Campbell v Tarong Energy Corporation Limited [2002] QIRC 151 (2002) 171 QGIG 146

146 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 18 October, 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act – s. 74 – application for reinstatement Kevin William Campbell AND Tarong Energy Corporation Limited (B1121 of 2001) COMISSIONER BECHLY 9 October 2002 Extension of time sought and granted – Goods belonging to respondent recovered from applicant’s property by police – Applicant sent home on full pay – Final warning given – Goods belonging to respondent recovered at second property – Interview requested by respondent – Applicant advised by solicitor to cease communication – Applicant claims mental state not up to interview – Payment ceased – Refusal by respondent to pay sick leave entitlements – Applicant dismissed – Quantity and value of goods reasonable cause for dismissal – Refusal of sick leave entitlements not unfair – Application refused. DECISION Mr Kevin William Campbell was employed as a Power Worker by Tarong Energy Corporation Limited from 19 June 1990 until his employment ceased on 8 November 2000. -- 1 of 6 -- 18 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 147 He filed an application for reinstatement on 26 June 2001. This application was resisted as it had been filed outside the legislated time period within which such applications should be filed. The applicant was granted an extension of time to file. That decision was appealed and the appeal was rejected. The application was eventually dealt with in proceedings which commenced on 29 July 2002. The background of this application can be summarised in the following form – On 21 July 2000 the respondent was informed by an anonymous person that goods she knew to have been stolen from Tarong by Kevin Campbell were in the possession of a male who lived in Agnes Waters near where Mr Campbell owned a house (Mr Campbell had two properties, one at Agnes Waters and one at Nanango). The caller, and the next day, the person said to be in possession of the property, again contacted the respondent and were advised to contact the police in Agnes Waters. There was a further call to the respondent on 24 July 2000 and the same advice to contact the police was given. Sometime later the respondent was contacted by Agnes Waters Police and informed that they had collected some goods. On 17 August Senior Constable Peter Boyce from Nanango attended the premises of the respondent at Tarong and examined the contents of the store area. On Wednesday 20 September Senior Constable Boyce informed the respondent that a search had been carried out at Mr Campbell’s house at Nanango on the previous day and that some small items, drill bits and pop rivets, had been found which Mr Campbell acknowledged came from Tarong. Mr Campbell was sent home on full pay and on Thursday 21 September Mr J. Wells, the respondent’s Human Resources Manager contacted him at home and through his wife arranged an interview at 2:30 p.m. Mr Wells suggested that the union delegate be present but Ms Campbell indicated that Mr Campbell didn’t want that to be the case as he wanted to keep the matter as quiet as possible. The meeting took place at 2:30 p.m. as arranged. Mr Campbell attended with the union delegate. On being asked about property in his possession Mr Campbell stated that he had taken a few drill bits home on the previous Friday to do a job at his sister’s house in Brisbane. On request he described other property confiscated which was the property of the respondent, this being pop rivets and a spirit level. When asked to confirm that that was the full extent of any property of the respondent in his possession he referred only to some white cloth he used as a handkerchief and acknowledged that what he had done was wrong. At the conclusion of the meeting Mr Campbell was told that some time would be needed to consider the matter and he was again sent home on pay. On Monday 25 September the respondent determined on the basis of what Mr Campbell had told them and the small amount of material involved that Mr Campbell should be given a final warning. This was conveyed to Mr Campbell that day at 1:50 p.m. Earlier attempts to do so that day were not successful. When this information was conveyed to Mr Campbell by the General Manager of Operations, Mr Campbell sought to take one week’s holiday leave to urgently attend to a property that he owned at Agnes Waters as someone had broken into the property and was trying to burn it down. Mr Campbell, during the hearing, denies that he was told that he would be placed on a final warning but it was accepted by him that the issues arising from the search by police at his Nanango home had been resolved and that his employment was intact. The respondent was aware that Mr Campbell owned a property at Agnes Waters and, as a result of the earlier anonymous information to it and the police and the police search of the Nanango property, that a further search was intended to be conducted by police at Agnes Waters. It was not known by the respondent when the search was to take place. Mr Campbell’s request for annual leave was approved. It is the General Manager’s evidence that Mr Campbell advised that he was thinking of selling up and moving on and asked if he might get a redundancy to help him to start his life elsewhere. Voluntary early retirement was also sought. The General Manager’s evidence is that he advised that they were in the middle of the investigation and it was something that they could consider on his return from leave. Mr Campbell denies much of the evidence of those matters but he also stated that he has little recollection of much of what happened at this time because of his mental state during the time that the matter unfolded. At 3:10 p.m. on Monday 25 September the Agnes Waters police informed the General Manager that they had searched Mr Campbell’s property and had confiscated some gear. The police asked who “Austa” was and they were advised that it was a former name of the respondent. It was then decided by the respondent to request Mr Campbell to attend an interview about this new development and, on Thursday 28 September Mr Wells contacted Mr Campbell when he was at Agnes Waters and advised him that the property had been searched and goods confiscated which were suspected of being the property of the respondent. Much of Mr Wells’ version of the phone contact was either denied or could not be recalled by Mr Campbell. In the light of Mr Campbell’s evidence as to his capacity to recollect events subsequent to the police search of his Nanango property on 19 September I am inclined to accept the recollection of Mr Wells. His evidence is that Mr Campbell said that he would be back in Nanango on Friday (29 September) and was prepared to have an interview with the respondent on that date. He was told that that conflicted with enterprise bargaining negotiations and Mr Campbell said that he would ring back later in the day to discuss alternatives. Mr Campbell further commented that he had bought the Agnes Waters property from someone who worked for “CBH” and that it had a great deal of material left on it, so much so that he did not need to bring a thing to finish the house off as it was all there including rolls of lagging, the same that was used at Tarong Powerstation. -- 2 of 6 -- 148 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 18 October, 2002 He further commented that he would be selling both properties and moving and that someone had it “in for him”. He also commented that the house had been broken into possibly to plant the things the police had confiscated. Mr Wells states that he made an arrangement with Mr Campbell that he (Mr Campbell) would phone Mr Wells on his return to Nanango and that a conference would be held when Mr Campbell would bring whatever material that might confirm his explanation. Both Mr and Mrs Campbell deny that such an arrangement was made. At 5:05 p.m. that day Mr Wells again rang Mr Campbell. Mrs Campbell answered and informed Mr Wells that they had received advice from a solicitor to have no further communication with the respondent. She gave Mr Wells the number to contact the solicitor. When Mr Wells contacted the solicitor that afternoon he was advised that a recommendation had been made that Mr Campbell have no further contact with the respondent as communication about the matter could be prejudicial. At this point in time the solicitor had not met Mr Campbell nor had he taken full instructions from him. He was unwilling to advise Mr Campbell to participate in an interview until he had taken full instructions, especially as the matter was the subject of a police investigation. Mr Wells indicated that such a course of action could lead to Mr Campbell’s dismissal. On the following day, Friday 25 September, Mr Wells tried several times to contact the solicitor who later returned the call. The solicitor by that time had interviewed Mr Campbell and met him for the first time. He formed the view that he was in an extremely unsound mental condition. He so advised Mr Wells and indicated that Mr Campbell would get a medical certificate on the following Monday. Mr Wells advised the solicitor that a certificate from a General Practitioner would not be acceptable in the circumstances but that a certificate from a psychologist who could properly assess fitness to work on his usual duties may be acceptable. He suggested an extension of the annual leave which Mr Campbell was currently taking or a period of unpaid leave and referred the solicitor to the Employee Assistance Programme. The solicitor informed Mr Wells that he would discuss the matter with Mr Campbell and advise in the following week. Payment to Mr Campbell ceased from the following Monday, 2 October 2000 and on Wednesday 4 October Mr Wells phoned and later spoke to the solicitor. Discussion took place over the refusal to pay sick pay and the requirement for Mr Campbell to participate in an interview prior to resumption of duties. Mr Wells informed the solicitor that Mr Campbell had control of his destiny in that if he allowed an interview his anxiety would not exist and that he would be able to return to work if he had explanations (for property alleged to be in his possession). It was again stated that, in the absence of an interview or explanation, it was open to the respondent to dismiss Mr Campbell for misconduct. On 5 October an inspection of confiscated property from Mr Campbell’s residence at Agnes Waters was made by the respondent and property either clearly marked as belonging to the respondent or identical to items stocked in the respondent’s tool stores was identified. Included in this inspection were items collected by police as a result of the earlier anonymous calls. It was not until Thursday 12 October that the respondent was provided with a certificate from a medical practitioner about Mr Campbell’s absence. This certificate was written on Tuesday 3 October and was effective from that date and up to 17 October and declaring that Mr Campbell would be unfit for duty because of a medical condition. On 12 October also the respondent wrote to Mr Campbell outlining some events which had occurred since 28 September and informing him that goods confiscated by the police had been viewed and that an interview was sought “about this serious matter”. On 17 October the respondent was advised by Mr Campbell’s solicitors that he was in hospital suffering from a nervous disorder and that he had elected not to participate in a police recorded interview in accordance with his right to remain silent. He was therefore unlikely to agree, upon his recovery, to participate in an interview with the respondent about the goods found in his possession. Mr Campbell’s solicitor acknowledged prior advice from the respondent that there may be consequences for Mr Campbell if he did not agree to participate in a conference about the matter but advised that his “client’s right to remain silent was one of the most important liberties in our political/legal system” and “that it would be grossly improper and unlawful for our client to be subjected to consequences as a result of electing to exercise such right”. On 18 October the respondent advised Mr Campbell’s solicitor that as, on the information available to it, it appeared that Mr Campbell had committed a serious misconduct which could result in dismissal, it declined to make available any paid sick leave entitlement before a review of the matter. His inability to participate in an interview at the time was acknowledged but an inquiry was made as to whether it was Mr Campbell’s intention to ever participate in an interview about the matter. On 3 November Mr Campbell advised through his solicitor that he did not intend to respond to the various allegations earlier raised by the respondent in correspondence of 26 October and that no further correspondence would be entered into. On 8 October the respondent wrote to Mr Campbell in the following terms: “Dear Kevin Since we last wrote to you on 12 October 2000, we have exchanged correspondence with your Solicitor. In that correspondence, we indicated that if you were not prepared to participate in an interview, we would make a determination based on the information before us. On 8 November 2000, we received further correspondence from your Solicitor, advising that there would be no further correspondence with us. Accordingly, we now need to determine the matter without the benefit of your input. Having inspected goods in the custody of Agnes Water Police, we believe you were in possession of Tarong property, removed from this site without authorisation. We believe, accordingly, that you are guilty of a serious and wilful misconduct, of sufficient magnitude to warrant your summary dismissal. Accordingly, this letter is to advise you that from close of business on 8 November 2000, you will cease to be an employee of Tarong Energy Corporation. -- 3 of 6 -- 18 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 149 If you have any personal effects on site, they will be left at our security office, from where you may collect them. We will advise ESI about your dismissal and ask them to liaise directly with you about your entitlements. Yours sincerely, Gary Campbell General Manager Operations and Maintenance”. Conclusions Crystallised, the argument for the applicant is that there was a defect in the manner or process of dismissal and of the investigation which preceded the dismissal which is said to be revealed by the inconsistency of the respondent’s actions through the course of events which unfolded. This belief stems from the view taken that the respondent had not disclosed fully to Mr Campbell the extent of its knowledge about the anonymous source of information which initiated the police investigation or that there was in train a wider investigation at the Agnes Water property when it required him to provide full disclosure about any of the respondent’s property in his possession. The initial meeting was therefore oppressive in that the respondent knew far more than it discussed with Mr Campbell. Further, it is said that a decision about a dismissal should have been taken by the respondent at the time it was advised by Mrs Campbell (3 October) that a doctor’s certificate had been obtained and that, on solicitor’s advice, Mr Campbell would not discuss the matter with the respondent. It is then said that the respondent then became focussed on whether the information in its possession was such as to warrant dismissal rather then endeavouring to get Mr Campbell to meet and discuss the issues. In other words the real reason, it is alleged, that the respondent terminated Mr Campbell is because he refused to participate in an interview process. On Mr Campbell’s behalf it is put that a fair process would have involved the employer obtaining what information it and then fairly putting that information on a once and for all basis to Mr Campbell. The argument then went on to address the issue of substantive fairness and whether within the employer’s knowledge was sufficient to justify the dismissal. For the respondent it is argued that: • Mr Campbell, through his refusal to discuss the matter, left the respondent with no choice but to terminate and that termination was reasonable and well-founded; and • the evidence in the proceedings demonstrated that Mr Campbell was guilty of serious misconduct and, had all that was put before the Commission during the trial ever been put before the respondent in September/October 2000 the respondent would have been justified in summarily dismissing Mr Campbell at that time. At the interview with the respondent’s representatives, Mr Wells the General Manager and Mr Gary Campbell on Thursday 21 September Mr Campbell gave a version of his possession of company property which differed markedly from that given, and recorded on tape, to police on Tuesday 19 September. The respondent’s representatives were unaware of the content of the tape relating to the reasons given by Mr Campbell to police as to the property in his possession. Mr Campbell assured the respondent that he had no other property of the respondent in his possession. Based upon the version of events given by Mr Campbell, with some reservation, the respondent decided to take no disciplinary action other than to give Mr Campbell a final warning. A resumption of work of Mr Campbell from paid suspension was arranged on Monday 25 September when he requested the rest of the week as annual leave to check on his Agnes Waters property. By Wednesday 28 September the respondent had been informed by police that a search of the Agnes Waters property had taken place and goods seized which appeared to be the property of the respondent. Mr Wells contacted Mr Campbell by phone on 28 September and had a discussion with him about the seized property and, according to Mr Wells, arranged to have a meeting with him when he returned to Nanango. Mr Campbell does not recall this and much of other events. I am inclined to accept Mr Wells’ version as the most likely, that is that Mr Campbell would contact him later in the day to arrange an interview. When no such contact was made Mr Wells attempted to contact Mr Campbell at 5:05 p.m. and was informed by Mrs Campbell that on solicitor’s advice Mr Campbell would have no further communication with the respondent and that Mr Wells should contact this solicitor. The reasonableness of the respondent’s actions from this point need to be considered. That is, the action taken by the respondent from this point and up to the dismissal itself. It is argued that the respondent acted unreasonably through incessant demands, particularly from Mr Wells, that Mr Campbell participate in an interview about the issue and further, because of the refusal to grant paid sick leave for the absence commencing on Monday 2 October. The matter of the “incessant demands” needs to be put to rest. The respondent, through Mr Wells, contacted Mr Campbell once only prior to its subsequent dealing which were with his solicitor, Mr Kuskie. A second contact was made on 28 September, but with Mrs Campbell only. It is proposed that “incessant demands” of the respondent were the cause of Mr Campbell’s later illness. This is not supported by the evidence of Dr Kluiver, a psychiatrist who treated Mr Campbell at some stage, whose evidence is that key features that stood out about Mr Campbell’s profoundly depressed state were his focus on the accusation of having stolen tools and that he and his wife were convinced that the accusations were false and that he took great offence to the fact that this had occurred. The issues, according to Dr Kluiver, related to the accusation and the injustice, as Mr Campbell described it, which were prominent in his mind. Mr Campbell’s solicitor first met Mr Campbell on Friday 29 September but appears to have been retained by him a little earlier than that, probably the previous day. In his affidavit evidence, he states that he was instructed that Mr Campbell was receiving incessant demands from his employer, particularly from Mr Wells, wanting him to participate in a conference. -- 4 of 6 -- 150 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 18 October, 2002 At this time there had only been one contact between Mr Wells and Mr Campbell and one with Mrs Campbell about the Agnes Waters matter. The instructions were quite inaccurate. There was no later direct contact between Mr Wells and Mr Campbell, although on 12 October Mr Wells wrote to Mr Campbell advising that seized goods had been viewed and sought an interview and indicated that, given the difficulty of contact with Mr Campbell, advised that a determination would be made on the information available if a meeting could not be arranged. Also, on 8 November the respondent wrote to Mr Campbell terminating his employment. What did occur on and after 11 October was contact initiated by Mrs Campbell with the respondent through the respondent’s Occupational Health Nurse, Mrs Gunston. The respondent was contacted on some seven occasions by Mrs Campbell. A range of issues were discussed with there being relatively limited comment from the Occupational Health Nurse about desirability of a meeting to clarify the matter. Mr Campbell’s health was a major subject of conversation. With respect to the matter of Mr Campbell’s illness and the proposed interview, the circumstances changed with the passage of time. Both Mr and Mrs Campbell claim that Mr Campbell was unfit emotionally from the time of the police search of the Nanango house on 19 September. This is not supportable on the evidence before me. Neither the contents of the tape recording of that event nor the various conversations between the respondent and Mr Campbell up to and including 28 September reveal any mental incapacity. The incapacity was first raised by Mr Campbell’s solicitor who appears to have made a medical diagnosis as to the soundness of Mr Campbell’s mind and determined that he was unfit to take part in any discussion with the respondent. On Friday 29 September, the first day that he had met Mr Campbell, he informed Mr Wells that Mr Campbell would be seeing a doctor on the following Monday and would get a certificate to that effect. At that point in time the respondent’s reservation about acceptance of that diagnosis and requirement for psychologist’s report are understandable. Although there was a certificate stating that Mr Campbell was suffering from a medical condition on Tuesday 4 October, it was not provided to the respondent until 12 October. Before that date on 4 October the respondent put Mr Campbell on notice, through his solicitor, that his employment was subject to termination for misconduct unless an explanation was provided for the goods confiscated from the property at Agnes Waters. With respect to the property seized from Agnes Waters there were various explanations given during the period from 28 September until the conclusion of the hearing. Mrs Campbell informed the respondent through the Occupational Health Nurse that it was not theirs but that it came with the house that previously belonged to a person who had worked at the Tarong site. On another occasion she said that Mr Campbell had borrowed the material with a person’s permission but was unwilling to identify the person, as Mr Campbell did not want him getting into trouble. On another occasion it was suggested by Mr Campbell that the goods had been placed on the property by someone who wished to harm him. While a small amount of the goods seized can be positively identified as belonging to the respondent the bulk of the remainder contain no such identification but are identical as to type or style or special application as those used by the respondent. A clear procedure for borrowing tools and equipment from the respondent had not been followed by Mr Campbell on his own admission, although excused by him that on an occasion he stated that he could not find the documentation to do so. The respondent had a good reason to believe that the goods had been removed without authorisation. On a consideration of the evidence, the quantity and value were such as to give reasonable cause for dismissal. I accept that it is likely that a significant quantity of the goods seized by police were the property of the respondent. The actual dismissal took place on 8 November, some five weeks after the matter first arose. Had Mr Campbell attended an interview with the respondent on 29 September it is problematical whether employment would have continued after that date. The evidence of the respondent is that, at that time, with what was then known, if a reasonable explanation had been provided, the employment may not have been terminated. However, the later known differences in versions given to police by Mr Campbell is likely to have changed that view. On a consideration of all the evidence it seems unlikely that Mr Campbell would have been able to satisfy the respondent with a reasonable reason for possession when consideration is given to the volume and value of the material and the different reasons given to police and the respondent for the property earlier seized at Nanango. The delay in the decision to terminate was caused by the instruction given to Mr and Mrs Campbell on 28 September by the solicitor not to participate in an interview about the matter. At that point Mr Wells held a reasonable belief that Mr Campbell was capable of such an interview. The respondent, reasonably, refrained from terminating Mr Campbell until all prospects of an interview on the matter were exhausted. This became evident in correspondence of 3 November from the solicitor advising that no further correspondence would be entered into and that his client did not intend to respond to allegations made by the respondent in earlier correspondence of 26 October 2001. The refusal to grant payment of the two weeks’ sick leave remaining available to Mr Campbell is said to have been unfair because, on expiry of such leave he would have been entitled to a paid absence leave for up to two years from the superannuation fund. No application for such benefit was able to be made because paid sick leave entitlement had not expired. There is no conclusive evidence that such a benefit would have been made available to Mr Campbell in the circumstances of this matter. While there was some delay in payment to Mr Campbell from 3 September, he was paid for the absence from annual leave and long service leave accruals. These would have had to be paid if the employment was terminated as early as 29 September 2000. The action of not paying for part of the absence from accrued sick leave entitlements does not constitute unfairness with respect to the final termination. As above stated there is considerable doubt in my mind as to access to any long term superannuation benefit on the material before me. The argument that the respondent acted in an oppressive manner in not disclosing information that may have been available to it is rejected. At the time of the first interview the respondent had knowledge only of anonymous allegations made both to it and the police. -- 5 of 6 -- 18 October, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 151 The interview concerned actual retrieval of material discovered by police at the Nanango residence. Nothing concrete was known about the Agnes Waters property. Mr Campbell was not dismissed after the first interview. An opportunity was provided to discuss the material actually recovered from the Agnes Waters subsequent to the first interview. It is the rejection of the opportunity to discuss that material which led to the eventual dismissal. As to the material found at the Agnes Waters property, it was eventually argued that it was left on the property by the previous owner. At some stage it was alleged that the previous owner was a person of not good character and that drugs were involved. None of this was substantiated when the previous owner was called to testify as to what was left on the premises. The previous owner, who cleared the property after the sale, gave quite believable evidence that goods/tools alleged to belong to the respondent were not left on the Agnes Waters property after the sale as alleged by the Campbells. Charges relating to the tools etc. were laid on complaint of the respondent. Hearing of these charges was delayed considerably because of Mr Campbell’s condition. They were not proceeded with. This fact does not make the respondent’s actions in terminating Mr Campbell months beforehand unfair. Mr Campbell does not seek reinstatement but seeks compensation for what is said to be an unfair dismissal. Taking into account all of the evidence of events which occurred up to the dismissal, I am unable to conclude that the dismissal was harsh or unfair or unjust. I do not take into account evidence and material related to later anonymously provided material believed by Mr Campbell to have been from his stepdaughter, and which was alleged to have been material stolen by Mr Campbell from the respondent and later given to her. The application is refused. R.E. BECHLY, Commissioner. Released: 9 October 2002 Appearances: Mr A. Stobie (instructed by Mr P. Kuskie of Roberts & Kuskie) for the Applicant. Mr A. Herbert (instructed by Mr J. Franken of Livingstones [Australia]) for the Respondent. -- 6 of 6 --