is an immediate obligation to report it to the ICAC which is exactly what happened. Credibility of the Applicant's evidence, 350 It was submitted that the applicant's evidence was not credible and should not be believed by the Commission. In particular, it was noted that the applicant had clearly misled the Commission on the number of matters ( as set out in these submissions). 351 If the Commission was satisfied that there was inconsistency in the smaller details ( such as the value of the VN Commodore and the envelope in which the applicant's termination letter was in), it was submitted that this points to a consistent theme on behalf of the applicant of, at best, an assumed recollection of the evidence to put the applicant in the best light, and, at worst, blatant dishonesty. 352 The following inconsistencies apparent in the evidence of the applicant were emphasised as follows: · the value of the VN Commodore, · the applicant's diaries which were stated as being personal but subsequently were said to record only his daily habits and work matters, the applicant's diaries mainly refer to dates of RDO's and other leave, refer to few meetings and brief details relevant to such meetings, note when colleagues were on leave, refer negatively to some incidents with Mr Gatty and cease on and from 13 May 2005, · the alleged conversation with Mr Brooks in December 2004 concerning him proceeding further compared to the diary entry for that day, · the applicant's evidence about his termination letter and the registered mail envelope was inconsistent the evidence of Ms Robertson, · the applicant changed his position on whether if breach of the Code was sufficiently serious to warrant termination he would accept dismissal, · the day he returned the VN Commodore, · what was said to Mr Fisher about getting a bill of sale from Gatty · during the hearing it was disclosed that the applicant had had access to several letters, to which he was not a party, which were to be found on Council files, · not speaking to Mr Piccolo at the request of Mr Brooks with the subsequent evidence as to a conversation with him about Mr Brooks phone call. Mr Piccolo also said that the applicant had asked whether he was mentioned in the conversation and also mentioned the name of another person who may have been involved, · other examples were also given of inconsistent evidence. 353 It was submitted that the applicant's demeanour during the hearing was overbearing and at times aggressive. For example at the end of the first-day of hearing, the applicant said: A. That's how, yes.. I am a fully licensed security guard and I get told and I'm trained to protect yourself and not to stop until the danger has ceased. I did not jump on his head when he fell to the ground. I walked away. I jabbed him once to stop him hitting me and he grabbed me by the throat and he swung at least five punches and he kicked me. You would retaliate in the same way. Q. Are you still a licensed security guard? A. Yes. Armed. Q. You're armed? A. I'm accredited on 38, 9 mils and shotgun. Q. And were you a licensed security guard in September 2004? A. Yes. Q. Did you go to see Mr Gatty armed? A. No, I only can use - back then I can only use pistols if I was working for security guard I would go - if I was working or security guard you would clock in your gun, boom, boom, boom, but then it never come - I never did security work, but I was accredited. Never used or carried a pistol. I am unable to carry a pistol out of school - out of work. 354 It was submitted that his evidence should also be considered in the light of the evidence of the applicant's witness Mr Higgins concerning him being referred to as "the gorilla". 355 Examples were also given of the applicant on numerous occasions claiming to have suffered from time to time various illnesses or injuries that required time off work and medication that affected his memory. An example was given of an extract of transcript concerning medication that he took for antidepressants as well as painkillers. 356 Reference was made to the evidence concerning his back condition and the newspaper extract from the Area News with a photograph of Mr Grose playing tennis. Whilst he disputed when the photograph was taken he admitted to playing tennis. 357 It was also submitted that the applicant had, (as previously referred to) intimidated or attempted to intimidate a number of witnesses, including Mr Gatty and Mr Peter Higgins. Mr Mackinlay and Mr Brooks also gave evidence that they discovered nails in their tyres during the course of the proceedings. Credibility of the witnesses appearing on behalf of the Applicant, 358 It was submitted that the Commission should give limited weight to the evidence of the witnesses appearing on behalf of the applicant. Mr Penrith, Mr Matthew Higgins and Mr Piccolo admitted that they had assistance in drafting their statements from Ms Devery, the applicant's partner. The following additional issues were raised in relation to the credibility of each witness: · Michael Rand was a close friend of the applicant, his evidence was inconsistent with the evidence of a number of other witnesses, e.g Mr Siviour. · Darryl Penrith was also a close friend of the applicant, he engaged in harassing behaviour of Mr Gatty, the authority to deduct wages did not commence until at least 5 November 2004 yet the evidence was they had a conversation about this three months earlier in August, Mr Penrith refused to answer specific questions concerning the attack on Mr Gatty's house on the grounds that it may incriminate him. 359 It was submitted that Matthew Higgins' evidence should be rejected in its entirety, having regard to the following factors: · his demeanour during the proceedings, smirking, disrespectful and smiling when it was suggested that he had attempted to intimidate witnesses, · prior to proceedings, he instructed his solicitors to correspond with Mr Mackinlay threatening defamation proceedings. Mr Mackinlay viewed this as an obvious nonsense but took it as a tactic designed to intimidate, · Mr Mackinlay gave evidence that on the way to the hearing Mr Higgins assaulted him by bumping into him, directed offensive language towards and threatened physical violence. The incident is corroborated by Mr Mackinlay's actions in reporting it to Police, · his physical presence in the court room and where he was sitting near Mr Mackinlay, · he could not be trusted as he admitted using Council property as his own when he was a Council employee. 360 It was submitted that Matthew Higgins' attempted threats and intimidation of a fellow witness - the only witness to whom he admitted his evidence was given in response - was unlawful and rendered his evidence as biased, prejudicial and lacking in all credibility. The Commission had advised Mr Higgins of the inappropriateness of saying anything to a witness in proceedings in which he was a witness. 361 Limited weight should also be given to the evidence of Mr Piccolo, as on his own evidence he considered the matters at hand not to be of great importance or priority to him and admitted it was too long ago to be sure about things; the applicant was a member of Mr Piccolo's recreation centre, they were known to each other and Mr Piccolo admitted to Mr Brooks he had spoken to employees about the gate. 362 Limited weight should also be given to the evidence of Mr Peter Higgins due to a number of factors including, his ability to be unbiased (Mr Brooks' evidence), he mistaken phoning of the applicant on 3 September, he stated he wasn't involved in investigation and therefore it was unfair however gave two statements during the investigation. He did not have direct knowledge of the incidents and admitted his assessment was based on rumour. Also he was not the applicants' direct Supervisor. He admitted the applicant put pressure on him to change his evidence about significant matters. Views he expressed about actions of the applicant e.g. "traded a vehicle for work done on council by a contractor" given as an example of the applicant's "innovative work practices". This was in an initial statement in July 2005 but removed from his subsequent statement as filed. 363 Reference was also made to Mr Higgins' evidence concerning a discussion with Police (following the Gatty house incident) about concerns the Police raised with problems at Landfill sites such as Dubbo concerning cars. 364 It was also submitted that it was relevant that the applicant had failed to call material witnesses. For example, the applicant challenged the veracity of interview notes but failed to call Union representatives who attended on his behalf during important meetings. The Commission should draw the inference that Mr Fayle and Mr Perry's evidence would not have assisted the applicant: see Jones v Dunkel (1959) 101 CLR 298. Credibility of the evidence of Mr Gatty, 365 It was submitted that the Commission should accept the evidence of Mr Gatty in full. His evidence was given in an honest, frank and believable manner, e.g. the evidence explaining the circumstances in which he received diesel from Mr Roy. His conduct since making the initial statements to Council which were consistent, credible, forthright and courageous. His relative independence in relation to the matters. He said he had never complained about the behaviour of the applicant because he had nothing to do with him he only made the complaint when the applicant tried to drag him in. Mr Gatty also provided credible and appropriate answers to issues put to him that questioned his integrity or honesty e.g. his issuing of receipts. He also indicated he was not coerced by the respondent but just told it how it was. Credibility of the evidence given on the half of the Respondent, 366 It was submitted that the Commissioner should accept the evidence of Mr Yadav, Mr Mackinlay and Mr Brooks in full, particularly considering that each of the witnesses were senior employees of Council and gave evidence in their professional capacities. Legal Submissions, 367 The Commission was taken to the provisions of S. 88 of the Act which sets out the factors which need to be considered in determining whether a termination of employment is harsh, unreasonable or unjust. Valid reason 368 Council had a valid reason to terminate the applicant. He had been terminated for engaging in serious breaches of the Code of Conduct. The acts engaged in by the applicant constituted misconduct. The onus was therefore on Council to demonstrate that misconduct did in fact take place applying Pastrycooks, Biscuit Makers and Flour and Sugar Goods Workers Union NSW v Gartell White (No 3) (1990) 35 IR 70. 369 It was submitted that the evidence demonstrated on the balance of probabilities that: · the applicant was involved in the attempted theft of a gate. The basis for Council's conclusion was then summarised. · the applicant removed Council's property being the VN Commodore motor vehicle without authority and contrary to Council's procedures. · the applicant disposed of Council's property being the Valiant motor vehicle without authority. Both the applicant and Mr Fisher admitted the Valiant motor vehicle was provided in lieu of payment for work undertaken. This is contrary to Council's procedures and therefore was done without authority. · the applicant sought to have false documents (receipts) issued for by Mr Gatty for the Commodore and the Valiant · the applicant drove an unregistered vehicle. · the applicant spoke to Councillor Pittavino and Mayor Dal Broi. Each of the above acts of misconduct constituted a breach of Council's Code. 370 The applicant himself acknowledged that a breach of the Code was sufficiently serious to warrant termination stating that if it was proven he had breached the Code then he would accept the dismissal. 371 Other factors considered by Council in making the decision to terminate his contract of employment were that the applicant's conduct illustrated a complete disregard for his responsibilities as Overseer. Peter Higgins, giving evidence on behalf of the applicant, stated that the applicant, as site supervisor, was responsible for cars impounded at the landfill: it was conduct directly related to his employment responsibilities which led to the termination of his employment. 372 Council also relied on the applicant's record of service including his previous disciplinary offences. Reliance was placed on John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (1972) AILR 517 in which it was stated: "It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of the man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice." It was not submitted that the previous disciplinary offences of the applicant were relevant to the consideration of whether a valid reason for termination existed. It was submitted that the Commission should take it into account in determining whether the termination was harsh, unreasonable or unjust and in relation to the remedy. See Nguyen v Australian Postal Corporation (Larkin C, AIRC, PR913694, 5 February 2002). Further the applicant did not contemporaneously seek to challenge Council's decisions in relation to his previous disciplinary offences. 373 The Commission should further take regard for the applicant's lack of co-operation through the investigation period including his avoidance of Council when they were attempting to contact him. 374 It was submitted that the offences as outlined above constituted serious misconduct. Counsel has therefore discharged its onus in that regard. 375 The Commission was also entitled to take into account the actions of the applicant after he was terminated from his employment. Reference was made to Bankstown City Council v Paris (1999) 100 IR 363 at 370:- " there is no question that the Council was entitled, indeed obliged, to investigate and later rely upon information obtained after dismissal. This commission and its predecessors have never accepted the proposition that an employer dismissing an employee is confined necessarily to the reasons advanced to the employee at the time on the dismissal." The evidence concerning the applicant's and Mr Snaidero's visits to Council property following his termination was referred to. Procedural Fairness 376 The evidence disclosed that the applicant participated in an extensive and fair disciplinary process. In accordance with the Code, the Award and the Independent Commission Against Corruption Act 1998 Council: · received a complaint (in writing and signed) from Mr Gatty, a non- employee of Council, · provided a copy of the complaint to the applicant, · fairly and thoroughly investigated the complaints, including interviewing all the relevant witnesses and taking statements, · notified ICAC of the complaints and investigation, and sought their approval to implement the recommendations arising from the investigation, · advised Mr Grose for the reason for his termination in their letter dated 24 May 2005. Opportunity to respond 377 The onus is on the employer to establish that it conducted as full and extensive an investigation as was reasonable in the circumstances and gave the employee every reasonable opportunity and sufficient time to respond to the allegations. Council has discharged this onus. 378 The applicant was provided with an opportunity to respond to the allegations against him including being provided with a copy of the complaints against him, and being interviewed by the Panel on 29 November 2004. The Panel included an independent member and the applicant was represented by experienced Union Officials who took notes on his behalf. He was provided with the letter of 29 April 2005 and Council sought to meet with him at between 9 and 25 May to discuss its concerns. The applicant acknowledged that he had the benefit of Union involvement and that he believed he had submitted full and appropriate answers. Reasons for termination 379 The applicant was advised of the reasons for his termination in the letters to him of 29 April and 24 May 2005. He received five weeks payment in lieu of notice, despite being dismissed for serious misconduct and Council been entitled to dismissing without notice. Was termination proportionate to the misconduct? 380 It was submitted that Council's Code states that sanctions for a breach of the Code may include termination of employment. The Award also provides for termination in cases of misconduct. 381 It was submitted that termination of the applicant's employment was a proportionate response to the acts of misconduct he engaged in. This was particularly so given: · the seriousness of the acts of misconduct in relation to which the respondent was satisfied that the applicant had engaged in, · the procedural fairness shown to the applicant, · the dishonest conduct of the applicant during the investigation including further breaches of the Code in seeking to influence Councillors, · the applicant's general employment history, · the inappropriate and perhaps unlawful actions of the applicant after he was terminated. Reinstatement 382 Reliance was placed on Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233:- " The word "impracticable" requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassment, or seriously affect productivity, or harmony within the employer's business, it may be "impracticable" to order reinstatement, notwithstanding that the job remains available." 383 It was submitted that the Commission should have regard to the following factors in assessing the matter of impracticability in this case: · Council's Code of Conduct. · The applicant's role within the respondent's enterprise was one of responsibility and he sought to personally benefit from this position within Council. The trust which Council must place in regard to the applicant in this responsibility has been irretrievably lost. The Commission may take into account the fact that, if reinstated or re-employed the applicant will be unable to work unsupervised, see: Plummer v Stannard Brose Launch Service Pty Ltd [2005] NSWIRComm 301. · The applicant's conduct during the investigation was inappropriate, irresponsible and possibly illegal. · There is a history of previous disciplinary offences by the applicant dating from when he commenced employment with Council. · The applicant has acted inappropriately since his termination, including when he entered Council's sale yards in question staff. · There has been a marked improvement in staff attitude, morale and conduct at the landfill since the applicant's departure. · The applicant has repeatedly given inconsistent accounts of his actions. · the behaviour of the applicant in engaging in the conduct and his behaviour during the investigation was destructive of the confidence necessary to allow the applicant to return to the employment. See Holland v NSK Services Pty Ltd [2005} NSWIRComm 1084. · The length of time that has elapsed between the dismissal of the applicant and the hearing of these proceedings approximately 11 months. It is established that the length of time between a hearing is likely to militate against an order for reinstatement: see NSW Sales Representatives & Commercial Travellers Guild v Berge Paints (1984) 9 IR 273. · The applicant has admitted that he is a fully licensed security guard. Re-employment 384 It was submitted that Council had clearly demonstrated through its evidence why re-employment was impracticable in this instance. Submissions in Reply 385 Mr Klower reminded the Commission that in relation to the termination of Mr Grose in 1993, Council's letter with Council's writing on it was attached to Mr Grose's affidavit. 386 It was reiterated that there was nothing to hide concerning Mr Grose's financial affairs, banking records were available. Mr Grose had responsibility for children that he looks after and his wife works. 387 Nothing more useful could be said about the gate. 388 In relation to the VN Commodore Mr Gardener had used the words "impounded". It was never impounded and that was very relevant to this case. It was still questionable as to who owned the car. It was out at the Landfill and for all purposes it is on Council's property but Mr Klower didn't believe anyone knew who actually owned it and technically if the illegal immigrant turned up tomorrow and said he wanted it then that's whose car it was. 389 Reliance was also placed on what the Immigration Officer allegedly said to Mr Penrith and Mr Grose. Mr Gardner had been insistent about why certain people were not brought into these proceedings by the applicant but why wasn't the Immigration Officer tracked down by Council? If they couldn't find a letter why wasn't some statement obtained from the Immigration Officer or why wasn't he made available to give evidence? 390 The evidence about the value of the Commodore being $2000 was hearsay. The value of the car unregistered was nowhere near $2000 and to have the car registered and get it on the road would probably cost more money than the actual value of the car itself. It was further queried how Mr Grose was going to get the car to Melbourne as it was unregistered. 391 It was submitted that a lot was said about Mr Grose having the alternator, and his intentions that the day. Mr Grose didn't have it with him. It was in the shed at the Landfill site. 392 On the issue of Mr Gatty issuing receipts it was questioned how he could legally validate any process of sale. He couldn't issue receipts for a car of this nature that had been made very clear. There were also questions raised about when the car was returned to the landfill site, the evidence showed that was around 3 or 4 September and that was firmly held in the affidavits of the witnesses. 393 In relation to Mr Gatty it was not suggested that he was a dishonest man but he may have "played the game" at the waste disposal depot over periods of time as well. 394 It was said that Mr Higgins was not involved in the process however Council quite conveniently used his evidence in these proceedings when it suited them but every time it didn't suit, his evidence was not considered at all. 395 Mr Klower refuted the suggestion that the interview process had been correctly handled and reported on. What he said was that he believed the processes in the notes taken by different people were consistent with everything confirmed during the course of the hearing. However the report sent to ICAC was glaringly wrong and ICAC had been clearly misled in relation to dates and about Mr Grose's credibility about his involvement with the gate and the Valiant car and clearly left out different aspects of that. 396 What had also been left out was Mr Hipkins' notes. They were not there at all or even formed part of the report. The notes were not made available for their accuracy to be checked by Mr Grose or the USU. Mr Brooks compiled the report himself and sent it to ICAC and it was never are made available to anybody else. 397 It was submitted that Council was the investigating body in this process but made no attempt to convene any further meetings from 29 November and up until May 2005. Mr Grose sent a letter on 18 October 2004 and asked on two occasions in that letter that he make himself available for further meetings and have his Union involved in those discussions. That never happened. 398 In relation to the attack on Mr Gatty's house Mr Klower made it clear as the applicant's spokesman that the Union felt distressed for Mr Gatty but there was absolutely not one skerrick of evidence to suggest that Mr Grose was involved in that attack. When Mr Grose was made aware of this he went to the Police as he advised the Commission in proceedings and offered his DNA and denied any involvement the attack. Mr Grose had a party at his house that night. Mr Klower had advised Mr Grose to obtain statutory declarations from whoever was in attendance in case the matter went further. 399 It was submitted that Mr Grose only spoke to Councillors after he was allegedly made aware of his termination. If Council was so adamant that Councillors had been contacted why didn't they call Mr Pittavino as a witness and put that allegation to him. It was further submitted that it was not an offence to contact a Councillor or to speak to Councillor, it was an offence to canvass a Councillor for your own purposes, for gaining employment, trying to win a tender, for the purposes of being dishonest etc. Mr Grose has clearly denied this. Mr Grose contacted Mr Dal Roi, the Mayor in conjunction with Council's Code of Conduct because he believed Mr Brooks had in fact breached that Code during the course of the investigation. The Mayor said he would speak to him but had no involvement in the case whatsoever. The Mayor quite openly told this Commission that he has an "open door" approach with staff. It was suggested that as a result of this the Mayor may want to have a look at the Code of Conduct and the Local Government Act. 400 In relation to the disciplinary record of Mr Grose it was submitted that almost all employees are disciplined at some time during their working life but what was important is the outcome of what people were disciplined for if it went further. 401 In relation to the letter of termination, when it was picked up was not relevant. There was no doubt that the intentions with this letter dated 9 May was a notice of termination. There wasn't another letter that said notice of demotion nor was there another letter that said notice of suspension. Quite clearly they all said notice of termination. Mr Grose was criticised for his avoidance of the processes when he was trying to be contacted during the period of time from 9 May but why didn't Council arrange a meeting with the Union, with Mr Taylor the Delegate or Mr Fayle the Organiser or indeed Mr Perry?. If they couldn't find Mr Grose why didn't they arrange a meeting with any one of those three to discuss the importance of this in Mr Grose's absence? None of that occurred. 402 It was further submitted that the context of 9 May had only ever been used because there was no doubt that every second person either in the Council building or in the streets of Griffith were talking about Mr Grose's dismissal, rightly or wrongly there was no doubt about that and it could only have been as a result of someone leaking the typed letter of 9 May even it was sitting on someone's computer that was the only way it could have been leaked. 403 It was further submitted that Mr Grose could not have obtained any profit or gain from any of the issues dealt with. He gained nothing from the Valiant. He gained nothing from the Commodore, it was still sitting at the Landfill site. 404 Mr Klower refuted the submissions about Mr Grose's credit and the credit of the Mr Grose's witnesses. Mr Grose was a security guard. Security Guards are under very tight scrutiny, his background would have been checked by the police. In contrast it was submitted that whilst the applicant's witnesses were discredited Mr Gatty was protected when it came to various things that had come out during the evidence such as the diesel. Everything Mr Gatty did was quite right never mind whether it was wrong or not. 405 In conclusion Mr Klower refuted that the evidence of Mr Brooks, Mr Mackinlay and others was unchallenged. The credibility of those witnesses' statements and the way this matter had been handled had been questioned by Mr Higgins, Mr Penrith, Mr Rand and Mr Piccolo. However all of Mr Grose's witnesses were discredited and it was said they were all wrong. Mr Brooks and Mr Mackinlay were right however they didn't bother to go and interview anyone at the Landfill. 406 It was also pointed out that the timeframe since the termination involved delays that were not in the control of either side nor in the control of the Commission. 407 In conclusion it was submitted that the Commission should look at the letter that went to ICAC after 29 November and what actions should have happened after that date, the people that should have been interviewed and were distanced rather than getting the facts. If that had happened then the final outcome of this case would have been far different. 408 Mr Grose should be reinstated and paid for all time since he was dismissed on 25 May 2005. Consideration 409 I have very carefully considered the evidence, both oral and written, as well as the submissions of the parties in this matter. That has of necessity involved a very detailed and extensive consideration of the transcript and an examination of the oral evidence of all witnesses interwoven with the affidavit evidence. 410 I have to say at the outset I have difficulties with both the applicant's case and Council's case. There is no doubt that Mr Grose has breached Council's Code of Conduct. I have to determine whether any or all of those breaches constitute misconduct and justify termination. 411 However I have enormous reservations and difficulties with the process of investigation followed by Council and procedural fairness issues arising as a consequence. There is a very real issue in my view for consideration and determination as to whether those procedural issues render Mr Grose's termination harsh, unjust or unreasonable and sufficiently so as to warrant the intervention of the Commission. 412 A further difficult issue for consideration is that if I ultimately determine that the intervention of the Commission is warranted just what is the appropriate remedy in the circumstances of this matter? 413 This case has been a very difficult one to consider not merely because of the length of the case and the extent of the evidence but also the way the matter unfolded. I appreciate the difficulties the USU had with Mr Grose being in Griffith and Mr Klower in Wollongong however I would suggest that in future the USU be more involved in assisting its member in, or advising about, the preparation of any affidavit or witness statement in reply. One of the difficulties of the proceedings was the necessity to take Mr Grose through his second witness statement in some detail due to the objections raised, for example, as to the lack of specificity about very important and vital conversations between Mr Grose and various other persons. Some of that detail was not always put to other witnesses (on both sides) for corroboration. The statement also included material that could not be admitted, was objected to and excluded. 414 There was also the difficulty inherent in evidence from two witnesses appearing on subpoena without the benefit of witness statements. 415 It was also apparent that officials of the USU, particularly Mr Fayle and Mr Klower had some knowledge of, or involvement in events/contacts between September 2004 and the termination of Mr Grose. Where issue was being taken with the procedures followed by the Council it would have been appropriate for evidence as to that knowledge or involvement to be before the Commission in the usual way. It could not just come from the bar table. 416 Of course the USU is in no different a position than essentially that of Mr Gardner as Solicitor for Council, in that it can only act and give advice based on what it is told by its member, just as Mr Gardner can similarly only do with his client. If all the relevant facts are not put forward (and it may be that a member is just not aware of all the facts or of just what is relevant) that will of necessity impact on the advice that he then receives. This is especially so in relation to the letters sent by Mr Grose to Council - 18 October 2004 and 6 May 2005. 417 I would be the first to concede that those letters were not satisfactory in that they did not provide a sufficiently detailed response as was sought and as was necessary. However, particularly in relation to the 18 October letter, at no stage, was either Mr Grose or the USU advised that these letters were unsatisfactory (this is particularly the case for the 19 October letter) and that Council did not consider that Mr Grose had properly responded to the Gatty allegations. This is one of the problems I have with the way the investigation was carried out by Mr Brooks on behalf of Council. 418 Dealing with the specific allegations made by Mr Gatty against Mr Grose. 419 Firstly the gate. An inordinate amount of time in my view was wasted on this issue. I have very, very carefully considered all the evidence that unfolded from all witnesses who had any involvement in this issue (including the statements taken by Mr Brooks). I am more than satisfied that Mr Grose was not involved in the taking of the gate by Mr Piccolo as put by Mr Brooks in his report to ICAC. Mr Piccolo only knows Mr Grose through the gym, not socially. It is abundantly clear to me that Mr Rand and Mr Rohan Smith at the weighbridge are employees who indicate in some way Mr Piccolo was seen in the area where the gate was (Mr Smith inquired as to what vehicle Mr Piccolo was driving). Mr Gatty spoke to Mr Rand. It was Mr Gatty who told Mr Grose he knew where the gate was. It was Mr Higgins and Mr Josling who told Mr Gatty to let Mr Grose recover the gate and indeed instructed Mr Grose to recover the gate. It is unfortunate that they did not make that plain in their subsequent statements to Mr Brooks. Perhaps if Mr Brooks had troubled to interview Mr Higgins and Mr Josling rather than simply rely on their statements, made very early in the piece, or had sought further information after 29 November, that may have come out. 420 What was also a factor, was what was very much inherent, in my view, about how Mr Grose looked upon the Landfill as his responsibility and really his domain and whatever went on there was for him to sort out and take charge of in a somewhat proprietary way. Indeed Mr Gatty referred to him as "the boss" of the Landfill and that is how Mr Grose appears to very much have acted even to coming in on his days off to assist where necessary. 421 What is also abundantly clear is that Mr Gatty's gate was recovered by Mr Grose with Mr Gatty present, and that Mr Gatty was satisfied with the outcome. Mr Grose recovered the gate in his own time. I consider that there really is nothing untoward about that, indeed it would have been more appropriate for him to recover the gate during work time given the instructions of Mr Higgins and Mr Josling. Any comment by Mr Grose to the effect of not involving the Police given the trivial nature of the matter was understandable and I do not regard it as raising suspicions about Mr Grose's actions or motives. The possible involvement of the Police had been mentioned by both Mr Higgins and by Mr Gatty in his phone call to Mr Monato (as overheard by Mr Grose). 422 If the Police were to be involved every time some member of the public took something they shouldn't from the Landfill, I sugest they would be very busy indeed. Notwithstanding the signs at the Landfill I have no doubt whatsoever that there would be some members of the public who, if the opportunity ar+ose and there was no Landfill employee in sight, would take that opportunity to grab something they saw as being of use to them. It is a trite saying but true nevertheless that "one person's trash is another person's treasure". Mr Piccolo was the classic example of that. 423 In relation to the Valiant there is no question that Mr Grose exceeded his authority as Overseer at the Landfill on this issue. Neither he nor any other staff member of Council including Mr Higgins, and indeed Mr Brooks, was authorised to trade goods for any work performed by Mr Fisher or any other person. Mr Grose may well have been well intentioned and the Valiant of little value but nevertheless Mr Fisher should have put in an appropriate account and been paid for the work performed for Council. 424 In addition it is hard to see of what relevance it was for Mr Gatty to provide a receipt for the Valiant. Although it had been marked for scrap and Mr Grose was towing it to Mr Gatty's area he had not in fact, as it were, passed to over to Mr Gatty and it therefore had not come into his possession. This fact may have escaped Mr Grose. I fail to see how Mr Gatty was in any position to issue a receipt for the Valiant. It would have more appropriate for Mr Grose to deliver the Valiant to Mr Gatty and tell Mr Fisher that if he wanted it he needed to approach Mr Gatty about purchasing it. Alternatively Mr Fisher could have approached Council and tendered for it in the usual way. I appreciate Mr Grose seems to have thought he was saving Council money and repaying the favour done by Mr Fisher and was not himself benefiting through the transaction but nevertheless it has to be said that it was contrary to Council's Code of Conduct. The Valiant was just not Mr Grose's to dispose of in the way he did. 425 It is perhaps another example of how Mr Grose saw himself as running the Landfill. 426 However having said that, Mr Grose's actions in relation to the Valiant would not in my view have normally lead to his termination. Certainly a formal warning about an inappropriate action and counselling as to just what is meant by Council's Code of Conduct in a practical way as it applied to how Mr Grose and other employees carried out their work at the Landfill, but not termination. Whilst it was certainly "improper conduct" under the Code, I do not consider that it constituted misconduct as such. 427 I have more difficulty however in relation to VN Commodore. 428 I agree with Mr Klower, the vehicle was never impounded by Council. It is clear on the evidence that Mr Grose and Mr Penrith were not empowered to impound vehicles. Mr Grose was merely the manager of impounded vehicles once they were at the Landfill. I also note that it had only been since the beginning of 2004 that such vehicles had been kept at the Landfill in the newly established compound. It is also clear that there were no procedures in place at the Landfill covering impounded cars other than simply having a car compound. And certainly no procedures as to cars surrendered in the manner of the VN Commodore or indeed cars surrendered by any member of the public (apart from the fee charged at the weighbridge). 429 I also note that Mr Tyack's 8 September memo to Mr Brooks characterises the vehicle as an "abandoned vehicle". Further, Mr Higgins' second statement to Mr Brooks indicated that "vehicles not impounded by Council Rangers were not covered by any precedent or procedure. It would have been the default procedure that they were an item of wasted steel and would normally be passed to the scavenger". That was not challenged or contradicted during these proceedings. 430 Of course it could probably be said that since being "stored", as it were, in the compound it had become "de facto" Council property and therefore it was for Council to determine its disposition. What is not clear is on what basis Mr Grose considered he had the authority to dispose of the vehicle as he maintained. He only had the power, it would seem, to determine whether a car was worth more than or less than $500 and therefore whether it would end up as scrap and in Mr Gatty's possession. Although it was also Mr Higgins's evidence that he had decided to put all vehicles in the compound, regardless of value, through the public tender process. 431 I further note that the VN Commodore was not listed in the sale of abandoned vehicles' list as appeared in the "Area News" notices on 18 August 2004 with the closing date for acceptance of quotes was 27 August 2004. It would be speculation on my part as to whether the events of 28 August 2004 concerning that vehicle were in any way connected with that closing date and the fact that it wasn't listed. Regardless of what Mr Grose's intentions were as to the vehicle he appears to have considered that he had the ability to determine what was done with it and perhaps that was because it was not covered by any current Council procedures. 432 However having said that, the absence of procedures is not a green light to substitute one's own. The more appropriate course would have been to enquire as to what should be done from some higher authority in Council. Although I also note that it was the evidence of Mr Grose and the other Landfill staff that they had been seeking the implementation of appropriate procedures at the Landfill site without success. I also note that it is apparent from Mr Brooks' report to ICAC that there is an acknowledgement by Council that there needs to be a review and implementation of new procedures concerning the acceptance and disposal of vehicles at the Landfill. 433 Mr Tyack's memo does not make clear how "Chris" from Immigration, came to have contact with the Landfill staff, merely that he advised Mr Tyack the following Monday, that they had picked up the vehicle. On the evidence, both Mr Brooks and Mr Tyack had conversations with this "Chris" (or Mr Collimore as he was identified by Mr Brooks). 434 Someone seems to have passed Mr Grose's phone number on to this person. (Rather than Mr Brooks contacting Mr Grose as put by Mr Klower) I accept that it would, under normal circumstances, be unlikely that this person would have specifically referred to the value of the vehicle as being less than $500 however it may be possible that during the course of his conversation with either Mr Brooks or Mr Tyack (notwithstanding Mr Brooks' evidence about his subsequent phone call to him) the issue of Council's policy and procedures concerning impounded cars was referred to including the relevance of $500 to such cars. I accept that is speculation on my part, but it would explain how this person came to mention $500 as was asserted by Mr Grose and Mr Penrith 435 Unfortunately there is no detailed notation of Mr Brooks' conversation with this gentleman and Mr Tyack's memo is not as comprehensive as I think it could have been. As Mr Klower has pointed out it was unfortunate that further information was not sought either in writing or by way of evidence from this person at the Immigration Department. 436 It also does not appear that there was any follow up or further instruction issued to the Landfill staff by any one at Council about the fate of the VN Commodore, apart from Mr Tyack checking that it was in the compound the following Tuesday. 437 I am prepared to accept the evidence of Mr Grose and Mr Penrith that Mr Penrith did in fact purchase a VL Commodore from Mr Grose's son. Unfortunately it only now occurs to me that that fact could have been quite simply tested or verified by appropriate RTA documentation about the change of ownership on the registration of the vehicle and also possibly by the mandatory CTP Green Slip if a change of ownership of a vehicle requires any change to that documentation. I also accept that a conversation about money still owing was overheard by Mr Gatty. I think it likely he was not so much confused but just not necessarily paying attention to such a conversation and just did not remember it. 438 However that is not to say that Mr Grose could not have had a quite separate conversation with Mr Gatty and express views about the value of the VN Commodore which had now seemingly come under Mr Grose's control, as well as Mr Grose's intentions for the vehicle. What is at issue is whether those intentions were for the vehicle to be a runabout at the Landfill or somehow to be conveyed to Melbourne for his son. I also note that during the proceedings Mr Grose referred to having his son in a wheelchair - unfortunately this was not explored further in questioning of Mr Grose by any party including the Commission. 439 It is essentially Mr Gatty's word against Mr Grose's, together with the evidence of Mr Penrith and Mr Rand about the intentions for the vehicle. 440 Mr Gardner made submissions attacking the credibility of the evidence of Mr Rand and Mr Penrith on the basis that they were friends and close to him etc. They may be friends and loyal workmates but that doesn't mean their evidence should be automatically discounted. I have already commented on Mr Rand's evidence about the phone conversation he said he overheard. However there is still the possibility that he may have overheard Mr Higgins' first phone call (the misdial). It is still unclear to me from the evidence (and I have gone over and over it) just what was said by Mr Higgins to Mr Grose in that call. I have looked for inconsistencies within the evidence of witnesses and across witnesses and I have to say this is a matter replete, to a degree, with irreconcilable differences because some issues were just not put to subsequent witnesses or issues arose subsequently that had not been put to a previous relevant witness etc. 441 I recognise that the way this matter unfolded presented difficulties for both advocates as well as the Commission. 442 I also note at this stage that it was in fact Mr Grose who is alleged to have placed a value of $2000 on the vehicle in his conversation with Mr Gatty which is then referred to in the Gatty complaints. I do not consider Mr Brooks was entitled to report to ICAC that the car was actually worth $2000 on that basis. 443 In the absence of any firm or precise evidence about the actual condition of the vehicle other than Mr Rand's "good condition" notation I am not prepared to accept the Red Book valuation referred to by Mr Brooks. I would have thought that such valuation would depend on a number of factors including the mechanical condition of the vehicle, the condition of the bodywork and mileage. I am no expert on cars however and there may be other factors that would also normally be taken into account in valuing a vehicle. That evidence about the vehicle is not before the commission. There is undoubted damage (not major) to bodywork as noted in the evidence. 444 I also note in the list of vehicles put up for the tender process the bids received for cars noted as being in "good condition", one being $400 for a Toyota with relatively low mileage and one of $2199 for a 98 Hyundai Excel with even lower mileage. This is by no means indicative of the value of the VN Commodore, the bids obviously depended on the value the bidder was prepared to ascribe to the vehicle following its inspection. The point is that no one from Council ever appears to have officially valued the vehicle. 445 That however begs the question of whether Mr Grose had any right to do with it as he wished even if it was to be used as a runabout at the Landfill. 446 It does seem illogical that Mr Grose would seek to obtain a receipt from Mr Gatty for the vehicle if he had indeed suggested it was worth $2000. Mr Gatty could clearly have no right to such a vehicle and therefore could not possibly have issued a receipt for such. It would have been an awfully stupid thing for Mr Grose to do, a receipt for $2000 would clearly have raised questions as to Mr Gatty's right firstly to the vehicle and secondly to dispose of it. The question that was never put to Mr Gatty was whether or not there was any suggestion of what amount of money should appear on the receipt or whether Mr Grose was in fact offering any money or other consideration for the receipt. This may have been relevant although Mr Klower did challenge Mr Gatty as to the logic of Mr Grose seeking a receipt from him for the vehicle and he acknowledged he did not tell Mr Grose he could not issue a receipt for such a vehicle. 447 There is certainly the possibility that Mr Grose was subsequently chasing Mr Gatty up only for a receipt for the Valiant given that it had mistakenly been placed on the tender list and evidently a member of the public had bid for it and another five cars (in a Lot of 6) and turned up to claim it. Mr Grose could have seen obtaining that receipt as a need to cover himself for having already given the Valiant to Mr Fisher. Indeed he refers to the Valiant as the reason for the receipt in 29 November interview. 448 As to Mr Grose's alleged phone requests for receipts from Mr Gatty on 3 September, Council evidently had in its possession Mr Grose's work mobile phone records (and had them at the 29 November interview). Those records were not part of the evidence before the Commission for some reason. Mr Brooks' notes in his ICAC report about the two phone calls appear to support the evidence of Mr Gatty at least as to timing. However it was also not put to Mr Grose during the 29 November interview that council in fact had those records and he was not questioned in more detail about his response. 449 Mr Gatty was also not asked whether there was any discussion with him about "doing a cover" as Mr Grose maintained was raised during the conversation. 450 Unfortunately there is other evidence from those involved on 3 September that does not click together and leaves some gaps. Notably just what Mr Grose is supposed to have said about just where the vehicle was (at home or at the Landfill) and when he said it. Mr Higgins evidently made three phone calls as a result of Mr Gatty visiting Council. Firstly the misdial to Mr Grose with some sort of garbled excuse given, he then evidently rang the weighbridge and then later rang Mr Grose to tell him to stay away from the weighbridge (and therefore the surveillance tapes) over the weekend. That last call according to Mr Grose was taken by him at quarter to six whilst he was standing in his carport at home. Therefore Mr Rand could not possibly have overheard any conversation where Mr Grose is protesting about staying away from the weighbridge and saying the car is here come and look. Mr Rand's evidence about this issue must therefore be discounted in my view. Although as referred to earlier there is the possibility that Mr Rand overheard the first phone call (the misdial) that Mr Higgins made to Mr Grose. 451 It would also appear to be this last phone call that Mr Mackinlay overhears as Mr Higgins is walking towards him in the corridor. 452 It is that last conversation with Mr Higgins that has Mr Grose so concerned that he straightway heads for Mr Gatty's house. That would suggest to me that something more than just the gate was mentioned and was of concern to Mr Grose. However Mr Higgins made no mention of any conversation occurring at Mr Gatty's house involving a vehicle and a receipt, that came from Mr Gatty as being spoken of between Mr Higgins and Mr Grose. I have difficulty accepting that Mr Higgins would have discussed what was essentially the substance of Mr Gatty's complaint made earlier at Council in front of Mr Gatty without him protesting about that. All versions of the conversation are different. Mr Grose was also not aware of Mr Gatty's complaint at that stage and it is not clear whether in fact he was even aware that he had been seen by Mr Gatty driving out of the Landfill in the vehicle the previous Saturday. 453 What does concern me is that clearly Mr Grose took the vehicle from the Landfill and drove it home on 28 August 2004. It was unregistered and he was driving it on public roads. He had absolutely no right to do that notwithstanding his stated belief that there was a three-month period within which one could drive an unregistered vehicle for the purpose of effecting repairs. 454 It is unclear when he returned the vehicle. He suggested it was Thursday because it was there on the Friday however the phone conversation that Mr Mackinlay overheard between Mr Higgins and Mr Grose would have the car still at Mr Grose's home on the Friday. It seems unlikely that there was some other phone conversation at some other time about this as Mr Higgins sought to suggest. Mr Grose is so vague about when it was returned that it does raise the possibility that the vehicle is only returned after some mention is made of it by Mr Higgins or Mr Gatty. 455 To some extent Mr Klower is correct that Mr Grose has never denied he had the vehicle at his home but that does not however present an accurate picture of just what Mr Grose did maintain. It does not appear that he ever actually admitted that he had the car at his home between 28 August and the following weekend. Indeed that is not admitted in his first witness statement (Exhibit 1) nor indeed is it spelt out in his second witness statement yet both Mr Rand and Mr Penrith in their witness statements refer to Mr Grose telling them about taking the vehicle home to repair it. It is not until he gives oral evidence that it comes out that he said he took the car home on 28 August to work on it. 456 This highlights the way in which Mr Grose has sought, in my view to not be open about just where the car was at this time, which was his real problem not that there was some plan to take it to Melbourne but that he had taken it home and driven it an unregistered state on public roads. 457 I also note at this point his general manner and demeanour in giving evidence. Whilst there were occasions he claimed he could not recall times and events he was also quite verbose and expansive about some events and conversations. His recollection of such detail on those occasions, given the passage of time, is difficult to rely on. 458 But this also highlights the unsatisfactory and deficient nature of the investigation that was carried out by Mr Brooks with other key persons not interviewed at any stage or follow up interviews of such persons including Mr Grose. 459 I'd also have to say that I am not entirely satisfied with the evidence of Mr Gatty. He is also a person who had some questionable and loose practices at the Landfill. That is quite clear from the evidence. I also note that Mr Gatty did not have his contract renewed at the end of May 2004 and that could just be sheer coincidence with the timing of Mr Grose's termination from the Landfill or could also be a tacit acknowledgement by Council that Mr Gatty's activities bore some scrutiny or further closer consideration and were part of the overall problem at the Landfill site. Obviously such scrutiny or consideration could not be undertaken whilst an ICAC investigation into Mr Grose was proceeding arising out of his complaints. A review of the overall operation at the Landfill was one of the recommendations contained in Mr Brooks' report to ICAC. 460 Mr Gatty maintained he didn't raise the issue of the gate or the Valiant when he went to Council that was raised by Mr Higgins. Those issues are referred to in his first statement and expanded upon in the second statement. Mr Higgins maintained he didn't mention those issues until the Monday, but where would the issue of the Valiant have come from if not from Mr Gatty. Mr Gatty also maintained he never used the word theft or stolen. He did not write his statements himself indeed it does not appear he dictated them himself but Mr Higgins did on his behalf and whilst he said that wasn't the language he would have used it was still prepared to some the statements notwithstanding that he said he didn't consider that Mr Grose had stolen either the gate or the vehicles. It was obvious during proceedings that Mr Gatty has some sort of literacy problem. 461 Whilst I am prepared to accept that Mr Grose may have "waxed lyrical" as it were about the Commodore (he has a tendency to be somewhat expansive in his conversations) I have some difficulty accepting that he had concocted some scheme to spirit the Commodore away to Melbourne. However I acknowledge that during the course of the investigation it appears that he has not been entirely truthful about just what he did with the Commodore between 28 August and when it was returned. 462 Removal of the Commodore from the Landfill and driving it unregistered on a public road and to his home and then returning it clearly constituted a breach of the Code and would certainly be "improper conduct" and illegal. 463 Similarly the driving of unregistered vehicles around the landfill site was also "improper conduct", possibly illegal (there was no evidence or submissions as to the relevant legislative provisions), a clear safety hazard and raised the potential of risks to the public. It was the evidence that this had been going on for some time and senior management knew of it. Mr Higgins however was unaware of this practice. There was no evidence as to whether Mr Josling knew of this. It would also seem obvious that weighbridge staff would have been aware of the practice. It does seem remarkable that no one in senior management or in a supervisory capacity knew that this was going on. Mr Gatty knew, it didn't bother him, he turned a blind eye to it and never complained about it as it didn't affect him. It would also appear possible that members of the public purchasing cars through the tender process that were drivable, drove such cars out of the Landfill in an unregistered condition. 464 What is not clear is whether this was an existing practice that was already in operation when Mr Grose became the Overseer or a practice he instituted or was instituted by others and he condoned. It is unclear on the evidence who was in charge of the Landfill, if anyone, prior to his promotion. 465 This practice, together with Mr Grose's actions in relation to the Valiant and the Commodore, even accepting his evidence, certainly raise issues in my mind about his suitability for the role as Overseer given the judgements he made on these issues, and the way he carried out that role. 466 I accept however that on the evidence before me Mr Grose has clearly been an employee who has been enthusiastic and zealous about carrying out his duties and responsibilities at the Landfill in the interests of staff, the public and Council. 467 I turn now to the investigative process carried out by Mr Brooks and the problems and flaws I see in that process. 468 I accept that once a member of the public has made a formal complaint to Council about the actions of an employee of Council that raise issues that come under the ICAC Act then that must be reported and either ICAC conducts an investigation or Council must conduct such investigation pursuant to that Act. However that process, at least the way it was applied by Mr Brooks, seems to have very narrow and restrictive parameters that would not normally apply if one was conducting a straight out fact-finding process as part of a disciplinary process or indeed a normal disciplinary process. 469 I note from the document attached to Mr Brooks' affidavit (Exhibit 32 - appendix 2) entitled "Reporting corrupt conduct to the ICAC: Guidelines for principal officers" that such reporting did not affect the obligation of Council to carry out disciplinary procedures as required ("6-What to do after a report has been made"). The guidelines simply indicate that disciplinary action (that is implementation of some disciplinary measure against the employee) should not take place before the report has been made. Mr Brooks made his report of an allegation to ICAC on 8 September 2004. ICAC acknowledged that an investigation was underway with a final report to be made. 470 I now set out the difficulties I have with that investigation and what followed thereafter: 1. I am of the firm view that immediate action should have been taken to interview all other employees at the Landfill including weighbridge employees. This could have been done preserving the confidentiality of the complaint made by Mr Gatty. It would have ensured that facts did come out rather than opinions and before there could be any suggestion that persons had "got together" in relation to what they knew. To say persons such as Mr Rand and Mr Penrith were not interviewed (not to mention the weighbridge staff) because they weren't mentioned in the Gatty complaints is just too ridiculous for words. In fact Mr Rand was mentioned in the Gatty complaint as being a person he spoke to about the gate, he should therefore also have been interviewed as soon as possible. 2. In any event once the interview of 29 November had taken place and Mr Grose had provided responses which specifically mentioned the involvement of Mr Penrith and clearly other landfill staff, they should all have interviewed. 3. This would normally have been the procedure in a straight out fact-finding and disciplinary process in any employment situation I would suggest. 4. I have already agreed that Mr Grose's letter of response of 18 October was unsatisfactory and did not specifically address the complaints alleged. It also did not make clear that a meeting with Council was being specifically requested. However the fundamental problem I have is that at no stage whatsoever was either Mr Grose or the USU advised that the response was considered unsatisfactory neither was either Mr Grose or the USU requested to provide more appropriate detail in response. 5. Whilst Mr Grose did indeed have the benefit of Union officials present at the meeting of 29 November, it is quite clear that their role was simply to act as observers. In a normal disciplinary meeting such officials would have had the opportunity of participation in the usual way which would have undoubtedly assisted not only Mr Grose but Council in perhaps ensuring that all relevant information was put forward. 6. At that meeting the panel had before it statements from other persons about aspects of the allegations. Neither Mr Grose nor the USU had access to those statements nor were they apparently told there were other statements that had been made. I find that a breathtaking denial of natural justice. 7. Mr Brooks' final report to ICAC refers to information from Mr Grose's work mobile phone records. This would suggest that such material was also before the panel. Yet the information it contained about the two phone calls made to Mr Gatty, as well as the timing and location of those calls were not put to Mr Grose by way of challenge arising from his response on that issue. 8. Similarly Mr Mackinlay was apparently aware, from what Mr Higgins had reported to him during a phone call with Mr Grose on 3 September, that Mr Grose said he had the Commodore at his home at that time. I don't imagine that that information had not been conveyed by Mr Mackinlay to Mr Brooks and the panel. Again that was not put to Mr Grose. 9. During proceedings I asked Mr Brooks if he had actually asked Mr Grose if the Commodore was that his home, he could not recall and had to refer to his notes of Mr Grose's response which indicated it was taken for a spin and parked up near the BlueDot Raceway. 10. If the panel had before it information in statements or other documentation that would have cast doubt on either the accuracy of Mr Grose's responses or the completeness of those responses then that should have been put to Mr Grose and he should have been tested and had the opportunity to make a response. Then the full facts may have come out. 11. The interview was conducted in a restrictive and narrow way, confined to predetermined questions with no deviation from those questions. This was almost guaranteed to not produce a full and comprehensive outcome with all the facts coming forward and a complete picture emerging. 12. I also have difficulty with the very severe discrepancy between the responses noted by Mr Brooks on the issue of the VN Commodore and Mr Grose's discussion with Mr Penrith about the purchase of the VL Commodore from his son and what was finally reported to ICAC. The report was supposed (as I understand the intention of the process) to be based on the responses actually given by Mr Grose, with the opinions of the panel as to those responses. That would have been appropriate. What was not appropriate was for Mr Brooks to not accurately record Mr Grose's responses. Mr Yadav's notes on that same response were in direct conflict as they recorded what Mr Gatty's allegation essentially was - the Commodore was for his son in Melbourne. I just do not accept that Mr Brooks changed his mind about what Mr Grose had said following discussion with the other members of the panel. Mr Brooks' notes were very brief and specific and mirrored exactly what Mr Grose has contended in these proceedings. That contention did not appear in his 18 October letter, it could only have been raised during the course of the interview. Mr Brooks was entitled to form the opinion that what Mr Grose said was not true and report that. He was not entitled to misreport what Mr Grose actually said to ICAC. 13. Mr Brooks also reported to ICAC that the vehicle was an "impounded vehicle" that clearly was not an accurate representation of the situation. 14. However contrary to Mr Klower's submissions, I do not consider the mistaken dates in the report (28 September rather than 28 August) to be any more than an inadvertent error on Mr Brooks' part that was not picked up before the report was sent. 15. I am also concerned that the notes of Mr Hipkins (if he took notes) were not part of the report, they should have been in my view as part of the panel's considerations. They may also have enabled this particular issue to have perhaps been clarified by comparison with the other notes. 16. Another fundamental flaw in this process, due it would seem to it being an ICAC investigation, was that no notes of the interview were made available to either Mr Grose or the Union officials present to enable them to be checked as would be the normal process following an interview in either a fact finding or a disciplinary process. 17. At no stage was either Mr Grose or the USU advised that his responses were generally viewed as unsatisfactory. 18. Contrary to Mr Gardner's submissions, there is no evidence of any further investigation taking place after 29 November into issues flowing from Mr Grose's responses and the way he defended himself. If there was any such investigation I wonder how it could possibly have been carried out in the absence of further interviewing Mr Grose or interviewing Mr Higgins, Mr Penrith, Mr Rand and the weighbridge staff. 19. There were obvious unavoidable delays in finalising the report to ICAC, Mr Brooks' sick leave and the Christmas vacation period, however it is still not forwarded to ICAC until 31 January some two months after the 29 November interview and no delay apparent is arising from any further investigative process. 20. Neither Mr Grose nor the USU were given any indication as to the outcome of the report and recommendations to ICAC. 471 I do not consider that the failure of the USU to produce in evidence any notes of any of the Officials present at the 29 November interview raises a Jones v Dunkel issue. Any such notes may simply not have been kept which would have been understandable given the lack of any feedback about the meeting and the length of time that elapsed until his termination and indeed the time that elapsed before these proceedings commenced. 472 I now turn to the problems and flaws I see in the disciplinary process initiated by Council: 1. A further three months elapsed between the filing of the report to ICAC and the sending of the 29 April "show cause" letter to Mr Grose. Mr Brooks said he could not proceed further without hearing from ICAC and received verbal approval to initiate the disciplinary process. I accept this delay was unavoidable but nevertheless it visits further unfairness on Mr Grose who has no idea of the outcome of the report. 2. It is what occurs next that presents the greatest difficulty. After this lengthy process commenced by the Gatty complaints on 3 September, almost 9 months later, Council's letter of 29 April, for the first time advises Mr Grose in writing that the complaints relate to "alleged misconduct". He is also told that in considering the facts Council has "determined" that he has committed breaches of Council's Code of Conduct. Those breaches are then set out. This is the first time Mr Grose has been advised that the complaints and issues arising from the complaints are considered breaches of Council's Code of Conduct. 3. He is also, in effect, told that Council has already made up its mind that he is guilty of the allegations made and that it considers the Code has been breached in a number of ways and raising issues of his role as an Overseer. 4. However what I have the most difficulty with in this letter is that he has been given only 7 days to respond in writing to the very serious issues raised in the letter. Given the snail's pace at which matters had been progressing thus far the need to suddenly move at the speed of a cheetah escapes me. 5. I also consider that Council should have given notice in this letter of the absolute necessity and requirement for a meeting with Mr Grose and his Union representatives to discuss the issues and indeed could have given a proposed date for such meeting (and requiring confirmation of such), allowing a more appropriate and reasonable time frame for the provision of a written response that could then had been considered and discussed appropriately at the meeting. It had the right to do that and should have taken such action. If it wanted to speedily resolve this matter that would have been an appropriate way forward. 6. As for the difficulties in subsequently contacting Mr Grose to come in for a meeting, I am not convinced that efforts were made in the week beginning 9 May. In any event I see no reason why a letter, registered or otherwise, could not have been sent to Mr Grose requiring his attendance at a meeting. I do not accept Mr Mackinlay's excuse that "that's not the way we do things here". Given the formality of the "show cause" letter, a formal notification of a disciplinary meeting would have been entirely appropriate. 7. The Council have used Mr Grose's supposed avoidance in having a meeting as a reason for termination. Before going down that path Council should have exercised its managerial right to formally notify Mr Grose, in writing, of the requirement to attend for a disciplinary meeting and the consequences of such non-attendance. Then it could have relied any such non-attendance or refusal to attend as a basis for consideration of termination. 8. Mr Grose's 6 May response was a clearly unsatisfactory one but I can understand the logic behind him saying that to suffer any form of penalty he would have to concede that he had been involved in some form of misconduct which he was not prepared to do. This was the first time issues of misconduct had been raised and it has become quite obvious during these proceedings that he did not understand that any of his actions in relation to the matters raised in the Gatty complaints could be characterised as breaches of Council's Code. 9. This reinforces the absolute necessity for having a meeting with him before any form of disciplinary action was determined to specifically address inter alia issues of Council's Code before determination of an appropriate disciplinary outcome. 473 I propose to address the issue of the letter of termination separately. There is no doubt that Mr Mackinlay's draft letter of 9 May gives a clear indication of the views of Council and where they were heading in relation to disciplining Mr Grose. As Mr Klower rightly points out it was not a notice of suspension or notice of the notion or notice of disciplinary action. Even if the letter stayed on Mr Mackinlay's computer until 23 May there is no doubt in my mind that someone at Council has let slip somehow the existence of this letter or alternatively discussed the likely termination of Mr Grose and the rumour mill has started, to Mr Grose's detriment. I am also sure that at some point in the contact between Council (Mr Mackinlay and to whoever he was talking to in that period of time about contacting Mr Grose) that the proposed meeting sought, essentially morphed into a meeting simply to hand over a letter. Possibly through misunderstanding but I am not prepared to rule out the possibility that Council (that is Mr Mackinlay and Mr Brooks who spoke almost on a daily basis about Mr Grose according to the evidence) clearly had in mind termination was going to occur. It was becoming known, it would appear, that termination was on the cards, therefore any letter to be handed over could only have concerned termination. 474 As to Mr Grose's alleged contact of Councillors, there is no evidence that Mr Grose asked Councillor Pittavino to intercede on his behalf. This was acknowledged by Mr Brooks. The contact with the Mayor, I readily agree, is more problematic and is a clear breach of Council's Code. However there are clearly mitigating and extenuating factors that must be taken into account in relation to this contact. 475 Mr Grose was advised to contact the Mayor by Councillor Pittavino to raise with him the issues he had with the way Mr Brooks had conducted the investigation. I accept this evidence. I have no doubt Mr Grose would have been concerned. At the time the meeting was requested Mr Grose understood that there was a letter of termination waiting for him at Council and through Mr Higgins that Mr Brooks had made a decision to terminate him. Mr Higgins may have misunderstood or misinterpreted what Mr Brooks said but I am sure that Mr Brooks conveyed a sufficient intention that that was the course of action going to be followed to leave no doubt in Mr Higgins' mind. 476 Contrary to Mr Brooks' evidence, the Mayor categorically stated he had an "open door" policy towards staff, as did other Councillors and that he treated Mr Grose no differently to how he would have treated any other staff member. Notwithstanding that he stated he did not have the power to interfere in such matters, after satisfying himself that Mr Grose did in fact believed he had already been terminated, he still proceeded to "approve" the meeting taking place. I would have thought a more appropriate course of action would have been to advise Mr Grose that if he had been terminated there was nothing the Mayor could do and he could not meet with him. Clearly issues of the Code of Conduct relating to contact between staff and Councillors need to be addressed. 477 I also accept that in a rural community such as Griffith such contact is not uncommon and has occurred in the past. 478 I consider that the Mayor has been understandably somewhat circumspect in his evidence about the conversation with Mr Grose. I have no doubt whatsoever that during the course of that conversation Mr Grose would have complained in no uncertain terms about the way Mr Brooks had conducted the investigation. Whether the Code provides for it or not it, would appear that there was a belief by persons such as Counsellor Pittavino and Mr Snaidero (a former staff member of Council) that if a staff member has a complaint about the General Manager breaching the Code then that should be taken directly to the Mayor. 479 However I also think there is no doubt that Mr Grose complained about his termination to the Mayor and sought his assistance. 480 Having said that, given the circumstances outlined above, I do not consider that this breach of the Code should have warranted termination. 481 I also consider it totally inappropriate that this contact (including that with Councillor Pittavino) is not properly discussed with Mr Grose and indeed with Councillor Pittavino before it is included as a reason for termination in the 24 May letter. The letter concerning this issue is couched in the following terms "I also note for the record that you have in recent days contacted councillors on more than one occasion in order, presumably, to influence events." Mr Brooks was not entitled to make such a broad presumption in the absence of properly investigating the facts and the circumstances with the appropriate persons involved, including Mr Grose, notwithstanding his discussion with the Mayor. 482 I do not understand the reference in the letter to "your lack of co-operation throughout the period of the inquiry". Apart from the dissatisfaction of Council with the two letters from Mr Grose there is no evidence before me that Mr Grose has not co-operated with Council. He attended the meeting on 29 November and there is no evidence that there has been any other request by the formal or informal made of Mr Grose that he has not complied with, in fact the opposite is true. I do not accept that there has been a lack of co-operation by Mr Grose. However there has certainly been a lack of appropriate contact between Council and Mr Grose. 483 I turn now to the disciplinary history and record of Mr Grose that was relied on by Council. I consider that both Mr Mackinlay and Mr Brooks have misrepresented that disciplinary history and record. Mr Mackinlay referred to Mr Grose having a "history of unsatisfactory performance and conduct with council". That was just not the case. The incidents specifically referred to by Mr Mackinlay occurred between 1993 and 1998. Mr Grose's work performance and conduct was satisfactory enough to warrant his promotion to the position of Overseer in 2001. There is absolutely no record of any unsatisfactory performance from that date and indeed the evidence of Mr Higgins as to continued above-average yearly performance reviews was not refuted in any way. 484 Mr Brooks, in summarising the reasons for Mr Grose's termination, referred to his "employment history was far from satisfactory, taking into account his early termination for misconduct, together with four reprimands for misconduct (including one for assault)". This is also just not the case and misrepresent the facts in my view. It could certainly be said that his early employment history was far from satisfactory but what should have been indicated was that it was satisfactory from at least 2001 if not from a period sometime between 1998 and 2001. Further I see no reference in the particular documentation concerning the individual incidents characterising each of them as a misconduct. Certainly the assault would have been misconduct however the only disciplinary measure that was taken was suspension (of both parties) pending an investigation and the holding of an interview. There was no disciplinary measure noted as being taken as a consequence of this event. The only official warning he received was for the December 1998 incident concerning the signage and even here it is obvious from the memo that there was another team leader involved who was also given a warning. The incident concerning the "unauthorised borrowing of equipment" is not referred to as a warning as such but merely reinforces the procedure is that should have been followed which make it quite clear that there was a policy that permitted borrowing of equipment provided procedures were followed. I do however note the language of the memo and the grave concern that is referred to. 485 As far as the sick leave incident is concerned this has been totally misrepresented. What appears on the file is a filenote only of the discussion between Mr Grose and Mr Cremasco, over the phone, with "disappointment" expressed about Mr Grose accepting not authorising but accepting i.e receiving the Higgins' sick leave certificate. How this can be characterised by Mr Brooks as reprimand for misconduct is absolutely beyond me. 486 It has not been necessary for me to consider the evidence of Matthew Higgins at all in relation to the two issues concerning him. The documentation on Mr Grose's file speaks for itself as does the absence of any more formal documentation in relation to those incidents. 487 I acknowledge his inappropriate conduct during proceedings, He was spoken to by the Commission and I noted the allegations made about his conduct on the way to court. 488 I accept that there is an initial termination of Mr Grose for misconduct apparently concerning what information was given to Council by him about his previous workers compensation history. However what wasn't part of the Council's evidence was the Council letter clearly reinstating Mr Grose immediately following discussions that certainly involved the Mayor at that time. However in the absence of more particular evidence about this incident I do not consider that it goes to the credibility of Mr Grose. 489 I reject the submission made by Mr Gardner that Mr Grose "did not contemporaneously seek to challenge the Respondent's decisions in relation to his previous disciplinary offences". Given the absence in that record of documentation indicating any further outcome (apart from the one official warning referred to above) it cannot be assumed that those incidents were not challenged at the time in some way. In fact that may be suggestive of a situation where those incidents were challenged or discussed in some way and as a result no further formal action was taken and simply that is not noted in the file in any way. 490 I also note that Mr Grose was not cross-examined in any way about these incidents or any action taken at the time. 491 As far as the two written complaints attached to Mr McKinlay's affidavit are concerned, they do not appear to have resulted in any disciplinary action of any kind, with the second complaint merely "discussed" by Mr Higgins with Mr Grose, it is also clear that the complainant was also spoken to. I also accept Mr Higgins' evidence as to the difficulties encountered by the landfill staff with members of the public in relation to enforcing Council's policies and also the lack of appreciation by senior management of those difficulties. 492 In my very firm view the way this history and these incidents have been selectively used and relied upon typifies the way in which Council have really gone out of their way to seek to blacken Mr Grose's name, take a totally negative view of him, attack his credibility and that of his witnesses and seize on every issue no matter how petty or trivial in this matter. In most matters that come before the Commission for hearing applicants will be critical of respondents behaviour, motives and actions, likewise respondents equally critical of the applicants. However in this matter I consider that Council had not just gone overboard but have gone deep sea diving in that endeavour. 493 I do not consider that the credibility of Mr Grose's witnesses is affected by the fact that his partner, Ms Devery, assisted in the typing of their affidavits. During the many hearings that have come before me the only affidavits/witness statements that I can say were solely and entirely the work of the witness concerned was in the case of those statements prepared by self represented litigants be they applicant or respondent. Witnesses not infrequently have the assistance of their legal representatives to put what they want to say and what they know into proper language, format and setting out. I see no difference with this and the assistance rendered by Ms Devery which appears to only have been typing the statements. 494 I also take this opportunity to make it clear that Mr Grose was accurate in his evidence concerning the information given to him by Griffith Police, concerning the status of the investigation into the attack on Mr Gatty's house in December 2004. The subpoened documents from New South Wales Police (Exhibit 14) indicates as follows: "Clear Up Status/ Date - NO FURTHER INVESTIGATION - 02/06/2005" 495 Mr Gardner correctly cites one of the appropriate authorities concerning the reliance that may be placed by an employer on an employee's disciplinary record and work history. However in that consideration an employee is entitled to have any satisfactory period of employment and good work record also taken into account. This was not done by Council in relation to Mr Grose, indeed it was totally ignored. 496 Returning to the issue of the termination letter, I accept that the letter was indeed revised to include the reference to the contact with Councillors and the issue of Mr Grose not responding to Council on 24 May and that it was Ms Robertson's inadvertent error in not destroying the letter with the incorrect date but rather posting it out to Mr Grose. 497 Much time was wasted on what I regard as the triviality of whether or not that letter was placed directly inside the registered post envelope or inside a Council envelope and then in the registered post envelope. I accept the evidence of Mr Grose that the letter was directly inside the registered post envelope. This was another inadvertent error of Ms Robertson's. It would not have been logical for her to type a label for the registered post envelope yet handwrite an envelope and place the termination letter inside it. The same practice has occurred in my office in relation to letters both sent and received by registered post. Those letters have sometimes been placed directly inside the registered post envelope and sometimes in another envelope first. It certainly does not raise the issue of the credibility of either Ms Robertson or Mr Grose. It was just a human error and a mistaken recollection of an event where there was clearly another mixup made with the two differently dated letters at the same time. 498 What should not be lost sight of however is that the letter of termination that Mr Grose received was dated 9 May. I accept Council did not know of this until the hearing of this matter. It did not become apparent during the conciliation proceedings. Unfortunately it only served to reinforce Mr Grose's view that Council had made a decision to terminate him well before he saw the Mayor and before he was officially informed of that decision. 499 However as Mr Gardner correctly points out that date of termination of Mr Grose is the date he actually received the termination letter, regardless of what date was on the letter, that date being 25 May 2004. 500 I should indicate at this point that I have not referred to the evidence of Mr Snaidero or Mr Siviour. As far as Mr Siviour is concerned I found him to be aggressive and belligerent and I have no doubt he would clash with anyone in authority at the Landfill not just Mr Grose (although given Mr Grose's nature I accept such clashes were more likely). It has to be said that clearly Mr Grose is a person whose physical stature and manner could be offputting or intimidating on occasions. 501 The alleged incidents occurring after termination I do not consider are sufficiently serious to be taken into account and I do not propose to do so. 502 I do not propose, in citing the various authorities that I now turn to consider, to quote in full the relevant passages. The authorities upon which I am required to rely are very well known and established in numerous decisions of this Commission. 503 As rightly identified by Mr Gardner, the onus is clearly on Council to establish that misconduct has taken place re Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70. The Commission must then be satisfied that that onus has been discharged and that the misconduct has occurred. 504 However, even if it is established that misconduct did occur, the Commission must also consider whether termination in the circumstances was to harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise the Commission must also consider whether the termination was harsh or unjust or unreasonable per S. 88 of the Act. Here however, the onus moves back to the applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. 505 In New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440, Sams DP identifies at para. 218 the four questions that arise for consideration in a case concerning summary dismissal for misconduct:- 1. Was the conduct against the dismissed employee proven? 2. Did the seriousness of the conduct justified summary dismissal? 3. Did the conduct constitute a fundamental and wilful repudiation of the contract? 4. Were mitigating factors taken into account? 506 In summary, having carefully considered the evidence, I have formed the following views: · The gate - Mr Grose was not involved in the removal of the gate. There was no breach of the Code and no misconduct occurred. · The Valiant -Mr Grose exceeded his authority in disposing of the Valiant in the manner in which he did. I regard it as a breach of the Code and improper conduct but not misconduct as such. Seeking to have a receipt issued for the Valiant was improper conduct. His actions also showed a misunderstanding of the Code and his role as Overseer. · The VN Commodore - again Mr Grose exceeded his authority in the way he dealt with this vehicle. He also broke the law in driving the vehicle on public roads whilst it was unregistered. This was a clear breach of the Code and the breach of the law could be regarded as misconduct. · Driving unregistered vehicles - this practice at the landfill site also appears to be illegal and contrary to the Code. It is improper conduct. I do not regard it as misconduct in the same way as the driving of the Commodore on public roads whilst unregistered. · None of these breaches of the Code can be categorised as corrupt conduct in my view. I note that Mr Grose did not seek to personally benefit from these actions in any way and indeed considered that what he was doing was in the interests of either Council or more efficiently carrying out the work at the Landfill (i.e. use of the vehicle as a runabout). · I am not satisfied that Mr Grose was honest and forthcoming with Council at the 29 November interview about precisely where the Commodore had been located between 28 August and 3 September. However that may have come out if the investigative process had not been conducted in the flawed way I have referred to above. · Mr Grose had contact with Councillor Pittavino but there is no evidence to support a finding of a breach of the Code or misconduct. · Mr Grose did contact the Mayor in breach of the Code and that could be considered misconduct. 507 The fact that I have found that Mr Grose did breach the code does not mean that his admission during proceedings, as referred to by Mr Gardner, that should he have breached the Code he would accept his dismissal in any way precludes me from considering whether or not it is appropriate to overturn that dismissal. 508 Whilst there is misconduct proven as outlined above and as such Council has discharged the onus on it, considering the second question posited by Sams DP I do not consider that the seriousness of that misconduct justified summary dismissal due to the nature and circumstances of Mr Grose's actions as referred to above. I have also taken into account that there was a clear absence of appropriate procedures and policies in place at the Landfill in relation to abandoned cars such as the Commodore. Indeed there was an absence of procedures generally in relation to the receipt and dealing with impounded vehicles apart from the establishment of a vehicle compound at the Landfill 509 On the issue of repudiation of the employment contract Sams DP observed in Natoli at para. 255, " The allegations against the applicant were described as misconduct - the additional adjectives "wilful" or "serious" were not used. However in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the very core of the employment relationship." 510 There was no evidence to establish any wilful or deliberate intent by Mr Grose to commit misconduct, quite the reverse in fact. He did not consider his actions to be a breach of the Code and indeed thought he had both the authority and power to carry out the actions he did. He was saving Council money and repaying the favour done by Mr Fisher in relation to the Valiant and seeking to fix up the Commodore for use by Council staff as a runabout at the Landfill. He did however breach the Code and exceed his authority in carrying out these actions. 511 In relation to contact with the Mayor, at the time of that contact he considered that he had already been terminated by Council and as dealt with above the Mayor acceded to his request for a meeting in full knowledge that it concerned his termination. 512 Whilst Council has made strenuous submissions that it can no longer its place trust and confidence in Mr Grose I consider that concern can be addressed. 513 The issue of the consequences for an applicant of such a decision, the need for that to be considered by the Commission and for employers to be fully satisfied that misconduct has taken place is dealt with by the Full Bench in Franklins Ltd v Webb (1996) 72 IR 257 at p.261 and also by Sams DP in Hill v Department of Juvenile Justice (2000) NSWIRComm128 at para.62-63. 514 There is clear evidence that Mr Grose's termination and the circumstances of that termination has been the subject of adverse media publicity and rumour in the local community with Mr Grose's reputation understandably tarnished. I emphasise at this point there is absolutely no evidence before me of any broader and illegal activity or anything untoward going on at the Landfill in relation to vehicles. 515 In coming to consider the fourth question posited in Natoli I am firmly of the view that not all mitigating factors were appropriately taken into account by Council. Certainly they did not have all the relevant facts before them and as outlined above I consider that the process and procedures followed were flawed and fundamentally so. Council also did not appropriately consider the good work history and satisfactory performance of Mr Grose since becoming the Overseer at the Landfill. 516 In Natoli, Sams DP also considers the issue of harshness of penalty citing the various relevant authorities which I have also considered viz. Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 (at p.302); Little v Commissioner of Police (No 2) (2002) 112 IR 212; Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106. 517 The meaning of the individual terms contained in the expression in "harsh, unjust and unreasonable " were also considered in detail by Sams DP in Sams V Contact Point International Pty Ltd (2001) NSWIRComm 18 and that decision has been applied in other decisions of this Commission. I also adopt those considerations with particular reference to the term "harsh". 518 After very carefully considering all of the evidence, the submissions and the relevant authorities, whilst Council have discharged the onus on it to establish some misconduct took place, I have decided that the termination by Council of Mr Grose, in all the circumstances, was too harsh a disciplinary penalty. The nature of the misconduct did not warrant termination, and particularly so in the light of the flawed procedural process. 519 A dismissal can be both substantively and procedurally unfair. The case usually quoted in this regard is the High Court Judgment in Byrne & Anor v Australian Airlines (at p.72). 520 In relation to procedural fairness that decision has also been relied on in numerous decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255 and Antanakopoulos v State Bank (1999) 91 IR 385. 521 For the reasons I have outlined in detail above I consider that the termination of Mr Grose was procedurally unfair. 522 The expression "harsh, unjust or unreasonable", was also considered in Byrne & Anor v Australian Airlines (also at p.72). The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three. 523 As indicated above the meaning of those individual terms has been considered in detail by Sams DP in Sams V Contact Point International Pty Ltd. I also adopt those considerations in relation to the expressions "unjust" and "unreasonable". 524 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the fact that I must make a positive finding as to whether the termination of Mr Grose was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which I so find. 525 As I have indicated above I have found on a substantive basis that the termination of Mr Grose was too harsh. I also consider it was unjust. Further I consider that on a procedural basis the termination of Mr Grose was harsh, it was unjust and it was unfair. 526 I have given very considerable and extensive thought to the appropriate remedy in this matter. Indeed it is that issue that has troubled my mind greatly. I have carefully considered the submissions made on the half of Council as to the impracticability of reinstatement or re-employment. However I am not persuaded as to the impracticability of restoring the employment relationship between the parties. The evidence of those members of staff with direct contact with Mr Grose on a daily basis (including Mr Higgins) and the absence of any evidence to the contrary not to mention the fact that Mr Brooks and Mr Mackinlay and indeed Mr Yadav have very little (if anything) to do with Mr Grose on a day-to-day basis, indicates to me that restoring the employment relationship is possible. 527 But having said that I do not consider that it is appropriate to reinstate Mr Grose to his former position of Overseer. I agree with Council that he has displayed a lack of understanding of the Code and displayed poor judgment in his role as Overseer and has exceeded his authority in a number of ways as indicated above. It must be said however that to an extent supervisory staff at Council have allowed that position to develop and exist. It must also be said that it is obvious that other members of staff and Councillors also do not have a clear understanding of the Code of Conduct in relation to contact between staff and Councillors. 528 Unfortunately there was no evidence before me as to any action that Mr Grose has taken to seek to mitigate his loss by seeking alternate employment. An applicant just cannot sit on his/her hands awaiting the outcome of an unfair dismissal case even if they are seeking reinstatement and believe that they have a good case. 529 I also note that as at the date of the final day of hearing of this matter on 31 May 2006, the 53 weeks that had elapsed since Mr Grose's termination would have resulted in a loss of wages of $61,167 a considerable amount of money. The further period of time to date would have resulted in a further loss of $17,311. 530 I do not consider it appropriate to reinstate Mr Grose to his former position of Overseer however I do consider it is appropriate to order the re-employment of Mr Grose to the position of Waste Operator. It was the evidence of Mr Mackinlay that at one point he and Mr Brooks considered demotion of Mr Grose albeit that that would have involved moving him from the Landfill. This would have been an appropriate disciplinary measure. 531 Mr Grose sought reinstatement to his former position or re-employment to another position with Council. There is no evidence before me as to other available positions at Council. However there does not have to have been identified a vacant position before I can order re-employment. 532 This has been made clear in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108, where the Full Bench considered at length the operation of S. 89(2) and the meaning of the word "available" and previous cases concerning on this issue and held at para 106 - "It is our view that for the reasons expressed in Commonwealth Steel and Moses (No. 2), the approach taken in Commonwealth Steel to the meaning of the word "available" is the correct one and is to be preferred to the approach in Effem". 533 I have also given consideration to the length of time that has elapsed since the termination of Mr Grose and the delays that have been beyond the control of the parties and the Commission. That together with the absence of any evidence that Mr Grose has sought to mitigate his loss preclude me from ordering re-employment from the date of termination. However I consider it is appropriate to order re-employment from the date that these proceedings commenced on 8 March 2006. The length of the hearing and the fact that it was spread over the months of March, April and May would have effectively precluded Mr Grose from realistically seeking alternate employment. I intend to make orders as to continuity of employment from the date of termination but to provide that the period from the date of termination and the date of 8 March 2006 is not to count for the purposes of service. 534 Should the orders I make provide difficulties for the parties then it is open to them to hold appropriate settlement discussions. The Commission remains available to assist in that regard. 535 I would hope that the various recommendations as to reviewing procedures and policies concerning vehicles and the operation of the Landfill as contained in Mr Brooks' report to ICAC can be initiated and implemented expeditiously and should involve consultation with the appropriate staff including Mr Grose. The USU should also be involved. 536 I therefore make the following orders as attached: ORDERS 537 The Industrial Relations Commission of New South Wales orders that: 1. Pursuant to s89(1) of the Industrial Relations Act 1996, the respondent, Griffith City Council, shall re-employ the applicant, Mr Brendan Grose to a position of Waste Operator. Such re-employment to take effect on and from 8 March 2006. 2. Pursuant to s89(4) of the Industrial Relations Act 1996, Mr Grose's period of employment with Griffith City Council shall not be taken as having been broken by his termination on 24 May 2005, however the period that has elapsed between that date and the date of re-employment shall not count for purposes of accrual of any form of leave. 3. In respect to Order (1), pursuant to s89(8) of the Industrial Relations Act 1996, the parties are to confer as to the terms of the re-employment of Mr Grose, provided that such re-employment shall occur within 14 days of today's date. 538 These proceedings are now concluded. E. A. R. Bishop Commissioner 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.