Transport Appeal Boards New South Wales Medium Neutral Citation: Leslie Desira v State Transit Authority [2011] NSWTAB 26 Hearing dates: 10/10/11; 11/10/11 Decision date: 20 December 2011 Before: Macdonald C (Board) Decision: Appeal dismissed Catchwords: PUBLIC SERVICE - State Transit Authority - bus depot - contractor mistakenly left his angle grinder at bus depot following completion of contractor work - Appellant retrieved angle grinder from dock and placed in cardboard box - CCTV footage of foregoing conduct - Appellant transported cardboard box to his office - CCTV footage of foregoing conduct - contractor telephoned and enquired about his grinder - management viewed CCTV footage - Appellant did not advise of his knowledge as to grinder's whereabouts for 3 days - Appellant confronted by management - Appellant said grinder taken from his office without his knowledge - Appellant stood down - investigation - Appellant dismissed - Appeal - HEARING - two allegations against Appellant (larceny and dishonesty) - misconduct - onus - Appellant's defence rejected - Appeal Dismissed Legislation Cited: Transport Administration (Staff) Regulation 2005 Category: Principal judgment Parties: Leslie Desira (Appellant) State Transit Authority (Respondent) Representation: Mr A Walkaden Automotive Food Metals Engineering Printing and Kindred Industries Union (Appellant) Ms L Jardim (Respondent) File Number(s): TAB 1073 of 2011 DECISION Introduction 1Mr Leslie Desira (the Appellant) has lodged an appeal, in accordance with clause 32 of the Transport Administration (Staff) Regulation 2005, against a decision of the State Transit Authority ("the STA") to terminate his contract of employment. 2The foregoing disciplinary penalty was imposed by the STA, on the basis of its investigation and finding, that the Appellant had failed to be honest in his dealings with the STA as to the whereabouts of a missing tool of trade and that he had removed the said tool of trade belonging to a contractor with the intention of permanently depriving the contractor of that tool of trade and without the contractor's consent. 3The tool of trade is an angle grinder. 4The Appellant was dismissed by letter dated 24 June 2011. BACKGROUND 5The Appellant has been employed by the STA for a period of approximately 12 years, commencing employment with the STA on 8 February 1999 as a Maintenance Planner at Willoughby Depot. 6The Appellant was appointed to the position of Depot Service Coordinator at Leichhardt Depot on 27 August 2006. 7At the time of dismissal on 24 June 2011, he was employed as a Maintenance Planner at the Leichhardt Bus depot in the Service (Maintenance) section. 8On 6 June 2011, independent contractors including Tony Stokes-Hughes were undertaking work at the Leichhardt Bus depot. 9On or around 7am on 7 June 2011, the Southern Regional Fleet and Facilities Manager (Mr Dewhurst) was advised by Stoke-Hughes that his personal Hitachi 100mm angle grinder, with license number engraved, was left by him by accident in the Delivery Dock at Leichhardt depot. Stoke-Hughes claimed it was left on/near a pallet, containing two blue coloured 44 gallon drums. 10A subsequent search failed to locate the grinder where the contractor said it had been left. Subsequently, the relevant CCTV footage was viewed by Mr Dewhurst. 11The CCTV footage depicted the Appellant entering the relevant area and removing an item from the vicinity of the pallet containing the two drums. The CCTV footage does not show what that item is. The CCTV footage from a hallway (and not the dock area) shows the Appellant walking through the hallway with a cardboard box. The content(s) of the box can not be seen. The Appellant subsequently admitted to removing the angle grinder from the loading dock and of failing to notify any person of the removal and its subsequent location in his office. 12At or around 7am on 9 June 2011, the Appellant on two occasions denied any knowledge of the grinder to his immediate supervisor Mr David Yates. The Appellant subsequently admitted at an interview that, at the time of the request, he possessed information regarding the grinder and failed to answer the requests by Mr Yates for information. A subsequent search of the Appellant's office located one locked cupboard but failed to locate the grinder. 13At or around 12pm on 9 June, the Appellant was suspended pending further investigations. 14The Appellant was issued with a list of alleged breaches of the State Transit Code of Conduct on an STA Form E1. The allegations against the Appellant went to the missing angle grinder. It was alleged that he had failed to be honest to his supervisor's enquiry as to the whereabouts of the missing angle grinder and that he had removed the angle grinder, belonging to a contractor, with the intention of keeping it for himself. 15The Appellant responded in writing to the allegations. 16The Appellant was later interviewed by an Investigating Officer (Mark O'Connor). 17During the interview the Appellant made admissions to removing the grinder from the loading dock but denied knowledge of its current whereabouts, maintaining it had been removed from an unlocked cupboard in his office. 18The investigation, which was concluded on 23 June, found the allegations proven. 19On 24 June 2011, a review of the investigation considered the content of the report, the Appellant's years of service and past conduct and determined that the Appellant be dismissed. 20The Appellant was advised and invited to make any further comments. 21The Appellant was dismissed by correspondence of 24 June 2011. APPEAL PROCEEDINGS - TRANSPORT APPEAL BOARD 22The appeal by the Appellant was heard by the Board on 10 and 11 October, 2011. 23At the hearing, the STA was represented by Ms L Jardim, barrister, assisted by Mr G Hanson. The STA filed the following witness statements: Tony Hughes - contractor Rohan Brown - employee Tanveer Kamarvzzaman - Operations Cadet Jamie Sinclair - employee Ken Dewhurst - Regional Fleet and Facility Manager David Yates - Depot Service Manager Mark O'Connor - Security Co-ordinator Daniela Fontana - Depot Manager Of the foregoing witnesses, only Dewhurst, Yates, O'Connor and Fontana were required for cross-examination. 24At the hearing, the Appellant was represented by Mr A Walkaden, union official of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union"). 25In the Notice of Appeal - Transport Discipline, filed by the Appellant on 28 June 2011, he pleaded "Not Guilty". FINAL SUBMISSIONS For the STA 26Ms Jardim, barrister, for the STA put the following in final submissions: (a) The Appellant was issued a Form E1, which set out two allegations against him. The Form E1 referenced the sections of the Code of Conduct breached by the two allegations. (b) The first allegation was that he had failed to be honest when questioned by his supervisor, David Yates, as to the whereabouts of the angle grinder. (c) The second allegation was that he had removed the angle grinder, belonging to the contractor, with the intention to permanently deprive the contractor of that angle grinder and without the contractor's consent. (d) The taking of the angle grinder was an act of larceny. (e) The Appellant was dismissed because of that larceny and that larceny was treated by the STA as a civil matter, rather than a criminal matter. As a civil matter, the STA applied the penalty of dismissal. (f) The standard of proof upon the STA to show that the Appellant took the angle grinder, is the standard laid down in Briginshaw v Briginshaw [1938] 60 CLR 336 at 354-369, per Dixon J. That standard of proof is the balance of probabilities. (g) The Appellant admitted, subsequently, to taking the angle grinder, without the consent of the owner (the contractor), from the dock area and placing it in his office. (h) The Appellant picked up the angle grinder and secreted it away in the cardboard box and removed it from the dock area. (I) The Appellant was asked by his supervisor if he knew of the angle grinder's whereabouts and he answered in the negative. This was evidence in support of the larceny, as was his failure to contact the owner of the angle grinder. (j) Even if the Board was of the view that the larceny was not proven, the underlying dishonesty as to his knowledge but silence about the angle grinder and lack of contrition/apology, are sufficient to warrant dismissal. (k) The Appellant was afforded procedural fairness. (l) If the Board is of the view that his dismissal is not the appropriate punishment, there are other disciplinary options available, such as caution, fine, reduction in position rank, grade, pay and suspension from duty. (m) The Appellant's past employment record is a matter to be taken into account. For the Appellant 27Mr Walkaden, union official, for the Appellant, put the following in final submissions: (a) The Appellant did not engage in larceny. His conduct on 7 June 2011, did not beach relevant STA policy and otherwise does not justify dismissal. (b) The Appellant accepts that he should have been more forthright with his supervisor, Mr Yates on Thursday 9 June as to his knowledge about the angle grinder, but that in itself does not constitute a ground for dismissal. The relationship between he and Mr Yates was a strained working relationship. (c) The critical issue for the Board to determine, is the intention of the Appellant when he picked up the angle grinder. Did he intend to commit larceny? The opinion evidence of Sinclair, Fontana and O'Connor as to the Appellant's intent are irrelevant. (d) The STA's submission that the Appellant attempted to attend the work site on 17 June (post his suspension and before his dismissal) lacked evidence for support. The Appellant denied trying to access the work site. (e) The Applicant's alleged poor work record was sought to be relied upon by the STA but the Appellant was not cross-examined on that alleged work record. (f) The findings made by Ms de Couray Lys as to his work record can not be given weight by the Board, as she was not called by the STA as a witness. (g) The Appellant's supervisor, Mr Yates, agreed that, as of April or May 2011, the working relationship between himself and the Appellant was no longer sustainable - but had improved since then. (h) The Appellant was dismissed summarily and therefore the onus is on the STA to prove that the Appellant intended to commit a larceny. The existence of surveillance cameras on the worksite shows that the Appellant did not intend larceny. Even though the Appellant made no effort to reunite the angle grinder with its owner, that omission does not go to intention. His explanation was that time escaped him. The Appellant has not apologised or shown contrition, but that is because he did not commit larceny. (i) There was no evidence of the Appellant removing the angle grinder from the premises and there was no evidence of the Appellant bringing the angle grinder back onto the premises and lodging it in a tool cabinet (not in the Appellant's office) where it was found. (j) There was no evidence of another person colluding with the Appellant in order to transfer the angle grinder from the Appellant's office to another location being the tool cabinet where it was found on 21 June. (k) It was another person (not the Appellant) who removed the angle grinder from the Appellant's office, sometime between 7 and 9 June 2011, and then subsequently placed, prior to or on 21 June, the angle grinder in the tool cabinet where it was found. The inference to support that possible scenario is the Appellant's evidence that tools are commonly stored in his office and trades staff regularly come into his office and ask for tools. His evidence also is that tools have been removed without his knowledge. (l) The Appellant was a witness of credit in the witness box. (m) The Appellant had not committed an act of larceny. He should have been more forthcoming with his supervisor and it would be appropriate he be sanctioned for failing to do so - but not by way of dismissal. STA in Reply 28Ms Jardim in reply put the following: (a) The Appellant's work record is a matter of grave concern and can not be dismissed as conduct constituting an innocent explanation. (b) The larceny was completed by the Appellant when he placed the angle grinder in the cardboard box. The possible scenarios put forward by the Union as to explaining the disappearance of the angle grinder from the Appellant's office (and its subsequent finding elsewhere) are irrelevant. The CCTV footage shows that the Appellant took the angle grinder and he admitted putting it into the box. Thus what is relevant for the Board, is the Appellant's intention. That intention included his failure to notify anybody of his knowledge as to the grinder's whereabouts. Further, he was dishonest to his supervisor when asked if he knew of its whereabouts. (c) The Appellant was interviewed by Mr O'Connor and only made concessions after he was provided with evidence. The Appellant lied to his supervisor, he lied about putting the cardboard box (containing the angle grinder) in the cabinet and he lied about which cabinet the grinder was placed in. (d) The relevant period of time for the Board's consideration is 7 and 8 June. The Appellant took the angle grinder on 7 June. His office was searched on 8 June and the grinder could not be located. The foregoing gives two possible scenarios: (i) The Appellant had taken the grinder and sometime over 7 and 8 June, removed it from his office; or (ii) The grinder was still in his office on 8 June but in the locked cabinet that could not be searched. The Appellant was then questioned on 9 June and said nothing as to his knowledge of the grinder's whereabouts. CONSIDERATION 29The Appellant was dismissed by the STA per its letter of 24 June 2011. The reasons for dismissal were twofold and arose out of the STA's investigation into a missing angle grinder belonging to a contractor who had been working on site and who had left his grinder lying around in the dock area of the Leichhardt Depot. The two reasons for dismissal are set out in the STA's Form E1. (Ex 25) 30Simply put, the first reason is that the Appellant was dishonest in not advising of his knowledge of the whereabouts of the grinder when asked by his supervisor; second reason is that he, the Appellant, had taken the grinder for his own benefit, without the contractor's consent. The STA described, in proceedings, this taking of the grinder as larceny. In that regard, the STA said the evidence existed to show that the Appellant had the element of intention, for the taking of the grinder for his own benefit. The fact that the grinder was eventually found on 21 June, is irrelevant to the Appellant's intention on 7 and 8 June. 31The Appellant denied the larceny but not the dishonesty. He put forward a reason for not responding to his supervisor's question about the whereabouts of the grinder: the relationship between he and the supervisor was strained. Undisputed Facts 32The Board sets out below, the relevant undisputed facts: (a) Some contractors had been doing work at the Leichhardt Bus Depot. One of those contractors, Tony Hughes had inadvertently left his angle grinder lying around on the floor of the delivery dock. (b) The Appellant's shift on 7 June was 5.50am to 2.20pm. Around 6.14 am, the Appellant was in the delivery dock area. He admitted in his record of interview of 9 June, that he picked up the angle grinder and placed it in a cardboard box. CCTV footage shows the Appellant picking up an object (not able to be identified from the footage) and walking out of sight. Whilst out of sight, he placed the grinder in a cardboard box. (Ex 27, Annex E) (c) A separate CCTV footage from a different camera shows the Appellant walking along an office corridor, carrying a cardboard box (content not visible). The Appellant deposited the grinder in his office. (d) On or around 7.00am on 7 June, Tony Hughes contacted Ken Dewhurst, Regional Fleet and Facility Manager to advise he had left the grinder behind. It could be located at the base of two blue coloured 44 gallon drums which were sitting on a pallet. A search of the area could not locate the grinder. (e) On 7 June, Dewhurst and Yates (the Appellant's supervisor) had a conversation about the angle grinder. Dewhurst wanted to know if Yates had any knowledge of an angle grinder left out the back by a contractor. (Tr 10/10/11-p16) (f) On 8 June, Dewhurst and Yates had a further conversation in which Dewhurst advised he had viewed CCTV footage and it had shown, Dewhurst believes, the Appellant picking up the angle grinder. (Tr pp16-17) (g) On 8 June, Yates went into the Appellant's office to see if he could locate the angle grinder. He could not do so. (Ex 6) (h) On 9 June, Yates entered an office in which there were three employees: the Appellant, Rohan Brown and Tanveer Kamarvzzaman. Yates asked if anyone had any knowledge about an angle grinder left out in the loading dock. The response from the three employees was in the negative. (Ex 6) This conversation took place around 7.00am. (i) On 9 June, whilst the Appellant was on his lunch break, Yates carried out a search of his office for the angle grinder. There was one cabinet that could not be searched because it was locked. (Ex 6) (The Board notes that the witness statements of Yates do not state if he located the grinder or not. It was assumed in the proceedings that he had not found the grinder). The search took place at 11.00am. (j) On 9 June, Ms Daniela Fontana - Depot Manager, Leichhardt Bus Depot, spoke to the Appellant. This conversation appears to have occurred around noon. Ms Fontana referred to the Appellant's response to Yates that the Appellant did not have any knowledge about the angle grinder. The Appellant gave a reason why he did not respond to Yates. This reasoning went to their relationship. He added that he had picked up the angle grinder and put it in the cabinet in his office but it was now missing. Ms Fontana responded that the Appellant was being stood down, pending an investigation. The Appellant was escorted off the premises. (Ex 6, para 17) (k) On 10 June, the Appellant was called back onto the site and provided with the Form E1 (misconduct form) by Ms Fontana. (l) On 15 June, the Appellant returned to the site to provide his response to the two allegations set out in the Form E1. (m) On 20 June, the Appellant returned to the site for a record of interview with Mr O'Connor. (n) On 21 June, the angle grinder was found in a tool cabinet (not located in the Appellant's office). (o) On 24 June, the Appellant returned to the site and was given his dismissal letter. Onus 33The STA made two allegations against the Appellant and submitted that the Briginshaw standard of proof applied. The first allegation went to the Appellant's dishonesty. The second allegation went to his taking property not belonging to him. The second allegation is arguably more serious than the first. In any event, in terms of the Briginshaw standard of proof, the more serious the allegation against an employee, the more the evidence needs to be substantive to sustain that allegation. That is so, in order for the Board to be comfortably satisfied that the Appellant was dishonest and did take another's property, without consent, for his own benefit. The STA's Case against the Appellant 34The STA submitted that the Appellant's conduct in placing the angle grinder in the cardboard box was an act of concealment, of secreting away the grinder. It showed the necessary intention by the Appellant to commit larceny. 35Before dealing with the Appellant's defence to this assertion, the Board will make some observations about this particular conduct, as captured on the CCTV footage from a camera located in the dock area. 36The Board was provided with a disk that contained some CCTV footage. The disk was not played in my courtroom. My playing of the disk revealed that the footage begins midstream. It does not show the Appellant entering into the camera's viewing area. Rather, the disk begins with the Appellant already in the dock area. 37The Board observed the Appellant to be walking away from the area where the angle grinder had been left by the contractor. His head turns to the left and looking backwards sights something that causes him to alter substantially the original direction of his path. Mark O'Connor wrote an Investigation Final Report (Ex 23) in which he says the Appellant altered his path about 130 degrees. The Appellant walks over to the pallet, picks up something (can not be ascertained from the CCTV footage) in one hand and resumes his original direction. He leaves the view of the dock area CCTV camera. 38The Board finds that the Appellant's conduct, at this stage, does not exhibit a pre-determined intent to commit larceny. The footage suggests that he was caught unawares by the object he saw lying on the ground. 39The Appellant told his employer that the object he picked up was the angle grinder in question. He denied he had committed larceny. 40His defence for placing the angle grinder in a cardboard box was because the grinder had cement dust on it and he did not want to dirty himself. 41That was the defence he gave in his initial response of 15 June 2011 to the Form E1 allegation. (Ex 27, Anne 6) The Appellant was interviewed by Mark O'Connor on 20 June (not 9 June as shown on top of the first page). The interview implies that the Appellant arrived at work and changed clothes into a uniform. Again he gives the defence that he placed the grinder in the box because the grinder was full of cement dust. In a roundabout way, it was put to him that cement dust should not be an issue because he wears a uniform and works in an environment surrounded by grease and oils. He responded that he works in an office. He agreed that his work takes him into the pits (with buses above) but said he did not do repairs on vehicles and hence he avoids his uniform coming into contact with grease and lubricants. He stated that he tries to keep his clothes (uniform) ready for another day because he does not change his uniform every day. Later in the interview, he said, having the grinder in the cardboard box also made it easier for him to open a door, rather than having the grinder in one hand and grinder's lead (cord) in the other. (Ex 27, Annex E) 42The Appellant's defence that he worked in an office (and hence why he placed a dusty object in the box) was not challenged. The Board was provided with photos of his office. There were no witnesses brought forward by the STA to say that the Appellant's uniform gets dirty (dust, grease or oil) as a natural outcome of his job in order to contradict his claim as to his approach to keeping his uniform clean. 43In considering the Appellant's defence (the "cleanliness" defence as it were), there is one aspect about it that does not gel. The CCTV footage shows the Appellant picking up an object (he confirmed it was the grinder) and walking away with it in his hand. If the Appellant was concerned about getting his uniform dirty, then why pick up the grinder and walk to another area in order to procure a cardboard box? The very act of picking up the grinder, would disturb the cement dust on the grinder and risk contaminating his uniform with the dust. Having picked up the grinder and walked with it by his side, then might the act of walking dislodge some cement dust particles which might then fall on his uniform? 44If the Appellant is concerned about getting cement dust on his uniform, then the better approach would have been for the Appellant to have procured a cardboard box first and taken that box to the angle grinder location. That way he would minimise the possibility of cement dust contamination. Oddly enough, this is indeed what the Appellant deposed he did. His filed witness statement of 30 September 2011 stated: "I then turned around and noticed an angle grinder on a pallet. I then walked a few meters to grab a cardboard box. I then walked back to the angle grinder and placed the angle grinder in the box. I did this because the angle grinder was covered in cement dust." (Ex 26, para 9) 45This witness statement extract as to his action of getting the cardboard box first and bringing it back to the angle grinder before picking up the grinder is not borne out by the CCTV footage. The Appellant did not have this contradiction put to him during cross-examination for comment. Nor was the accuracy of the CCTV footage challenged. Given the contradiction, the Board has decided to accept the CCTV footage as an accurate depiction of what took place. Thus, the Appellant saw the angle grinder, walked over to it, picked it up in his right hand, and then walked away in order to procure a cardboard box. 46Given that the Board accepts the accuracy of the CCTV footage, a question arises as to the Appellant's contradictory account of his action. Did memory fail him between June and September (the incident and deposition dates respectively) as to what he did back in June or was there more to the account? As already stated, he was not cross-examined on this contradiction and not given an opportunity to explain the contradiction. 47Be that as it may, the Board is still left with the issue as to why the Appellant did not procure the cardboard box first, in order to minimise contamination. The fact that he did not do so, undermines the Appellant's "cleanliness" defence. 48That "cleanliness" defence is also undermined by the body language of the Appellant in picking up the angle grinder. The body language does not show an Appellant overly concerned about cement dust contamination. The CCTV footage shows him bending over to pick up the grinder with his right hand. He stands up and turns around 180 in order to face the direction he was originally exiting the dock area. Thus, the right arm/hand swings through an arc of 180 in order to move forward. All of that body/arm/hand action is not executed gingerly in order to avoid cement dust contamination. To the Board, the body language does not suggest concern with dust contamination. 49In summary, the Appellant's defence of "cleanliness" is undermined by the manner in which he picked up the angle grinder, turned around through 180 (so that his right arm/hand swung in a 180 arc) and then proceeded forward. All of the foregoing results in a possible disturbance and continuing disturbance of cement dust. If he was so concerned about the cement dust, then why engage in that type of physical conduct with the angle grinder without apparent concern for the said dust. 50The Appellant deposed in his witness statement that he placed the cardboard box, with the grinder in it, in an unlocked cabinet in his office. This was on 7 June, around 6.15am. By his own admission, he made no effort to discover the owner of the grinder or to report to anyone that he had the grinder. 51Two days later, on 9 June, about 7.00am, David Yates made an enquiry as to the grinder's whereabouts. He deposed that he entered the leading hand's office to enquire about the grinder. There were three employees in the office, including the Appellant. Yates asked if anyone knew about an angle grinder being left out in the loading dock. All three employees (including the Appellant) answered in the negative. 52In answering in the negative, the STA laid down its first allegation against the Appellant: he had been dishonest in his response to Yates, his supervisor. This was misconduct, submitted Ms Jardim, in final submissions. (Tr 11/10/11 - p6, line 3 to 7) 53The Appellant was stood down on that day, by Ms Fontana, some five hours later. He deposed that their conversation was initiated by Ms Fontana and she referred to the Yates conversation of 7.00am. He said in his defence as to why he answered in the negative as follows: "The reason why I said that (negative response) was because of the way he speaks to me. I did pick up the angle grinder and I did put in the cabinet in my office. But, it has gone and I don't know where it has gone" (Ex 26. para 17) 54Under cross-examination, he agreed he had not been honest in his response with Mr Yates. (Tr 10/10/11 - p65) 55The Board will deal with his concession of dishonesty later in this decision. For the moment, the Board will consider the Appellant's justification for being dishonest, as part of the examination of the second allegation that he had taken the angle grinder for his own benefit. 56The Appellant's justification for not owning up to Yates, was his concern that if he did so then the question would be asked: Where is it? and he could not answer that question. This was so, he said, because he had noticed that the grinder had gone missing from his office. He reasoned he would therefore be accused of stealing it. 57In his record of interview of 20 June, with Mark O'Connor, the Appellant said he had noticed on the morning of 9 June, that the grinder had gone missing. He deposed in his witness statement that he noticed it was missing, "On arriving at work on the morning of Thursday 9 June...." (Ex 26, para 14) He started work just before 6.00am. This meant, he was aware the grinder was missing from his office, some one hour before Yates raised the issue with him and the two other employees. 58Bearing in mind the defence of the Appellant, it seems to the Board that there was one of two responses open to the Appellant, when he noticed around 6.00am that the grinder was not in the cabinet. First response: no cause for concern. Why?, because his evidence was that his office is used to store a number of tools and trades staff will regularly come into his office and ask for tools or have taken tools from his office without his knowledge. (Ex 26, para 12) If it is the latter case of tools taken without his knowledge, then he could make the necessary enquiries as the day unfolded. There was no evidence of the Appellant having been accused of theft in the past for the instance(s) of tools taken without his knowledge. Therefore, he could make the necessary enquiries as time permitted. The second scenario response is to be concerned about a missing tool of trade that had been in his possession and had disappeared. The evidence is that he made no enquiry in respect of this second scenario. 59Whatever his state of mind around 6.00am, it was given a rude awakening one hour later by Yates enquiry. The Appellant admitted he was concerned about being called a thief if he owned up to Yates enquiry. Surely then, it is reasonable to infer, that the Appellant would make his own enquiries of trades staff as to whether any of them had borrowed the angle grinder? 60Taking into account the strained relationship between himself and Yates, why did the Appellant not approach Dewhurst and advise of his knowledge about the grinder but that it had gone missing? Further, he would give the defence that he gave the Board - that is, trades staff take tools from his office and sometimes without his knowledge. There was no evidence of a strained relationship with Dewhurst. The Appellant was not a new employee who might feel uncomfortable in approaching senior staff. He had been an employee of some twelve years and just under five years at Leichhardt Bus Depot. 61In summary of Allegation Two, the Board finds that the STA has made out its case that the evidence existed to support its decision that the Appellant had taken the angle grinder for his own benefit and without the consent of its owner. The evidence to support that finding is as follows: (a) the Appellant admitted to picking up the grinder; (b) The Appellant's defence of "cleanliness" to explain why he placed the grinder in a cardboard box, was undermined by his own conduct in picking up and carrying away the grinder before placing it in a cardboard box for protection from contamination. That conduct so undermined his defence in the Board's view, as to make the defence implausible and a fabrication after the event. 62Given that finding by the Board, the Appellant's appeal against his dismissal for taking property without the owner's consent and for his own benefit, is disallowed. 63The Board has made that finding and disallowed the appeal based on a consideration of the Appellant's "cleanliness" defence of 7 June. 64The Board also states that it has come to the same conclusion that the Appellant had engaged in the taking of the angle grinder for his own benefit and without the consent of the owner, based on an examination of the events covering the period 7 to 9 June inclusive. That is, the Appellant denied the taking for his own benefit but his subsequent conduct was not compatible with that defence. Thus, the Appellant made no effort on 7 and 8 June to (a) make contact with the owner of the angle grinder and/or (b) advise fellow staff that he had removed the angle grinder from the dock area and placed it in his office. Even if the Board accepted his defence of doing nothing and saying nothing on 7 and 8 June about the angle grinder because he was busy, then the Board can not accept that defence given the Yates incident of 9 June. This is so, because of the Appellant's failure to "come clean" after Yates made his enquiry around 7.00am on 9 June. Once Yates made that enquiry, the alarm bells should have gone off in the Appellant's head with some positive action showing that he was concerned to locate the missing angle grinder or alert senior staff (say Dewhurst) to the issue. Saying nothing and doing nothing, arising out Yates' enquiry, did not put the Appellant in a favourable light. The failure to say and do anything, combined with his rejected "cleanliness" defence, also made the Appellant's case untenable in the Board's view. 65The first allegation against the Appellant was that he had been dishonest in his response to Mr Yates enquiry. The Appellant concurred he had been dishonest. The Union submitted that the penalty of dismissal was not the appropriate penalty and that a lesser penalty was appropriate - caution, reprimand and so forth. 66In light of the Board's finding as to the second allegation, it is not necessary to consider the Appellant's appeal against the finding of dishonesty by the STA. 67The Union had put forward some scenarios for the Board's consideration, in the circumstance where the scenarios were designed to show that the Appellant was not guilty of taking the grinder for his own benefit. One scenario was that if the Appellant had taken the grinder off site, then how come the grinder was eventually located on site and in the circumstance where the Appellant did not have the opportunity to bring it back on site because he had been suspended from duty? 68The Board concurs with the STA's submission that these scenarios did not go to the core issue and that was had there been a taking of the grinder by the Appellant for his own benefit and without the owner's consent. The fact, for example, that the grinder was eventually located on 20 June and on site, did not address the core issue for determination. The facts existed to make a decision about the core issue and those facts were not disturbed by the Union's possible scenarios. CONCLUSION 69For the reasoning set out above, and having considered all of the material, the Board has declined to grant the Appeal by Mr Desira against the decision of the STA to terminate his contract of employment. A Macdonald 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. Decision last updated: 20 December 2011