Barker v Queensland Fire and Rescue Authority [2001] QIRC 114 (2001) 167 QGIG 345

3 August, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 345 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Shane Barker AND Queensland Fire and Rescue Authority (No. B339 of 2001) COMMISSIONER FISHER 24 July 2001 REPORT ON DECISION (as edited) In giving her decision from the Bench on 24 July 2001, Commissioner Fisher stated:– “I have considered the submissions and other material put by the parties in relation to the preliminary issue raised by Mr Martin’s clients concerning the exclusion of certain affidavits or parts of affidavits filed on behalf of the applicant on the grounds of the want of relevance. My decision in relation to this matter follows:– Briefly stated, the background to this application is that Mr Barker was dismissed on the basis of certain findings made in relation to six charges laid against him. These charges resulted from allegations made by his subordinate Ms Dyer in the form of a complaint to the Anti-Discrimination Commission. Although the complaint was settled as between Ms Dyer and the Queensland Fire and Rescue Authority (QFRA), the QFRA decided to investigate the allegations made by Ms Dyer about Mr Barker’s conduct. As a result an investigation team was established with their findings being referred to Area Director Gilbert to determine whether there was sufficient material to warrant the formulation of charges and the preferment of those charges. Such decisions were made and Commissioner Twomey was given the task of hearing and determining the charges. Commissioner Twomey found that most of the charges were sustained and recommended Mr Barker’s dismissal. The Chief Commissioner accepted that recommendation. Mr Barker has filed an application for reinstatement. The question that the Commission has to ultimately determine is whether the dismissal of Mr Barker was harsh, unjust or unreasonable. In reaching this decision some of the matters which will arise for consideration include: • whether the charges and the particulars of those charges were factually based; • whether the investigative and decision making process was fair and afforded due process; • whether Mr Barker engaged in any of the alleged conduct; and • whether any such conduct was appropriate. It must be borne in mind that the decision to dismiss was based on the resolution of the six charges. Given the finding this Commission is required to make under the Industrial Relations Act 1999, i.e. the fairness or otherwise of the dismissal, the Commission’s attention must be directed to those matters which formed the basis of the dismissal. I am of the view that these proceedings should not be used as a vehicle to enquire into each and every allegation which did not result in a charge. Accordingly, I have decided that only those allegations that formed the basis of the charges should be dealt with in this hearing. While I believe I would be at liberty to focus the hearing on only those charges which were found to be sustained, I have decided not to take such a restrictive approach. I will allow evidence to be brought in relation to all six charges and the various particulars of those charges. Much has been said by the applicant about the nature of the process undertaken by the QFRA. Claims have been made about the denial of due process and natural justice and that many of the statements supportive of Mr Baker were given little or no weight. As previously advised one of the matters to be taken into account by the Commission in determining whether the dismissal is harsh, unjust or unreasonable is the process adopted by the QFRA in investigating and determining complaints against Mr Barker. Accordingly it is appropriate and relevant that the decision makers who are being called to give evidence (i.e. Area Director Gilbert and Commissioner Twomey) be tested on the process. In particular, the applicant is entitled to cross-examine them about the reasons certain statements, persons or versions of events were accepted but not others. I would include in this the reasons Area Director Gilbert decided to proceed with the formulation of certain charges but did not pursue or proceed with others where the findings of the investigation team were, for example, inconclusive in respect of certain allegations. The reasons may or may not include assessments of the credibility of certain people and the veracity of their statements. I also consider as relevant evidence from the applicant’s witnesses which addresses alleged flaws in the investigation. This could include not being interviewed by the investigators on the matters involved. An example of this is included in the affidavit of Mrs Barker. It could also include concerns about the approach adopted by the investigators. In this vein Ms Wakelin’s general commentary regarding the investigation process could also be introduced. I do not see an inquiry into the investigation process as giving licence to the applicant to inquire into those allegations which did not result in or underpin the charges. In considering whether the charges and the particulars of the charges are based on fact, it is apparent that matters of credit will arise. The purpose of this hearing is to determine whether any of the alleged behaviour was engaged in by Barker and whether such behaviour was appropriate. It is not a vehicle to exact revenge. Accordingly, I have decided to permit material pertaining to the charges that helps establish the truth of the charges (or the particulars of those charges) or assists in giving context to them. For example, I would include in this category, statements from Ms Bacchi about telephone calls received from Ms Dyer from the balcony of the Jupiters’ Casino suite or that part of Mrs Barker’s affidavit relating to the overseas trip. In contrast, I do not consider the evidence of Mr Galvin or Mr Howe to be relevant to the matter I have to determine. Ms Mitchell’s evidence is also considered not to be relevant as it does not relate to the charges. -- 1 of 2 -- 346 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 August, 2001 The Commission notes the applicant no longer intends to call Mr Harkin, Mr Lawrence or Ms Pratt. The applicant has also indicated that certain parts of other statements will be excluded. In relation to Mr Theodore I consider him to be a material witness to the matter and while parts of the exhibit PT1 to his affidavit are not relevant I decline to exclude his affidavit in its entirety. I do not intend to identify in each affidavit or their attachments which paragraphs I consider to be not relevant. I believe the comments I have made should assist the parties in defining the boundaries to this case. The parties are to confer over the affidavits to see whether any agreement can be reached on those parts or those affidavits which remain. The Commission will make such determinations as required where agreement cannot be reached. I now turn to the question of whether the deed of release entered into between Ms Dyer and the QFRA in relation to her complaint to the Anti- Discrimination Commission should be produced. The QFRA have opposed the production of the deed on the grounds of relevance. My preliminary view was that the deed would not be relevant to these proceedings. Mr Murdoch suggested that the Commission peruse the document. Mr Nolan did not oppose this request. The Commission has read the deed and in accordance with s. 55 of the Industrial Relations Tribunals Rules 2000 I determine that the deed is not relevant to the matters I have to determine in this hearing and as identified in this decision. Order accordingly.”. Dated this twenty-fourth day of July, 2001. By the Commission, [L.S.] E. EWALD, Industrial Registrar. Appearances:– Mr J. Nolan (Barrister), Mr W. Hinkley (Barrister) instructed by Ms A. Pratt (Hall Payne Solicitors) for the applicant. Released: 24 July 2001 Mr G. Martin SC, Mr C.J. Murdoch (Barrister) and Mr F. Pulsford of Crown Law for the respondent. -- 2 of 2 --