Industrial Relations Commission New South Wales Medium Neutral Citation: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales branch (o/b Ross Montgomery) and State Transit Authority of NSW [2013] NSWIRComm 1020 Hearing dates: 26 June 2013 Decision date: 11 October 2013 Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal application-Applicant visited the work site after his working hours and whilst on sick leave-Cable missing-CCTV and eye-witness evidence of Applicant removing the cable without authorisation- Applicant claimed removing similar shape object-held that Respondent proved allegation on balance of probabilities Legislation Cited: Industrial Relations Act 1996 Transport Administration (Staff) Regulation 2005 Transport Administration (Staff) Regulation 2012 Cases Cited: New South Wales Nurses Association (on behalf of Debbie Rudder) v Booroongen Djugun Aboriginal Corporation [2007 NSWIRComm 89; Zonneveld v South Eastern Sydney and Illawarra Area Health Service [2010] NSWIRComm 1002; Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar GoodsWorkers Union v Gartrell White (No 3) (1990) 35 IR 70; Wang v Crestell Industries Pty Limited (1997) 73 IR 454; M v M (1988) 63 ALJR 108; Briginshaw v Briginshaw (1938) 60 CLR 336; New South Wales Fire Brigade Employees Union (on behalf of Natoli) and New South Wales Fire Brigade [2005] NSWIRComm 440; Schokman v RTA [2010] NSWIRComm 1011; Joseph D'Souza v NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; Australian Services Union of NSW on behalf of Valentina Angelovska v St George Youth Services Inc [2010] NSWIRComm 1051; John Lysaght (Australia ) Limited v Federated Ironworkers' Association (1972) AILR Rep. 517 Category: Principal judgment Parties: Ms Lucy Saunders (AMWU for the Applicant) Mr Stuart McLean (for the Respondent) File Number(s): IRC 46 of 2013 DECISION Background 1Mr Ross Montgomery, the Applicant, commenced employment with the Respondent, the State Transit Authority Division of New South Wales Government Service (the Respondent), as a full-time Engineering Repair Tradesperson at Brookvale Depot on 10 July 2000. He was transferred to Port Botany Bus Depot as a tradesman Body Builder on 21 April 2002 where he remained until his termination on 28 December 2012. He had been employed pursuant to the terms and conditions of the State Transit Authority Division of the New South Wales Government Service Bus Engineering and Maintenance Enterprise (State) Award 2012. 2The Applicant was dismissed on a previous occasion, on 4 November 2004, for removing diesel fuel from the workplace. He lodged an appeal against the dismissal with the Transport Appeals Board (the TAB). The TAB found the allegation substantiated, however it modified the punishment resulting in the Applicant returning the fuel and receiving a six month suspension without pay. 3On another occasion, on 17 November 2009, the Applicant was issued with a final warning and was suspended without pay for one day for inappropriate behaviour towards a leading hand. 4The Applicant was once again, on 9 November 2010, the subject of further disciplinary proceedings for his refusal to attend safety training. He was issued with another final warning on 6 January 2011 and suspended without pay for a period of two weeks. 5On 20 November 2012, contractors from Combined Safety Services (the Contractors) removed galvanised steel safety lines from maintenance bays at Port Botany Depot. The contractors were instructed to retain the lines on site for later removal by State Transit for sale by auction. 6On 21 November 2012, the Applicant phoned in sick for his 6 am shift. The contractors attended the site to continue their work and reported missing cable. CCTV footage revealed to the Respondent that the Applicant attended the Depot on the evening of 21 November 2012 and appeared to remove cable from the premises. 7An investigation ensued and an Investigation Report was furnished of the findings to the Reviewing Officer, the General Manager, Fleet Operations and Infrastructure. 8Regulation 13 (1) of the Transport Administration (Staff) Regulation 2012 (the Regulation) empowers the STA to impose a range of punishments in disciplinary proceedings against an STA Officer: (a) a caution or reprimand; (b) a fine of an amount not exceeding $100; (c) reduction in position, rank or grade and pay; (d) suspension from duty without pay; and (e) dismissal. 9The findings were accepted and it was determined, having considered the Applicant's employment record and history, that the appropriate punishment in the circumstances was dismissal. 10The Applicant was issued with a Notice of Punishment and dismissed on 28 December 2012. The Notice, issued by Mr Michael Reardon, General Manager - Fleet Operations Division, FOID Leichhardt, provided details of the breach as follows: On the 21st of November 2012 you were unlawfully upon the property of the State Transit Authority of NSW, being the Port Botany Bus Depot, whilst you had reported sick for duty that day, further that whilst at that the said place, you did take the property of the State Transit Authority of NSW without having consent or not having a purpose as part of your official duties with the said Authority and that this property was removed from Port Botany Bus Depot by yourself. The Applicant contended that he received the dismissal notice on 3 January 2013. 11The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales branch (the Union) lodged an application on 18 January 2013 seeking relief on behalf of the Applicant pursuant to section 84 of the Industrial Relations Act 1996. 12Conciliation proceedings held on 20 February 2013 before Stanton C failed to resolve the claim and directions were subsequently issued on 11 March 2013. 13The Applicant is seeking reinstatement to his former position. The 21 November 2012 Incident 14On 20 and 21 November 2012, two contractors from Combined Safety Services, Luke Walker and James Stoner, replaced the high line safety cables in bays 2, 3 and 4 at Port Botany Depot. The contractors were instructed to retain and secure the lines on site for later removal by State Transit for sale by auction. 15The Applicant reported sick with diarrhoea at about 6 am on 21 November 2012 to the leading hand at Port Botany Garage, Andrew Papavasiliou. He subsequently submitted a leave application for three working days (21 - 25 November 2012) and was to resume duties on Monday, 26 November 2012. 16Upon resumption at work on 21 November 2012, the Contractors immediately noticed that the lines and all the associated fixtures they had removed the previous day were missing. They reported the missing lines to the Respondent's site management. 17A preliminary investigation by management at Port Botany Depot provided direct eye witness evidence that Ross Montgomery had attended the garage at about 9.30 pm on 21 November 2012 and removed a roll of wire rope. That evidence was supported by CCTV footage obtained from the site which showed the Applicant walking to the garage car park carrying an item that appeared to be a length of wire rope. 18The Doctor's Certificate produced by the Applicant was dated 22 November 2012. The Investigation 19The matter was referred to Fleet Operations and Infrastructure Division (FOID)-Leichhardt and the Security Unit at FOID-Leichhardt was tasked, on 29 November 2012, with the job of investigating the matter. 20The Respondent's Asset Security Co-Ordinator, Mark O'Connor, on or about 29 November 2012, commenced a formal disciplinary investigation into the disappearance of the lines. Also on that day, the Applicant was issued with a Notice of Summary Suspension without pay pending the outcome of the disciplinary process. 21Mr Maroun Azzi, Regional Service Manager-East, supplied CCTV footage from the fixed system from Port Botany DVD3. There was also CCTV from bus 1214 that was undergoing service in the body shop at Port Botany Garage. The CCTV camera on that bus was operating as the bus was powered up. 22A Notice of Summary Suspension was prepared and signed by Mr Ian Satchell, Fleet Manager, Operations and Fleet Division. All attempts to contact the Applicant at two different telephone numbers failed. The Notice was delivered by hand to the Applicant's residence on 29 November 2012. No-one answered the door. It was left in the Applicant's mailbox. It read in part: Under the terms of Clause 29 of the Transport Administration (Staff) Regulation 2005, you have been suspended from duty without pay from 12 am on 30 November 2012 until the completion of disciplinary proceedings against you. Reason for suspension: On the 21st of November 2012 you attended Port Botany Depot and removed property of State Transit, being a length of wire cable, with the intention to gain a personal benefit and deprive State Transit of its property. 23On 30 November 2012, the two Contractors were interviewed at Randwick depot as they were preparing to carry out replacement of the high line safety lines. They stated that when they were undertaking the replacement of lines at Port Botany, they were instructed that the lines were to be left on site to be secured by State Transit. On 20 November 2012, they were approached by a young guy they called "Matt" and an older man, believed to be Ross Montgomery, who asked several times each if they could take the old lines. The contractors replied that they had been instructed to secure the lines on site under the impression that the STA wished to keep the lines. The person believed to be Ross Montgomery stated, as he left the site at the end of his shift, that he would see them the following day. They also stated that, when they were packing up, they took the step of placing all the lines that had been removed that day (lines from bays 2 and 3) on the scissor lift, raised it above head height and disabled it in the raised position such that the old lines could not be removed. The scissor lift was then left in the south west corner of bay 4 to be recharged overnight. They said that when they returned to the site at about 8 am on 21 November 2012, all the fittings that had been placed on the scissor lift overnight had been removed. 24On 3 December 2011, the Applicant telephoned Ian Satchell about the suspension. He claimed that he had been set up by the leading hand, Adam Iskandar, who was the senior staff member on duty at Port Botany Garage on the night of 21 November 2012. He also alleged that Ken Dewhurst had "been riding me" and made other derogatory remarks about another staff member, Maroun Azzi. In fact, Adam Iskandar had not provided any evidence about the Applicant. It was another witness, Nicholas Karlovassitis, who gave direct evidence of having seen the Applicant with wire cable on the night of 21 November 2012. 25On 4 December 2012, Mr O'Connor had an appointment to meet with the Applicant at his home at 3 pm. When Mr O'Connor telephoned to confirm the appointment, the Applicant said he was unavailable as he had to go to Botany to pick up a car seat for a mate. The interview was rescheduled to 5 pm on that day. Mr O'Connor said he experienced a great deal of difficulty with the Applicant who ducked and weaved to avoid making an appointment to view the CCTV footage and provide his response to the Form E1 which was provided to him by Mr O'Connor on that day. He said the Applicant gave various explanations - that he had to go to Taree or Foster, had to do a job for a mate and so on. Form E1 set out the allegations against him as follows: I am writing to you with regard to an alleged incident which may be in breach of State Transit policies and regulations, specifically: (a) Section No 4.4 (a) and 4.9 of the State Transit Code of Conduct. DETAILS AS FOLLOWS Having reported sick on the 21st of November 2012 about 6 am, not resuming duties until the 26th of November 2012, that you were unlawfully upon Port Botany Depot about 9.30 pm on the 21st of November 2012, having not attended the depot to undertake your official duties. Subsequently on the 21st of November 2012, about 9.30 pm having attended Port Botany Depot you did remove a roll of wire rope, knowing that the rope is the property of the State Transit Authority of New South Wales and having not obtained consent or not having a purpose as a part of your official duties with State Transit, did take possession of the wire rope and remove it from Port Botany Depot. You may wish to explain the circumstances of the alleged incident mentioned above. If so, please provide me with your explanation in writing within seven (7) days of receipt of this letter. Your explanation will be taken into consideration in deciding whether corrective action is required. You should note that it may be necessary for you to attend an interview following the receipt of your explanation. In the absence of a response from you within the nominated seven (7) days, a decision will be made as to whether corrective action is warranted. Mr Montgomery was advised that he could view the CCTV footage once his response to Form E1 was submitted. 26On 11 December 2012, the Applicant, accompanied by Jeremy Thompson, the Union Delegate from Leichhardt Garage, attended FOID-Leichhardt at which time they were shown the CCTV footage. The Applicant submitted his response to Form E1, dated 10 December 2012. In his response, the Applicant: - denied that he removed STA property from the Depot in breach of the STA Code of Conduct; - confirmed that he was sick on 21 November 2011 and had a medical certificate to support it; - confirmed that he had attended the Depot on that evening; - stated that his purpose for attending was to make arrangements for Frank Fish, a bus cleaner, to return his guitar which was loaned to Frank Fish 18 months prior; - advised that since lending the guitar to Mr Fish, he was absent due to a work-related injury and, upon his resumption, he had the early morning shift and Mr Fish was working the night shift and so had no contact with him; - advised that he did not have Mr Fish's telephone number but was aware that Mr Fish was working the night shift on 21 November 2012 and so took the opportunity to attend the depot, speak with Mr Fish and arrange for his guitar to be returned; - advised that he had brought into the workshop his air hose and some blocks of wood about two years prior and promptly forgotten about the hose; - advised that some two weeks prior to the incident, as he was cleaning up he workshop, he noticed his air hose jammed behind a bench; - advised that, on the evening of 21 November 2012, he recalled that he had found his air hose and blocks of wood and went over and grabbed them and left the workshop; and - asked that the matter be finalised as quickly as possible, given that he was suspended without pay and it would be extremely unfair to leave the matter unresolved prior to Christmas. At the conclusion of the viewing of the CCTV footage on 11 December 2012, Mr O'Connor attempted to arrange an interview with the Applicant. Once again, the Applicant stated that Mr O'Connor would have to wait until 27 December 2012 when he returned from Foster/Taree. Mr O'Connor noted that the December 2012 roster demonstrated that the Applicant was scheduled to work the 3 pm to 11 pm shift and therefore was aware that he would have been able to catch up with Mr Fish at that time. Mr O'Connor noted that the Applicant wanted the matter finalised before Christmas yet the delay in responding to Form E1 and delay in attending an interview were occasioned by him as he chose to go to Taree/Foster during a period of suspension rather than co-operate to finalise the matter quickly. 27A number of interviews were conducted on 18 December 2012. Adam Iskandar, leading hand, was on duty at Port Botany Depot on the evening of 21 November 2012. He stated that: - he did not become aware that the Applicant came to the site until after the Applicant had departed; and - in all the years he has worked with the Applicant at Port Botany he has not seen any privately owned air hoses in the body builders bays at the garage. Lincoln Piendbene, who can be seen on the CCTV footage as working in the body builders bay from bus 1214, stated that: - he was not aware that the Applicant was on site; - he could not shed any light on the alleged incident; - he did not believe that the Applicant was the type of person who would bring personal tools from home; - all tools required for their work were supplied by the Respondent; and - he was not aware of any privately owned air hoses in the body building bays. Simon Pulis, Vehicle Painter, stated that: - he could not shed any light on the alleged incident; - he too was of the opinion that the Applicant was not the type of person who would bring personal tools from home; - all tools required for their work were supplied by the Respondent; and - he was not aware of any privately owned air hoses in the body building bays. 28Two interviews were conducted on 27 December 2012, one with Mr Nicholas Karlovassitis, Automotive Electrician, and another with Ross Montgomery, the Applicant. Ross Montgomery, in the company of Jeremy Thompson, was interviewed between 1.10 pm - 3.30 pm. The interview was followed by an inspection, at approximately 3.18 pm, of two air lines which were in the rear of the Applicant's vehicle. One was a blue line with a bright smooth finish and a glossy non porous outer layer with fittings attached. The other was a matt black rubber hose with a porous outer layer without fittings, both of which, Mr O'Conner observed, were "immaculately clean". The Applicant told the investigation that those were the hoses that had been in the body builders bay for two years and that the black one was the item that he carried out of the garage on the evening of 21 November 2012. During the Investigation Interview, the Applicant stated that: - he wished to add to his Form E1 that Frank Fish was not contactable because his son had destroyed his mobile telephone; that he had asked Steve Jones, Mr Fish's supervisor, for his telephone number as he was doing mornings at the time; that Mr Jones undertook to bring it to him after his morning peak; and that he never did hence the reason why he went in to the Depot on 21 November 2012. - he could not provide a reason why he had not tried to recover his guitar earlier; - he was working the 6 am - 2 pm shift on 20 November 2012; - the contractors were still there when he left Port Botany Depot at around 2.30 pm; - he had spoken to the contractors who were replacing the high line safety line and lent them his gloves; - he did ask the contractors what they intended to do with the lines when they pulled them down: They weren't shore, while I was talking to them Adam Iskandar came up to them and asked them for the cable so he could take it to his farm. He did not hear their answer because he had walked away. - as he was leaving after his shift was over (at about 2-2.30 pm), he saw the two young contractors sitting in their company vehicle and they chatted for a while. They told him "about Iskandar wanting the cable from them". They said to him "He talked a lot of shit and tried to get us to give him the cable, he was going to take it to his farm". - on the evening of 21 November 2012 he drove directly to the garage car park and parked right under the security camera; - when he left the depot he did not drive off immediately. He saw Frank Fish get out of the last bus on row 19 so he pulled over to talk to him for about 10-15 minutes before they were joined by two other blokes from the depot - Greg Bond and another cleaner (Jason or Justin); - he has not recovered the guitar because he has been barred from entering the Depot; - he brought in a lot of tools from home each day in his work bag to help him carry out his tasks - for example, 3/8th drive air ratchet; and ratchet ring spanner; - he left other tools at the Depot because they were too heavy to carry in every day - a large shifting spanner 600 mm long, a large sledge hammer, brick bolsters, cold chisels (various sizes), torx screws (which replaced Alan keys). None of those were supplied to him by the Respondent; - he brought in two air hoses (a dark blue one and a black one) about two years before his accident because he needed to use the Respondent's vice on the bench to put some fittings on them. He could not do it at home because he did not have enough hands to push the hoses up onto the fittings while using the crimper. The couplings fitted on the dark blue hose but the black one was slightly different and incompatible with the fitting. He pushed them behind the bench and promptly forgot about them; - he stopped near the gate and then walked to the other side because he was watching out for buses as he did not want to be run over; - he could not explain why he did not take the same path coming out of the Depot as he took to go in; and - he had been to the toilet several times during the night of 19-20 November and about five times during the day on 20 November. He came to the site aware that there were toilets at both ends of the depot and he pulled up where Mr Fish was because one of the toilets was a short distance away. In response to the query as to how he had managed to drive on the M5 when he was suffering from diarrhoea, the Applicant could not see any problems with that as it was only a 20 minute drive each way at that time of night. When questioned as to why he could not attend work on the following two days, he said he was suffering from stomach cramps because he was dehydrated as a result of the diarrhoea. After reading a transcribed record of his interview, the Applicant recalled his reason for not attempting to recover his guitar earlier - he said that he had been busy undergoing rehabilitation following his knee replacement surgery and experienced problems getting around in a motor vehicle. 29Mr O'Connor interviewed Frank Fish on 31 December 2012 who confirmed the following: - he was at the north east end of the bus stack at Port Botany on 21 November 2012; - he got off a bus and was walking when a vehicle flashed its lights as it was approaching him; - he had a short conversation with the Applicant during which the guitar was mentioned but was not the focus of their conversation; - the Applicant was more interested in talking about those who "had it in for him" and the fact that he expected he would be dismissed; and - the Applicant gave him the guitar to restring about 18 months ago. He did restring it but it remained in his possession because he lost the Applicant's telephone number when his own phone became inoperative. 30Mr O'Connor analysed the evidence he had gathered - * Mr Karlovassitis, a tradesman for 16 years, was a short distance away from the Applicant when he saw him with a cable and not an air hose; * When carried, a metal cable will naturally hold a round curved shape (which is what Mr Karlovassitis saw) while a rubber air hose will tend to "sag"; * The black rubber air hose shown to him by the Applicant was immaculately clean with a porous outer layer. Mr O'Connor could not accept that this "immaculately clean" hose was the same hose that the Applicant described was behind a bench at Port Botany for two years, a site where the industrial process of repairing bus bodywork took place; * The Applicant, in his telephone conversation with Ian Satchell, sought to incriminate and denigrate other employees in order to better his position. Mr O'Connor said he did not find the Applicant to be a credible person in relation to the evidence he gave during the investigation: - he said that Adam Iskandar "had it in for him" and "put him in" when the damaging evidence came from another employee altogether; - he said Ken Dewhurst had "been riding him"; - he refused to acknowledge that there was a difference in the shape of a roll of cable (a static high line removed from Waverley Depot) and an air hose being carried; - he was shown footage of him walking from the car park to the garage. Initially, he said he was looking from side to side watching out for buses but buses cannot move in to the garage car park because they will not fit through the gap he crossed. Later, he said he did not know why he took the action that he did; - he took a 72 hour absence because he was incapable of working due to diarrhoea yet he was able to, a little over 16 hours into the absence, turn up at the Depot, in work clothes, and be away from his residence for over and hour; - the Applicant gave clear concise answers when asked rudimentary questions but responded that he either did not know or could provide no reason for his actions when asked core questions in relation to his behaviour; - his sick leave period cannot be justified when one takes into account that the Applicant was capable of travelling 20 minutes each way from his home to the Depot, undertake the chore he said he had to do, and then spend 10-15 minutes talking with Frank Fish and the others all within the first day of a 3-day absence due to diarrhoea. When asked to explain that at the interview, his response was "I think that is my business, I told you why I stopped to talk to Frank"; and - the Applicant's perceived need to speak to Frank Fish about a guitar that he has had for 18 months. * The direct evidence, set out above, far outweighed the circumstantial evidence (that is, when the contractors left the site, whether it was before or after the Applicant left, and whether he had time, on 20 November, to get the steel cable down from the scissor lift before he left). He concluded, on balance of probabilities, 1. that the Applicant had removed the lines and accessories from the scissor lift after the contractors had finished their work for the day, secreted them in a safe area either near the steps leading to the mezzanine storage area in the body building bay or on the mezzanine storage area, that on the evening of 21 November he returned, having called in sick during the day) and removed the lines and took them to his vehicle at 9.33 pm, that he stopped and had a chat with Frank Fish and others before leaving the site with the cable without consent or authority; and 2. that the Applicant entered Port Botany Bus Depot without lawful cause or within the duties of his position as a Vehicle Body Builder in the employment of the STA. The Evidence 31Mr Mark O'Connor, Asset Security Co-ordinator, provided a statement in the proceedings in which he stated that he has held the position since 31 March 2010 although he has been employed with the Respondent since 2003. He is located permanently at the Leichhardt Bus Depot locality. 32Mr O'Connor stated that his immediate supervisor, the General Manager, Fleet Operations and Infrastructure Division, Mr Michael Reardon, requested, on 29 November 2012, that he conduct an investigation into certain allegations against the Applicant who was located at the Port Botany Depot. 33He completed the Investigation Report and delivered it to the General Manager on 28 December 2012. A copy of the investigation report and attachments were attached to his statement. 34During examination-in-chief, Mr O'Connor took the Commission through the CCTV footage. He pointed out the Applicant with an object in his hand which was round and rigid and which, he contended, was the wire rope. He pointed out that it had what would appear to be a turn buckle, a fitting on the end of the wire rope. He pointed out that the object the Applicant was carrying clearly showed, particularly when the light caught it, that it had attachments. Therefore it was different from the rubber hose shown to him at the rear of the Applicant's vehicle on the day of the interview as the latter did not have attachments, clips, at either end. 35During cross-examination, he confirmed that from the evidence he had collected (the Applicant had asked the Contractors a couple of times about the wire), he established that the Applicant wanted the wire and therefore there was intent to obtain that wire. The Applicant confirmed the Contractors' evidence that he told them he was starting work at 10 am the following day. Mr O'Connor said he interpreted the intent differently: Saunders: ... And you've decided that what Ross meant was I'll get the wire off you tomorrow? O'Connor: I've interpreted that .. on the balance of probabilities that was probably his intent....Based on the evidence that was before me, I've drawn - drew that conclusion. He conceded that there were at least three people (including the Applicant) who had expressed interest in the wire. Although a guy described by the Contractors as "a little guy, Matt" had expressed particular interest in the wire, he could not located as there was no one on the site with that name. 36Mr O'Connor pointed out that the scissor lift had been delivered to the site without a key and therefore could not be totally disabled. He understood that the Contractors had disabled it through the power system. He pointed out that all one had to do was push a couple of buttons to lower it or use a ladder to climb and get the steel cable. 37He confirmed that there was no evidence to contradict what he had been told that the Applicant left the site at 2.30 pm on 20 November and the Contractors left the site at 4 pm. There was no eye witness evidence or CCTV evidence of the Applicant returning to the site that evening after the Contractors left. 38He agreed that there were definitely many people who were on duty or who had access to the site, with the opportunity, between 4 pm on 20 November and 8 am on 21 November, to move the wire. Nevertheless, he said he had watched every piece of CCTV footage that was available around the workshop and on buses that were powered up at the time and had not seen anyone else. He was not aware of any search being conducted for the missing steel on 21 November 2012. 39Mr O'Connor confirmed that he wrote his report three days before he had the opportunity to interview Frank Fish to confirm that he had the Applicant's guitar, that his phone was indeed broken and that he and the Applicant had spoken about the latter's guitar. Mr Fish had confirmed to him that he was not close friends with the Applicant. He agreed that Mr Fish had no particular reason to provide an alibi for the Applicant and therefore was an independent person. 40He was shown a photograph of the Applicant carrying a black air hose with several coils. He agreed that it was holding an oval shape and the Applicant was holding it comfortably with one arm fully extended and the coil was just above the ground. 41He was shown another photograph, this time of himself, holding a coil of rope chord - the same material that the overhead lines were made of. He agreed that it was very, very dark and made of much narrower material than the air hose. It, too, was holding an oval shape, was reasonably flexible and was fitted with a large turnbuckle. 42He agreed that, in "pitch black", they could be mistaken for each other but repeated that they have "day lighting" at the depot and the steal coil held by the Applicant on 21 November had a turnbuckle on it. 43Mr O'Connor was taken through the CCTV footage. The Applicant was captured on the CCTV footage arriving on site at 9.30 pm. He was off camera from 21:30:55 pm to 21:32:55 pm while in the body bay. Mr O'Connor confirmed that there were exits nearby that did not have security cameras monitoring them. 44The Applicant was holding the dark coloured oval object in one hand and holding up his pants with the other hand. Mr O'Connor was adamant that the end of the object was straight and was a turnbuckle - not an errant piece of hose or, as was suggested to him, interference from the ground as that would only have occurred in one shot. 45Mr O'Connor confirmed that one of the reasons for not finding the Applicant's evidence credible was because he did not believe that the sick leave period was justified as he was capable of driving 20 minutes to and from Milperra and Port Botany then stop to have a conversation lasting 10 - 15 minutes with Mr Fish. 46During re-examination, Mr O'Connor confirmed that he advised the Applicant, at the interview, that there was an eye witness to the fact that he was carrying wire rope when he left the depot. 47Mr Nicholas Karlovassitis, Engineering Repair Tradesperson of 16 years' experience, provided a statement in the proceedings in which he confirmed the contents of his record of interview with Mr O'Connor on 27 December 2012. His evidence was to the effect that: - he was on duty on the evening of 21 November 2012 at Port Botany Bus Depot; - he commenced work on bus 1214 that was parked in bay 3 at the garage at about 9.30 pm; - he moved bus 1214 to the electricians bay to work on it; - shortly after, as he was walking from the electricians bay to the body builders bay to use a metal bender to bend a piece of aluminium, he heard a sound from behind him; - he turned around and saw the Applicant about 10 feet away, at the bottom of the steps that lead to the mezzanine storage area of the body builders shop; - he called out "Hi Ross". Mr Montgomery acknowledged him. - he saw the Applicant "bending over and picking up something that looked like a roll of cable"; - he continued to a bending machine and bent a bracket; and - when he completed the task, he commenced to walk back to the electricians bay and, as he did so, he noticed the Applicant, about the length of a rigid bus from him, walking out to the car park carrying the cable. When it was suggested to him during the investigation interview that the object may have been an air hose, Mr Karlovassitis disagreed stating "It was dark air hose would normally sag when you hold it, this kept a round shape it was the same thing I saw him with just before". 48Once again, during examination-in-chief, he was adamant that he had an uninterrupted view of what the Applicant was picking up and to him, it looked like a roll of cable. 49During cross-examination, he described the object as "pretty circular", "pretty round", "it didn't look black", and he did not think it was an air hose because it held its shape and did not sag. He explained that outside the workshop it was dark but inside the workshop it was "pretty lit up where I was standing, from where I saw him". 50Mr Michael Brian Reardon, General Manager, Fleet Operations, provided a statement in the proceedings in which he advised that he had delegated authority to implement punishments specified in clause 13 (1) of the Regulation. 51Mr Reardon stated that he had reviewed the findings made by Mr O'Connor and formed the opinion that: - the investigation process had been conducted in accordance with STA procedures; - the Applicant had been afforded procedural fairness throughout the disciplinary process; and - considering the report and available evidence, the findings made by Mr O'Connor were appropriate in the circumstances. 52Mr Reardon pointed out that the reasons he supported the Investigation Reports findings on 28 December 2012 were that, upon reviewing the evidence, he formed the view that the Applicant was "not been honest in his response, but has been evasive in answering a number of question". He also pointed out that the Applicant had experienced similar circumstances in the past and was "aware of the requirement to ask management and offer to purchase (as he has done on previous occasions)". 53Mr Reardon contended that the Respondent provides hand tools via a personal issue to all tradespersons employed in the bus engineering and repair section and those tradespersons are responsible and accountable for the tools that have been issued to them. In addition, workshop tools/equipment (such as welders, grinders, specialist diagnostic equipment, compressors, air lines and the like) are also available for general use by tradespersons. He pointed out that, throughout his 33 years of employment with the Respondent, he could not recall any staff member being required to provide their own air lines and staff generally are not required to provide their own privately purchased tools/equipment to undertake duties on behalf of the Respondent. 54Mr Reardon pointed out that the Applicant was aware of the formal procedure to be adopted for the purchase of material that the Respondent requires to dispose of having purchased surplus items via that method in the past (eg scrap vehicle access ladders). The process involved formal offers and payments via depot revenue rooms. The authorised receipt issued is the proof of purchase that is required to be produced prior to removal of the material from the site. 55Mr Reardon noted that the Applicant said in his statement that he was stood down from work for a period of 18 months because he complained about being put to work in the security shed. He pointed out that the Respondent's records confirm that the Applicant was off work due to a work related injury and was paid during that time. He was allowed to resume work once appropriate medical clearances were obtained. 56Mr Reardon pointed out that Level 4 tradesmen are required, on a regular basis, to work unsupervised yet this was the second occasion STA property had been removed after hours without permission while the Applicant has been rostered to work. His concerns regarding the Applicant related to the latter removing a coil of cable without authorisation and when he was asked to explain, he was expected to provide an honest response. He pointed out that it was the second occasion when the honesty segment of the key corporate values (honesty, dependability and dedication) had not been met by the Applicant. 57During cross-examination, Mr Reardon gave evidence that there was no possibility that he could be mistaken. He was "absolutely certain it was a cable". 58Mr Montgomery tendered a statement in the proceedings which may be summarised as follows: (a)He denied the allegation that he stole diesel in 2004 and believed that the subsequent TAB decision in 2005 exonerated him by reinstating him to employment with full continuity of service. (In his statement in reply, the Applicant acknowledged that the TAB found that the allegations against him had been substantiated. Nevertheless, he still maintained that he did not intend to steal the fuel for personal gain and was following directions from his supervisor); (b)He was absent on workers' compensation for a work-related injury and upon his return to work in September 2011, although he was certified as fit for work, he was directed to work in the security shed and not in the workshop. He complained and was stood down for a period of 18 months; (c)Before he was stood down, he lent his guitar to Frank Fish, a bus cleaner at the Botany Depot; (d)He returned to the site once during that time to retrieve his tools and discovered his tool box had been tampered with and many of his tools were missing; (e)He returned to the site a second time to check on his tools but left immediately when advised by Daniel Allen that he was not allowed on site; (In his statement in reply, the Applicant stated that the STA provided only the basic necessary tools to its employees. He had speciality tools which he brought into work to make his job easier. He stored his tools in two tool boxes, with a smaller one stacked on top of the larger box with wheels. The larger box contained the STA supplied tools and some of his own tools. The smaller box contained his own speciality tools.) (f)He returned to work on or around November 2012 when Mr Satchell contacted him and instructed him to do so only to find that his supervisors were hostile towards him, and even more of his tools were missing (replacement valued at $2405.67), his locker had been cleared out and his personal belongings, including his work boots, were missing; (g)(In his statement in reply, he said that about two years' ago he brought to the Depot a black air hose and a blue air hose to crimp them during his lunch break as he did not have the right tools at home to do that. He placed them on the bench to keep them safe and promptly forgot about them because he was absent from work for a long period due to a workplace accident.) (h)He said he found his air hose and blocks of wood behind a bench as he was cleaning on 20 November 2012. Concerned about losing them as he had his tools, he placed them under the stairs in readiness to take home with him at the end of his shift that afternoon, however, he forgot to take them home. He was aware that there was a security camera overlooking the area as he had assisted the contractor to install them some years previously; (In his statement in reply, the Applicant recalled that he was working in the body bay when two contractors arrived. He recounted the conversation they had which commenced with general chit chat and then evolved into a discussion as to the purpose of their work at the Depot: Applicant: What are you doing? Contractor: We're cutting down the cable. Applicant: It's pretty rusty - I've been up there. Contractor: Oh yeah? What were you doing up there? Applicant: My boss made me put some "do not use" tags on the overhead static line. Contractor: It's not that bad. Applicant: It's been there ten years - I don't know why we're replacing it. Contractor; The stuff we've got is stainless steel, it's lighter. Applicant: That'll be good. What will you do with the old wire when you're done? Contractor: Chuck it in the rubbish. Applicant: Jeez, the amount of money they waste around here. Later in the day, he recalled that when he brought a bus back into the bay, the contractors had finished taking down the old wire and had it laid out across the floor. They had another conversation: Applicant: Can I come in with the bus? What are you doing with the wire? Contractor: No, we'll need the area for another couple of hours. Applicant: Okay, I'll just work outside. He recalled that he did not walk back through the workshop again that day and therefore was not aware of what the contractors did with the wire. He said he never saw them again until he passed them as he was about to go home. They were both in their ute having their lunch. He recalled the following conversation: Applicant: Ha, ha, some blokes have it easy. Contractor 1: We've got to drive all the way back to Newcastle! Contractor 2: Hey - what's with this Adam, he's driving us mad asking about the cable, he wants to take it to his farm. Applicant: Just watch him. I'll be in at 10 tomorrow, I'll see you then.) (i)He was suffering from diarrhoea and obtained a medical certificate for the period Wednesday, 21 - Monday 26 November 2012; (j)He had not seen much of Frank Fish since lending him his guitar. When he return to work, he was rostered for the early morning shift and Frank Fish was rostered to work the night shift. He did not have Frank Fish's telephone number. He decided to attend the depot to speak to him about getting his guitar back; (k)He has suffered from nervous diarrhoea his entire life, was familiar with the symptoms and how to manage them. While he was not fit for work, he was able to manage a brief visit and knew that there was a bathroom near where he was going. He took some anti-diarrhoea medication and drove to Port Botany on the evening of 21 November 2012. (l)He had previously witnessed many employees attend the Depot while on sick leave to present certificates and collect personal items and therefore did not believe that it was a breach of the Respondent's policy to attend the site; (m)He arrived before Mr Fish's shift started and so, while waiting for Mr Fish to arrive, proceeded to the workshop to pick up his air hose and blocks of wood. It was the black hose that he removed on 21 November 2012; (What happened to the blue hose? When did he remove that?) (n)He said he saw Lincoln Penderbeam, a body repairer, working. Nick, one of the Electricians, also entered and exited the workshop. He called out greetings but received no response from either of them; (o)Shortly after entering, he paused and tried to recollect whether he had a bag in the car to put the air hose in to avoid getting his seats dirty. He recalled that he did not have a bag and proceeded to fetch the air hose anyway. (In his statement in reply, the Applicant clarified that he had paused while walking between his car and the workshop.) (p)He put the blocks of wood in his pocket and, while he was bending over to pick up the air hose, the fly button on his pants broke causing him to walk awkwardly and hunched over with his right hand holding the air hose and the left hand holding up his pants; (q)He threw the air hose into the car causing the string holding it together breaking thus allowing the hose to uncoil. His pants also slipped down at that point in time; (r)He then drove round to where the buses were parked. He parked near where the rubbish was dropped in order to allow easy access to buses to pass. He saw Frank Fish getting off one of the buses and called out to him; (s)Frank Fish and another cleaner, Jason, came over to him and they had a brief conversation during which he made arrangements to pick up his guitar; (t)While they were talking, a motor mechanic, Greg Bond, came up to him and informed him that Adam Iskandar was on duty and speculated that a report would be filed in relation to the Applicant's presence on site. He left the site following that conversation; (u)He said that when he returned to work on 29 November 2012, one of the Managers, Ken Dewhurst, called him into the office and advised him that he had 37 days accrued leave which was unacceptable. Agreement was reached that the Applicant would take leave from Monday, 4 December 2012. (v)He was therefore home on approved leave on Monday, 4 December 2012 when Mr O'Connor called and then arrived to deliver Form E1; (w)He denied steeling a coil of wire rope from the Depot insisting that the only items removed were his personal property; (x)He found the Investigation Interview with Mr O'Connor "quite intimidating" as he got the impression that Mr O'Connor had already made up his mind that the Applicant was guilty as charged; (y)He was required to take his accrued annual leave before being stood down without pay following the investigation. He was subsequently dismissed from employment. It was contended that the requirement was unlawful and his annual leave balance should be re-credited to him. It was also contended that the dismissal was harsh; (z)He advised that, as at 18 March 2013 when he signed his statement (and 10 April 2013 when he signed his statement in reply), he had not been able to find alternative employment and it would be very difficult to find alternative employment given he is 69 years of age. He said that the termination has had a significant financial impact on him and he was living off his meagre savings as he was yet to access Centrelink payments because the Respondent had not provided him with an Employment Separation Certificate. He also advised that he was suffering significant personal stress given the significant impact the nature of his termination has had on him. 59During cross-examination, Mr Montgomery confirmed that, on 20 November 2012, he was working the 6 am to 2 pm shift and left the site at about 2.30 pm. He confirmed that he was aware that the cable in the body bay area was being removed; that other employees were interested in obtaining it; and that he had inquired from the contractors as to what was going to happen to that cable. He denied, however, that the contractors said the cable was to be retained by the Respondent or that he was interested in obtaining it for himself. 60Mr Montgomery agreed that throughout his statement he had referred to one air hose and not two. He used the vice to hold the blue hose and was able to use the crimper a friend of his lent him to attach the fitting because the hose was made of solid material. It did not work with the black hose because it was made of rubber, he had it for over 5 years and the wall of the rubber was much thinner so the crimping tool could not get it tight enough. In relation to the wood, there were three blocks that he had taken into the Depot to use the band saw to cut them at an angle but, for safety reasons, it did not work. Mr Montgomery said he moved the black air hose from behind the bench to under the stairs in the body bay. He was going to take it home but the contractors were there and he forgot about it. He said it was the blue air hose that had the fittings on it and he had taken that one home with him "the day before". He then corrected himself and said he took it home on the 19th and was going to take the black hose home on the 20th. THE SUBMISSIONS The submissions of the parties are summarised below. 61The Union submitted that the question for the Commission to decide is whether the Applicant took a coil of rope cord corrugated steel cable from Sydney Buses at Port Botany Depot without permission? If the Commission is not satisfied, then the termination cannot stand. 62The Union also submitted that the dismissal was unjust because the misconduct relied upon by the Respondent did not occur. The Applicant denied stealing STA property, the primary reason for his dismissal. In addition, the Applicant denied that it was unlawful, or in violation of a condition of employment, for him to visit the work site while he was on sick leave. 63The Union further pointed out that the evidence indicated that a number of people were interested in the overhead cable. Just because the Applicant may have indicated that he was interested in taking it if it was going to be thrown out, it did not indicate that he had an intent to steal it. 64The Union referred to the Applicant's evidence that he removed his personal property, a coiled air hose, from the worksite. The fact that he was unclear when he found the black air hose behind a bench was immaterial - it was reasonable to assume that "this was not a burning issue in Ross's mind" as the hose had been sitting there for two years. He took it out on 20 November and put it under the stairs so he could pick it up at knock-off time. He forgot to take it home with him on that day. 65The evidence indicated that the contractors left the site at 4 pm. Before they left the site, they secured the lines in the scissor lift. The evidence also indicated that when the Applicant left the Depot at 2.30 pm the Contractors were still on site and the cabling was still laid out on the floor. His evidence was that he was not aware that the cabling was put in the scissor lift any stage. 66The Union reminded the Commission that, in order to remove the coil wire, one would have to lower the scissor lift, take the wire off it, carry it through the electrical bay, and carry it out the door avoiding the various security cameras. That had to be done between 4 pm on 20 November and 8 am on 21 November 2012. There was no evidence establishing that the Applicant was on the premises during that time but there were other people working on site well into the night who had the opportunity to move the wire. The Union pointed out that there was no search conducted of the Depot and therefore, if the coil of wire was still in the Depot, it was hidden. It was also pointed out that there were a number of exit points where no cameras were located and one would think that one of those exits would be used if an object was to be carried out of the site without permission. 67The Union submitted that the Applicant's evidence was uncontested that he has suffered from diarrhoea for many years and knew how to manage his condition. At about 9.30 pm on 21 November he decided to drive in and pick up his air hose before it went missing as he had already moved it from behind the bench to underneath the stairs. He was picked up by the security cameras and noticed by Nick Karlovassitis. 68The Union argued that the evidence of Nick Karlovassitis should be treated with caution. He was the only eye witness, nevertheless, he was aware that black wire coil was missing, that the loss was being investigated and the suggestion had been implanted in his mind that the black coiled object he saw the Applicant carrying was the missing wire. In addition, he acknowledged that it was dark and it was possible that he could have been mistaken. He was not interviewed by Mr O'Connor until approximately a month after the incident occurred. 69The air hose weighed approximately 3-4 kg and the coil of wire about 10-15 kg. 70He denied removing a coil of wire, the property of the STA, which has a similar shape. 71The Union pointed out that it was a well-established principle that the onus of proof rests with the Respondent to establish, in matters involving summary termination, that the Applicant was guilty of such misconduct: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar GoodsWorkers Union v Gartrell White (No 3) (1990) 35 IR 70; Wang v Crestell Industries Pty Limited (1997) 73 IR 454 which was cited with approval in M v M (1988) 63 ALJR 108 and Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. 72The Union further pointed out that, normally, the standard of proof would be on the balance of probabilities. However, because of the seriousness of the allegation of theft against the Applicant, the standard of proof was correspondingly higher. 73The Union concluded that, based on the principles established in those authorities, the Respondent cannot justify the Applicant's termination because the evidence indicated that the alleged misconduct did not occur. 74In relation to his attendance at the Depot while on sick leave, the Union submitted that the Applicant's brief attendance, to retrieve his personal belongings and speak with a night shift employee, did not constitute conduct capable of being considered misconduct justifying dismissal, and, on that basis, the termination was harsh and unjust insofar as it relied on that allegation. That was particularly so in circumstances where the Applicant was not aware of any prohibition on entering the Depot in such circumstances and he had given evidence that many other employees accessed the site in similar circumstances, without repercussions. 75Once again, it was contended that the onus fell on the Respondent to establish that the Applicant's presence at the Depot on 21 November 2012 was unlawful and constituted misconduct. The Union relied on the four questions raised for consideration in New South Wales Fire Brigade Employees Union (on behalf of Natoli) and New South Wales Fire Brigade [2005] NSWIRComm 440: In a case of summary dismissal for misconduct four questions usually arise for consideration. Firstly, was the conduct alleged against the dismissed employee proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment? Fourthly, were mitigating factors taken into account? 76It was submitted by the Union that if the Commission finds against the Applicant and holds that he had misconducted himself, then it contended that the conduct was not sufficiently serious to justify summary dismissal, it did not constitute a fundamental and wilful repudiation of the contract of employment and that mitigating factors were not taken into account by the Respondent in arriving at its decision to terminate him. In other words, the dismissal was disproportionate to his conduct and therefore harsh: Schokman v RTA [2010] NSWIRComm 1011. 77The Union asked the Commission to take into consideration the Applicant's length of service, work record and the impact of the dismissal on his personal and economic circumstances and that of his family, evidence of which had been given by the Applicant: Joseph D'Souza v NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042. 78The Union sought Orders the effect of which would be the reinstatement of the Applicant to his former position on the same terms as those applying prior to his dismissal; the reinstatement to occur by no later than 7 days from the date of the Order; payment from 28 December 2012 to the date of his reinstatement less any gross income earned during that time; and service to be deemed not to have been broken by reason of the dismissal. 79The Union submitted that reinstatement was entirely practicable: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 because the effect of not ordering reinstatement in circumstances where it was held that misconduct had not occurred would be to visit further injustice on the Applicant concerned: Australian Services Union of NSW on behalf of Valentina Angelovska v St George Youth Services Inc [2010] NSWIRComm 1051. 80The Respondent submitted that the issues in dispute were why the Applicant was at the Depot on the evening of 21 November 2013, what he carried from the body bay and what he carried into the car park. 81It was pointed out that the Applicant maintained in his evidence to the Commission that his sole purpose for coming to the Depot that night was to speak to Frank Fish about the return of his guitar. The collection of the so-called black hose was a side thought. It was curious that despite the fact that his medical condition was so severe that, according to his doctor, he was unable to attend work for three days, he was able to travel to the site for the purpose of speaking to Frank Fish about the return of his guitar even though one would have thought that the travel would have caused him significant inconvenience. It was particularly curious given that: - first and foremost, he called into the body bay to pick up some material which was in dispute despite his stated reason for being on site was to speak to Mr Fish; - the guitar had been with Mr Fish for some 18 months. The Applicant said he did not have a telephone number for Mr Fish; he said he could not leave a note for Mr Fish to call him or send him a text; - he knew what shift Mr Fish was rostered on but did not know whether Mr Fish was actually at work on that night; - his roster and that of Mr Fish were to coincide the following week and he would have been able to speak to Mr Fish then; and - the evidence indicated that the guitar was mentioned very briefly in the conversation with Mr Fish but was not the main focus of the conversation. There was nothing achieved on that night that could not have been achieved by a telephone call, a message or text or that could not wait until the following week when they were rostered to work together. On that basis, it was submitted, a reasonable person could be excused for believing that the Applicant had a greater motivation for coming to the Depot that night other than to speak to Mr Fish. 82The Respondent submitted that there was conclusive evidence that the Applicant removed the cable from the Port Botany Depot - not only was there an eye witness to the removal, there were also CCTV images that showed the Applicant carrying the roll of cable and heading towards the employee car park. 83It was pointed out that the Applicant's demeanour, as captured on the CCTV footage, was suspicious. Rather than walk directly to where he was going, he stopped and acted in a suspicious manner. During the investigation interview with Mr O'Connor, the Applicant stated that he had looked around him because he was concerned about getting run over by a bus. Yet in his own statement in the proceedings, he stated that he paused to reflect on whether he had a bag in the back of his car to put the air hose in. 84The Respondent pointed out that the Applicant was off sick on that day and had no intention of going to work for the three days provided in the medical certificate. He had not offered any explanation for the fact that he turned up on the site on 21 November 2012 in his work clothes. It was contended that the real purpose for wearing his work clothes to site was to avoid attracting attention to himself. 85It was submitted by the Respondent that the air hose explanation provided by the Applicant lacked credibility. The Commission was taken through the inconsistent evidence of the Applicant in relation to the number of air hoses and when it (they) were located. If, indeed, he located it (them) two weeks prior, it raised the question as to why he left it (them) for so long before taking (it) them home bearing in mind the concern he had expressed about it (them) being stolen. On the other hand, how can he say he found the hoses on 20 November when his evidence was that he took the blue hose home on 19 November? There was no evidence before the Commission about air hoses except for the inconsistent evidence of the Applicant. It was submitted by the Respondent that the evidence had been fabricated by the Applicant to disguise the removal of cable. It was also submitted that the Applicant had the motivation, the opportunity and the means to remove the cable from the Depot and that proposition was supported by an eye witness and CCTV footage. 86It was also submitted by the Respondent that the Applicant had been both dishonest and unprofessional by his illegal actions on 21 November 2012 in removing the cable from the Depot without authorisation. The Applicant should have been aware that he had an obligation to comply with the STA Code of Conduct which was provided to him, and for which he had acknowledged receipt, on 10 July 2000. Yet he had breached the terms of that Code of Conduct. 87The Respondent also pointed out that the Applicant should have followed the correct procedure for obtaining or purchasing STA property. He was aware of the need to follow correct procedures for legally obtaining unwanted or surplus material from the STA. Firstly, he had purchased material from the STA in the past and, secondly, he had received a warning about a similar incident in 2004 which had resulted in a punishment of six months suspension without pay at that time. That punishment should have put him on notice of the seriousness and the potential consequences of removing STA property without permission. 88Specifically, the Applicant had breached section 4.4 (a) and section 4.9 which relevantly read: 4.4 Professional Conduct In the interest of health and safety, efficiency, harmony in the workplace and the public image of State Transit, all employees must maintain an appropriate professional standard of behaviour. This means that you must:- (a) ensure that you must be honest and diligent in your work. 4.9 Do not use State Transit property or resources for non-State Transit purposes unless you have official permission. This includes staff funds, facilities vehicles, vessels, equipment office supplies, etc. The Respondent contended that it had done all it could to alert the Applicant to his responsibilities regarding the removal of property from STA premises. 89The Respondent pointed out that the removal of the cable resulted in the Applicant gaining a benefit to which he had no entitlement and the State Transit Authority being deprived of the use of property to which it had an entitlement. 90The Respondent relied on the decision in John Lysaght (Australia ) Limited v Federated Ironworkers' Association (1972) AILR Rep. 517 as authority for the position it took that the incidence of misconduct on 21 November 2012 cannot be viewed in isolation from the Applicant's overall past performance and conduct which was not unblemished. 91The Respondent contended that the Applicant's 11 year service should be offset against the seriousness of his misconduct in conjunction with his employment history. Age should not be a consideration when determining if the dismissal was harsh. In addition, it would be inappropriate to consider his age given, firstly, that he had already received a second chance in 2005 from the TAB because of his age and, secondly, such a consideration would not only give him a third chance but would "send an inappropriate message that age could be used as the basis for immunity against dismissal for serious misconduct". 92The Commission was reminded that, despite the evidence, the Applicant had continued to deny the allegation, had not accepted responsibility for his actions, and had not demonstrated any contrition for his actions at any time. 93It was contended that the actions of the Applicant were premeditated and his reasons for being on STA premises lacked credibility and were inconsistent with the eye witness evidence and the CCTV images. 94The Respondent questioned whether the Applicant had indeed made a reasonable attempt to find alternative full-time employment given that he had not produced any evidence of his attempts. It was submitted that the Respondent should not be held accountable for his lack of attempts. 95It was pointed out that there were no mitigating circumstances that would warrant re-instatement. 96In conclusion, it was submitted on behalf of the Respondent that the Orders sought by the Applicant should not be granted as he had committed an extremely serious breach of the STA Code of Conduct and that breach should attract the highest sanction. It was submitted that the dismissal was legally justified - it was not harsh (given the Applicant's employment history), was not unreasonable (because it was decided on inferences which were reasonably drawn from material before the employer) and was not unjust (given that the investigation process did not prejudice him in any way, he was afforded procedural fairness as detailed above and the Applicant was guilty of the misconduct on which the Respondent acted). 97In reply, the Applicant submitted that - - it was not conceded that he wanted the cable and his question as to what the contractors were doing with the cable should not be read to mean that; - it was a "stretch" to say that he was walking into the Depot suspiciously. He was not doing a "pink panthers". He was walking normally with his hands in his pockets; - his purpose for coming to the site was for the dual purpose of picking up his hose and seeking Frank Fish; - the fact that he wore an old pair of work trousers that had a rip in them and an old shirt, but not a work shirt, was not significant; - while it was conceded that there were inconsistencies as to when the air hoses were located, he was consistent about the issues that mattered, that is, when he put the black hose under the stairs and when he removed the blue hose; - while the Applicant has allowed the various interview statements and records of interview and file notes to be included in Mr O'Connor's filed statement, their contents should be treated with caution as the persons making those statements have not been subject to cross-examination; - his primary submission is that he did not steal the cable and therefore there was no reason for terminating him; and - there was no issue regarding a third chance as he is currently before a different Tribunal to the one that gave him a second chance. 98In conclusion, the Applicant relied on Australian Services Union of NSW (on behalf of Valentina Angelovska) and St George Youth Services Inc. [2010] NSWIRComm 1051 that in circumstances where the misconduct alleged was found not to have taken place, to not order reinstatement would be to visit further injustice on the applicant/s concerned. CONSIDERATION 99The central facts that led to the dismissal of the Applicant were contested. 100Despite the valiant efforts of the Union to explain the Applicant's actions , his evidence lacked credibility in relation to the central issues in dispute. 101Firstly, the Applicant stated in his statement that the Tab decision in 2005 exonerated him. After reading the Respondent's statements, he conceded in his statement in reply that the TAB decision of 22 March 2005 found the allegations against him had been substantiated. Nevertheless, despite the Respondent's investigations and the TAB hearing of the matter, he still maintained that he did not intend to steal the fuel for personal gain and was following directions from his Supervisor. 102It is noted that, in varying the penalty of dismissal to one of suspension without pay for a period of six months (4 November 2004 - 4 May 2005), the Board noted that the Appellant (as he then was) was 61 years of age, had no previous disciplinary history, had a good work record and was otherwise of good character. The Board stated that "there was no evidence ...that the appellant had never acted in similar fashion previously". 103On this occasion, apart from the disciplinary matter to do with the fuel issue, the Applicant had received two final warnings in relation to two other incidents concerning his conduct prior to the incident with the black coil. 104I accept the Respondent's submission that the incident relating to the steel coil cannot be viewed in isolation from the Applicant's overall past performance and conduct, particularly when one of those incidents is similar in nature. 105The Applicant stated in his statement that he was stood down for approximately 18 months because of a complaint he had made about being required to work in the security shed. Mr Reardon gave evidence that the Applicant's employment record confirmed that he was off work due to a work related injury and was paid during that time until a medical clearance was obtained to allow him back at work. Indeed, the Applicant confirmed that in his response in Form E1 when he advised that it was his absence due to that injury that resulted in him not being able to get his guitar back from Mr Fish.` 106The Applicant stated in his statement and he returned to work during his medically enforced absence to find most of his tools missing. Apart from not providing any details of what tools or when that occurred, he did not provide any explanation as to why he did not remove all of his remaining tools from the site. He said he returned once again during that absence to check on his tools but was not allowed on site. Once again no details were provided of when that occurred nor was there any attempt to get site management to allow him to remove his tool box from the site. He stated that when he eventually returned to the site on or around November 2012, more of his tools were missing. The evidence from other employees (Lincoln Piendbene and Simon Pulis) confirm that the Respondent provides all tools necessary for the employees to undertake their tasks and both witnesses confirmed that the Applicant was not the type of person who would bring personal tools from home. 107The Applicant stated in his Form E1 response that he attended the Depot on the said evening to make arrangement for Frank Fish to return a guitar which was loaned to him 18 months prior. He said he could not drive and therefore could not retrieve his guitar during his absence as a result of the work-related injury. During the investigation interview, he could not provide any explanation as to why he did not attempt to retrieve his guitar since his return to the Depot. During the Investigation Interview, Mr Fish confirmed that the guitar was mentioned in the conversation on 21 November 2012 but it was not the focus of their conversation as the Applicant was more interested in talking about other matters. The guitar was not loaned to Mr Fish. The Applicant gave it to him to re-string. 108The Applicant rang in sick with diarrhoea at about 6 am on 21 November 2012. He turned up on site at 9.30 pm on the same day. It must have been quite a severe bout of diarrhoea for him to be provided with three days' off by his Doctor. What is very curious is the fact that the Applicant was off for three days with diarrhoea but he did not consult his doctor until 22 November 2012. Nevertheless, he said he has suffered from that ailment all his life, was familiar with the symptoms and how to manage them. He took some anti-diarrhoea medication and drove approximately 20 minutes each way. He said he was aware that there were toilets at each end of the Depot that he could use. He was not observed on the CCTV footage, at any time, to have accessed those toilets nor did he provide any evidence that he had done so. 109When questioned as to why he could not attend work on the following two days, he said he was suffering from stomach cramps because he was dehydrated as a result of the diarrhoea. There was no evidence, at all, on the CCTV footage that the Applicant was suffering from any cramps nor did he provide any evidence to that effect. In addition, throughout the time he was on site, there was no evidence of the Applicant ingesting any fluids for his dehydration. 110The Applicant said he brought two air hoses to the site approximately two years previously. Adam Iskander, leading hand, Lincoln Piendbene and Simon Pulis all stated that they had not seen any privately owned air hoses in the body builders bays at the garage in all their years of employment at that Depot. 111As indicated earlier, the Applicant agreed that throughout his statement he had referred to one air hose and not two. He also explained where they were located and the trouble he went through to get them out from behind the Bench using a crowbar. He then talked about putting the black air hose under the stairs. It is noted that on 27 December 2012, the Applicant brought to the site in the rear of his vehicle two air lines which he said were those he had recovered from behind the bench in the body builder's bays. Mr O'Connor gave evidence that he observed both hoses to be "immaculately clean". There is no way that the hoses can be in the condition described by Mr O'Connor given the evidence of the Applicant himself as set out below. 112There were inconsistencies with when the alleged hoses were discovered. Initially, the Applicant stated that he had cleaned out the body builder's bay on 20 November 2012. When he realised that he stated that he had taken the blue hose home on 19 November, he stated that he had cleaned the bays out about a fortnight before - during that roster period. The cross-examination proceeded as follows in relation to those air hoses: McLean: When did you find the two hoses behind the bench? Montgomery: The day or so beforehand, I can't remember exactly but I did the morning shift and there was no work and I just asked could I clean up as the place hadn't been cleaned up properly since I hadn't been there.... While there was no one there, I got another air hose and blew all the dirt around from under the benches and that's when the hose, sort of, fell out from behind the bench and I thought oh, my hose. Q: Sorry, Mr Montgomery, when did you say you found them behind the bench? What day? A: I didn't say. Q: Well okay, well let me ask you that very question, when did you .. A: I said a couple of days prior. I don't know exactly. Q: To the 21st? A: Yeah. Q: Could I take you back to.... paragraph 6... what you've put in there I will read and I'll quote, "About two weeks prior to Wednesday 21 November 2012 I was cleaning out the workshop and noticed my air hose jammed behind the bench". You've just indicated to me in your last response that you found the air hose.... a couple of days before the 21st. Yet this response here indicates that you ....found them a fortnight beforehand? A: Approximately, yes. Q: Well which one is correct, Mr Montgomery.....The one or two days or the fortnight? A: Well I don't know exactly, but I did tell Mr O'Connor that I was cleaning up and that's when I found them and it was some time before I took them home. Q: Well the statement you've made here, on 10 December, was some time before you spoke to Mr O'Connor was it not? A: I don't understand the question.... Q: So in your view about two weeks could be two days? A: No, I'm not sure, but I know it was not more than a fortnight because I was still on the same shift,... Q: So if you found the air hoses about a fortnight earlier, why was there such a delay in taking them home? A: Well I had other things to do. I was returning tools to fellow workers because a lot of my tools had been stolen and by the time I took them back when I finished my work and it just slipped my mind and have a shower and go home. Q: You said you took the blue hose home on about the 19th, or the 20th? A: 19th I think it was, yeah. Q: Why didn't you take the black hose home at the same time? A: Because I only had a small bag to put it in. Q: Why would that be an issue? A: Well it was pretty heavy and the blue air hose was heavier than the black one and I only had a small bag and I stuffed it into the small bag. Q: Why not just simply put it in your car? A: Well my car was parked right down the other end of the car park, rather than carry it right through the workshop I just took the blue one, I thought I'll take the other one tomorrow. Q: Is it true that when you took the black air hose home, on the 21st, as you claim, you didn't stuff that into a bag, you just simply carried it? A: No, but there's a reason for that, because I'd forgotten the bag and it will show up on the video that I hesitated before I went into the workshop, and I thought, oh I've forgotten the white bag and I carried on. The reason I put it in a bag, I have a relatively near new car and the hose was very dirty and I didn't want to get my seats dirty when I put it in the back of the car. When I finished up I had an old boot mat in the back of the car which I laid over the hose to put in the car to stop the dirt from the hose getting all over my seats and carpet. The Applicant took great pains, during cross-examination, to explain about how carefully he treated his relatively new car yet, in his statement, the Applicant stated that when he got to the car, he threw in the air hose causing the string holding it together to break thus allowing the hose to uncoil. 113There was also a disturbing lack of clarity in relation to when the hoses were taken home. In his written statement the Applicant stated that he was worried about losing the air hose because so many of his tools had been stolen. He was cross-examined on it as follows: A: Yes. That's why I shoved it in behind the bench two years prior. Q: If that was the case and it had been there for two years without it being stolen why wouldn't it still be safe behind the bench? A: Well as I just said, I had to use a crowbar to get the bench out from the wall to get the hose out. Q: So you found it a fortnight beforehand, you were concerned about it being stolen, and yet you ... A: Only a piece of it came out when I was blowing the area. Q: But you found it about a fortnight beforehand? A: Yes. Q: You were concerned about it being stolen, yet it was almost a fortnight before you took it home? A: Yes, that's right. Q: So how concerned were you about it? A: Fairly concerned. Q: Mr Montgomery, do you agree that you said to me that you took the blue hose home on 19 November? A. Yes. Q: Okay. If I can take you to paragraph 23 of your statement it says, "on 20 November 2012 I found an air hose and blocks of wood that belonged to me behind the bench while I was cleaning". Can you explain how you could take the air hose home on the 19th if you didn't find it until the 20th? A: I found the blue one first, and then I found the black one afterwards. Q: And where was the black one? A: It was jammed in further than the blue one was. And the blocks of wood, I never found them till the day I took the air hose out from behind the bench. Q: And what day was that? A: The day I took them out from behind the bench was on the 20th and I put them under the stairs. The blocks of wood were only about eight inches long. Q: The blue hose had attachments to it, is that right? A: Yes I put them on. Q: Would you agree that it would be more desirable for somebody wanting to steal the blue hose than the black hose? A: That's why I took it home first. Q: But after a fortnight, is that right? A: Well they were jammed behind the bench and they'd been there that long so I thought it might - it was reasonable to say that they would stay a few days longer but I didn't have room in my car to take them home any sooner. 114In the Form E1 response, the Applicant referred to bringing one hose to the site about two years prior and forgetting about it. He said he discovered it jammed behind the bench two weeks before the incident. During the Investigation interview, he said he brought in two air hoses. In his statement in these proceedings, he said he brought in two air hoses and left them on the bench. 115As pointed out by the Respondent, the Applicant explained that the CCTV footage showed him as pausing and looking around him rather than going directly to the bays. Initially, he stated that he did not want to risk being run over by a bus. When it was pointed out that buses do not run in that area because there was no room, he said that he had paused to reflect on whether he had a bag to put the hose in as he did not want to soil his fairly new car. 116The Applicant did not provide an explanation as to why he was on site in work clothes. The Union explained that the trousers were an old pair of work trousers with a tear in them. It still did not explain why he was in work clothes when he has been home sick all day presumably clad in personal gear. Why would he bother to change to come to work to talk to Mr Fish. 117Another matter of concern is the fact that the Applicant has been through the process previously with the fuel issue, yet he took his time in responding to the allegation regarding the steel coil. The suspension letter was hand delivered on Thursday, 29 November 2012. The Applicant did not make contact until Monday, 3 December 2012 and the purpose of the contact was to make derogatory remarks about other staff members including the leading hand. The Applicant put off an appointment with Mr O'Connor in favour of picking up a car seat for a mate on 4 December 2012. He was provided with Form E1 on Tuesday, 4 December 2012 but he did not complete and return it until Tuesday, 11 December 2012. Upon viewing the CCTV footage on 11 December 2012, the Applicant made it clear that he would not be available to meet with Mr O'Connor for the purposes of being interviewed until he returned from Foster/Taree on Thursday, 27 December 2012. It is recalled that the Applicant chose to undertake those private matters rather than participate in clearing his name and securing his employment during a period when he was on suspension. 118Mr Karlovassitis, an Engineering Repair Tradesperson with 16 years' experience, gave evidence that he was about 10 feet away from the Applicant when he saw him bend over and pick up something that looked like a roll of cable. He saw him a second time, this time, about the length of a rigid bus from him, walking out to the car park carrying the cable. He was adamant that he had an uninterrupted view of the Applicant, it was pretty lit up where he was standing and watching him, and was equally adamant that it was pretty circular, it held its shape and did not sag: Saunders: ... And you're still 100% certain it was wire cable? Karlovassitis: It was cable, it was not hose. 119Mr Reardon, General Manager, Fleet Operations, was equally absolutely certain that the CCTV footage demonstrated that the Applicant was carrying wire cable: I've looked at plenty of CCTV and looked at plenty of air hoses and cable in my 33 years in this business and like pretty much I can tell a cable, especially when it's got a turnbuckle in it. 120I am concerned that a search of the depot was not conducted on 21 November 2012 when the coil was reported missing. 121I am also critical of the fact that Mr O'Connor had not interviewed Mr Karlovassitis until a month after the incident. Nevertheless, Mr Karlovassitis provided a statement in these proceedings and was subjected to rigorous cross-examination. He was unwavering in his evidence as to what he saw. 122I am also critical of the fact that Mr Fish was interviewed after the Applicant but I am satisfied that the Applicant was not disadvantaged in any way in that regard. 123Nevertheless, the Respondent's witnesses provided credible, unshaken evidence before the Commission unlike the Applicant's evidence which shifted and altered with every question put to him during every stage of the investigation and subsequent hearing as I have described above. 124I am satisfied, having considered all of the evidence, the submissions of the parties and the authorities cited, that the Respondent has established, on the balance of probabilities, that the Applicant took a coil of rope cord corrugated steel cable from Sydney Buses at Port Botany Depot without permission. ORDERS 125The proceedings in Matter No IRC 46 of 2013 are hereby dismissed. I Tabbaa AM 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: 14 October 2013