Mr Brooks indicated that after the discussion with the other members of the panel he must have decided his interpretation was incorrect.
166 Mr Brooks did not have a copy of Mr Hipkins' notes of the interview, he had given his opinion verbally. The panel reached a consensus and Mr Brooks prepared a summary document which formed the basis of the report to ICAC.
167 The report was not provided to Mr Grose. The Union never asked for it and if they had he would have given the same response as he gave to other enquirers and that was that if ICAC agreed to its release then Council would release it.
168 On 6 December Mr Grose asked Mr Brooks if he was going to talk to Daryl Penrith and Mike Rand and was told no, only if the matter was going further. Mr Grose noted this conversation in his work diary (Exhibit 6).
169 In early December 2004 Mr Mackinlay was informed by Mr Higgins that Mr Gatty was the subject of some harassment by the Landfill staff. They were giving him a hard time, following him around etc. Mr Higgins told that he and Mr Yadav were talking to the staff on the issue. This was reported by Mr Mackinlay to Mr Brooks. Mr Higgins took the view that both parties were getting a "bit paranoid and making mountains out of molehills". Mr Grose was taking photos and other little things that seemed to annoy Mr Gatty.
170 There was evidence from both sides (Mr Grose, Mr Penrith, Mr Rand and Mr Gatty) each generally complaining about actions/activities of the other. On the Landfill staff's part the issues raised were mainly OH & S matters (unsafe practices by Mr & Mrs Gatty such as allowing the children to run around the steel section, Mrs Gatty not wearing shoes, not keeping the area tidy etc.) Mr Gatty's complaints went to being followed around, watched etc., a Council vehicle driving past his house.
171 Mr Gatty also gave evidence that Mr Grose had approached him in early December and asked him to reverse his statement. He also told him that in two or three weeks he'd have Mr Gatty's key taken off him so he could not enter the Landfill outside of hours and in two or three months he'd have him "kicked out of there". Mr Gatty said it took longer than that but he believed it was due to Mr Grose that he'd been kicked out of the tip. There was evidence from Council that Mr Gatty's contract was not renewed after the end of May 2005.
172 Mr Grose denied that he asked Mr Gatty to reverse his statement but rather said "I can't believe you did that to me. I've read your statement. You're trying to get me sacked." Mr Gatty told him that was not his intention. Mr Grose also denied saying he would have him kicked out but did say he told him that he had now drawn attention to himself and it was going to affect him as well and they'd see how long he lasted. Mr Grose maintained that Mr Gatty's contract ran out in 1998 and that it was only verbal and did not cover steel.
173 In mid December Mr Gatty contacted Mr Higgins and told him his house had been vandalised. Mr Gatty gave evidence of rocks being thrown through his front window whilst his wife and young son were in the room. He had since installed security surveillance. The matter was reported to the police.
174 The Commission had alerted Mr Klower and Mr Grose to the issue of self-incrimination and suggested Mr Grose get legal advice over night before answering questions on the above incident. The same caution was given to Mr Rand. Mr Rand declined to answer questions on the incident.
175 Mr Grose denied any involvement in this incident. He was at home on the night in question with visitors having Christmas drinks. He had never been questioned by the police about the matter. In the week prior to the hearing in March he had been advised by Mr Klower that the issue was to be raised in the hearing. (Police documents in relation to the incident were subpoened by Council-Exhibit14). He had then gone to the Griffith Police Station to enquire about the matter and was told the file was closed. He volunteered his DNA. (Nothing more had been heard from the Police as at the finalisation of the evidence in this matter).
176 At the end of December, Solicitors for Mr Gatty wrote formally to Council to complain on his behalf of harassment by Council workers at the Landfill. The complaint also mentioned the "malicious damage" to Mr Gatty's home and that the matter was currently being investigated by the Police. The letter also referred to an earlier incident the same day as "malicious damage" of the Council vehicle driven by Mr Grose coming up to his area and driving around when there was no reason to be there. This was claimed to be harassing and intimidating behaviour. (Exhibit 32)
177 Mr Higgins had the responsibility of drafting Council's response which he discussed with landfill staff. The reply raised a number of issues concerning Mr Gatty's conduct and actions at the landfill, the role and duties of Landfill staff (including Mr Grose) affirmed Council's non harassment policy but pointed out that Mr Gatty could be instructed to undertake safe work practices and carry out his work in accordance with his contract. As far as Mr Higgins was aware Mr Yadav had sent the letter in substantially the terms he had drafted. The letter was not attached to Mr Brooks' affidavit but Mr Higgins' draft was annexed to Mr Grose's affadavit in reply (Exhibit2- annexure "D"
178 Mr Yadav gave evidence about a meeting he and Mr Higgins held with the Landfill staff on the issue of intimidation, Mr Gatty's rights at the Landfill site (as his contract had not finished) and also his rights, having made a protected disclosure. Mr Yadav said the staff took this "quite well" and seemed to understand Council's concerns that their actions could be seen as a reprisal against Mr Gatty. Mr Yadav and Mr Higgins also met later with Mr and Mrs Gatty (Mr Brooks being away on sick leave). Their concerns were raised but Mr Grose was not specifically mentioned. Mr Gatty was also told to stop waving at the staff as they were construing that as being snubbed by him. Mr Yadav subsequently reported the meeting to Mr Brooks by e-mail in early March 2005.
179 When Mr Brooks returned from sick leave he finalised the report to ICAC which was forwarded on the 31 January 2005. The report comprised the following: 1. EXECUTIVE SUMMARY, 2. SCOPE OF THE INVESTIGATION, 3. METHODOLOGY USED, 4. THE EVIDENCE, and 5. CONCLUSIONS AND FINDINGS.
180 Under the heading "1. EXECUTIVE SUMMARY", the findings concerning the three allegations were detailed as follows:
1.Gate
Mr Grose could claim some benefit of the doubt in relation to this allegation but, notwithstanding this, he has allowed himself to become involved in matters at the margin of his core task and responsibilities. As the senior person at the Landfill he cannot afford to be seen in a role where he is involved in activity which could be viewed as dubious. Even with the noblest of motivations, the fact remains he used a Council vehicle during Council time for essentially a personal errand. He needs to focus on his core tasks and avoid becoming involved in other matters. In spite of the statements by Mr Grose and Mr Peter Piccolo, I remain suspicious as to the circumstances of how the gate got to Mr Piccolo's residence. Mr Paul Josling's statement advises that: "I suggested he let Brendan know that he knew where the gate was and that if it wasn't returned he would involve the Police." I believe it was this threat that prompted Mr Grose into action.
2.White Commodore
Again even with the benefit of the doubt, the transaction Mr Grose proposed in respect of the Commodore was at best poor judgement and at worst illegal.
As to the question of how the Commodore left the Landfill, we have video proof of Mr Grose and his wife driving into the landfill site on Saturday, 28 September ( note Mr Brooks acknowledged in cross examination that the month should have been August). The tapes from the weighbridge for the 28 and 29 September 2004 ( note error acknowledged ) were nearly unviewable and the tapes for Saturday, 4 and Sunday, 5 September 2004 were totally unusable as they did not display 4 & 5 September 2004 but dates in August 2004. It is reasonable to assume the possibility that the tapes were intentionally interfered with. While there is no proof to link Mr Grose to this, it should be recorded as an open question which gives Griffith City Council and I some concern.
Mr Peter Higgins' statement states that Mr Grose told him on 3 September 2004 that the Commodore was at his house. When questioned later Mr Grose advised that he and his wife entered the landfill site on Saturday 28 September 2004 ( note error acknowledged) to fix a computer and that the Commodore had been parked in the shed at the depot or at the Blue Dot Raceway. I am therefore entitled to say that Mr Grose's evidence on this point seems unreliable and therefore places in doubt other recollections of events by Mr Grose.
3. Valiant
Mr Grose again used poor judgement in this matter and demonstrated poor leadership. Even in the absence of written instructions he must have known that what he was proposing by exchanging a car for work done by a third party was essentially illegal and could bring the Council into disrepute. As with other actions listed above, this action would have been known to his staff and it sent the wrong message. It was a poor example to set and unfortunately it seems to have been part of a pattern that had evolved at the Landfill under his leadership.
181 Mr Brooks acknowledged that in his report he did not indicate to ICAC that Mr Grose had brought the vehicle back and that it was at the Landfill site. Mr Brooks said that was because he wasn't sure if that was the truth or not as it was at odds with Mr Gatty's statement. When asked if he had made subsequent inquiries to check when the vehicle was back at the Landfill site he said he thought the car was back on 3 or 4 September. His concern was that Mr Higgins had advised Brendan and the vehicle was then returned to the Landfill.
182 Under the heading "METHODOLOGY USED" was an outline of the procedures followed in the course of the investigation and included in the attachments to the report were copies of the various statements taken and Mr Grose's October 18 response to the Gatty statements. Also detailed were the questions asked at the 29 November interview together with Mr Grose's responses.
183 That section also noted, in addition to the record of the interview questions and Brendan Grose's responses, that "a copy of Brendan Grose's telephone account are attached as appendix 14". However that phone account was not included as part of the Report to ICAC annexure to Mr Brook's affidavit (Exhibit 32-annexure C). In the annexed interview record the following notation appeared below the response noted by Mr Grose to a question about the allegation that he phoned Mr Gatty twice on 3 September as follows:
"NB- Grose's telephone account indicates the following - 2 calls-made by Brendan to Ron Gatty 1 at 9.43am for 6minutes and 12 seconds and a second at 12.28pm for 1minute and 34 seconds both on 26th August 2004. Brendan made 2 calls on 3rd September 2004 - 1st at 12.21 which lasted 21 seconds and a further call at 2.09pm which lasted foe (sic) 1 minute and 4 seconds"
184 Mr Brooks detailed under the heading "THE EVIDENCE' the following:
"The evidence gained during the investigation process and ultimately used to determine my findings are as follows:
a) Signed statements by persons named in the public declaration and by Council staff involved.
b) Telephone conversation with the person named in the public disclosure.
c) Formal interview by the Investigation Panel of Brendan Grose on 29 November 2004.
d) Opinions of members of the Investigation Panel.
It is my belief that the evidence presented is accurate and reliable"
185 In his "CONCLUSION AND FINDINGS" Mr Brooks noted in his "Summary" the following:
On my reading of the facts and viewing the statements taken, Mr Grose has been guilty of misconduct in that he:
- acted inappropriately and in a manner which could bring Council into disrepute.
- Exercised poor leadership and decision making.
As stated above, my opinion is that the public declaration statements by Mr Ron Gatty are correct and I find it hard to believe all of Mr Grose's recollection of events, unfortunately possible evidence via video tapes is not reliable and I believe that the tapes could have been intentionally interfered with.
186 Mr Brooks then made recommendations as to six actions to be taken which may be summarised as follows:
a) Mr Grose be sent a letter by the General Manager requesting that he advise why he should not be penalised as per Clause 41 (d) of the award for "breaches to the Griffith City Council Code of Conduct (Policy 160) and for breaching his leadership role as defined in Mr Grose's Position Description".
The disciplinary actions provided for under the Award were noted as
i. Demotion
ii. Suspension without pay
iii. Termination.
b) As a matter of urgency, a review and implementation of new procedures re the acceptance and disposal of vehicles, including a review of procedures re abandoned and impounded vehicles at the Landfill and the vehicle Compound. The policy and procedures to be clearly communicated to relevant staff and contractors.
c) Review of procedures re "scavenging".
d) A review of the entire operations, management and procedures at the Landfill.
e) Repair and if necessary replacement of the video surveillance equipment at the weighbridge, training of staff and implementing regular collection and viewing of the tapes by a senior manager.
f) Advice to staff concerning the rights of those making public disclosures in this investigation with reprisals to be seen as disciplinary breaches to be "vigorously pursued".
187 In late April 2005 Mr Mackinlay and Mr Brooks discussed the results of Council's investigation and they both believed that disciplinary action was required against Mr Grose. Mr Brooks then caused to be sent the 29 April letter to Mr Grose as outlined in paragraph 21 above.
188 Mr Brooks deposed that the main reason for the time taken between submitting his report to ICAC and writing to Mr Grose on 29 April was that he had been advised in telephone conversations with Ms Malin, an official of ICAC, not to take further action until ICAC had had the opportunity review his report. He had contacted Ms Malin a number of times to check progress and received verbal approval to implement the recommendations contained in the report in April.
189 Mr Mackinlay acknowledged that he did not approach Mr Grose in any way about the allegations in the period between the meeting of 29 November 2004 and the 29 April 2005 letter. Although he also said that during the investigation on several occasions, he would have said to him words to the effect of - "look you need to get on the front foot, you need to get some information and you need to be responding to these requests for information, you need to be getting your story across," and his advice was "well I'm acting on the advice of the Union and I'm taking their advice."
190 Mr Fayle had contacted him on occasions to ask about progress of the matter but as he understood it Mr Fayle had "stepped back" from Mr Grose due to a previous issue between them.
191 Mr Grose said that when he got the letter he contacted Mr Klower for advice. Mr Klower asked him if he had had a meeting with Council when all these questions were put to him and whether he had given the answers in detail and he told him yes and Mr Klower indicated the response he needed because he'd given the answers in detail. Mr Grose wrote his letter of reply of 6 May (see paragraph 22 above) and maintained that it answered the allegations against him. He denied that he had ever breached Council's Code of Conduct.
192 Mr Mackinlay considered that the 6 May response of Mr Grose was "completely dismissive" . When given the opportunity to expand on any other issues that might act in mitigation he came up with a short concise response that said "essentially nothing " and did not add to their knowledge or in any way explain his actions. This was another opportunity for him to put his case forward and answer very specific allegations. The General Manager was considering what action was appropriate to take having found him guilty of serious misconduct.
193 They decided that Council needed to meet with Mr Grose to discuss the issues with him. Mr Mackinlay then personally made attempts to contact him between the 9 and 25 May to advise him of the need to meet with himself and Mr Brooks. During that period Mr Grose was absent on workers compensation leave in relation to a back injury. Council records did not have Mr Grose's home phone number and it was also not listed in the local phone directory.
194 It was Mr Mackinlay's evidence that in the week of the 9 May he tried to ring Mr Grose's work mobile which was answered by Darryl Penrith. He asked him to pass a message on to Mr Grose that he and Mr Brooks wanted to speak to him, he said he would do this. Later in that week he again rang Mr Grose's work mobile which was answered this time by Rohan Smith another Landfill employee. Mr Smith was also asked to pass the same message onto Mr Grose.
195 Mr Grose said that when he went off on leave he handed his work mobile phone to Darryl Penrith on 13 May (a Friday). He then went to Melbourne for his partner's birthday and did not return until 17 May (a Tuesday). Mr Penrith confirmed that Mr Grose gave him the work mobile on 13 May and maintained that Mr Mackinlay had rung him several times after that date in the week beginning the 16 May (over a two week period). Mr Mackinlay was trying to get hold of Brendan but didn't say what for.
196 Mr Mackinlay said he had also told Peter Higgins in the beginning of the week of 9 May that he was trying to contact Mr Grose to arrange to have him come in for a meeting. Sometime during that week he also had a conversation with Mr Higgins in which Mr Higgins told him Brendan had rung him a couple of times and asked "what do they want to have a meeting about". Mr Mackinlay told Mr Higgins that the General Manager was considering disciplinary action and wanted to discuss the matter with Brendan. His written response hadn't helped matters. Mr Higgins was also in his office early in the week commencing 16 May when his mobile phone rang and he indicated it was Mr Grose on the other end. Mr Mackinlay "motioned" that they needed to see him and he recalled Mr Higgins telling Mr Grose "that they want you to come in and have a meeting with them...um well I imagine it's about the ICAC investigation"
197 Mr Higgins acknowledged that he spoke to Mr Grose a couple of times in the two week period before his termination. He said that Mr Mackinlay had spoken to him about getting Brendan to come into a meeting to get a letter. He told Mr Mackinlay that Brendan had contacted him. This was on a mobile phone and Mr Higgins used the reverse dialling to ring Mr Grose back and asked him to come to a meeting but he was in Melbourne and wouldn't be back till the end of the week. He said he passed that on to Mr Mackinlay but couldn't remember the dates involved.
198 However prior to Mr Mackinlay speaking to him he had gone to see Mr Brooks because of rumours that were circulating around Council about Mr Grose. Mr Higgins said there must have been a Council meeting where this was discussed and it got out, as the Parks and Gardens Supervisor, a Mr Brown, had informed him that "my boy's got the chop." He told Mr Brooks there were rumours that Brendan was going to be fired or suspended. Mr Brooks confirmed that that was the way he'd reported it to ICAC, they'd got something back from ICAC and that was the way they were proceeding. Mr Higgins told him he didn't think that was fair as he hadn't been involved and didn't know what level of investigation there had been.
199 Mr Brooks denied that there was a discussion with Mr Higgins in those terms because they hadn't finalised what actions they were going to take. The letter of 29 April listed three possible disciplinary options available under the award of which termination was only one. If there had been a discussion it would have been along the lines of "we're working our way through it." Mr Brooks acknowledged that it was "fair to say" that there was quite a lot of rumour flowing around the place at the time but there was certainly no comment from him to Mr Higgins that that was the course of action that they had decided because right throughout the investigation Mr Higgins had actually been kept away from it. This was because not only had he provided a statement but also because Mr Brooks had "some suspicions" as to his ability to be unbiased.
200 When Mr Higgins spoke to Mr Grose he told him that his "fears" had been confirmed.
201 Mr Grose deposed that when he returned from Melbourne on the 17 May both Darryl Penrith and Jim Taylor told him that Mr Mackinlay was wanting to get in touch with him as Mr Brooks wanted to have a meeting. Mr Grose contacted Ian Fayle who in turn contacted Mr Brook's Secretary Tracy Robertson to organise a meeting for Friday 20 May which was the only day Mr Fayle could come across from Hay. Mr Fayle was advised that Mr Brooks was busy on that day. Mr Fayle contacted Mr Mackinlay by phone and was told that Mr Brooks didn't want to have a meeting only to give Mr Grose a letter. Mr Mackinlay said he could not tell him what was in the letter. Mr Fayle called Mr Grose back and told him that that his suspicions of termination may be right as they don't want a meeting only to pick up a letter.
202 Mr Grose deposed that he was at home at this time and contactable by "other parties" who did contact him, including Mr Fayle who had no problem contacting him. He received no contact from Council.
203 Mr Grose then rang Mr Higgins and told him about the letter and his suspicions as to its contents. Mr Higgins had not heard anything about it and asked how he knew it was a termination letter he told him he had heard a certain manager "spruiking" about it. Mr Higgins said he would go and ask Mr Brooks and call him back. When he called back he said that Mr Grose was right, and essentially he had protested about it, tried to have a discussion with Mr Brooks but was dismissed He didn't agree with it and apologised. Mr Grose said that as a result of this discussion with Mr Higgins he believed that he had been terminated by Council. Mr Higgins was his manager and wouldn't lie to him.
204 Mr Grose said he also knew that he'd been terminated because the week before Mr Brown had been "bragging" about it down at the club - "Brendan's got sacked, Brendan's got sacked". He believed several staff "up the top office" already knew.
205 Mr Penrith also said there were rumours floating around the between the town and the tip in the week before Mr Grose received his termination letter. He couldn't recall who had specifically mentioned it however.
206 After speaking to Mr Higgins, Mr Grose rang Mr Fayle, told him it was a termination letter and asked what he should do. Mr Fayle said he would contact Mr Klower and ask him and was told to tell Council that as Mr Grose was on workers compensation they should deliver the letter.
207 Mr Mackinlay denied that he was contacted by phone by Mr Fayle and that he told him during the course of the conversation that he had a letter for Brendan and that "he wouldn't like it" with Mr Fayle asking if he was going to terminate him. Mr Mackinlay said Mr Fayle may be confusing it with the 29 April letter. He called him "about that period as he often did, because both of us were keen to see the whole thing brought to a conclusion , it had been dragging on for various reasons."
208 There was no evidence from either Mr Fayle or Mr Klower who conducted the case on behalf of Mr Grose.
209 Mr Mackinlay said that between the 9 and 24 of May, he and Mr Brooks had discussed on a daily basis the issues concerning Mr Grose although he could not recall the detail of those discussions. On the 9 May after discussion with Mr Brooks about the unhelpful written response of Mr Grose, Mr Mackinlay was asked by Mr Brooks to look into the three possibilities allowed under the award, being suspension, demotion and termination. He researched those possibilities particularly in respect of demotion because they were convinced that Mr Grose would need to be re-located if he was to be demoted. He also drafted a letter in the event that termination was the option the General manager chose. The draft letter was typed by Mr Mackinlay on his computer and remained there untouched from 9 May until 24 May 2005.
210 Mr Mackinlay said the significant differences between that version of the letter and the final termination letter of 24 May were the references to Mr Grose's continued reluctance to make himself available to come and discuss the issues and the reference to the further breach of conduct in relation to the contacting of Councillors.
211 Mr Mackinlay acknowledged that, apart from the attempted contact from the period of 9 May and the 29 November 2004 ICAC investigative meeting, at no stage in the whole 9/10 months since the original Gatty complaints had Council requested that Mr Grose attend for the purposes of having a meeting with either Mr Mackinlay or Mr Brooks to discuss the complaints or Mr Grose's actions. He also acknowledged that when he couldn't contact Mr Grose by phone in early May he did not send a letter to his home address requiring him to come to a meeting. That wasn't the was they did things in Griffith.
212 Mr Brooks indicated that in relation to the recommendations concerning a review of Council's policies and procedures concerning cars and the Landfill some had been implemented, particularly in relation to vehicles, but the rest had been put on hold pending the outcome of these proceedings.
Contact with Councillors
213 Mr Grose said he had spoken to Councillor Pittavino "only just by coincidence". He had spoken to Mr Higgins on the 17 May and had been told about Mr Higgins going and speaking to Mr Brooks who said "yes, he's been terminated." The next day Mr Grose was with Mr Snaidero and they were passing through Yenda. They stopped to get a bite to eat and do some business at the IGA store as Mr Snaidero is in a franchise with an IGA business. Councillor Pittavino was across the road at a Field Day, something to do with phones as he "does Telstra". When they said they were having a bite to eat Councillor Pittavino said he'd join them. Mr Grose then told him about an a recent encounter he'd had with Peter Piccolo outside the gym.
214 Mr Grose's evidence about that encounter was that he had been coming out of the gym with his partner and when Peter Piccolo drove up he scraped his car against the kerb. Mr Grose made some comment about taking it easy and said that " and he goes -"That's right you like 'em out at the tip all in one piece so you can sell 'em". He then "told him the story" . Mr Grose told him he had been terminated and said "That's not funny, things like that, that gets around a small town".
215 Initially when Mr Piccolo was questioned about this encounter he could only remember scraping his car and speaking to Mr Grose and being when he was at the gym that he'd been terminated. Mr Piccolo said this (and other) conversations weren't terribly significant to him, it didn't concern him at the time. He was "travelling 100 hundred miles an hour all the time." He just dealt with things and moved on. After some prompting he said "it will come to me, give me a chance". He then said- "Yes, Brendan said, hey, take it easy, some - you know, about the front guard of it. And I said, well, you can take it out the tip and scrap it, something like that. And that's when he said, don't say things like that, that's what I got the sack over, some comment like that."
216 Mr Grose said that Councillor Pittavino advised him to go and see the Mayor and bring this to his attention. He told him that was the proper protocol and that it should be reported. Mr Grose also deposed that Mr Snaidero commented that it was proper protocol to see the Mayor if he had concerns about the General Manager.
217 Mr Grose subsequently rang the Mayor and asked to have a meeting with him on Saturday 20 May at the Mayor's house. His partner went with him. His purpose for seeing the Mayor was because he had a complaint about the General Manager breaching the Code, it was nothing to do with his termination. Mr Grose deposed that he would not have made an appointment to see the Mayor if in his opinion he was not already terminated and effectively no longer a Council employee. Mr Grose maintained that the Mayor had an "open door" policy with staff. Also if he had a problem with the General Manager then you couldn't go to the General Manager with a complaint about the General Manager, the protocol was to see the Mayor.
218 Mr Grose said he was having "a fair bit of trouble around the town with the cars". It was on the local news, he'd been in the paper about six times concerning taking vehicles, leaving the site, taking them back to Council and selling them. The newsreader had actually referred to the "supervisor at the landfill". He said "it gets around". He was concerned that "90 percent of the town probably thinks I'm a thief". He went on to say - " And for Mr Brooks to, while he's doing an interview, mention parts of the whole investigation to a person that all he was there to ask, ringing up about the gate, I find a total breach of the code."
219 When Mr Grose met with the Mayor he didn't tell him about his concerns about being terminated, he told him he was terminated. The Mayor asked him if he was sure and he replied yes. The Mayor told him he didn't know anything about it and he could not interfere in the General Manager's decision nor could he direct him. Mr Grose maintained Mr Dal Broi told him "You can't win with these guys". He also said that when Mr Dal Broi asked him if he was sure he'd been terminated and he told him he was, Mr Dal Broi then said "well take the gloves off. "
220 Mr Grose reported to him "the general manager has spoken to a Mr Piccolo and went into great detail of the case and caused me an embarrassment." He then relayed the encounter with Mr Piccolo as detailed in paragraph 207 above. He considered that Mr Brooks' investigation was appalling and told the Mayor that.
221 Mayor Dal Broi's evidence was that Mr Grose rang him some time in May wanting to meet with him because he felt there was a letter terminating his employment with Council. The Mayor informed him it was not a matter for an elected representative, but he'd known him for a while and he still insisted on meeting him so he did "approve" to meet with him.
222 In answer to a question from the Commission he said- "he was under the understanding that he was about to be terminated, yes. There was a letter - his words there was a letter floating around the council building and that the staff were trying to serve the notice on him to terminate his employment."
223 Mayor Dal Droi couldn't recall saying the words attributed to him by Mr Grose. However he had known Mr Grose for some time and could recall saying that if he was telling him there were inconsistencies, and he was trying to explain that there were some inconsistencies, he told him there'd "have to be an explanation by someone".
224 Mr Grose and his partner spent about an hour with him. Mr Grose showed him some documents- letters where he'd been given references about his work, talked about the job and what he did and didn't do on the site. He felt he was unfairly treated and that some of the allegations being made were untrue. The Mayor was not fully aware of all the allegations at the time because the General Manager was handling it. They just generally spoke about that.
225 Mr Grose asked if he could help him and he said that he would try and approach the General Manager. He couldn't recall all the issues that were discussed that morning. However the next working day on the following Monday or Tuesday, he raised the issue with the General Manager who gave him his version. That was where he stopped because it wasn't his place as an elected representative to interfere with staff matters.
226 The Mayor agreed that he had an "open door" policy with staff who wanted to discuss these type of matters with him. He could not answer for other Councillors as to whether they had a similar approach. He also conceded that he agreed to meet Mr Grose even after he had explained what he wanted to speak to him about. He would have applied the same principle to other staff.
227 The Mayor couldn't recall having any discussion with fellow Councillors in relation to the termination, but there were discussions in relation to some of the issues at the waste disposal. The General Manager had briefed him as to the process but not the detail. He also reported in Committee that he was conducting an inquiry and they may have discussed the issue of the inquiry.
228 Mr Brooks however maintained that the Mayor did not have an "open door" policy and that the Mayor was very well aware of the clear definition between the role of the elected members and the Mayor and the General Manager and the senior staff. Mr Brooks also indicated that he had had occasion to speak to the Mayor and Councillors and staff about communication between Councillors and staff.
229 Mr Yadav gave evidence that he was aware that Mr Grose had attempted to contact Councillors during the period of investigation and prior to being terminated. Councillor Pittavino had taken Mr Yadav aside at a social function in February 2005 and told him he thought "Brendan was hard done by". Mr Yadav didn't agree and defended Council's position.
230 Mr Yadav took the view that Councillor Pittavino was obviously speaking on behalf of Mr Grose. Although he conceded that Councillor Pittavino didn't actually say that Mr Grose had asked him to approach Mr Yadav.
231 Mr Yadav also agreed that Councillors generally got "pretty involved" in a whole lot of committees that regularly run the operation in the Council. They talked to staff regularly whenever there was a need for information but generally went through Mr Yadav or his counterpart on the corporate side. Mr Yadav also agreed that the Mayor had an "open door" policy.
232 Mr Brooks had told him at a meeting of the investigation panel about Mr Grose approaching the Mayor in relation to the allegations.
233 It was Mr Brooks' evidence that shortly before 24 May, Mr Yadav had told him that he had run into Councillor Pat Pittavino who had told him that Brendan had been speaking to him and said he's going to be terminated. Shortly afterwards Mr Brooks also spoke to Councillor Pittavino (but could not recall where the conversation took place) who asked him if it was true that Brendan Grose was being terminated. He then asked "are you sure you're doing the right thing?" Mr Brooks told him it was a "staff issue" and it was subject of an ICAC investigation.
234 In addition, shortly before 24 May, Mr Brooks had a conversation at Council's offices with the Mayor, Mr Dal Broi, who told him that Brendan Grose had been to see him. He was avoiding Mr Brooks because he suspected he wanted to sack him. Mr Dal Broi said he told Mr Grose that it was a staff issue and the General Manager was responsible for staff issues. Mr Brooks told him that Mr Grose had also been in contact with Councillor Pittavino. Council had not finalised its action as they couldn't get in touch with him.
235 Mr Brooks further deposed that Mr Grose's conduct in contacting the Mayor and Councillor Pittavino was in breach of Council's Code of Conduct. (Exhibit 32- Annexure "G"). However he was not able to say that Mr Grose had asked Councillor Pittavino to come and speak to him.
Disciplinary history of Mr Grose
236 Mr Mackinlay gave evidence about Mr Grose's disciplinary history with Council and deposed that he had a "history of unsatisfactory performance and conduct with Council".
237 Mr Mackinlay had checked his personnel file which showed that whilst Mr Grose commenced employment with Council on 22 March 1993 his employment had been terminated on 16 April 2003 on the ground of misconduct for making a false workers compensation statement. It appeared that Council reinstated Mr Grose a short time later.
238 Mr Grose deposed that in relation to the 1993 termination it was not a false workers compensation claim, "Council upon investigation realised that they had erred in their decision and reinstated him immediately." He annexed the applicable letter from Council dated 20 April 2003 (Exhibit 2 - Annexure "K") which indicated, in relation to information about a previous claim, that Council were prepared to accept that his "actions were not done with the intention to deceive" and confirmed his immediate reinstatement.
239 Mr Mackinlay had not seen the letter before seeing Mr Grose's affidavit. He was aware that Mr Grose had made a misleading statement when he joined Council. He was aware he had been reinstated a some days later. Whilst he had not been with Council at the time he had talked to others who were around at the time and were aware of other circumstances surrounding the matter. For him it raised the issue of the credibility of Mr Grose.
240 Mr Grose was not cross examined on this issue.
241 Mr Mackinlay deposed as to four incidents prior to 2004 which resulted in Mr Grose being disciplined by Council and attaching relevant documents from Mr Grose's personnel file:
December 1995 - assault of fellow employee,
August 1998 - approval of sick leave for staff member
without authorisation.
August 1998 - unauthorised use of Council equipment,
December 1998 - failure to erect signage appropriately and
failing to execute his responsibilities as
overseer.
242 Mr Grose deposed (Exhibit 2) that in relation to the assault he was suspended whilst an investigation took place by Council and Griffith detectives. Statements were taken by both. Mr Grose was told by the Police that charges would not be laid as during their investigation they found the other employee to be the aggressor and asked if he wished to proceed with charges. He declined as he didn't want trouble in the workplace and heard nothing further. He was contacted by Council to come and have a meeting with the Human Resources Manager. He was asked if he had any problems working with the other employee and said no and was told to start back at work the next day. He could not recall getting a disciplinary letter regarding this matter as he was not at fault.
243 Mr Grose was cross examined on the details of the assault and what physical actions took place and injuries that were sustained by the other employee.
244 Mr Mackinlay acknowledged that he did not examine the personnel file of the other employee involved. He assumed he received a similar letter to that of Mr Grose which indicated a suspension and interviews to be conducted. He had read the detailed Police statement and the other consistent witness statements which made it pretty obvious. He could not recall any further letter on the file and there was no indication of any outcome. As he understood, it appeared the two men were invited to shake hands and get on with life.
245 In relation to the signage incident Mr Grose deposed that he was only the truck driver, he was not in control of the site and was under the direction of an accredited Traffic Controller retained to do the job. In relation to the unauthorised use of equipment (a spray painter), it was Matthew Higgins who borrowed the equipment, he had been using it at his residence and Mr Grose was asked to go and return it to Council. Mr Grose was not cross examined on any of these issues.
246 Matthew Higgins' evidence was that in relation to the sick leave issue after seeing his doctor for work related stress he had gone to Mr Grose's house to give him a sealed envelope to give to Mr Josling on the following Monday. Mr Grose was the closest one living near him and he didn't find it appropriate to go to his manager's residence for work related issues out of hours. He had also been the one who had borrowed the equipment (a compressor) and followed the procedures at the time which were to fill in a log book. He had not returned it as he had intended to do so after returning from annual leave. He was the only one who used the compressor as he was the only painter.
247 Mr Higgins had also been the Traffic Facilitator and responsible for signage on the day. He had erected the signs as he had been trained to do by Council prior to Mr Grose and the other employee involved commencing work. He was not aware of the memo sent to Mr Grose by Mr Cremasco about the incident otherwise he would have placed a response.
248 Mr Mackinlay was asked a number of questions about his understanding of the incidents. He generally viewed the documentation as being critical of Mr Grose's involvement in the incidents. He indicated that procedures in relation to staff borrowing equipment had changed since that incident and it was no longer permitted. In relation to the alleged assault he agreed there was nothing on the file to indicate any follow up action.
249 Mr Mackinlay also deposed and gave evidence about two complaints received from members of the public - a phone complaint in March 2002 and a written complaint in April 2000 - about Mr Grose's manner and the way he had spoken to them. The written complaint concerned being spoken to in an offensive and rude manner
250 Mr Grose attached to his witness statement (Exhibit 2) a letter of reply sent by Council to the member of the public who made the written complaint. The reply dealt with Mr Grose's belief the person had again been scavenging, language difficulties, the lack of clear guidelines as to community expectations and attaching a draft policy for proposed guidelines. It also indicated that that the incident had been "discussed" with Mr Grose.
251 Mr Peter Higgins gave evidence in reply to the affidavit evidence of Mr Mackinlay concerning Mr Grose's disciplinary record. Mr Higgins deposed that he had not found it to be the case that Mr Grose had a "history of unsatisfactory performance and conduct". He deposed that on the recommendation of his manager and the approval by senior management he had been promoted to Waste Overseer and had continually received above average performance reviews".
252 Mr Higgins also deposed as to the difficulties and problems encountered by the Mr Grose and the Landfill staff and criticism of them by members of the public for doing their jobs. He and Mr Josling had conducted investigations which found that actions taken by staff had been completely justified based on safety and Council's Landfill policy. Senior management had no knowledge of the difficulties and abuse staff had to endure to put into place a "user pays" and compliance with Council's policies. He also deposed that complaints from "wrong doers" did not indicate a poor employee as senior management seemed to indicate. On the contrary it indicated a "dedicated employee willing to operate in difficult circumstances".
253 Mr Higgins indicated that he had concerns with the way Mr Grose handled things at times (particularly in relation to incidents with Mr Siviour). He said Mr Grose was "fairly enthusiastic" and with Mr Siviour it was "two bulls at a gate". He had also had occasion to speak to Mr Siviour about his attitude to staff.
254 Mr Higgins also indicated that Mr Grose was a "fairly active and fairly keen member of staff". However with a few complaints about "this gorilla"" out at the Landfill they did send him to a customer relations course for training on how to deal with customers. It wasn't done as a disciplinary thing but because of the number of complaints coming in. They didn't believe the complaints were justified but wanted "to neaten up Brendan's approach to people".
255 Mr Higgins in cross-examination indicated that because of Mr Grose's "stature and presence" which had an intimidating effect on some people, they had nicknamed him "the gorilla", he was approachable to people but people misunderstood him.
256 Mr Siviour gave evidence about incidents in 2003 and 2004 concerning the operation of the Bluedot Speedway Club with which he had been involved for some years. The club was located within the boundary of the Landfill site. Mr Siviour complained about Mr Grose and his manner and approach and actions in enforcing Landfill procedures.
257 Mr Grose (and to a lesser extent Mr Rand) also countered with evidence about Mr Siviour's manner and approach and problems staff encountered with the Club.
258 Mr Snaidero gave general evidence about his knowledge and opinion of Mr Grose's character and satisfactory performance during the time they had both been employed at the Council (prior to December 2001). He was not cross examined.
259 Mr Yadav gave evidence that he was aware that Mr Grose had had some disciplinary issues in the past and had been cautioned although he could not recall the details. He found him to be an "overbearing character" and had formed this view from the complaints from members of the public about how he had approached people who in the opinion of Mr Grose had done the wrong thing. He lacked customer care skills, had a rough tone and his use of language was often inappropriate.
260 Mr Yadav said that he and Mr Grose had always communicated at a very respectable level. He had never been arrogant or anything and they had a pretty good relationship. He'd had no reason to tell him how to conduct himself apart from dealing with customer complaints in the proper way. A few of the complaints that had come across his desk had been discussed with Mr Higgins but "he always seemed reluctant to deal with the customer complaints properly".
261 In relation to his concerns about how Mr Grose dealt with customers, he said he was unaware as to whether he had ever been disciplined in any way. He went on to say - "his managers were reluctant to deal with those issues. They were quite ineffective that way". He had asked them to speak to Mr Grose about his manner but was not able to say whether that had happened. However the complaints came in pretty regularly.
262 Mr Grose had also been one of the Union's delegates at Council for the last 11 years. He said he often had occasion to have meetings and discussions with Mr Mackinlay since he joined Council. Mr Mackinlay said whilst they enjoyed a "robust exchange from time to time", it was always "cordial".
The Termination
263 Mr Brooks deposed that "at the end of May in the light of all the evidence available" to him he decided to terminate Mr Grose's employment. In reaching that decision he had regard to the following:
· Mr Grose committed serious breaches of Council's Code of Conduct:
- he disposed of Council property (being the valiant motor
vehicle without authority);
- he removed Council property (being the Commodore motor
vehicle without authority);
- he was involved in the attempted theft of a gate;
- he sought to have false documents (being receipts) issued;
- he drove an unregistered vehicle.
· Mr Grose's conduct demonstrated complete disregard for his responsibilities as an overseer:
· Mr Grose had apparently avoided Council's attempts to contact him and had contacted Councillors on at least two occasions in relation to his termination (which constituted further breaches of the Code of Conduct);
· Mr Grose's employment history was far from satisfactory, taking into account his early termination for misconduct, together with four reprimands for misconduct ( including one for assault).
264 Mr Brooks prepared and signed a letter advising Mr Grose of his decision to terminate his employment effective from 25 May 2005 which was sent by registered post on 24 May 2005 (see paragraph 23 above). The letter also advised that Council had chosen not to exercise its right to summarily dismiss Mr Grose, instead providing five weeks' pay in lieu of notice. Mr Grose signed for and received this letter on 25 May 2005.
265 It was Ms Robertson's evidence that Mr Brooks informed her on or about the 24 May that Mr Grose was to be sent a letter by registered post. This was the letter of termination which was based on Mr Mackinlay's May 9 letter. On 23 May Mr Mackinlay e-mailed to her a revised version he had typed which now included an additional paragraph referring to Mr Grose declining to respond to attempts to contact him and also referring to his recent contacts with Councillors. The cessation of employment date was now 25 May (TR-3). This version was printed off and signed by Mr Brooks (TR-4). It was then noticed that the original date of 9 May had not been updated. Ms Robertson saved the document into Mr Brooks' confidential file area in the EDM. She then made corrections to it, removing the old file number 999 (which means personnel file), added a reference TR:PB, added some commas, justified the right margin and changed the date to 24 May 2005. She then printed this version off and Mr Brooks signed it (TR5). Copies of the relevant screen printouts and history for the letters were attached to her affidavit ( TR1-TR4).
266 Ms Robertson believed she sent out by registered post the final signed version dated 24 May however she had both signed letters (9 May and 24 May) in the photocopying room. Her intention was to shred the 9 May letter, photocopy the 24 May letter and place the copy on the personnel file and then send the original 24 May letter. Whilst she photocopied the 24 May letter, as a copy was on the personnel file, she inadvertently shredded the 24 May original and sent out the 9 May letter that had initially been signed by Mr Brooks.
267 Ms Robertson was also adamant that she placed the letter inside a Council envelope and then placed it into a registered post envelope. This was disputed by Mr Grose who said that when he opened the registered post envelope the letter of termination was inside and not in another envelope. His partner, Ms Devery, placed it in a Council envelope he had at home (he had a number of these) and handwrote "Termination letter" on it. The envelopes and letter were in evidence as Exhibit 5. The registered post envelope had a typewritten label with Mr Grose's name and address on it. The Council envelope had a hand written name and address that was not in the same hand writing nor pen( blue and black pen) as "Termination letter".
268 When Mr Grose received the letter with 9 May on it, he said it confirmed his belief that Council had sacked him before it tried to contact him.
269 However it became apparent during the course of the hearing that Council were unaware that there was any issue about the date on the termination letter. A copy of the letter in Mr Grose's possession was not attached to his Unfair Dismissal application. In answer to questions from the Commission Mr Brooks said he could see how Mr Grose might have formed the impression that he did about his termination but that was certainly not Council's intention.
270 Mr Brooks subsequently received a letter from ICAC, dated 10 June 2005, in relation to the investigation (Exhibit 32- "H"). The letter said in part:
Given that Council is implementing the recommendations of the investigation and making efforts to improve policies, procedures and organisation of Council in order to minimise the possibility of similar incidents reoccurring, the ICAC has determined not to take any action in respect of this matter.
271 The letter went on to note that ICAC understood that Mr Grose's employment with Council had since been terminated.
272 Mr Brooks deposed that based on this letter he believed that he had responded "reasonably" to Mr Gatty's allegations, that the investigation had been conducted in a "thorough and balanced way", and that the termination of Mr Grose's employment was the "appropriate, fair and reasonable outcome." He maintained that he still considered that Mr Grose had breached Council's Code of Conduct.
273 Mr Grose for his part maintained that he had never breached Council's Code and deposed that if it could be shown that he had then he would accept his dismissal. However in evidence he said he would not accept his dismissal as he was aware of numerous people speaking to Councillors in the past.
274 Mr Higgins said he was not aware of the reasons for Mr Grose's termination. Mr Brooks did not seek his views in relation to Mr Grose before the termination was effected.
Remedy sought
275 Mr Grose sought reinstatement to his former position or re-employment to another position. There was no evidence however, as to any attempts by Mr Grose to seek alternate employment since his termination.
276 There were bank records produced in response to a Summons for Production which were the subject of debate between the parties. Those records related to a joint account with Mr Grose's partner, Ms Devery. However there was no specific evidence as to earnings directly attributable to Mr Grose himself in the period since his termination.
277 Mr Yadav, Mr Mackinlay and Mr Brooks all opposed the reinstatement of Mr Grose. Indeed Mr Brooks also opposed re-employment to another position.
278 Mr Brooks deposed that he did not consider Mr Grose a "trustworthy person or a suitable person to hold a position in a local government council". Mr Brooks deposed as to the following reasons as the basis for his opinion:
· the conduct the subject of the Investigation raises serious doubts about Mr Grose's honesty and integrity in his position as Overseer of the Landfill;
· Mr Grose's responses to the allegations made against him during the Investigation displayed an absence of any awareness of wrongdoing or contrition for his conduct, which I find completely unacceptable for a person occupying the role of Overseer;
· Mr Grose's alleged harassment of Mr Gatty during the Investigation is of particularly serious concern;
· I believe, based on Mr Grose's alleged harassment of Mr Gatty at the Landfill during the investigation, on Mr Gatty's stated suspicions and for reasons of timing, that Mr Grose may have played a role in the serious act of vandalism perpetrated on Mr Gatty's house on 17 December 2004;
· Mr Grose contacted the Mayor on or about 20 May 2005, and contacted Councillor Pittavino at around the same time, in breach of the Council's Code of Conduct. I believe that he did so to attempt to influence Council's decision to terminate his employment. Mr Grose's in my view "fairy tale" account, as set out in a statement made by Mr Grose on 5 July 2005, of meeting up with Mr Pittavino while having a picnic, demonstrates to me the continual misinformation portrayed by Mr Grose; and
· Mr Grose's employment history at Council was generally unsatisfactory and includes four reprimands for misconduct, including one for assault. I also believe he displayed an unsavoury influence over the staff under his supervision. There has been a marked improvement in staff attitude, morale and conduct since Mr Grose's departure."
279 Mr Yadav considered that if Mr Grose was reinstated it would "have a very negative effect on Council's operations", it would be a "backward step" as it could potentially cause more customer complaints against Council. He believed Mr Grose set a "poor example" for other Council staff. Re-instating someone who had broken the Code would also send the wrong message to other staff and have a negative effect on staff morale. he considered that the Landfill staff appeared to be "more positive and happy" since his termination.
280 Mr Rand maintained that he would be "quite happy" to have Mr Grose reinstated as his Overseer. He considered he had "done a good job" in running the Landfill. He was always trying to save Council money. If they were doing jobs requiring hiring contractors he would always try to get it done quicker to save money and when purchasing stuff he would go for the cheaper rather than dearer stuff. In his eyes he was always doing what was in the best interests of Council and trying to save them a dollar.
281 In response to Mr Brooks' claims, he refuted that Mr Grose had an influence over him whilst he was Overseer. He had never been approached by Mr Brooks or any other managers to discuss morale, attitude or conduct either before or after Mr Grose's termination. He would have no reservations in working with Mr Grose again.
282 Mr Penrith queried how Council "justified" that Mr Grose displayed an unsavoury influence over he and other Landfill staff or that there had been a marked improvement in attitude, morale and conduct since his termination. He found Mr Grose to be "fair " and a "good boss" who was respected by the staff. He went beyond his normal duties and would come in even on his days off to help out or when he was needed. He would have no objection to Mr Grose being his boss again.
Submissions for the Applicant
283 Mr Klower in his submissions took the Commission through the issues raised by Council in the Employers Reply filed on 21 June 2005 in response to the unfair dismissal application made on behalf of Mr Grose. Those issues summarised the Gatty allegations, Council's investigative process and procedures, the findings made against Mr Grose, the outcome, Council's view that there was a valid reason for the dismissal, that it was not unfair and that the applicant had ample opportunity to make out a defence or give an explanation.
284 Mr Klower based the format of his submissions on those issues.
285 He submitted that it was the complaints of Mr Gatty had initiated the issues yet he had said in cross examination that at no time had he made complaints of theft or attempted theft of either the gate or cars. He only wanted his gate back, didn't care about the cars in question and went to Council to ask where he stood about the issuing of receipts.
286 Mr Klower summarised the evidence about the gate and the two cars and in so doing submitted what could be concluded as a result.