Industrial Relations Commission New South Wales Medium Neutral Citation: Barton v. State Transit Authority of New South Wales [2014] NSWIRComm 1015 Hearing dates: 25 March 2014 Decision date: 25 March 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application pursuant to s.98 of the Industrial Relations Act dismissed. Legislation Cited: Industrial Relations Act 1996 s. 98, 100C, 100D Transport Administration (Staff) Regulation 2012 r 13 Cases Cited: Bibby v Rail Corporation New South Wales [[2013] NSWTAB 4 Briginshaw v Briginshaw (1938) 60 CLR 336 Jones v Dunkel (1959) 101 CLR 298 Mason v Electricity Commission of NSW t/a Pacific Power (1995) 62 IR 436 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 Category: Principal judgment Parties: Mr Neil Barton - appellant State Transit Authority of NSW - respondent File Number(s): IRC 931 of 2013 EXTEMPORE DECISION 1This is an appeal brought pursuant to s 98 of the Industrial Relations Act 1996. ('the Act') I note that it was brought within time and there is no challenge to the validity of the appeal itself in a technical sense. 2The Commission's powers in relation to an appeal of this kind are set out in ss 100C and 100D of the Act. I do not read those provisions onto the transcript, but it is immediately apparent from the words of those sections that an appeal before this Commission is not simply a review of the initial decision-maker's decision in a procedural or any other sense. Rather, it is a decision de novo, afresh, upon the materials put before it. The Commission may, in respect to a disciplinary appeal that is brought before it such as this one, either allow the appeal or disallow the appeal or make such other decision with respect to the appeal as it sees fit. 3The Commission is not constrained merely to accept or reject the initial decision. It may do so, but it may impose another decision. It may, in certain circumstances, impose a harsher decision or harsher penalty than that which the decision maker originally imposed. 4The Commission's view of the punishment imposed, here said to be misconduct warranting dismissal, is to be formed on the following bases, in my view. 5Firstly, whether the misconduct which is said to be the basis for the punishment actually occurred as a matter of fact, and, secondly, if it did, whether the punishment that was imposed was appropriate. The primary test in the second regard is whether or not the punishment was an appropriate balanced response to the conduct which is proven to be made out. 6I add to that, that a decision-maker in coming to a view about the punishment for particular misconduct is entitled to have regard to an employee's record, length of service and indeed punishments imposed upon other employees in alike or analogous circumstances. 7The statutory basis for the punishment is set out in regulation 13 of the Transport Administration (Staff) Regulation 2012. ('the regulation'). It is correct to say as both advocates have said that there are five available punishments to the decision-maker - which as I say does not necessarily constrain the Commission - but at the sharp end of those the most extreme are reduction in position of rank or grade, suspension from duty without pay or dismissal. 8I observe that the chief executive may, instead of dismissing an officer, allow the officer to resign. That was not the course adopted here. 9He may impose a fine imposed which was not the course adopted here. 10In this matter, Mr Barton was, as it is set out in the notice of punishment to be found at tab 8 to Mr Larosa's statement, dismissed for misconduct. As I am given to understand, Mr Barton was dismissed with a payment in lieu of notice but that does not detract from the fact that the dismissal itself was for, or said to be for, misconduct. 11Misconduct is a serious matter with potentially serious consequences and there is an obligation on the employer to actually make out the misconduct, there is authority for that, the Pastrycooks' case, Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70, is probably the leading case of that kind, and indeed the employer has to make out the misconduct on the balance of probabilities at a level of satisfaction that is generally referred to as the Briginshaw level, drawn from Briginshaw v Briginshaw (1938) 60 CLR 336. That is to say, it has got to be made out in a convincing way. 12Nevertheless, of course, the party who is bringing the appeal has to satisfy the Commission and persuade the Commission that the decision that was made was unfair and warrants being reversed. 13Now, here, the misconduct that actually gave rise to the dismissal was conceded as a matter of fact by Mr Barton. Conceded with, I hasten to add, mitigating circumstances advanced to the Commission. 14The dismissal was actually carried out for two things: (1)That Mr Barton failed to safeguard his employee pass, and (2)That when asked about it in interview by Mr Welzel he lied about it and Mr Barton says that, yes, those two things are true in this way, that he failed to safeguard necessarily because somebody else, in this case, his partner who could reasonably be expected to have access to his personal possessions in his home, that would be usual to most couples, was able to find his pass and use it. 15Secondly, Mr Barton does say that he lied - and I observe that Mr Barton accepts that the transcript of the relevant interview with Mr Welzel is a fairly accurate transcript of what is said - and lied in an elaborate and protracted way to his employer about those circumstances in which someone else came to use his pass. 16Now, within 24 hours Mr Barton gave another version in writing of that matter, which is the version he and all the evidence in his case today advances and says is in fact the true version. That is, the proposition that Mr Barton gave his card to his partner to use is withdrawn, and the alternative proposition that she found it and used it without his knowledge is advanced, and it is on the second proposition that the actual dismissal was effected. It was effected because that of course means that in his initial disciplinary interview or accountable interview to Mr Welzel, Mr Barton lied, as he now concedes that he did and explains why he did. 17So on his own best case Mr Barton is coming before the Commission in circumstances where he has been dismissed for misconduct which involves a failure to safeguard his pass and also lying, and concedes to the much more important aspect of those things, the lying. 18I can say here and now that in my view whilst technically Mr Barton obviously did fail to safeguard his pass because someone else was able to find it and use it, I would not have regarded that as an offence warranting any serious punishment and certainly not of itself a dismissal. 19But the other limb of the matter is something else. 20Mr Barton on his own account lied, and as I say, in what reads to be a calculated and elaborate manner to his employer about the circumstances in which the pass came to be in somebody else's possession. 21He says he had reasons for that, and good reasons. He also says he panicked about it. I will come back to those matters in a minute. 22Mr Larosa in his evidence said, 'Which of those accounts am I to believe?' and I can understand that an employer might well say that. 23It is the case that trust and confidence is an essential element of any contract of employment. 24It is the case that, even with compelling personal reasons, an employee who lies to his employer takes upon himself the risk that that lie will be sufficient to rupture the employment relationship. 25It is the position in this Commission and also, relevantly, before the Transport Appeals Board - I can think of Bibby v Rail Corporation New South Wales [2013] NSWTAB 4 as a case in point reasonably recently - that with the best will in the world, someone who lies to their employer about a matter of importance puts their head on the block and the employer can lower the axe if that is done. 26In this case I do not find, I do not need to find and I do not find as fact the alternative proposition advanced to me by Mr McDonald today. That is, that the letter of 11 October was in fact a deliberate lie by Mr Barton to try and preserve his job, and that by inference he has then involved his partner Ms Luz in further lies to try and bolster that position. I do not find any of that occurred as a matter of fact. 27I accept the evidence given by Mr Barton in these proceedings that his first account was a lie and then he told the truth, "came clean' to use his own words. 28I find, therefore, that Ms Luz's involvement in this whole matter is entirely innocent, that she did nothing wrong. She found a pass and used it not knowing that she could not, and she is not complicit in lying to the STA or to this Commission. In that regard nothing can be said adverse to Ms Luz about her conduct that has come under scrutiny in these proceedings, and I want to make that clear. 29Another alternative conclusion might well, however, have been reached. Another decision-maker might well have thought that if Mr Barton's account of panicking and telling a lie to his employer because he was alarmed that he or his partner might go to gaol were really the truth, he would necessarily have raised that with his union delegate, Ms Sinclair, when they had a chance to speak before going into the interview. 30Another decision-maker might well have thought that Ms Sinclair's absence to give evidence might be telling. It might be thought that an inference based on the rule in Jones v Dunkel (1959) 101 CLR 298 might be drawn against the applicant's case for not bringing her when she could have assisted Mr Barton in his case. 31Another decision-maker might have thought a range of things of that kind but I do not make findings of that kind and I do not find against Mr Barton on the alternative basis advanced to me by the STA. 32What the Commission has before it is therefore this. 33Mr Barton gives evidence that he told a lie to his employer about something that he knew was a serious matter. He knew that because he had just been told in words of one syllable that it was so; indeed he told the Commission that he understood that it was a very serious matter. And Mr Barton says, 'I thought it necessary to protect my partner at all costs'. 34I understand that a man might well think that, and perhaps all of us put in that situation might think, 'I must say and do whatever I can to protect my partner'; it is not an unworthy response from a man. 35But an employee who is answering an employer's questions about something he knows is serious, if he chooses to take that course - and I do not criticise a person personally for taking a view that their partner should be protected - must accept that there is the potential for a consequence if that protection takes the form of lying to your employer about a serious matter. That is because a necessary component, as I have said, of any employment relationship is the relationship of trust and confidence. 36You may choose to lie to your employer for a good reason but if you do you have to accept that one of the courses of action validly open to the employer is to terminate your contract, to wit, to dismiss you. 37And it is rare that any Industrial Tribunal in this country will restore the employment relationship in the circumstances where there is a finding of fact that an employee has lied to an employer. The usual position is that adopted by the Commission in Mason v Electricity Commission of NSW t/a Pacific Power (1995) 62 IR 436, that is, that dismissal for such an action will not be unfair. Here that finding of fact is not only open to me, it is compelled because it is the appellant's own evidence. 38I give no weight at all in this case to the proposition that Mr Barton had an adverse disciplinary record. I do not adopt that approach to call into question the bona fides of Mr Larosa who gave evidence about that orally. Rather, I do so because the STA had within its power to bring, pursuant to the directions I gave about giving evidence in this matter, all the evidence it may have wished to bring about Mr Barton's previous record before the Commission. It did not do so. Only in oral evidence today was anything said about it of any concrete nature, and accordingly, I wholly disregard that. It simply is not made out to the level of satisfaction I would require to allow it to act upon my judgment in this regard. Alternatively, I do not admit the evidence brought contrary to and in breach of the directions I made. 39What I have found, however, is - and as I say, it is a conclusion that is compelled upon me - that Mr Barton chose to lie about a serious matter to his employer. 40In those circumstances, I cannot uphold the appeal to restore the employment relationship. 41The appeal will be disallowed, save only for one thing. 42The decision I make is that I direct the STA to accept, if it is provided within 24 hours of now, that is, 4:00pm today the 25th, a written resignation provided by Mr Barton. If that is provided, I direct that that be accepted and that the STA's records record ultimately that Mr Barton resigned his employment. If that is not received by 4:00pm tomorrow then the dismissal stands. In all other respects the appeal is disallowed. Those are the orders I make. PETER NEWALL 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: 19 June 2014