Devine v Moreton Bay Regional Council [2014] QIRC 155

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Devine v Moreton Bay Regional Council [2014] QIRC 155 PARTIES: Devine, Alan John (Applicant) v Moreton Bay Regional Council (Respondent) CASE NO: TD/2013/92 PROCEEDING: Application for Reinstatement DELIVERED ON: 2 October 2014 HEARING DATE: 10 September 2014 MEMBER: Deputy President Kaufman ORDERS: 1. Application for Reinstatement is dismissed. CATCHWORDS: CASES: APPEARANCES: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment Industrial Relations Act 1999, s 73, s 77 Mr A Devine, the Applicant, in person Mr D Williams, Solicitor of Minter Ellison, for the Respondent Report on Decision (as edited) In giving his decision from the Bench on 10 September 2014, Deputy President Kaufman stated: This is an application seeking a remedy, reinstatement, by Mr Alan Devine in relation to the alleged unfair termination of his employment by the Moreton Bay Regional Council. A dismissal is unfair according to section 73 of the Industrial Relations Act 1999 if it is harsh, unjust or unreasonable or for an invalid reason. In this matter, the facts are not in contention. Several affidavits sworn on behalf of the respondent have been received without objection and Mr Devine has not sought to suggest that there are any inaccuracies, or at any event, any significant inaccuracies in any of those affidavits. He has allowed all of them in without objection and has -- 1 of 3 -- 2 availed himself of the opportunity to cross-examine only in the most limited circumstances, so that makes my fact-finding task relatively easy, because there's really no dispute as to the facts. They are as stated by the respondent. Mr Devine was employed by the Moreton Bay Regional Council as an acting ganger or leading hand within its engineering, construction and maintenance department. He was responsible for a team of two employees and himself - he and two employees made up that team. The facts in a nutshell are that on the 6th of September 2013 Mr Devine and his crew absented themselves from where they should have been and went to a TAB at around 1 o'clock in the afternoon, their lunch hour having finished at 12.34. They were caught and they were sacked. There is no question that Mr Devine knew that going to a TAB in working time was contrary to the Council's code of conduct and was wrong. He first admitted it to Mr Morris when he was confronted, but then systematically denied it thereafter during interviews and show cause proceedings. I accept that Mr Devine maintained the lie in his application for reinstatement which was formally sworn before a JP. As I observed earlier, he further attempted to obfuscate the issue in front of me this morning. I have no doubt that Mr Devine and the others went to that particular location in order to place bets on the TAB. I accept, as Mr Devine said, that he also intended to go to the bank to withdraw $300 in cash. However, there were bank ATMs - NAB ATMs much closer to where Mr Devine was working. Had he merely wanted to withdraw cash he could easily have done so. Indeed, he could have waited until 3.30 after his work day had finished. Mr Devine does seem to accept that his intention in going to that particular location was, at least partly, motivated by going to the TAB and I have no doubt that that was the case. The respondent has provided detailed written submissions and I adopt those submissions, because they are accurate insofar as the factual matrix is concerned and because there is no dispute as to the facts. They also accurately set out the law and the matters to which I need to have regard. In particular, at page 17, the matters to which I'm required under section 77 to have regard are set out, and I have had regard to those matters. I am satisfied that Mr Devine was notified of the reason for his dismissal and the dismissal related to Mr Devine's conduct - that conduct being his attendance at a TAB during working hours in work gear that was obviously that of, or that could be identified as belonging to, his employer, and which identified him as an employee of the Council. The conduct was in breach of the Council's code of conduct. In any event even had there been no code of conduct it was misconduct to utilise the employer's time to go to place a bet during working hours. It's akin to theft - it's a theft of the employer's time and it would have justified summary termination of employment. However, summary termination did not eventuate and Mr Devine received pay in lieu of notice. I'm also satisfied as set out in paragraph 86 of the respondent's submission, that this conduct occurred while Mr Devine was acting as a leading hand and had particular responsibility to ensure that those working with him conducted themselves appropriately and, indeed, he should have provided a lead role which he demonstrably failed to do. The misconduct occurred during ordinary working hours -- 2 of 3 -- 3 and in circumstances where Mr Devine knew that the conduct was unacceptable. I also accept that he continued to lie about attending the TAB. I don't accept Mr Devine's reasons for doing so as being merely to protect those who he professed he wanted to protect. In the circumstances the termination of Mr Devine's employment was for a valid reason which did relate to his conduct. It is submitted on behalf of the respondent that he was warned about the conduct and I accept that submission. Mr Devine was not warned specifically about that particular occasion but at toolbox meetings and by the terms of the code of conduct of which he was aware, he was warned that conduct of that nature could result in disciplinary action. As I've said, in my view, the conduct that was engaged in amounts to misconduct and it is not necessary in relation to misconduct that there be a warning - it is like being caught with your hand in the till. I'm satisfied that Mr Devine was given an opportunity to respond to the allegations about his conduct. I also have regard to other matters that I consider relevant under s 77(d). Again, those matters have been referred to page 19 and onwards in the respondent's submissions. I've already commented about what I find to be Mr Devine's dishonesty. Unfortunately his clean record as an employee was not sufficient to countervail the other factors that were taken into account in determining that his employment should be terminated by the Council nor, in my view, do they weigh sufficiently in Mr Devine's favour to warrant a finding that his good record renders the termination of his employment unfair. I have made comments about the conduct entitling the respondent to summarily terminate Mr Devine's employment and that was referred to by the respondent at page 21 of its submission and also to the fact that there were ATMs closer than the one that he went to reinforces the finding that he deliberately went to that particular ATM because it was close to the TAB. The Council did not take into account Mr Devine's alleged previous repeated visits to the TAB during working hours. I must say that I'm satisfied on the balance of probabilities, to what's called a Briginshaw standard, that is, I'm satisfied to a high degree on the balance of probabilities, that there was a repeated course of conduct that Mr Devine and his team had attended at the TAB during working hours on the three Fridays prior to the incident involved. I make that finding based on the affidavit of Mr Henkel and Ms Barwin's evidence and, particularly, exhibit R10. However, I place very limited weight upon that because I'm not convinced that it was material that became known to the employer after the termination of Mr Devine's employment. It might have in the strict sense, but it is something that the employer should have known and should have investigated and probably should have put to Mr Devine at the time of the termination of his employment. It certainly would have strengthened the case for terminating his employment in a way that may have made it clear that the employment relationship really had to be brought to an end. But I'm satisfied that in relation to that single instance that resulted in the Council terminated Mr Devine's employment, the termination was valid, was not harsh, was not unreasonable nor unjust. Accordingly, Mr Devine's application for reinstatement is dismissed. -- 3 of 3 --