Dark v Maroochy Shire Council [1993] QIRC 101 (1993) 142 QGIG 510

51 0 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 3 April, 1993 #################1#1########1#/#########l/#l/l/##lll/######II-#### Q UE ENSLAND INDUSTRIAL RELATIONS COMM ISSIU~ /ndustnal Re/a/Ions A et 1990 s. I 1.37 - applicat ion for r~inst akment Anthony S c 0tt Dar~ AND Maroochy Shire Council (No. 86 7 of 1993) 1.,CX.) \ L AUTHO RITIES (L\:CJ..UDLNG BRISBANE) .-\ND ~U. IN ROA DS, ETC, AWA RD - STATE COMMISS IONER SWAN 8 April 1993 Term inatio n of Empl oy ment ·- Dismissal Reinstatement Harsh, Unjust o r Unfair Dism issal - Misconduct --- Evidence W itness - Credihil it y -- Arh itrat~d Matter •- Co rrob,iration of alleged co nfess ion not utilised -- Dismissal was llilrsh and Oppressive - - Remuneration to be paid -- App licatio n Granted --- Rcinstat~m~nt Ordered. DECISION This appl ication seeks the rcins:a1emen1 of Mr A . Dari. 10 his fom1erly he ld position of labour.:r w ith the Maroochy Shire Counc il (th~ emp loye r). Mr Dark had been emp loyed by th~ Co unc il from March 19&8 unt il the date of hig termination o n 6 :S:owmh<:r 1992. Mr Oark was di s missed for allcgcdlv misappropriati ng a .substantial amo unt of woodchip (ha lf to a full hac kho e h uc ket lo.1d) from the Co un cil's premises at Finland Road Sewerage Tre atment Plant. On 12 Febm:try 1993 Mr Dark made app l ic,H ion H> the Queensland Industria l Rdati o ns Commis~i ,-1 n l<.n Rcinstc.1lem~ntl Rc - empl oymcnt. The app lication was not in co nfonn ity wi th s. I l.37(l )(a) of the lndusrrial Relmion.1· A Cl ) 990 in that it was lodgccd ou t of t ime . However, on 4 March I 993, in a separate dc..:ision, 1h e Comm ission waived such requirement and the matter was set d own for a fomial hearing. At the ou tset, Mr G. Bidgo0d , Vice- President of Tltc Australian Workers' Union of Emp loyees, Queensland soug ht l et1ve to make a s1 a1ement on behalf of h is orga nizaiion. He claimed that h is o rganization was alway s w ill ing to n:!1Jrc s ent their member (M r D ark) but that due to unforeseen c.i rcums wnN ~ a misunderstanding had prevailed whi~h had resulted in the appl icanl seeking alternate representation . Such c.xplanat ion was accepted. for the purposes of the record. by the applicant's ad v,, cate on hi s behalf. As there are very frw agreed fo ct.s in t his matter, I prnpose to briefly detail the essence o f each witne%'s evidence and then. firstly, to high lig ht th e o bvious arc,c5 of di vage occ and appanmt contradiction and then to assess such eviden ce in lighl of th()sc a spec ts. Apphcanr's Evidence - leading up 10 dism1ssal On 5 Novembe r 1992, the applicant was worki ng with Mr Madzia, another Cou ncil employee . A qual1<!r of a cubic metre of woodchip wa..s collected by the applicant and Mr Madzia from the Finland Road Sewerage Treatment Plant for ddivery at Pump St ati on 6 at Pacific Paradise. Woodchip duly de livered to Pump Station 6, Pacific Paradise. Mr Tri pcony (Water Supply and Sewerag~ Ovefl:eer with the Counci l and the appl icant's supervisor) had directed the applic am on that day to go to a different site to carry out calcu latio ns which required the use of a calculator. TI1e appl icant. had !ell his calculator at home . Proceeded to dri ve to his house (some 2 5 ki lo metres away) to collect same. On the driv~ to the ;1pp lican 1' s house. pa11ides of ld t over woodd1ip flew off the tray of the util ity. Upon arrival at the appli c ant's home . Mr Madzia swept the woodd1ips thHn th e tray of the ut ility . The w oo dchip remnant~ wore ldl in the driveway of the appli ca nt 's home. Wh~n 1''1r Tripcony confronted Mr Dark the following day. 6 November I 992, the applicant wa~ a ccu sed o f "steal ing Counc i I propeny". Tl1 is a llega1iM1 was d enie d hy the app licant. Tl1e applicant, in his statement to the Commiss ion co mmented that " I was threatened that if I made a fu~ about t hi s. the matter would be repo ned t0 the Pol ice. I wan ted th e mM ter lo be reported to the Police as I do not bd ieve that an allegation c an be made like this against a pen.on and adm inister~d sum ma ril y with o ut hav ing the right of a hearing. To date appaNnt ly th e Poli ce have not been involved". J,;v,dcn ce of Jv/s J. l obwe,n (Clerk •- M aroochy Shire Co un c,IJ (It appears that a statement from Ms Lobwein triggered the in v~st igation inlo Mr Dark's acti vitie~ on 5 Nove mber 199 2.) Ms Lo bw cin, derk at Maroochy Shin: C ou nci l stated that whilst driving to work at approximat ely 7.50 a.m . o n 5 November 1992 past the app licant's hous-,, s he no ticed the app licanl and another ma le "sweeping or sho vell ing some t hing fro m the tray of a Counc il ut e" and later "I did not ice them in the back of the ute and thev were hol di ng. it cou ld have been a rake, a broom , a spade .:_ they definit ely were lw lding something and thq were h0th in the back of the ute . She rnu ld not dcten nin e wh at was he ing swepl or showllcd fr ,im the util itv as she w,,uld haw had. at hcst. c., nly ~om t; 5 seconds visi on t)f the: in'-=i <lcn t. She ~tct tcd "i did not see any amou nt of di11 . sand. gravel or like .s uhsta,w~ be~idc lhe ut i li ty where Ant hon y and the oth er man was shovd li ng . " i'vls Lobwcin ~tated 1ha1 lh" Co unci l v eh id e was si tua ted as follows :- "lt w,t~ backed d own the prnpeny wi th the nos<> of the vehick perhaps a metre. a me tre and a-half from the road and the trny ,,bviou ~J~, down the back.". She daimed that the front part of the whicle wo uld ha ve been on the foolpath. Whcn she got to work. she asked lhe pay clerk if it was the app licant 's Rostercd D ay Off. When to ld t hat it was not Mr Dark's Rostered Day Oil~ she stat es she th en ,nid to lhc pay clerk "that's interesti ng. I saw him at his pla ce on the w ay to w ork this mo rn ing". A Mr Tuekwcl l. Pay Clerk. suggest ed that the matter shou ld be rcpo ,ted. Thus repon e.d, s he c laimed that Mr T ripcony. so me two hours lak r, asked her "did you see Anthony Dark shovelli ng W(lOdchip out of the back of his ut e?"' . 23 April, 1993] QU EE NSLAND GO VERN MENT INDUSTRIAL GAZETT E 5 I 1 She claimed she to ld him that she was not sure just what the appli can t had been doing but said she would have a look at his yard on t he way home . After making ~uch observalions, Ms Lo bw <! in stated "Well, on the way home I purposely had a look and 1h ere was a small mound of woodchip beside the dnvcway. It wou ld have been half a wheelbarrow load if that. Just a small load beside th e driveway". She f unher stated to Mr Tripcony. in light of the allegations of steal ing woodchip being ma de against Mr Dark, the following, "An th ony co uld have unloaded the tm ck at the back of his premis-,s thro ugh the drive-through garage. The garden was being established at the back bul not ~.t. the front",; She claimed that the front of the yard was JUSt a bank . Evidence ofMrJ. Madzia Mr Madzia had wo rked for the Counc il s ince late 1988 as a labourer. He had w orked with the appli can t !'or a shon period of time prior to the in cide nt. He stated that somet ime during thi, shon act1uaintance Mr Dark had told him that "any employee found stealing Council property would be dismissed". When queried as to the circumstances under which such a convers at ion might occur. Mr Mad z ia had no explanation o ther than t hat it had just s lipped into the conversation on one occ,tsion . On 5 Novemb~r 1992. somet ime between 7. 15 and 7.30 a.m .. a Counc il employee. Mr Maso n had loaded on<!-half to a foll backl 1o e bucket of woodchip into a uti lity 1mck driven by the applicant. Mr Mad zia t hen stated that he and the app licant drow 10 Mr Dark's house and unloaded the who le load o nt o his dr-iveway. Mr Madz,a believed that Mr Dark had pen11ission to take such woodchip. Mr Madzia gave evidence that early on th e momin g of the follow ing day, 6 No vember 1992 . ( 11 1 7. 00 a.m .) Mr Tripcony contacted him . He then claims that " I told them exactly what had occ urred the rrevious da y . " Mr Madzia claimed 1hat. aticr heing interviewed by ~ilr Tripcony on 6 Novembe r 1992, Mr Dark had phoned him nnd asked him to repeat Mr Dark's version of eve nts rather than what he believed to be tm e. Some three days after Mr Dark had phoned him. Mr Madzia had changed his story and contacted Council Officials 10 tell them Mr Dark's version of even ts. I-le later told such vers ion to a meeting held in t he Perso nnel Secti,rn of the Council. Finally a fkr ch anging his sto ry again, Mr tvf;idz ia stated: -- '' Sin'-,;~ that t ime I ha ve realis~d the s~riou~nes~ c.,f the situation and am no longer prepared to jeopard ise my re lationship with Council. For this rea~on I have n ow dec ided that the tnith must be told that being that Mr Dark tO()k Council woodchip and de livered it di rectly 10 hi s ow n house on the morn ing of Thursday . November 5. 1992". Evidence of Mrs Beuy Dark (applicant's 11101he 11 Mrs Dark rofrrred lo a tele phon e call she had re ce ived on 8 March 1993 from Mr Mad zia who was wanting to speak to her son . She st ated :- - "Joe ( i.e. Madzia) asked me to t ry and get Anthony to call it (i . e. the reinstatement hea ri ng) off as he said his job was on the line and if he did not say what the Coun cil wanted he wo uld lose hi s jo b and that he was scared". "He indicated to me thal he would have to do what t hev wanted or he wou ld no t have a job ". • E viden ce o/Mrs Ki m Dari; (applicanr'.i w1fe) Mrs Dark also referred to a te lephone call on 8 March 1993 she had rece ived from Mr Madzia who had wanted to speak to her husband. She stated that Mr Madz ia had said that the applicant should "drop the case" as he "was getting a hard tim e from his bosses to back their story as his job was on the line" and further " that he was getting hassled bad at work by Tripcony and that he could not stand by the statement that he wrote because he would lose his job:•. She referred to an earl ier written stat ement of Mr Madzia's wh ich supponed Mr Dark's version of events. Mrs Dark claimed thal Mr Madzia telephoned her home again and a,,ked if they still inte nded to proceed with the case. When she said "yes" she stated that. "Joe (Madzia) then sa id that he had to go to the depot tomorrow and give a mu ch more detailed statement. He then said that the Counc il were going to throw a ll kinds of stories and shit at Anthony and that he knew that Anthony wanted lo join the Po lil'I! Fo rce.". Mrs Dark further claimed that Mr Madzia had said " well I cannot ri sk my arse for Amhony and that I will have to back Tripcony becau~e I cannot ri sk losing my job" . Evidence of Mr Tripcony (W01er S upply and Sewerage Overseer - - M aro ochy Shire Council) On 5 November 1992, having b ee n made aware of a "complaint" lodged with the Council by Ms Lobwein t hat she had seen a Council employee unloading material from th e back of a Council utility at 1\-lr Dark's add ress, he invest igated the matter. Ms Lobwe in. o n the following day. ad vised Mr Tripcony !hat the material in Mr Dark's yard was w oo dchip. Upon investigatio n, Mr Tripcony stated that his enquiries had shown that - ·· ,w pmn is sion had been gi ven to Mr Dark hy his superiors I(> be at hi s hom<' on the 111oming of 5 November I 992; - no p.:nn ission had been given to Mr Dark. to take woodchip to his home: - Mr Da rk had been seen loading woodchip from the Finland Road Sewe rage Treatment Plant at approximately 7.30 a.m. on 5 J\:()wmber 1992. Mr Trip cony claims t hat on 6 Nowmber 1992 he aske d Mr Da rk who owned the woodch ip that wa5 unloaded at his house on 5 November 1992 and w hy he was at his home which was S(Hne 25 kilome tres •away from his designa ted wo rk a.rea. lie st.ated tha t the app licant had said that the woodch ip had come from the home res idence of a Mr S cott Ellis, a Council employee. Mr Tripcony th en told Mr Dark that he had been observed loading the Council utility w ith woodchip from the Finland Road Sewerage Tr~atment Plant. to whi ch Mr Dark replied alter s om e time that he had taken the woodchip to a pump stat ion. "probauly Suncoast Pump Station N umber Six". ihked why he had not been doing his nomial duties on the lll()ming of 5 Nov e mber 1992 . Mr Dark stated that he had been at hnme d ropping o lT th e wood..:hip he had received from Mr Ellis. Mr Trip c() ny then spoke to Mr Madzia who st.ited that "the wo,>dch ip had been loaded o nt o the Co uncil ute by Mr J\.fark Mas on, Assistant Sewerage Treatment Plant Opaator, at the Finland Roa d Sewerage Treatment Plant, and that the w oo dchip was taken directl y to Mr Da rk's place of residence where both Mr Dark and he unloaded ii. Mr Madzia sa id that Mr Dark had full approval for his actions. and as he had only w orked in that pa11icular area for such a sho rt period, he was unsure of who he should refer to fo r pennission". -- 1 of 3 -- 512 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [23 April, 1993 Mr Tripcony then spoke to Mr Mason who stated that he had loaded the utility with woodchip and had believed that the woodchip was to go to a pump station. Finally, Mr Tripcony stated that he informed Mr Dark of Mr Madzia's evidence and he said that "Mr Dark then admitted that he did not think Council would miss a few dollars worth of woodchip. He also said that he did not believe that he had misappropriated time because he had made up the time spent travelling to his home, by working through smoko and lunch.". Mr Tripcony then said "Mr Dark became emotional and admitted that he had taken Council woodchip". Evidence of Mr C. Fairbrother (Industnal Relations Officer - Maroochy Shire Council) Mr Fairbrother referred to an incident which had occurred involving the applicant in February, 1990. The incident appears on Mr Dark's personal file. It concerns what was referred to in the hearing as "the pipe incident". From the applicant's evidence, it appeared that his mother had been agitating for some time with the Council to fix piping to her property. The applicant discussed the issue with a fellow employee, and, unbeknown to Mr Dark, the requisite piping was delivered to his mother's property. Mr Dark stated that the Council "made a decision that I was the victim of circumstances and if I paid for the pipe, this matter would no longer be on your file and you would never hear about it again". The applicant claims he was not warned by the Council in any formal way concerning this incident. This version of events was corroborated by the witness's mother during her evidence. During examination of Mr Fairbrother, the advocate for the Council tendered a document from the Council's Personnel Department which in fact was a note from Mr Dark's personal file. The applicant's advocate objected to such document being submitted, but the Commission determined that its acceptance as an exhibit was appropriate and the Commission also accepted the validity of the origins of such a document. Such note reads as follows "Mr Anthony Dark has a second-hand storn1 water pipe delivered to his property by a Council truck for his access crossing to his parents' property at Palmwoods. When Mr A. Dark was interviewed he stated that he did not ask for the pipe, but arrived home and it was there. Mr A. Dark was given the benefit of the doubt and the seriousness of the situation of receiving Council property was explained to him. Mr A. Dark was asked to pay $30.00 for the pipe which he has subsequently done . " Mr Fairbrother was not present during this earlier incident, but the Commission can only consider the submissions made and the comments on such file note. It is clear from such note. and from the realities of the event itself, that Mr Dark should have clearly understood the Council's policy on such matters as has been asserted by the Council. Other tendered documents submitted by the applicant's advocate included photographs of Mr Dark's back garden, a woodchip mound at the applicant's house (photographs taken on 6 November 1992 by the applicant's mother), and a reference dated 3 February 1993 from the Shire Chairman, Cr. JFH Murray O.8.E. stating "I'm sorry about the other business. I suspect you have had a raw deal, but quite honestly there is little that I can do to help because the matter has gone so far. Perhaps if you had seen me earlier it could have been averted " The employer also tendered documents which included a file note concerning Mr Dark (referred to earlier in evidence from Mr Fairbrother), Council policy and Award e>.1racts concerning disciplinary matters. Whilst not detailing each and every component of the evidence put before the Commission, I believe that the above represents a reasonable summation of the evidence. Sutlice to say that all evidence has been fully considered by the Commission. Assessment of the Evidence It is clear from all of the evidence that Mr Dark, in the company of Mr Madzi~ collected a substantial amount of woodchip from the Finland Road Sewerage Treatment Plant on the morning of 5 November 1992 at some time between 7. 15 a.m. and 7.30 a.m. There was no evidence submitted to show whether collecting woodchip was part of their normal duties, or whether they independently selected their work pattern for the day. The applicant claims he took this woodchip to a pump station. Mr Mason, the Council employee who loaded the woodchip into the truck, was under the impression that the load was going to a pump station. Where did this substantial amount of woodchip go? Mr Dark identified the pump station to which he said he took the woodchip yet no evidence was drawn by the employer to show whether any or all of the woodchip in fact was delivered at such station or not. At this point, the evidence of Ms Lobwein should be examined. She claimed that she did not "complain" about Mr Dark, but made a comment concerning what she had observed that morning. She claims that she initially did not see any material beside the utility, nor were the men in the utility "standing" on anything. Not being exactly clear upon what had occurred that morning, she had, afler speaking to Mr Tripcony, a more deliberate look at the applicant's premises that afternoon. She noted a small mound of woodchip at the front of the applicant's house, "beside the driveway". There was no evidence to show that by this stage i.e. the aflernoon of 5 November 1992, the applicant had any reason to be aware that suspicion surrounded his actions. Ms Lobwein's evidence on the size and shape of the woodchip outside the applicant's house conforms with the documentary evidence (photograph) tendered by the applicant. This evidence suggests a quantity nowhere near the size of the load which was originally picked up by the applicant. Considering Mr Madzia's evidence creates somewhat of a difficulty. In examination-in-chief, Mr Madzia agreed that Mr Dark and his representatives tried to get him to support Mr Dark's version of events and that "They tried to tell me that I was - what did they call it, being pressured by the Council to give this statement that I gave.". Further, at the outset of the hearing, the advocate for the employer stated that her instructions were that a short while prior to the hearing, the representatives for the applicant together with the applicant visited Mr Madzia, intimidated him and "attempted to persuade him to change his story to support Mr Dark". Further, it was claimed that "they continued to work on Mr Madzia, threatening that they had another key witness and trying to get Mr Madzia to take action against Council because of the loss of pay he has incurred because he has been demoted". When directly questioned some minutes later on this point by the advocate for the applicant during cross-examination, Mr Madzia stated there was no suggestion made by those visiting him that he should not tell the truth. In fact, Mr Madzia said that the only persons making mention of such a proposition were the representatives for the Council. An extract from the transcript demonstrates this point:-- "Mr Haycrofl: Was there any suggestion made by anyone that you should somehow not tell the truth? Mr Madzia: No Mr Havcrofl: There appears to be a suggestion that has come here th~t we should get you to change your story and tell a lie; would that be a correct perception of what happened? Mr Madzia: That was mentioned, but I don't know exactly no, with the people that I was talking to which one exactly mentioned it. Mr Haycrofl: I was there. Any other ---?--- Mr Madzia: No. I don't mean the three parties that were around at my place. I mean. with the people that I was talking to all erw ards. ". In his evidence, Mr Madzia refers to the two versions of the event which had occurred on 5 November 1992 which he gave to his employer. One totally contradicts the other. Firstly, Mr Madzia's evidence was that at 7.00 a.m. on 6 November I 992, Mr Tripcony queried him as to what had happened the previous day. According to Mr Tripcony and Mr Madzia's evidence, the version of events were that Mr Dark had taken all of the woodchip to his property. Sometime afler 10.00 a.m. on that day, afler receiving a call from Mr Dark, Mr Madzia had decided on a different version which conformed to the applicant's version. Some three days later, Mr Madzia repeated this latter version to a Mr Jensen from the Counci I and subsequent to that, to a group of people at a meeting held in the Personnel Section of the Maroochy Shire Council on Friday, 13 November 1992. However, by 9 March 1993, 23 April, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 513 (afler the matter was set down for a formal hearing before the Commission) Mr Madzia reverted back to his earlier version which supported the Council's contentions. Mr Madzia's rationale for such a radical tum-around in his story was not only that his "conscience" got the better of him but that his earlier statements, (i.e. those supporting Mr Dark) "weren't put under oath or anything like that, [they were] just normal statements" and further that "I was just helping Tony out because I thought he'd been treated unjustly". It seems inconsistent to the Commission that if Mr Madzia believed that Mr Dark had really misappropriated Council property why he would then think that Mr Dark had been "treated unjustly" by the Council in the subsequent dismissal. HoweYer, all this demonstrates to the Commission is that Mr Madzia is not a reliable witness. It appears that Mr Madzia's change of heart in mid November 1992 when he supported Mr Dark's version of events had virtually no impact on the Council at that time as there was no reinstatement of Mr Dark in light of Mr Madzia's changed evidence. Regarding Mr Madzia's evidence. statements made by the applicant's mother and wife need to be considered. Both witnesses stated that Mr Madzia felt he had to say what the Council wanted him to say otherwise he'd lose his job. (Mr Madzia denied saying this.) I had no reason to disbelieve either Mrs Dark Senior or the applicant's wife, one of whom stated she had made contemporaneous notes of such telephone conversation. I have had the opportunity of personally obserYing and listening to Mr Madzia and in light of my observation of his demeanour while giving evidence and the background to Mr Madzia's evidence and the apparent inconsistency between the infonnation which he had given to the Council's advocate concerning the visit from the applicant and his representatives prior to the hearing and the information which he gave to the Tribunal, I have formed the view that Mr :,,,1adzia is an unreliable witness. This now brings me to the question of Mr Tripcony's evidence. lbere is inconsistency in the evidence give by Ms Lobwein and that of Mr Tripcony. Ms Lobwein stated that on 5 November 1992, alter the incident had been reported. Mr Tripcony came to see her and asked "What did you see this moming' 1 Did vou see Anthony Dark shovelling woodchip out of the back of his· utc?" Mr Tripconv's stati:rnent is as follows ' 1 1 asked h~r what tht: makrial was to wh(d1 she replied she was not sure but v.ould check later that afternoon. The next day (being the 6 November 1992) she advised me that the material was woodchip". However, if Ms Lobwein's version of events is true. on 5 November 1992, before any confinnation had been made by Ms Lobwein regarding what could be seen in Mr Dark's yard. an assumption seemed to be drawn by Mr Tripcony that in fact Mr Dark had taken Council woodchip to his home. This view is supported by Ms Lobwein's evidence and Mr Tripcony's own statement wherein he states -- "At approximately 2.30 p.m. on Thursday, November 5. 1992, 1 located Sewerage Treatment Plant Foreman, Mr Paul knsen. and asked him ". whether he had given Mr Dark pem1ission to drop off chip bark. or a similar material to i\1r Dark's home address". Also, Mr Tripconv stated that when he had spoken to Mr Fairbrother at Council Personnel. t\lr Fairbrother had stated that "Mr Dark should be dismissed if the woodchips were Council property". lbere was no evidence put to the Commission to suggest that such an assumption by Mr Tripcony was reasonable in all the circumstances. Mr Tripcony did state that his enquiries showed that Mr Dark and Mr Madzia had collected woodchip from the Treatment Plant that morning and neither had been given pem1ission to be at Mr Dark's home premises because there was no evidence submitted to suggest that Mr Dark was perfonning an:,thing other than nom1al duties by collecting woodchip on the morning of S November 1993. Whether such information could fairlv be e>.1ended to implying that an employee had been stealing Council property is arguable In fact, Mr Fairbrother seemed to be the only Ol1icial of the Council who commented, on 5 :--:ovember I 993 that the matter should be "fully investigated" first. Mr Tripcony said that on the morning of 6 l\ovember 1992, at approximately 7.00 a.m. (and presumably before he spoke to Ms Lobwein because there was no evidence to suggest that she had come to work earlier than she normally did to repoi1 what she had seen), "I asked Mr Dark who owned the woodchip that was seen being unloaded at his home address the previous morning" Even on his own evidence, Mr Tripcony had not been told by Ms Lobwein that she had seen woodchip being unloaded at Mr Dark's home. In fact, it appears from the evidence that at no stage did Ms Lobwein ever state as much. What Mr Tripcony may well have known at this point was that Mr Dark and Mr Madzia had collected woodchip early on the mommg of S November 1992 to take to a Council depot, and that both men were seen by a Council employee at Mr Dark's residence at approximately 7.50 a.m. sweeping or shovelling something from the back of a Council utility truck. I have forn1ed the view from the above evidence, that Ms Lobwein's version of events is the more credible and that at best Mr Tripcony seemed anxious to pursue the matter quickly ~d, pri~r to speaking to the applicant, may well have formed some premature and speculative views. . The Commission. then considered the evidence surrounding the issue of why the applicant stated that he needed to go home to get his calculator on the morning of 5 November 1992. According to the applicant "I had been instmcted by my Supervisor, Mr Tripcony, to carry out calculations at another site which involved a calculator". No evidence was forthcoming from Mr Tripcony to refute the request he had allegedly made to Mr Dark. All that Mr Tripcony stated, in response to the above version, was that "Mr Dark didn't say anything about a calculator to me on November the si»th." The advocate for the Council put to Mr Dark that "someone else had calculated the detention times that you allege you were calculating several days before and that you didn't even need to do those calculations.". Mr Dark contended, however, that his overseer had wanted him to complete specific calculations and that there should be proof of such work being done on that day "in a note book in the work truck where I left it". '[bere was no evidence to show whether a conversation on this point had occurred between the parties prior to the fonnal hearing, but if it had, it could have possibly been established whether such a note book existed. Alternatively, the Council could have tendered evidence which might have shown that the work Mr Dark claimed to have done on that day, had in fact been perforn1ed by another employee. Unfortunatelv, this particular incident closed without any real evidence being put 'to the Commission to support or refute the contention. It should be noted that the need to undertake calculations on that day was an assertion on Mr Dark's part known to the respondent prior to the formal hearing as it fonned part of the applicant's formal application for reinstatement filed with the Commission on 12 February 1993. The advocate for the Council queried Mr Dark as to why he would drive some 20 kilometres to his home to collect his calculator when he may have been able to drive to a treatment plant which was only some 4 kilometres away and ask for the use of a calculator. The applicant responded that he was familiar with only one part of such treatment plant and did not think to ask if they had a calculator. The more pronounced area of divergence in evidence between Mr Tripcony and Mr Dark centred upon the discussion which had taken place between the two on the morning of 6 November 1992. Mr Tripcony stated that Mr Dark had said that he had gone home to drop off woodchips he had picked up that morning from a Mr Ellis. Mr Dark's version of this discussion was that, when asked where he had got the woodchip at his vard from he had said "From Glen Savage and I have also got a bag from my mate Scott Ellis long before this incident" Mr Scott Ellis is a Council employee. Mr Ellis was not called to give evidence as to the truth or otherwise of these assertions. Mr Tripcony further stated that Mr Dark said he did not believe that the "Council would miss a few dollars worth of woodchip" and that "Mr Dark became emotional and admitted that he had taken Council woodchip" As opposed to this Mr Dark admitted to saying that the Council wouldn't miss - "that little pile that was swept off the tray". and that he admitted to saying that he had taken Council woodchip, but it was that small amount he had swept off the back of the utility. C:oncl~ions (It should be noted. at the outset, that the Commission drew no adverse inforence from the fact that the Council did not press criminal charges against the applicant). The Commission can only detem1ine matters upon the evidence which is submitted by the parties. In this matter, the allegation made by the employer is that Mr Dark misappropriated Council property (half to a full backhoe bucket load of woodchip from the Finland Road Sewerage Treatment Plant) and for that he was summarily dismissed. -- 2 of 3 -- 514 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 3 April, 19 93 It is clear th at the Award which covers employees such as Mr Dark (i .e. the Local Authorities (Excl udi ng Brisbane) and Mai l Roads, Etc .. Award - State) makes provision (clause 18) for situations whereby an employee may be "d ismissed without notice fo r dishonesty, drunkenness, . .. ". This provision was utilised in Mr Dark's case by the emp loyer. TI1e Commission, in making its decision. has also taken into account the work hi story of the applicant. It appears that apart from the "pipe incident". there are no other alleged infringements on the applicant's work fil e. Whilst Mr Dark may have been warned over matters pertain ing to that incident. he was also given the ben efit of the doubt by the employer. Subsequent to this event. the applicant claimed that he had been promoted by the Council into a number of positions which would suggest quite strongly that the Cou ncil had not held the "pipe incident" against th e app licant . Such promotional claims were not refuted by the Council. The Comm ission has also noted com m en tary of the Industrial Commission of New South Wales in Court Session in Shop. Di.rtributive and A /lied Emp loyees Association (NSW Branch) v Jewel Food Stores (1987-88) 22 FR I where the Commission said: - " We consider in cases where dishonesty is alleg~d a.~ the reason for summary dismissal, management shou ld on ly su mmarily di smiss if it is fully satisfied after careful in vestigation that th e accusat ion has been ma de out" . ' Ibis passage was cited with approval by Mr Justice Peterson in Shop. Distri buuve and A /1,ed Employees Association v Coles-Mye r L td trading as Posseys PRINT f/6863. F u11h<r, in m.atters of summary dismissal for m isconduct, the emp loyer bears the onus of proving, on the ba lance of pro b ab ilities, the wrongdoing of the employe-, (North v Television Corporation Ltd. (/9 76) J I A LR 599). In this ca.,e. the Co mmissi on is not convi nced that such a requirement has been met by the emplo yer. To a large degree, this case resL~ upon t.he ev idence of both Mr Dark and Mr Madzia. both of whom were the only partici pants involved in the incident of 5 November 1992, which precipitat ed t he dismissal. The Commission ha.$ detailed the reasons as to wh y it bel ieves Mr Madzia to be an unrdiabl c witness. Mr Dark. who . on his evidence, has steadfastly maintained an uncha nged version of events appeared to the Commission to b~ th e more credihle witness when compared to Mr Mad zi a. TI1e next dear area of divergcnc,' in evidence is bdwe..:n Mr Tri pcony and Mr Dark and their differing versions of ev en ts of the meeting on the morning of 6 November 1992. Mr Tnpcon y al kges that Mr Dark confessed to misappropriating Co uncil property. Mr Dark den ies that he confessed to the events as detailed by Mr T ripcony. Mr Dark, as previousl y referred to. states that he made co nfessions to the Cou ncil regarding the woodchip he swe pt off the tray of hi s utility, but in no way confessed to the. allegations as put by the Council. From Mr T ripcony's own evidence. another Council employee, Mr Jensen (Sewerage Treatment Plant Foreman) was present during such alleged confess ion . !\fr Jensen was not call ed by the Cou ncil to give evidence to corroborate Mr Tripcony's assertions. TI1e Commiss ion then n ee ds to de tem1i11~ whet her Mr Tripcony's evidence is more reliable than that of l\'1r Dark regarding the alleged confession. Having had the advantage of observing the demeanour of both Mr Dark and Mr Tr ipcony in givi ng ev idence. l consider Mr Dark to be the more relia bl e w itness. The ,i1 ua1 ion m;iy have been different if corroboration of the a ll eged confossion had been fo11hcoming. On the Council's own ev idence. there was a capac it)' for such co rro bo ration but it was not uti lised. From Ms Lobwein's ev idence. what wa.~ Je ll on Mr Dark's footpath was a much smaller quantity of woodc hip than that w hich the applicant picked up from the treatment plant. TI1 e photogr.1phic evidence, coupled with Ms Lobwein's ev idence. indicat es that th~ wo odchip was kept out in full. pub lic vi ew at a sp ot quite distan t from where Mr Dark wou ld haw use d it if that wa., his intent io n. This persuades th e Commission that it was not Mr Dark's intention to misappropriate Council propert y hut nither. al I tha1 h? was intending to do wa$ to clean out his utility. As I pre fer Mr Dark's ev iden c.o to that o f Mr Tr ipc,)ny and Mr \fadzia . and as Mr Dark's ev idence is corroborated in some respcc1s by that of Ms Lobwei n, I am p<rsuaded that Mr Dark has gi ven tn, th fu l ev idence to the Commiss ion . From lhe ev idcnN and subm issions put to the Commission. the Council ha~ not made o ut its case against the appl icant. In light of all the circumstances out lined in this dec isi on. the Comm ission is of the view that the decision of the Coun ci l in dismi ssing Mr Dark is sufficiently har,,h and oppressive s(> as to attract the in tervention of the Comm ission. TI1erefore. in acco rd ance with s. I l.3 8(1Xa) of lhe Industrial Relations A et I 990 (the Act) I hereby order the reinstatement of Mr Dark to his fom1erly held posi tion with the Maroochy Shire Council without prejud ice to his fo nner empl oyment conditions. Such reinst atement. for the purposes of this dec ision, is to take effec-t as from the date of dismissal. The Commission orders the employer to pay Lo Mr Dari( an amou nt of money equal to that wh ich Mr Dark wou ld have received had he be en employed over suc h peri od of time until the date upon which he resumes work. Such resumption of wo rk shou ld commence on Monday 19 April 1993. In detem1 ining such amount to be paid l<i the applicant, the employer should utilise s. 11.38(5) of the Act, n amely :- "(5) The remuneration must not exceed the actual a mount of loss to the emplo y ee because of not receiving wages from th e emp loy er, after taking into account any employment benefits or other wages received by the employee during the period for wh ich remuneration is being assessed .". Furthe r. if applicab le in this instance. the Commiss ion would also order the repayment. by the emp loyee of any amounts paid to the emp loyee by or on accoun t of the employer on temiinntion of the emp loye,!"s employment. Such amou nt sh,)uld be forthco ming to the applicant by Monday .19 Apr il 1993. lf there are any difficulties experienced in detem 1i 11 in g the appropria te amounl to be paid to the applicant, the parties should make co ntact w ith the Registry to seek fu1ther clarifica1.ion from the Commission. The Commission orde rs accordingly. D. A. SW AN, Commissioner. A ppeamnces:·-· Mr G. Hay~ r<>ft. for the applicant. Mr 0. Bidgood. of Th e. Australian Work~rs· Un ion of Emp loyees. Queen~land. Ms L. Garnhk with her Mr I. Leckenby, of the Local Govemmenl Assoc iation Inc., on beh al f of Maroochy Shire Counci l. Operativ~ Date: 19 April 1993 Decision -·- Re in statement Released: 14 Apri I I993 23 April, 1993] QU EE NSLAND GOVERNMENT INDUSTRIAL GAZETTE 515 -- 3 of 3 --