Chalker v Brisbane City Council [2002] QIRC 98 (2002) 170 QGIG 317

5 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 317 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Gary Owen Chalker AND Brisbane City Council (No. B1834 of 2001) COMMISSIONER FISHER 24 June 2002 Dismissal – Federal Award employee – Commission has jurisdiction – Anomalies in employment history – Applicant previously imprisoned over multiple offences – Referee unable to be located – Applicant found to have provided false and misleading information – Report prepared including a recommendation for summary dismissal – Applicant resigns – Applicant argues constructive dismissal – Conflicting evidence – Case Law – Applicant seeking redundancy payment – Applicant not constructively dismissed – Selection Panel policy – Mobile phone referee checks – Application dismissed. DECISION Gary Chalker has filed an application seeking reinstatement to his former position of Accounts Receivable Officer at Brisbane Water – Billing Services, Brisbane City Council. Mr Chalker was employed in that position from 1 August 2000 until his resignation on 27 September 2001. Mr Chalker claims he was constructively dismissed from his position. The Commission notes that Mr Chalker was employed under the terms of the Brisbane City Council Salaried Staff Award, an award of the Australian Industrial Relations Commission. No issue was taken by the respondent of whether the Queensland Industrial Relations Commission (QIRC) has jurisdiction to hear the application, because of the applicant’s federal award status. In any event a member of this Commission has decided that the QIRC has jurisdiction to hear reinstatement applications lodged by the federal award employees: D’Arcy v Amalgamated Television Services Pty Ltd (2002) 169 QGIG 185. If required, the Commission as constituted would have applied the same reasoning as Blades, C. in the D’Arcy matter to the present matter. The Facts The broad facts of this matter are not in dispute. Mr Chalker applied for the position of Accounts Receivable Officer through an employment agency. A panel of three people from the Council interviewed him. Tendered to the Commission were the following documents: • Summary of Applicants for short listing – a document that rated each applicant against the selection criteria for the purposes of short listing. -- 1 of 4 -- 318 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 July, 2002 • Individual Assessment – a document used in the interview process that rated Mr Chalker against the selection criteria. • Summary – a document that reported the reasons the selection panel rated Mr Chalker at particular scores against the selection criteria. It also included referee comments about the extent to which he matched each of the selection criteria. • Two referee reports – one written from a public service officer from the then Department of Employment Training and Industrial Relations and one recording a verbal report given by a Brian Hines over a mobile telephone. • Selection Report – a pro forma document that records such details as the position, advertisements, summary of selection process, recommended applicant and pay details and the names and signatures of the Selection Panel. Mr Chalker was the successful applicant and was appointed to the position. There do not appear to be any issues of work performance in this matter. The chain of events culminating in Mr Chalker’s resignation was commenced by information received by Jennifer Leis, Acting Revenue and Systems Manager, Billing Services, which was passed to Roger Clarke, Principal Corporate Investigator with the Brisbane City Council’s Corporate Investigation Unit. On receiving the information from Ms Leis, Mr Clarke called for Mr Chalker’s file from the employment agency. From information contained therein, Mr Clarke telephoned a person who claimed to be Michelle Wright, Mr Chalker’s stepdaughter. The conversation between Mr Clarke and Ms Wright was recorded and a transcript of that conversation was attached to Mr Clarke’s statement. In the conversation with Mr Clarke, Ms Wright made a number of allegations about Mr Chalker including that he had spent two years in a Darwin prison for fraud and embezzlement of a company he had worked for. Following that conversation, Mr Clarke re-examined Mr Chalker’s file from the employment agency and noticed that one of Mr Chalker’s referees was listed as Mr Brian Hines, Managing Director of T.L.C. Electrical Pty Ltd. The file contained a note that Mr Hines had claimed Mr Chalker had worked for T.L.C. Electrical Pty Ltd from 1983 to 1997. The file was also endorsed that “Brian is currently travelling around Australia and was only able to give his referee report verbally over a mobile telephone.”. As part of the period Mr Chalker was reported as working for T.L.C. Electrical co-incided with his prison sentence, Mr Chalker contacted the Australian Securities and Investment Commission (ASIC). Those enquiries revealed that T.L.C. Electrical Pty Ltd does not exist as a company. One such company existed until 1988 when it became MM Holdings Pty Ltd of Sydney, NSW. ASIC records also showed that Mr Brian Hines has never been a director of any company in Australia. In light of the information received Mr Clarke decided to interview Mr Chalker. That interview was tape recorded. A copy of the tape recording was made available to Mr Chalker at the end of the interview. A copy was also made available to the Commission together with a transcript. At the commencement of the interview Mr Clarke advised Mr Chalker of his right to have a representative present. Mr Chalker declined. Mr Clarke advised Mr Chalker that he was being interviewed as some allegations had been made about him and that other issues were being pursued. Mr Chalker was advised that there was a general allegation that he had obtained employment with the Council by fraud or false pretences by not declaring all relevant and deceiving history about himself. In addition, there appeared to be anomalies in his employment history that would have impacted on his employment with the Council had they been known at the time of his application. Mr Clarke then proceeded to raise specific matters with Mr Chalker. He first put that “there is no company call T.L.C Electrical Pty Ltd or Brian Hine.”. Mr Chalker replied the Company was no longer in existence as it had folded up five to six years ago when Brian Hine, the Managing Director, sold out. Mr Chalker could not recall the street address of the company, only the suburb. The other pertinent allegation that was put related to the information from Ms Wright. Mr Chalker referred to personal health issues relating to Ms Wright that may have caused her to make the damaging allegations against him. In any event Mr Clarke asked Mr Chalker about his convictions and his imprisonment in 1997 in the Northern Territory. Mr Chalker denied any knowledge of these matters. He reluctantly agreed to sign a release for full information of any convictions to be given to the Corporate Investigation Unit. Mr Clarke used this release and a copy of Mr Chalker’s driver’s licence which he had also obtained from him to enable a full police check on any record of Mr Chalker’s previous criminal convictions held by authorities in Australia. Information was received from the Northern Territory Police of the records held in the National Exchange of Police Information for Garry Owen Chalker. A number of offences were recorded including convictions in 1996 in Darwin for multiple counts of stealing, forgery and uttering. Mr Chalker served time in prison for these offences. After this information had been received Mr Clarke interviewed Mr Chalker again, on 25 September 2001. The same process was followed of tape recording, offer of a tape at the conclusion of the interview and offer of a witness. A copy of the tape and the transcript was tendered to the Commission. During the interview Mr Clarke reminded Mr Chalker of his denials of any criminal convictions. Mr Chalker said he could not remember what he had said regarding those matters at the last interview. When confronted with his record, Mr Chalker admitted all except one in 1984 and one in 1988. He said he had not disclosed his record because he was not asked to do so. With respect to the matter of Brian Hine, Mr Clarke advised Mr Chalker that T.L.C. Electrical Pty Ltd had not existed since 1985 and that a telephone number for Mr Hine could not be located. At that point Mr Chalker said Mr Hine had died and later advised that his death occurred in January 2001. Mr Chalker could not recall the street where T.L.C Electrical was situated. He also claimed to have worked for the company in 1997 despite serving a prison sentence at that time. At the conclusion of the interview Mr Chalker was informed that Mr Clarke would prepare a report on the matter. The report was provided to the Divisional Manager and contained a series of recommendations. Included in the recommendations was a comment that the Manager, Brisbane City Council Legal Practice had recommended Mr Chalker be summarily dismissed. Mr Chalker’s Manager advised John Carr, Acting Manager, Human Resources, Brisbane Water that the Corporate Investigation Unit had undertaken an investigation of Mr Chalker and that a recommendation of dismissal was to be made. The Manager asked Mr Carr to inform the Divisional Manager accordingly and to act on the recommendations. Mr Carr met with the Divisional Manager who, after discussion, asked Mr Carr to meet with Mr Chalker to advise him of the seriousness of the situation and that the Divisional Manager was required to reach a decision on the recommendations. Mr Carr spoke to Mr Chalker on 27 September 2001. As a consequence of that conversation Mr Chalker resigned his employment in writing that day. It is at this point that the main differences in facts emerged. -- 2 of 4 -- 5 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 319 Was Mr Chalker constructively dismissed? Mr Chalker said in evidence that at the time he met with Mr Carr he was due to take up a redundancy with Brisbane Water. He said when he went to the meeting Mr Carr said to him “You know what you’re here for.”. Mr Chalker queried whether it related to the redundancy and in reply, Mr Carr informed him that that was not being proceeded with. Mr Chalker then said Mr Carr told him that he could resign or be summarily dismissed. Mr Chalker claimed to have asked for the reason and was told that he knew what the matter was about. He further claimed that Mr Carr told him he had a letter of summary dismissal if he did not resign. Mr Chalker asked to see the letter but was refused. Mr Chalker said Mr Carr volunteered to get some paper so that he could write his resignation. He alleged that as Mr Carr left to get the paper he told Mr Chalker to think about matters whiled he was away. On Mr Carr’s return, Mr Chalker wrote his resignation. He claimed the resignation was given under duress as Mr Carr had told him that if he did not resign he would not receive any entitlements. Mr Chalker denied in cross-examination that Mr Carr said to him that in view of the investigation he should consider his options. Mr Carr’s version is essentially he did not put Mr Chalker under duress to resign. He said he informed Mr Chalker that the Divisional Manager had recommendations that he needed to act upon and that he (Chalker) should consider his options given the circumstances in which he found himself. He did not discuss those circumstances as he was not privy to the details of the investigation. He denied the allegations that he had said to Mr Chalker to resign and if he did not that he had a letter of summary dismissal. He further denied saying to Mr Chalker that if he did not resign then he would be dismissed without entitlements. Mr Carr also said he did not leave to get a piece of paper for Mr Chalker to write his resignation on as he had with him a compendium. Mr Carr said he tore a sheet of paper from this and gave it to Mr Chalker. Mr Carr was certain in his evidence that Mr Chalker did not protest at what was happening. In Berends v Gillilodge Pty Ltd t/as The Campmart (2001) 167 QGIG 402, Asbury C. neatly set out the approach to determining whether there has been a constructive dismissal. This summary bears repeating here: “Numerous authorities have established under previous legislation, that relief is not available through unfair dismissal provisions, unless a “dismissal” has occurred. (See for example, decisions of Bougoure C in Griggs v Health Equipment Hire and Supplies Pty Ltd (1995) 149 QGIG 131; Thomas v Power Electric Switchboards Pty Ltd (1995) 149 QGIG 493 and Mabo v Linkup (1995) 149 QGIG 775). The provisions of the legislation when those decisions were handed down, were not materially different for the purposes of this issue, from those of the Industrial Relations Act 1999, and the proposition stated in those decisions still has application. In Dowdell v Sunlite Glass Bricks (1997) 155 QGIG 785 Bougoure C, citing Cowan v Trinolea (1995) 148 QGIG 639; Cooper v Darwin Rugby League Inc. (1994) 1 IRCR 130 and Allison v Bega Valley Council IRC 116 of 1995, 1 September 1995, said “[i]t seems to me that a ‘dismissal’ may be conveniently described as a termination of employment at the initiative of the employer and without the genuine consent of the employee”. Notwithstanding the changes in the legislation, and the fact that previous legislation called in aid the ILO Termination of Employment Convention 1982, it is still the case that the provisions of the Industrial Relations Act 1999 dealing with unfair dismissal, have application when an act of the employer results directly or consequentially in the termination of employment, and the employment relationship does not end voluntarily [Mohazeb v Dick Smith Electronics (No. 2) (1995) 62 IR 2000]. In Iskander v Brisbane Display and Shopfitting Pty Ltd (1997) 154 QGIG 806, Chief Industrial Commissioner Hall noted that the expression “constructive dismissal” has leaked into the reported decisions of Australian Industrial Tribunals over the past twenty years. In that decision the Chief Commissioner doubted that the adjective “constructive” adds anything, if all that is involved in the notion of a constructive dismissal, is a proposition to an employee to “resign or else”. The Chief Commissioner went on to say that “[i]t has always been the case that one must go past matters of form and look at the whole facts and characterise the transaction”. In Allison v Bega Valley Council IRC 116 of 1995, 1 September 1995, a Full Bench of the Industrial Relations Commission of New South Wales said:– ‘Although the term ‘constructive dismissal’ is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation…In order to undertake the necessary analysis it is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change.’.”. It is clear from the above authorities that the whole facts of the situation must be examined in order to properly “characterise the transaction”. On its face it may appear that Mr Carr’s approach to Mr Chalker was designed to win a resignation and that the resignation was given without Mr Chalker’s consent. In the circumstances of this case, it is necessary to look more deeply at the situation. According to Mr Chalker’s evidence, he made enquiries on 7 September 2001 about getting a redundancy payout. His evidence was that he had done this as he was not satisfied there would be career advancement for him under restructuring proposals at Brisbane Water. It was apparent from Mr Chalker’s evidence that he was keen to pursue this option. The timing of his initial enquiry is telling. It occurred two days after Mr Chalker’s initial interview with Mr Clarke where issues about his criminal history and one of his referees were raised. Mr Chalker presented as an intelligent man and generally aware of process. I believe that as a result of his interview with Mr Clarke on 5 September 2001 Mr Chalker realised that his employment with Brisbane Water was in jeopardy. I consider Mr Chalker reluctantly agreed to sign the release form so that Mr Clarke could have the police search his record because he knew that if he did not his refusal would not be seen in a positive light. Mr Chalker was not obliged to disclose his criminal convictions without being asked to do so at the time of the selection process. In particular, he was not obliged to advise of those convictions that were more than ten years old and had thus lapsed. However, had the selection panel done its job properly and conducted the criminal history check, this history, including recent money offences, would have been revealed prior to any employment commencing. The reality is that had the history been discovered at that point Mr Chalker would not have been employed. Despite Mr Chalker giving his reluctant consent to the release of his record, it is also the case that during the first interview, he denied having criminal convictions and serving a period of imprisonment. He also did not disclose Mr Hine’s death until the second interview. It is the case that at the time of the interview he was obliged to answer questions that were put to him as they were relevant to his employment with Brisbane Water. (State of South Australia v Singh-Gill 1994 AILR 233). His denials, belated recall of the death of one of his referees and inability to remember the address of a company that he had allegedly worked for over a period of fourteen years point to a lack of credibility. In short, Mr Chalker’s version of events counts for very little. -- 3 of 4 -- 320 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 July, 2002 Accordingly, I am of the view that Mr Chalker was fully aware of the context of the conversation with Mr Carr. After all, it came two days after his second interview with Mr Clarke where he was told that a report was being prepared. Mr Chalker was cognisant of the allegations being made and the issues involved. I consider that when Mr Carr suggested that he consider his options given the circumstances he found himself in, Mr Chalker made an informed decision to resign. Certainly Mr Chalker did not have too many options but it was not the typical “resign or else” conversation that usually characterises a constructive dismissal. The facts do not point to Mr Chalker being placed under duress. In any event Mr Carr did not have the authority to dismiss Mr Chalker. Further, I accept Mr Carr’s evidence that he did not have a letter of dismissal with him. No action to dismiss him had been taken at that time. In my view Mr Chalker is now pursuing a claim for constructive dismissal on the basis that he also has proceedings on foot for payment of a redundancy. Clearly he needs a ruling that he has been dismissed in order to be successful in those other proceedings. Alternatively, Mr Chalker was prepared to knowingly accept a resignation so that this would appear on his employment record and then use the provisions of the Industrial Relations Act 1999 to argue constructive dismissal in order to claim a benefit. This is not what the reinstatement provisions of the Act were designed to achieve. Having reached the conclusion that Mr Chalker was not constructively dismissed, I would also comment that on the material available to the Commission, Brisbane Water had sufficient and reasonable grounds on which to dismiss Mr Chalker. In FEDFA v Shell 1989 AILR 430 at para 29 the following was said: “If a matter goes directly to the nature of the job and the employee has deliberately or recklessly misled a prospective employer then the employer may be justified in dismissing an employee once the truth is known.”. I am satisfied that Mr Chalker arranged for a false reference to be provided and in this way misled Brisbane Water about his referee, Brian Hine. I have reached this conclusion on the basis that Brian Hine is not listed in relevant records as being a company director and Mr Chalker was unable to provide any satisfactory explanation of the discrepancies put to him by Mr Clarke. I should also comment that it was curious that Mr Chalker remembered a mobile telephone number yet could not recall the street address of a company where he allegedly worked for fourteen years. I have also remarked that Mr Chalker did not mention at the first interview with Mr Clarke that Mr Hine had passed away some nine months earlier and only recalled this when pursued on the matter of Mr Hine’s existence. During the hearing Mr Chalker queried whether the person Mr Clarke spoke to was in fact his stepdaughter. He was offered the opportunity to call evidence from her but this was not pursued. Ultimately, whether the allegations were made by his stepdaughter or someone else is immaterial as the allegations were shown to be substantially correct. Despite my finding that Mr Chalker was not constructively dismissed, something must be said about the approach taken by Brisbane Water to this matter. In response to a question by the Commission, Mr Carr said that “it can be a practice” for a human resources employee to have a conversation with an employee who has been the subject of an adverse investigation and recommendations about their future employment options. Such a practice is highly irregular and highly unusual, especially in a public sector organisation. While in one sense allowing an employee to resign with dignity can be seen as being of assistance to them, it also exposes the organisation to charges of constructive dismissal. Moreover, it negates the responsibility of a senior officer to make a hard decision and avoids due process. It is not a practice that has much to recommend it. There are two other matters about which I wish to pass comment. The first is on the failure of the Selection Panel to undertake the relevant pre- employment checks. The Selection Report form, referred to earlier, asks the question “What other checks were undertaken?” and nominates medical, criminal history and work permit/visa. None of these boxes were marked. Clearly, the failure of the Selection Panel has contributed to a situation that could have been avoided. One wonders about the value of the prompts if they are only to be ignored. In response to a question posed by the Commission, Mr Clarke said that Council has a policy of civil conviction checks that was introduced three years ago. This policy extends to checks of criminal convictions. The policy is not mandatory but Departments are encouraged to apply it. Given Mr Chalker’s convictions and the position he held at Brisbane Water, I find it astonishing that the policy was not applied in this case. It is even more astonishing to find that the policy is not mandatory in areas such as money handling. The community has a legitimate expectation that those officials who have had convictions for money offences are not handling public funds. The second matter about which it is necessary to make comment is the process of referee checking by mobile telephone. It appears that Council has now introduced a policy where telephone references are to be by land line only. The Commission trusts this is also mandatory and not a policy for guidance only or exercised at the discretion of a manager. As this case has shown, the provision of a reference over a mobile telephone makes falsification far too easy. The application is dismissed. G.K. FISHER, Commissioner. Released: 24 June 2002 Appearances: Mr G.O. Chalker on his own behalf. Mr J. Thompson on behalf of the Brisbane City Council. -- 4 of 4 --